Karnataka High Court
Mr Nikhil Chandrakanth Gowda vs Dental Council Of India on 23 August, 2018
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF AUGUST 2018
BEFORE
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
W.P.No.55631/2017(EDN-RES)
BETWEEN:
Mr. Nikhil Chandrakanth Gowda
S/o Chandrakanth Gowda
Aged about 19 years
Residing at: No. 633
K.R.Puram, 7th Cross
Near Shivappa Complex
Hassan - 573 201.
...PETITIONER
(By Sri. Nikhil S.K., Advocate)
AND:
1. Dental Council of India
Aiwan-E-Ghalib Marg
Kotla Road
New Delhi - 110 002
Rep. by its Secretary.
2. Rajiv Gandhi University of
Health Sciences
4th "T" Block,
Jayanagar
Bengaluru - 560 041
Rep. by its Registrar.
2
3. Director of Medical Education
Ananda Rao Circle
Bengaluru - 560 009
Rep. by its Director.
...RESPONDENTS
(By Sri. G.S. Bhat, Advocate for R1.
Sri. N.K. Ramesh, Advocate for R2.
Smt. Pramodhini Kishan, AGA for R3.)
This Writ Petition is filed under Articles 226 and
227 of the Constitution of India praying to quash the
communication dated 30.10.2017 vide Annex-E issued
by R-1 and etc.
This Writ Petition coming on for preliminary
hearing in 'B' group this day, the Court made the
following:
ORDER
Though this writ petition is listed for preliminary hearing in 'B' group, with the consent of learned counsel on both sides, it is heard finally.
2. Petitioner has assailed communication dated 30/10/2017 bearing No.DE-114-Misc.III-20171/2981 vide Annexure-E which has been issued by respondent 3 No.1- Dental Council of India, New Delhi. By the said communication, petitioner's application seeking migration from Government Dental College and Research Institute, VIMS, Cantonment, Bellary, to Government Dental College & Research Institute, Fort, Victoria Hospital Campus, Bengaluru, has not been acceded to and the same has been rejected. Being aggrieved by the same, petitioner has filed this writ petition.
3. It is the case of the petitioner that he is a student pursuing II year Bachelor of Dental Surgery ('BDS' for short) Course in Government Dental College and Research Institute, VIMS, Cantonment, Bellary, bearing Registration No. GDC & R1/VIMS/711/2017- 18 and he has secured Second Class. That petitioner is suffering from Irritable Bowel Syndrome (IBS) and he has been diagnosed for the same. That on account of frequent upset stomach, he is suffering from piles, 4 dehydration, dysentery, fever etc. Despite taking treatment from several hospitals, he has not been cured and that for the last couple of months he is taking treatment in Victoria Hospital, Bengaluru. According to the petitioner, IBS, is a disorder which affects large intestine and creates complications such as cramps abdominal pain, bloating, gas and diarrhea or constipation. Sometimes, IBS varies from person to person. On account of petitioner suffering from IBS, his weight has been reduced from 150 Kg to 70 Kg in a span of eight months. Copy of medical certificate dated 06/10/2017 is produced at Annexure-B to the writ petition. Petitioner has further averred that he is a native of Hassan District and is presently pursuing his BDS Course at Bellary and he is taking treatment at Victoria Hospital at Bengaluru. That becomes very difficult for him to attend his college at Bellary and travel to Bengaluru frequently for treatment. 5 Therefore, petitioner has sought migration from Government Dental College and Research Institute, VIMS, Cantonment, Bellary to Government Dental College & Research Institute, Fort, Victoria Hospital Campus, Bengaluru. Therefore, if the petitioner is granted migration to Government Dental College & Research Institute, Fort, Victoria Hospital Campus, Bengaluru, he could pursue his studies and also take treatment at Bengaluru. Therefore, petitioner made a request for 'No Objection Certificate' from Government Dental College and Research Institute, VIMS, Cantonment, Bellary on 17/10/2017, such a certificate has been issued vide Annexure-C. Thereafter, as per Annexure-D, 'No Objection Certificate' dated 08/11/2017 has been issued by the Dean cum Director, Government Dental College and Research Institute, Bengaluru. The said documents along with a representation were submitted to the first 6 respondent- Dental Council of India by father of the petitioner through e-mail dated 26/10/2017 seeking migration from Government Dental College and Research Institute, VIMS, Cantonment, Bellary to Government Dental College and Research Institute, Bengaluru. Petitioner addressed another e-mail to respondent No.3 - Director of Medical Education, Bengaluru on 27/10/2017. But respondent No.1 - Dental Council of India, by its communication dated 30/10/2017 has not acceded to the request made by the petitioner seeking migration as per Annexure-E. In the circumstances, the said rejection is assailed in this writ petition.
4. I have heard learned counsel for petitioner, learned standing counsel for respondent No.1 - Dental Council of India, learned Council for respondent No.2
- Health University, learned Additional Government 7 Advocate for respondent No.3 and perused the materials on record.
5. During the course of submission, reference has been made to the judgment of a learned Single Judge of this Court in the case of Miss Trishanti M.N v Dental Council of India and Others in W.P.No.52180/2017 dated 03/04/2018 in which this Court disapproved the endorsement issued by the Dental Council of India declaring the prayer sought for by the petitioner therein, seeking migration from one college to another college. The said order was carried in an appeal in W.A No.1435/2018 before a Division Bench of this Court, which has been dismissed vide order dated 09/07/2018 (Dental Council of India v. Miss Trishanti M.N).
