Bhaveshgiri Surajgiri Goswami vs State Of Gujarat & 7 on 16 June, 2015

[Cites 13, Cited by 0]

Gujarat High Court

Bhaveshgiri Surajgiri Goswami vs State Of Gujarat & 7 on 16 June, 2015

C/SCA/18062/2014 JUDGMENT (1) By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following relief(s): "(A) Your Lordships may be pleased to admit and allow this Special Civil Application. (B) Your Lordships may be pleased to hold and declare the action and inaction on the part of the respondent Medical Council of India in not entertaining the application of the petitioner dated 20.08.2014 (send on 21.08.2014) at Annexure'A' to the petition, for transferring him from Padma Shri Dr.D.Y.Patil Medical college, Pimpri, Pune, Maharashtra to NHL Municipal Medical College, Ahmedabad on account of his serious medical condition in the second year of MBBS is illegal, arbitrary against the fundamental rights of the petitioner, de hors the relevant Rules and Regulations framed under the Medical Council of India Act, 1956;

(BB) Your Lordships may be pleased to quash and set aside the communication/letter dated 14.01.2015 made by the Medical Council of India to the petitioner rejecting the case of petitioner for migration at Annexure'O' by holding the same to be illegal, arbitrary, without any application of mind and contrary to settled principles of law."

(C) Your Lordships may be pleased to hold and declare that the action of the respondent Medical Council of India in not entertaining the application of the petitioner dated 20.08.2014 at Annexure'A' and orally informing the petitioner the rejection of the same on the ground of delay is illegal, arbitrary, is malafide, is passed with extraneous reasons and considerations; (D) Your Lordships may be pleased to direct the respondent Medical Council of India to permit the petitioner to migrate from Padma Shri Dr.D.Y.Patil Medical College, Pimpri, Pune, Maharashtra to either NHL Municipal Medical College, Ahmedabad or Pramukh Swami Medical College, Karamsad in lieu of his application dated 20.08.2014 at Annexure'A' Page 2 of 36 C/SCA/18062/2014 JUDGMENT to this petition;

(E) Your Lordships may be pleased to hold and declare the action on the part of the respondent NHL Municipal Medical College, Ahmedabad in not entertaining the case of the petitioner for transfer despite giving No Objection Certificate dated 11.08.2014 is illegal, arbitrary, extraneous in nature and further be pleased to direct the respondent Dean of NHL Municipal Medical College, Ahmedabad to intake the petitioner to be transferred from Padma Shri Dr.D.Y.Patil Medical College, Pimpri, Pune, Maharashtra to complete his further MBBS studies.

(F) Pending admission, hearing and final disposal of this Special Civil Application, Your Lordships may be pleased to direct respondent Medical Council of India to permit the petitioner to migrate from Padma Shri Dr.D.Y.Patil Medical College, Pimpri, Pune, Maharashtra to either NHL Municipal Medical College, Ahmedabad or Pramukh Swami Medical College, Karamsad in lieu of his application dated 20.08.2014 at Annexure'A' to this petition.

G) Exparte adinterim relief in terms of prayer (F) above may kindly be granted. (H) Your Lordships may kindly be pleased to pass any other further order/s as are deemed fit, just and proper in the facts and circumstances of the case and in the interest of justice." (2) The following noteworthy facts emerge from the record of the petition: 2.1 The petitioner is a student of second year MBBS Course and studies at present, in Padma Shri Dr.D.Y.Patil Medical College, Pimpri, Pune, Maharashtra. The petitioner got admission to MBBS Course in the said college and was admitted on Page 3 of 36 C/SCA/18062/2014 JUDGMENT 29.06.2013. The petitioner after attending class for one year, passed first year of MBBS from the said college, result of which was declared on 02.08.2014. The petitioner thereafter made an application for migration from Padma Shri Dr.D.Y.Patil Medical College to NHL Municipal Medical College, Ahmedabad on 20.08.2014 in prescribed form to the Medical Council of India. The said application spells out the following vital facts:

(i) Date of admission in 1st MBBS Course : 29.06.2013.

(ii) Date of passing 1st MBBS University Exam :- 02.08.2014.

(iii)Reasons for migration in brief : Allergic reaction.

(iv) NOC from receiving college (date of issue) : NHL Municipal Medical College, date 11.08.2014.

(v) NOC from receiving university (date of issue) : Gujarat University, date 12.08.2014.

