Andhra HC (Pre-Telangana)
Dr. P. Jyothi And Another vs Registrar, Ntr University Of Health ... on 2 March, 2000
Equivalent citations: 2000(2)ALD730, 2000(2)ALT547
ORDER
1. The NTR University of Health Sciences conducted PG Medical Entrance Test in accordance with Section 3 of the A.P. Educational Institutions (Regulation of Admissions and Prohibition of Capitation Fee) Act, 1983 ('the Act' for brevity) and the Rules framed by the Government in exercise of the powers under Sections 15 and 3 of the Act. These Rules made in G.O. Ms. No.260, Health, Medical and Family Welfare (E2), dated 10-7-1997 are called Andhra Pradesh Colleges (Admission into Postgraduate Medical Courses) Rules, 1997 ('the Rules' for brevity).
2. The 1st petitioner appeared for the PG Entrance Test and she was admitted in two years PG Diploma course in Gynecology and Obstetrics in the 2nd respondent-College. She completed all the formalities and executed a bond as required under the Rules in November, 1999. The 2nd petitioner also appeared for PG Medical Entrance Test and could secure a seat in PG Diploma in the same subject. She also completed the formalities and executed the bond in November, 1999. It is to be noticed that the 1st petitioner is an in service candidate and she is working as Civil Assistant Surgeon for the last half a decade in Primary Health Centres. She is a resident of Warangal and her family of husband and the two children are residents of Warangal. Therefore, during the time of selections she opted for a medical seat in the 3rd respondent-College which she could not get. She alleges that the authorities assured her that they would consider and recommend her case for transfer from Osmania Medical College to Kakatiya Medical College in due course of lime.
3. The 2nd petitioner is a resident of Hyderabad. But she was allotted a seat in PG Diploma in gynecology and Obstetrics in Kakatiya Medical College. The petitioners were allotted to Nilofer Hospital at Hyderabad and Government Maternity Hospital, Hanamkonda in Warangal respectively. As the 2nd petitioner was willing to come to Hyderabad for completing the PG Diploma course, petitioners 1 and 2 approached the 2nd respondent as well as the 1st respondent seeking mutual transfer and according to the petitioners, respondents 1 and 2 refused to take the application jointly given by them. Therefore, a representation dated 6-12-1999 addressed to the Registrar of the 1st respondent-University was sent by registered post acknowledgment due through the Principal of the Osmania Medical College. It is not denied that the Principal of the Osmania Medical College has received it but he has not forwarded the same to the University. As the 1st respondent has not passed any orders either accepting or rejecting the request for mutual transfer, the petitioners are before this Court. They seek a declaration that the action of the 1st respondent in not accepting the application of the petitioners for mutual transfer is illegal and arbitrary and for a consequential direction to consider the applications in accordance with law.
4. Mr. K.G.K. Prasad, learned Standing Counsel for the NTR University for Health Sciences book notice at the time of admission. A counter-affidavit is filed by the 1st respondent. The conspectus of the counter-affidavit is to the following effect:
The medical education is under the supervising and superintending powers of the Medical Council of India constituted under the Medical Council of India Act, 1956 ('the MCI Act' for brevity). Under Sections 10-A, 20 and 33 of the MCI Act, the Medical Council of India is competent to lay down the standards of medical education in India. Accordingly, in January, 1992 the Medical Council of India has adopted various instructions/guidelines to be followed by all the Universities and Colleges imparting medical education. One such recommendation adopted in January', 1992 specifically prohibits mutual transfers or transfers during the course of training either for Super Speciality Course or PG Degree course or PG Diploma course. Therefore, the application of the petitioners for mutual transfer cannot be considered. It is also further averred that the Executive Council of the 1st respondent has taken a decision before issuing a notification for PG Entrance Test 1999-2000 not to permit transfers or mutual transfers and accordingly, Regulation 15 which was earlier incorporated in the 'Instructions to Candidates' was deleted. This according to the University is in accordance with the dicta of the Supreme Court in Medical Council of India v. Stale of Karnataka, . The Registrar of the University who filed the counter-affidavit has also taken a stand that the decision of the academic body like the University is a policy decision which does not call for review by this Court.
5. Sri P. Balamukund Rao, learned Counsel for the petitioners would submit that the Medical Council of India has not so far made any Regulations prohibiting transfers. Therefore, the Rules made by the Government alone hold the field and required to be enforced by all the authorities concerned. Alternatively, he submits that even if the recommendation of the Medical Council of India is binding on the University, what is prohibited is migration/transfer of students during the period of training and as per Rule 14 of the Rules issued in G.O. Ms. No.549, dated 6-12-1983, what was prohibited was a transfer after completion of one year course and therefore, the University had been entertaining applications for transfers by PG Medical students and considering the request on their own merits. The learned Counsel also relied on Rule 15 of the Rules and submits that the transfers or mutual transfers are not totally prohibited by the Rules governing admission into PG Medical courses and therefore, a discretion is vested in the University and the University should be compelled to exercise the discretion though no right is vested in a PG Medical student to claim transfer as a matter of right.