6. In the circumstances, learned counsel for the respective parties submit that having regard to the 8 medical condition of the petitioner herein, the regulations concerning migration and the judgment of the Division Bench of this Court, appropriate order may be made in this writ petition.
7. Under the BDS Regulations pertaining to migration, migration is permissible on compassionate ground criteria namely, (i) Death of supporting guardian ii) Disturbed condition as declared by Government in the Dental College area.
8. In the case of Miss. Trishanthi M.N, a learned single Judge of this Court while considering the compassionate ground criteria interpreted the expression 'disturbed condition' by holding that the said expression is of wider import and cannot be restricted to one or two specified circumstances. The adverse health conditions of a candidate can also sometimes furnish a valid and reasonable ground for 9 seeking migration, depending upon the facts of each case.
9. In the aforesaid case, this Court noted that the said candidate was suffering from Cervical Spondylitis and advised bed rest and avoiding of travel and on that basis, permission was granted by this Court for migration by quashing the endorsement issued by the Dental Council of India therein. In Writ Appeal No.1435/2018 against the said order, the Division Bench has considered the two circumstances mentioned in Note 2 of the Regulations pertaining to migration and has observed as under;
" It needs hardly any emphasis to point out that apart from the two circumstances mentioned in the said Note 2, there could be several other imponderables, which may occur in the life of a candidate and for which, migration may have to be sought for, so as to continue with the studies in an appropriate manner. Extreme conditions of 10 illness and health problems could be one such eventuality. We do not propose to itemize various other conditions, which may ultimately be of handicap for a candidate to properly pursue the studies in one institution and which may reasonably be met by way of migration to an appropriate institution but the possibility of such eventualities cannot be ignored. The fact that there could still be other grounds than those mentioned in Note 2 finds indication in clause (iii) of Note 1, where the appellant-DCI has reserved the right not to entertain any application not falling under the prescribed compassionate ground. The said clause is at least indicative of the fact that there may be an application, which may not fall strictly under the enumerated grounds. The appellant, undoubtedly, carries the right not to entertain any such application but it inheres in such a right that the same would be exercised in a reasonable manner; and, it is not laid down as a rule of thump that 11 every such application which does not fall strictly under the enumerated grounds has to meet with denial alone, irrespective of the nature of ground for seeking migration.
The migration is allowed under the Regulation IV itself, of course, in exceptional cases, but on extreme compassionate ground. When such a
proposition is adopted for the reason of comparison towards the candidates, one would only be left to wonder if an extreme adverse medical condition of a candidate would not evoke compassion.
For what has been discussed hereinabove, with respect, we are unable to follow the decision of the Delhi High Court in Anhad Raj Singh case (supra) where the High Court has proceeded on the assumption that the circumstances stated in Note 2 of Regulation IV are the only grounds on which migration could be allowed and they restrict the discretion of DCI. In fact, the migration itself is permitted in exceptional cases on extreme 12 compassionate grounds. When it has not been specified in the Regulations that such extreme compassionate grounds are also limited to the circumstances mentioned in Note 2, we find no reason to read any such restriction in the matter of discretion of DCI".
On a reading of the same, it is noted that the criteria stated in Note 2 of the Regulation pertaining to migration they are not exhaustive, but are in the nature of illustration. In fact, the reason seeking migration would have to be considered in each case and the health condition of the candidate seeking migration, would be one of the reasons which would merit consideration of the case of the candidate by the Dental Council of India. But one has to take into consideration the nature of the illness and kind of treatment that is being taken by the candidate before 13 rejecting or accepting an application for seeking migration of the candidate on health grounds.
10. In the instant case, it is noted that the petitioner herein is suffering from IBS and he is taking treatment at Victoria hospital at Bengaluru. Therefore, petitioner has sought for migration from Government Dental College and Research Institute, VIMS, Cantonment, Bellary to Government Dental College and Research Institute, Bengaluru. In the circumstances, the respondent-Dental Council of India ought to have applied its mind to the reasons stated by the petitioner and his medical condition and the relevant decisions which have interpreted the expression compassionate ground criteria and thereafter accorded permission to the petitioner. Having regard to the dicta of a learned Single Judge of this Court as well the Division Bench of this Court in 14 the aforesaid matter, I am of the considered view that the writ petition has to be allowed.
11. Annexure-E/Communication dated 30/10/2017 issued by respondent No.1 - Dental Council of India is quashed. Respondent No.1 - Dental Council of India is directed to approve the migration of petitioner from Government Dental College and Research Institute, VIMS, Cantonment, Bellary, to Government Dental College and Research Institute, Fort, Victoria Hospital Campus, Bengaluru, forthwith.
12. On the approval being granted by respondent No.1, respondent Nos.2 and 3 shall take steps accordingly, so as to enable the petitioner to prosecute his third year BDS course in the Government Dental College and Research Institute Fort, Victoria Hospital Campus, Bengaluru. 15
13. In the circumstances, writ petition is allowed.
14. Since learned counsel for petitioner submits that respondent No.1 would require a copy of the order passed by this Court to approve the migration, operative portion shall be handed over to the learned counsel for petitioner and learned counsel for respondent No.1 forthwith.
Sd/-
JUDGE Msu