2.2 Record further reveals that the petitioner Page 4 of 36 C/SCA/18062/2014 JUDGMENT also filed an affidavit along with requisite fees. The Medical Council of India called for requisite medical certificate from recognized hospital of Maharashtra State by communication dated 09.09.2014. Thereafter, the petitioner got certificate from B.J. Government Medical College, as well as Sasson General Hospital, Pune dated 26.09.2014 and the same were submitted before the Medical Council of India. Thereafter, the petitioner was asked to obtain another certificate from proposed transferee college i.e. NHL Municipal Medical College showing that there are vacant seats available. The petitioner thereafter, vide communication dated 13.10.2014 informed the Medical Council of India that the petitioner has also obtained "No Objection Certificates" from Pramukh Swami Medical College, Karamsad and Sardar Patel University stating that the said colleges are ready and willing to accept him.

2.3 It is further the case of the petitioner that Page 5 of 36 C/SCA/18062/2014 JUDGMENT the petitioner had to pay the fees of (approx.) Rs.28,09,786/ with Padma Shri Dr.D.Y.Patil Medical College, Pune, as advance fees for 3rd Semester to 9th Semester. However, none of the authorities took decision and thus, there is a gross violation of fundamental right of the petitioner. It is further alleged that though the petitioner is having "No Objection Certificates", NHL Municipal Medical College, Ahmedabad closed its doors for the petitioner and such an action on part of NHL Municipal Medical College is arbitrary and discriminatory.

(3) It may be noted that the present petition is filed by the petitioner before this Court on 09.12.2014 and this Court (Coram:Hon'ble Mr.Justice K.M.Thaker) has passed the following order on 12.12.2014: "Heard Mr. Nirav R. Mishra, learned advocate for the petitioner.

Mr. Mishra, learned advocate for the petitioner submitted that [1] NHL Medical College, Ahmedabad [2] Gujarat University, Ahmedabad, [3] Dean, Pramukh Swami Medical College, Karamsad as well as [4] DPU Padmashree Dr. D.Y. Patil Medical College, Pune have issued `No Objection Certificate' in favour of the petitioner. Page 6 of 36

C/SCA/18062/2014 JUDGMENT NOTICE, returnable on 12.1.2015." (4) It further appears that while the petition was pending, the Medical Council of India decided the application for migration filed by the petitioner and was pleased to reject the same vide communication dated 14.01.2015, which has been challenged by the petitioner by way of amendment in this petition. It is further alleged by the petitioner that because of laxity on part of NHL Municipal Medical College, Ahmedabad in not informing the vacancy position to the Medical Council of India, the petitioner has suffered and such inaction on part of said college is arbitrary and malafide in nature. It is contended by the petitioner that the application for migration filed by the petitioner dated 20.08.2014 was well within the prescribed one month period in accordance to clause6(3) and 6(4) of the Medical Council of India Regulations on Graduate Medical Education, 1997 (hereinafter referred to as "the Regulations" for short) and Page 7 of 36 C/SCA/18062/2014 JUDGMENT therefore, the prayers, as prayed for, need to be granted.

(5) In response to the notice issued by this Court, the Medical Council of India has filed AffidavitinReply dated 23.01.2015 and has denied the contentions raised by the petitioner in this petition. The Medical Council of India has also filed additional affidavit pursuant to the orders dated 27.01.2015 and 29.01.2015, further affidavit dated 20.02.2015 as well as further additional affidavit dated 17.04.2015, explaining the provisions of Clause6 of the said Regulations, which pertain to migration and manner in which the application filed by the petitioner for migration as well as further requests for migration to other colleges, which were not applied for by the petitioner have been dealt with.

(6) The NHL Municipal Medical College has also filed an AffidavitinReply and has denied the Page 8 of 36 C/SCA/18062/2014 JUDGMENT contentions raised by the petitioner giving all minute details and decision taken by the Medical Council of India.

(7) The petitioner has also filed Affidavitin Rejoinder to the same denying the contentions raised by the respective respondents. (8) The State of Gujarat through Incharge R.M.O, Civil Hospital, Ahmedabad, has filed an AffidavitinReply as per the order passed by this Court dated 06.05.2015 explaining the certificate issued by B.J.Medical College and the basis of it.