6. Mr. K.G.K. Prasad, learned Standing Counsel for the NTR University ofHcalth Sciences submits that till the academic year 1998-99, the Prospectus Regulations which are adoptation of the statutory Rules made by the Government in exercise of powers under Section 3 read with Section 15 of the Act, provided for making applications for transfers or mutual transfers within a period of one month from the date of closure of admissions and as the University Executive Council resolved to delete Regulation 15 of the Prospectus Regulations, the petitioners' request cannot be considered. In other words, he would submit that Rule 15 of the Rules should be ignored. It is also the submission of the learned Standing Counsel that in view of the judgment of the Supreme Court in Karnataka's case (supra), even non-regulatory/non-statutory instructions framed or resolved by the Medical Council of India are binding on all the institutions of medical education if those recommendations touch upon the standards of medical education. It is also the submission that the Principal of the Osmania Medical College has not forwarded the joint application of the petitioners and that the 1st petitioner never represented to the University though a seat in PG Diploma (DGO) was vacant at her turn at the Kakatiya Medical College.
7. Having regard to the pleadings and rival contentions, the points that arise for consideration are :
(a) Whether the recommendations adopted by the Medical Council of India are binding on the NTR University of Health Sciences ?
(b) Whether Rule 15 of the Rules is binding and enforceable ?
(c) To what relief? Points (a) and (b) :
Till the decision of the Supreme Court in Preethi Shrivastav v. State of Madhya Pradesh, , three judgments of the Supreme Court took the view that the Regulations framed by the Medical Council of India either under Section 20 or under Section 23 of the MCI Act are only recommendatory in nature and they are not binding. However, in Shrivastav's case, the three earlier judgments of the Supreme Court were over turned and a Constitution Bench by a majority of 4:1 categorically held that all the regulations touching upon the standards of medical education are binding on the Universities and Institutions imparting medical education.
8. The question for consideration is whether the recommendations of the Medical Council of India made in January, 1992 are also binding on all the Universities. The recommendations in question deal with the structure, content, method and manner of medical education in super specialities in PG courses and Diploma courses. These recommendations also deal with admission of PG Examiners for various medical education examinations. Para V-B of the recommendations deal with period of training. Insofar as it is relevant for the purpose of this case, from the year 1983 onwards the minimum period of training for obtaining diploma shall be two calendar years and no exemption shall be given from this period of training.
9. Para V-B(4) deals with migration/ transfer of PG students from one college to another. This recommendation says that migration/transfer of students undergoing PG Degree/Diploma course shall not be permissible during the period of training prescribed for the course. A plain reading of the relevant recommendations leaves no doubt that a student of PG diploma during the period of two years training, for obtaining diploma is not permitted to seek migration/transfer from one medical college to another. Therefore, on this question, the submission made by Sri P. Balamukund Rao, learned Counsel that before completion of one year training a transfer can be sought, is liable to be rejected.
10. There is no denial of fact that the recommendations touching upon the structure and contents of the courses of the medical education are not regulations. The regulations, if made, either under Section 10-A or under sub-section (2) of Section 20 or under Section 33 of the MCI Act are no doubt binding on the University. By their very nature and nomenclature, they are only "recommendations" which require to be considered by the appropriate rule making authority. This should be kept in mind while dealing with the purport of Rule 15 of the Rules.
11. The Act 5 of 1983 is an Act which covers the field of admission to all the 'educational institutions' in the State of Andhra Pradesh and also provides for prohibition of capitation fee. This Act has been upheld by a Full Bench of this Court in Kranth Sangram Parishad v. N.J. Reddy, 1993 (3) ALT 99. The decision of the Full Bench of this Court was affirmed by a Constitution Bench of the Supreme Court in Unni Krishnan v. State of A.P., .
12. This is only to say that by virtue of Section 12 of the Act, the Act applies notwithstanding anything inconsistent in any other law for the time being in force. The recommendations made by the Medical Council of India cannot, by any stretch of imagination, be treated as law for the purpose of the Act, especially Section 12 of the Act. The rules now holding the field were made, as already noticed, in exercise of powers under sub-section (1) of Section 3 read with Section 15 of the Act. The Rules were made in 1997 very much after 1992 recommendations. Hence inference can be drawn that rule making authority was aware of 1992 recommendations but still chose to make Rule 15. These PG admission rules govern the PG medical admissions and bind the University. That the University of Health Sciences cannot make any Regulations or Prospectus Regulations contrary to the Rules is no more res Integra (see Dileep Damodaran v. Secretary to Government, Education Department, Hyderabad, ). The University was adopting these Rules as Prospectus Regulations and printing them as 'Instructions to Candidates' along with application forms for admissions. In view of this, the resolution of the Executive Council of the 1st respondent deleting Regulation 15 of Prospectus Regulations cannot obliterate Rule 15 or render the same otiose. It should therefore be held that Rule 15, which deals with mutual transfers or transfers, should be allowed to have its play.