(9) Heard Mr.R.K.Mishra, learned counsel for Mr.Nirav R. Mishra, learned advocate for the petitioner, Mr.Alpesh Bhatt, learned Assistant Government Pleader for respondent No.1State, Mrs.V.D.Nanavati, learned counsel for respondent No.2 Medical Council of India, Mr.Abhishek Mehta, learned counsel for M/s.Trivedi & Gupta, Advocates for respondent No.5NHL Municipal Page 9 of 36 C/SCA/18062/2014 JUDGMENT Medical College, Ahmedabad and Mr.P.A.Jadeja, learned counsel for respondent No.8Pramukh Swami Medical College, Karamsad. Though served, none appears for rest of the respondents. (10) Learned counsel for the petitioner has taken this Court through the factual matrix arising out of the record of the petition right from the date of admission of the petitioner to passing of the impugned communication dated 14.01.2015 by the Medical Council of India. It was contended that the NHL Municipal Medical College, Ahmedabad as well as Sardar Patel University granted "No Objection Certificates", which were duly sent to the Medical Council of India with the requisite form of migration filled up by the petitioner. It was contended that all the requisites called for by the Medical Council of India are complied with as well as "No Objection Certificates" and all compliances were made including payment of fees. It was contended that the petitioner came to be granted permission for migration by the Migration Page 10 of 36 C/SCA/18062/2014 JUDGMENT SubCommittee of the Medical Council of India on 08.10.2014 and therefore, the petitioner stands entitled to admission to NHL Municipal Medical College, Ahmedabad against migration seat in second year MBBS. It was further contended that when the said decision was taken by the Migration SubCommittee of the Medical Council of India on 08.10.2014, vacant seats were available in NHL Municipal Medical College and the petitioner came to know about the same vide communication dated 14.01.2015, whereby the request made by the petitioner came to be declined by the Medical Council of India and therefore, under Article 226 of the Constitution of India, this Court has ample power to direct the Medical Council of India to consider the case of the petitioner for migration from Padma Shri Dr.D.Y.Patil Medical College, Pune to Pramukh Swami Medical College, Karamsad, wherein seats are still vacant. Learned counsel for the petitioner further pointed out that the Migration SubCommittee of Medical Council of India allowed the migration of the Page 11 of 36 C/SCA/18062/2014 JUDGMENT petitioner as prayed for on 08.10.2014 and on the very said day, this Court has passed an order in SCA No.14006 of 2014 and by interim relief, directed that the merit list of the migration in the second year MBBS course, Medical College shall not be finalized. Learned counsel for the petitioner harpering upon the fact that on 12.12.2014, SCA No.14006 of 2014 came to be disposed of, which shows that the vacant seats were available at NHL Municipal Medical College, Ahmedabad, contended that the case of the petitioner should have been considered. Learned counsel for the petitioner also contended that the action of the respondent authorities, more particularly the Medical Council of India in declining the request made by the petitioner, is per se, arbitrary and unconstitutional, and the same deserves to be remedied by this Court in exercising its power under Article 226 of the Constitution of India.

(11) Learned counsel for the petitioner further Page 12 of 36 C/SCA/18062/2014 JUDGMENT contended that the petitioner suffers from Type1 severe Anaphylactic Allergy and therefore, his case should be considered even at this stage by the Medical Council of India for migration to Pramukh Swami Medical College, Karamsad if not to NHL Municipal Medical College, Ahmedabad. Even as per Mr.Mishra, learned counsel for the petitioner there is no vacant seat, now left with NHL Medical College. However, it was submitted by learned counsel for the petitioner that the application was filed for migration was from Padma Shri Dr.D.Y.Patil Medical College to NHL Municipal Medical College, Ahmedabad and "No Objection Certificates" of Pramukh Swami Medical College as well as Sardar Patel University were also sent by the petitioner vide communication dated 13.10.2014. It was further contended that Clause6 of the said Regulations does not prohibit migration, as prayed for, by the petitioner and therefore, if not for NHL Municipal Medical College, Ahmedabad, at least the case of the petitioner be considered for Page 13 of 36 C/SCA/18062/2014 JUDGMENT migration to Pramukh Swami Medical College, Karamsad. It was also contended that when the Migration SubCommittee of the Medical Council of India has already taken a decision, the Executive Committee could not have taken a contrary decision. In light of the aforesaid submissions, it was submitted that the petition deserves consideration and the same deserves to be allowed as prayed for.

(12) Per contra learned counsel for respondent No.2 - Medical Council of India has relied upon the AffidavitinReplies filed by the Medical Council of India and contended that MBBS degree Course is of duration of 4.5 years and migration is permissible only as provided under Clause6 of the said Regulations. Learned counsel for respondent No.2 relying upon the averments made in the AffidavitinReply, which is based on record of the Medical Council of India, contended that the application of the petitioner has been duly scrutinized and decision taken by the Page 14 of 36 C/SCA/18062/2014 JUDGMENT Medical Council of India, as communicated to the petitioner vide communication dated 14.01.2015 impugned in this petition, is legal and proper. It was contended that even in exercise of powers under Article 226 of the Constitution of India, this Court cannot give any extended meaning to the Regulations of the Medical Council of India and as such there is no application made by the petitioner for migration from Padma Shri Dr.D.Y.Patil Medical College, Pune to Pramukh Swami Medical College, Karamsad. Learned counsel for respondent No.2 submitted that as per clause 6 of the said Regulations, the application has been rightly declined by the Medical Council of India. It was further contended that the Medical course is integrated course of 4.5 years and as on date, one year of second year MBBS course has already passed and the petitioner has studied all throughout in Padma Shri Dr.D.Y.Patil Medical College, Pune and therefore, no interference is called for by this Court. It was contended hat the petition is merit less and the same deserves Page 15 of 36 C/SCA/18062/2014 JUDGMENT to be dismissed in limine.

(13) In addition to the above, learned counsel for respondent No.2 has relied upon the following judgments:

(i) Medical Council of India Vs. Diparani P. Deshmukh & Anr.

[(2009) 9 SCC 163];

(ii) Medical Council of India Vs. Sarang & Ors. [(2001) 8 SCC 427];

(iii) Medical Council of India Vs. Madhu Singh & Ors. [(2002) 7 SCC 258] And

(iv) State of Gujarat Vs. Brijkishore Garg [2000 (1) GLH 169].

(14) Learned counsel for respondent No.5 - NHL Municipal Medical College has adopted the arguments made by learned counsel for respondent No.2 and has contended that as stated in the AffidavitinReply filed by NHL Municipal Medical College, only because "No Objection Certificate"

is issued, the same would not be as good as admission by way of migration/transfer. As such the application filed by the petitioner was Page 16 of 36 C/SCA/18062/2014 JUDGMENT incomplete till 26.09.2014, which is evident from the letters dated 07.10.2014 as well as 13.10.2014. It was further contended that NHL Municipal Medical College has already undertaken the procedure to fill up the vacancies after issuance of advertisements and NHL Municipal Medical College had already responded the query raised by the Medical Council of India as regards the vacancy vide communication dated 01.10.2014, and on 01.10.2014, NHL Municipal Medical College had already taken decision to admit 8 students and the same was also communicated to the Medical Council of India. Therefore, the petition is misconceived and at this stage, no relief/s may be granted against NHL Municipal Medical College.

(15) Learned counsel for respondent No.8 - Pramukh Swami Medical College, Karamsad, contended that the petitioner was granted "No Objection Certificate" and therefore, if the Medical Council of India permits, they have no objection in admitting the petitioner. It was, however, Page 17 of 36 C/SCA/18062/2014 JUDGMENT fairly submitted that as per duration of MBBS course and Clause6 of the said Regulations relating to migration, the petitioner can be given admission only if the Medical Council of India permits it.

No other and further submissions are made by learned counsel for the respective parties. (16) Before considering the submissions made by learned counsel for the parties, it would be appropriate to note certain facts, which emerge from the documents that are annexed with the petition as well as the affidavits filed by the respective respondents :

(i) It may be noted that the petitioner filed an application in requisite form for migration from Padma Shri Dr.D.Y.Patil Medical College, Pune to NHL Municipal Medical College, Ahmedabad on 20.08.2014.

(ii) The said application is based on certificate issued by one Dr.Vishnu V. Zula, Sanjivani Hospital, Radhanpur dated Page 18 of 36 C/SCA/18062/2014 JUDGMENT 15.07.2014. It is further pertinent to note that the same also includes allergic report and the medical papers of the petitioner dated 22.11.2005 of Dr.Raj Bhagat of Ahmedabad.

(iii) The case of the petitioner is also based on the medical certificate issued by Medical Supdt., Civil Hospital, Ahmedabad dated 04.09.2014, which on perusal indicates that the same was signed by RMO. Similar certificate is also issued by Dr.Dinesh Chandana from V.S.General Hospital, Ahmedabad dated 05.09.2015. The petitioner has also placed on record a medical certificate dated 26.09.2014 issued by Medical Board of Maharashtra State, which says that "the petitioner was suffering from TypeI Hypersensitivity reaction". It further indicates that the same is based on allergic testing conducted on 22.11.2005 at the clinic of Dr.Raj Bhagat, Ahmedabad.