Rule 15 of the Rules reads as under :
"Mutual transfers or transfers : -- Mutual transfers or transfers against clear vacancies in the same subject as that of the applicant from one college to another shall not ordinarily be permitted and if permitted in exceptional circumstances they shall be at the discretion of the University. The candidates shall apply through proper channel after closure of admissions. The transfers shall not be permitted beyond one month from the date of closure of admission. No transfer shall be claimed as a matter of right."
The analysis of the rule leads to the following :
(i) No PG medical student can claim transfer or mutual transfer as a matter of right.
(ii) Mutual transfers or transfers shall not ordinarily be permitted by the University.
(iii) Even if they are permitted they shall be in exceptional circumstances at the discretion of the University.
(iv) A PG student seeking transfer/mutual transfer shall have to apply through proper channel after closure of the admissions.
(v) In any event, no transfer shall be permitted beyond one month after the date of closure of admissions and a duty is cast on the University to exercise the discretion and permit mutual transfer or transfer in exceptional circumstances.
13. There is some controversy as to when the admissions are closed. The averments in the affidavit disclose that the 1st petitioner was selected on 9-10-1999 and the 2nd petitioner was selected on 13-11-1999. Selection of a candidate is not closure of admissions.
14. As per Rule 11 of the Rules, the dates of admission of selected candidates will be the dates as communicated to them in the letter of selection and as per sub-rule (ii) of Rule 11 every candidate has to execute a bond on a non-judicial stamp paper for the period of training in an amount of Rs.20,000/-. Rule 11 also provides for attendance, leave, maternity leave, private practice, accommodation, fees, stipends etc.
15. Rule 12 of the Rules provides that 'the admissions shall be closed one month after commencement of course'. It is not denied by the learned Counsel that the PG Diploma course in the Osmania Medical College and the Kakatiya Medical College commenced in the last week of November, 1999. In any event, no material is produced before me either by the petitioners or by the University to say that the classes commenced earlier to that. As per Rule 12 of the Rules, the admissions shall be deemed to have been closed in the last week of December, 1999. The petitioners sent a communication by a registered post addressed to the Registrar of the 1st respondent-University on 6-12-1999. The same was received by the Principal. Therefore, I have to hold that the joint application made by the petitioners was made within time in accordance with Rule 15 read with Rule 12 of the Rules.
16. When a rule provides that no specific right is conferred on a person claiming benefit, it only means that a duty is cast on the authority, especially when the rule confers discretion. Therefore, a duty is now cast on the 1st respondent to consider and dispose of the application of the petitioners in accordance with Rule 15 of the Rules.
17. The term 'exceptional circumstances' I is not defined in the Rules. An exceptional circumstance that could be visualised is when a particular teacher is transferred to other medical college and a student who is in the process of completing the course seeks a transfer so that the teacher-pupil relationship is maintained till the course is completed. If the standards of medical education could be maintained by any transfer that could be exceptional circumstance warranting the exercise of discretion by the University in favour of the students seeking transfer. Similarly, if any action of any authority is in furtherance of the enjoyment of human right by student, it shall be exceptional circumstance. After the inauguration of the Protection of Human Rights Act, 1993, all the rights under the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights are to be treated as Human Rights. Indeed the definition of 'human right' in the said Act says so. It is the human right of every woman to have a peaceful family life with husband and children. All the same no authority can deny the right of a woman to get emancipated by proper specialised education. It is the case of the 1st petitioner that her husband and two children are in Warangal and therefore, if she is allowed to complete her PG Diploma course at Nilofer Hospital, Hyderabad, it would result in denying human rights of the 1st petitioner. From this point of view, in my considered opinion, if an application is made by two women PG students seeking mutual transfer, it is certainly an exceptional circumstance so that the University can allow the women to complete their PG medical education in peace while enjoying the family life which is certainty human right. While making these observations, this Court is aware of its powers that it is the discretion vested in the University which ought to be exercised having regard to the exceptional circumstances. Therefore, at this stage no directions in favour of the petitioners can be passed. It is for the Vice-Chancellor or any other authority to pass appropriate orders.
18. Having regard to the facts and circumstances of this case, Rule 15 as well as the recommendations of the Medical Council of India, I deem it proper to direct the 1st respondent to consider the joint application or representation dated 6-12-1999 made by the petitioners before the closure of admissions in accordance with the observations made herein above and pass necessary orders within a period of two weeks from today. If the 2nd respondent has not forwarded the representation dated 6-12-1999 to the Registrar of the 1st respondent-University, it shall be forwarded forthwith. The petitioners are also at liberty to send a copy of the same directly to the Vice-Chancellor of the 1st respondent-University immediately.
19. The writ petition is accordingly disposed of with costs quantified at Rs.2,000/- to be paid by the 1st respondent-University.