Page 19 of 36

C/SCA/18062/2014 JUDGMENT

(iv) By communication dated 13.10.2014, the petitioner approached the Secretary, Medical Council of India and declared that the NHL Municipal Medical College has filled up the seats, which was not proper and prayed for considering migration to Pramukh Swami Medical College, Karamsad along with "No Objection Certificates" of the said college as well as Sardar Patel University. The said communication also further indicates that the petitioner prayed for migration to AMC MET College, L.G.Hospital, Ahmedabad and has also declared that it is not a recognized institution.

The aforesaid documents are also produced by the Medical Council of India in its affidavit dated 04.02.2015. The aforesaid factual matrix therefore, indicates and establishes the fact that the petitioner claimed migration from Padma Shri Dr.D.Y.Patil Medical College, Pune to NHL Municipal Medical College, Ahmedabad on basis of Page 20 of 36 C/SCA/18062/2014 JUDGMENT allergic test, which was conducted on 22.11.2005. Even at the cost of repetition, it may be stated that the Maharashtra Medical Board has issued a certificate, wherein it is specifically averred that "the petitioner was suffering from the said disease and the allergic test was conducted on 22.11.2005".

(17) The respondentState in its Affidavit inReply has stated that the certificate was issued by B.J.Medical College on basis of the opinion expressed by Dr. Ms.Savita Jindal, Asst. Professor, Department of Pulmonary, Civil Hospital, Ahmedabad. The certificate issued by Medical Supdt. is perused, which is signed by R.M.O of Civil Hospital, Ahmedabad, it clearly recites that they have carefully examined the petitioner though the affidavit clearly bornes out the fact that RMO had no such occasion to examine the petitioner.

Clause (6) of the said Regulation provides as under: (1) Migration of students from one medcial Page 21 of 36 C/SCA/18062/2014 JUDGMENT college to another medical college in India shall be granted only in exceptional cases to the most deserving among the applicants for good and sufficient reasons and not on routine grounds. The number of students migrating to/from any one medical college shall be kept to the minimum which shall in any case not exeed the limit of 5% of its sanctioned intake in one academic year. There shall be no migration on any ground from one medical college to another located in the same city.

(2) Migration of students from one college to another is permissible only of both the colleges are recognized by the Central Government under section 11(2) of the Indian Medical Council Act, 1956 and further subject to the condition that it shall not result in increase in the sanctioned intake capacity for the academic year concerned in respect of the receiving medical college. (3) The applicant candidate shall be eligible to apply for migration only after qualifying in the first professional MBBS examiantion. Migration during clinical course of study shall not be allowed on any ground.

(4) For the purpose of migration, an applicant candidate shall first obtain "No Objection Certificate" from the college where he is studying for the present, the University to which it is affiliated to, the college to which migration is sought and the University to which that college is affiliated to. He shall submit his application for migration within a period of one month of passing (declaration of results) of the first professional MBBS examination alongwith the said "No Objection Certificate" to the Director, Medical Education of the State where the College/Institutions including Deemed Universities to which migration is sought is situated or to the Head of the Institution in case migration is sought to a Central Government institution. The Director, Medical Education of the State concerned or the Head of the Central Government institution, as the case may be, shall take a final decision in the matter as to whether or not to allow migration in accordance with the provisions of these Regulations and communicate the same to the applicant student within a period of one month from the date of receipt of the Page 22 of 36 C/SCA/18062/2014 JUDGMENT request for migration.

(5) A student who has joined another college on migration shall be eligible to appear in the IInd professional MBBS examination only after attaining the minimum attendance in that college in the subjects, lectures, seminars etc. required for appearing in the examination prescribed under Regulation 12(1).

Note1: The State Governments/Universities/Institutions may frame appropriate guidelines for grant of "No Objection Certificate" or migration, as the case may be, to the students subject to provisions of these regulations.

Note2: Any request for migration not covered under the provisions of these Regulations shall be referred to the Medical Council of India for consideration on individual merits by the Director (Medical Education) of the State or the Head of Central Government Institution concerned. The decision taken by the Council on such requests shall be final.

Note3: The College/Institutions shall send intimation to the Medical Council of India about the number of students admitted by them on migration within one month of their joining. It shall be open for the Council to undertake verification of the compliance of the provisions of the regulations governing migration by the colleges at any point of time."

The said Regulation clearly provides that a candidate after passing first year MBBS course has to apply for migration within one month. The fact indicates that the petitioner applied on 20.08.2014, which was admittedly within the limit prescribed under the said Regulations. However, Page 23 of 36 C/SCA/18062/2014 JUDGMENT the fact remains that the said application was for transfer from Padma Shri Dr.D.Y.Patil Medical College, Pune, to NHL Municipal Medical College, Ahmedabad and not to Pramukh Swami Medical College, Karamsad. The petitioner came out with such a request first time vide communication dated 13.10.2014, which is admittedly much after stipulated period. Clause6(3) of the said Regulations clearly provides that migration cannot be permitted during clinical course of study on any ground. Record clearly indicates and as brought on record by NHL Municipal Medical College that there is no vacant seats are available since 01.10.2014. Only because Sub Committee of Migration of the Medical Council of India considered the application of the petitioner on 08.10.2014, the same was not final decision of the Medical Council of India as clearly averred in its affidavit. The application of the petitioner was placed before the Executive Committee and after considering the same, the application has been dealt with as per the Page 24 of 36 C/SCA/18062/2014 JUDGMENT impugned communication dated 14.01.2015. The Medical Council of India is an expert body has its own Regulations and on bare reading of the impugned communication dated 14.01.2015, the same is found to be in accordance with the provisions of Clause6(3) and (4) of the said Regulations. Therefore, this Court in the writ jurisdiction under Article 226 of the Constitution of India cannot substitute the said decision taken in accordance with the Regulations.

(18) At this juncture, it would be appropriate to refer to the following judgments, which are relied upon by Mrs.V.D.Nanavati, learned counsel for respondent No.2 :

(i) Medical Council of India Vs. Diparani P.Deshmukh & Anr. [(2009) 9 SCC 163];

"3. The Regulation framed by the Medical Council of India pertaining to migration is Regulation 6. It inter alia provides that migration from one medical college to another is not a right of a student. It is only in exceptional cases on extreme compassionate grounds that migration can be allowed. Subclause (iii) of Note 1 in Regulation 6 stipulates that the Medical Council reserves the right not to entertain any application which is not under the prescribed Page 25 of 36 C/SCA/18062/2014 JUDGMENT compassionate grounds. Note 2 reads as follows:

"Note 2. Compassionate grounds criteria:

(i) Death of a supporting guardian.

(ii) Illness of the candidate causing disability.

(iii) Disturbed conditions as declared by Government in the medical college area."

4. As we read the said Regulation and Note 2 in particular, it is clear that the extreme compassionate grounds criteria contemplated by the said Regulation are only three, namely, death of a supporting guardian, illness of the candidate causing disability and lastly, disturbed conditions as declared by the Government in the medical college area. In Preeti Srivastava (Dr) V. state of M.P. This Court has held that these Regulations are mandatory."

(ii) Medical Council of India Vs. Sarang & Ors. [(2001) 8 SCC 427];

"In matters of academic standards, courts should not normally interfere or interpret the rules and such matters should be left to the experts in the field. This position has been made clear by this Court in The University of Mysore & Anr. vs. C.D.Govinda Rao & Anr., 1964 (4) SCR 575; State of Kerala vs. Kumari T.P.Roshana & Anr., 1979 (2) SCR 974 and Shirish Govind Prabhudesai vs. State of Maharashtra & Ors., 1993 (1) SCC 211.The object of the said regulation appears to be that although the course of study leading to IInd professional examination is common to all medical colleges, the sequence of coverage of subjects varies from college to college. Therefore, the requirement of 18 months of study in the college from which the student wants to appear in the examination is appropriately insisted upon. Migration is not normally allowed and has got to be given in exceptional circumstances. In the absence of such a stipulation as contained in Regulation 6(5), it is clear that the migrated student is likely to miss instruction and study in some of the subjects, which will ultimately affect his academic attainments. Therefore, the strained meaning given by the High Court, which actually changes the language of Regulation 6(5), is not Page 26 of 36 C/SCA/18062/2014 JUDGMENT permissible. Thus we disagree with the view taken by the High Court and state that the correct interpretation is as given by the Medical Council of India set forth above by us.

(iii)Medical Council of India Vs. Madhu Singh & Ors.

[(2002) 7 SCC 258] And ;

"There is, however, a necessity for specifically providing the time schedule for the course and fixing the period during which admissions can take place, making it clear that no admission can be granted after the scheduled date, which essentially should be the date for commencement of the course.

In conclusion:

(i) there is no scope for admitting students midtream as that would be against very spirit of statutes governing the medical education;

(ii) even if, seats are unfilled that cannot be a ground for making mid session admissions;

(iii) there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year;

(iv) the MCI shall ensure that the examining bodies fix a time schedule specifying the duration of this course, the date of commencement of the course and the last date for admission;

(v) different modalities for admission can be worked out and necessary steps like holding of examination if prescribed, counseling and the like have to be completed within the specified time;

(vi) no variation of the schedule so far as admissions are concerned shall be allowed;

(vii) in case of any deviation by the concerned institution, action as prescribed shall be taken by the MCI.

The High Court was obviously in error in directing midsession admission. The impugned order is, therefore, set aside. But as was earlier directed by this Court, the admission of respondent No.1 would not be affected by allowing the appeal."

(iv) State of Gujarat Vs. Brijkishore Garg [2000 Page 27 of 36 C/SCA/18062/2014 JUDGMENT (1) GLH 169] .

"We are in respectful agreement with the view expressed in the abovereferred to case. The task of laying down guidelines for admission to be effected is in the realm of a policy decision of the executive and as policy decision is not arbitrary, direction could not have been given to the authorities to consider case of the daughter of the respondent for admission in the year 1995 ignoring requirement of Rule 1 that a candidate must pass qualifying examination in the month of March/April of the current year or in October/November of the preceding year. To direct the authorities that requirement of passing qualifying examination by the student in the month March/April of the current year or October/November of the prceeding year should be ignored tantamounts to directing the authorities to commit breach of essential requirement of rule1. A Court while hearing petition under Article 226 of the Constitution cannot direct the authorities to commit breach of the rule and do a thing which is not contemplated by a rule. If such a direction is given, it is bound to result into chaos and those students who have not passed the qualifying examination in the month March/April of the current year or October/November of the preceding year, would also be entitled to seek admission to medical course contrary to rule. In a given case,the powers may be exercised by the authorities in an arbitrary manner if direction is issued by the Court to the authorities to ignore requirement relating to passing of qualifying examination in the month of March/April of the current year or October/November of the preceding year. Moreover, the purpose of requirement that a student should pass qualifying examination in the month of March/April of the current year or October/November of the preceding year is to maintain excellance in medical course. To maintain excellence in medical course, the medical colleges will have to be commenced on schedule and to be completed within the schedule so that students will have full opportunity to study full course to meet their excellence and come at par excellence. The direction given contrary to the eligibility criteria regarding Page 28 of 36 C/SCA/18062/2014 JUDGMENT passing of qualifying examination by a student in the month of March/April of the current year or October/November of the preceding year would result into admitting a student to the course in the midstream disturbing the course and also would work as handicap to the candidates themselves to achieve excellence. In case of State of U.P. and others vs. Dr. Anupam Guta etc. AIR 1992 S.C. 932, the Supreme Court has held that direction by the High Court to admit the candidates in the midstream is bad in law. If the interpretation put by the learned Single Judge is upheld, it would mean that a student would be entitled to admission to medical course in the midstream causing lot of inconvenience to all. In our opinion, a student, who has not passed qualifying examination in the month of March/April of the current year or October/November of the preceding year, cannot be admitted to medical course next year in view of clear and mandatory provisions of rule 1 of the Rules. Therefore, the finding recorded by the learned Single Judge to the effect that mention about the month "March/April of the current year or October/November of the preceding year" cannot be applied with vigour and case of the daughter of the respondent for admission for the year 199596, is erroneous and liable to be set aside."

(19) It is an admitted position that the petitioner has continued in the second year MBBS course and two semesters are also over by now. The contention raised by the petitioner is that the Migration SubCommittee vide its decision dated 08.10.2014 decided to allow migration of the petitioner as prayed for in the application filed by the petitioner does not create any right in favour of the petitioner and thereafter, the Page 29 of 36 C/SCA/18062/2014 JUDGMENT executive committee after due deliberation has declined the request made by the petitioner. The contention raised by the petitioner is that the Medical Council of India asked for further certificate from the Maharashtra State Board which was within the power of Medical Council of India as the migration is permissible only in exceptional cases and not as a matter of right. Though the petitioner contended before the Court that he was not aware about the fact that the NHL Municipal Medical college had filled in the seats till the impugned communication was received, is contrary to the communication of the petitioner himself dated 13.10.2014. The said communication clearly establishes the fact that the petitioner was aware as on 13.10.2014 itself that there is no vacancy in the NHL Municipal Medical College, Ahmedabad. Strictly speaking once there is no vacancy in the transferee college i.e. NHL Municipal Medical College, the application dated 20.08.2014 filed by the petitioner gets exhausted. The contention raised by the Page 30 of 36 C/SCA/18062/2014 JUDGMENT petitioner is that SCA No.14006 of 2014 was pending and stay was granted, which was totally different matter between different parties and admittedly the petitioner was not party to those proceedings. The NHL Municipal Medical College, Ahmedabad has stated on oath that the admission to second year MBBS course was given on 01.10.2014. In light of the aforesaid facts, stay granted in SCA No.14006 of 2014 by this Court does not and would not take the case of the petitioner any further.

(20) On plain reading of clause6(3) and 6(4) of the said Regulations, it clearly bornes out that the application for migration has to be within the period of one month from the date of passing of first year MBBS examination. Though there was no formal application for transfer to Pramukh Swami Medical College, Karamsad as well as AMC MET College at Ahmedabad, request made by the petitioner vide his communication dated 13.10.2014 has been examined by the Medical Page 31 of 36 C/SCA/18062/2014 JUDGMENT Council of India and has been rightly rejected by the impugned communication. It is a matter of fact, which bornes out from the record itself that the allergic test was conducted on 22.11.2005 and thereafter, till 2012, the petitioner had no complaint about the said disease i.e. allergy reaction, especially when he completed his studies upto 12th standard and when he got himself admitted in Padma Shri Dr.D.Y.Patil Medical College, Pune on 29.06.2013. In such a factual scenario, the petitioner cannot be permitted to insist for migration as a matter of right.

(21) As held by the Apex Court in the case of Medical Council of India Vs. Madhu Singh & Ors. as well as the Division Bench of this Court in the case of State of Gujarat Vs. Brijkishore Garg, this Court in exercise of powers under Article 226 of the Constitution of India cannot direct the Medical Council of India to permit midsession admission.

Page 32 of 36

        C/SCA/18062/2014                            JUDGMENT



 
(22)         Similarly, as held by the Apex Court in

the case of Medical Council of India Vs. Sarang & Ors., Regulations of the Medical Council of India are to be followed as it is and the same cannot be interpreted in a different manner. The Medical Council of India being an expert body had taken a decision as per the Regulations and no case is made out for interference of this Court in its extraordinary jurisdiction under Article 226 of the Constitution of India.

(23) This Court is not sitting in an appeal over the decision taken by the Medical Council of India as an expert body. The Medical Council of India in the meeting of the Executive Committee held on 20.11.2014 after due discussion and deliberation decided to disapprove the request made by the petitioner.

(24) On perusal of the stand taken by the Medical Council of India in the affidavits that are brought on record of this petition, it cannot be Page 33 of 36 C/SCA/18062/2014 JUDGMENT said that the decision taken by the Medical Council of India is without appreciating the provisions of the Regulations of the Medical Council of India and without proper procedure. In opinion of this Court, on the contrary even though there is no application of migration to Pramukh Swami Medical College, Karamsad, even such a request made by the petitioner has been considered by the Medical Council of India as per the Regulations. The contention raised by the petitioner that as the Migration SubCommittee of the Medical Council of India had decided in favour of the petitioner vide its decision dated 08.10.2014, the application of the petitioner stands allowed is misconceived and de hors the Regulations of the Medical Council of India. It needs to be noted that it was a decision of the Migration SubCommittee, whereas when the said decision was deliberated in the meeting of the Executive Committee and application of the petitioner was not accorded. There is no inherent right of the petitioner to insist for migration. Page 34 of 36

C/SCA/18062/2014 JUDGMENT Migration has to be as per the Regulations and the same cannot be claimed as a matter of right much less a statutory right.

(25) Considering the submissions made by learned counsel for the petitioner and on perusal of the stand taken by the respective respondents, no right much less any fundamental right is breached. As held by the Apex Court in the case of Medical Council of India Vs. Diparani P. Deshmukh & Anr., migration cannot be claimed as a matter of right of a student. Even while considering the present position as on date, the petitioner has already completed his two semesters i.e. one year in the second MBBS Course at Padma Shri Dr.D.Y.Patil Medical College, Pune and as this Court come to the conclusion that the decision taken by the Medical Council of India vide impugned communication dated 14.01.2015 is legal and proper, no interference is called for by this Court in its extraordinary jurisdiction under Article 226 of the Constitution of India. Page 35 of 36

C/SCA/18062/2014 JUDGMENT Even the alternative prayer made by learned counsel for the petitioner that the petitioner be permitted to migrate to Pramukh Swami Medical College, Karamsad and even though the said college has no objection for such migration, in opinion of this Court the same would amount to permitting midterm migration, which would be de hors clause6 of the said Regulations and not in consonance with the binding decisions of the Apex Court as well as the Division Bench of this Court.

For the foregoing, the petition fails and is hereby dismissed in limine. Notice is discharged. No costs.

(R.M.CHHAYA, J.) Suchit (P.S) Page 36 of 36

Unlock Advanced Research with PRISMAI

Gujarat High Court