Kerala High Court
Mary Louis Manavalan vs State Of Kerala on 31 January, 2003
Equivalent citations: AIR2003KER219, AIR 2003 KERALA 219, (2003) 1 KER LJ 467, (2003) 1 KER LT 609, (2003) 2 SCT 602, (2003) 6 SERVLR 107
Author: M. Ramachandran
Bench: M. Ramachandran
JUDGMENT Jawahar Lal Gupta, C.J.
1. Can the students of a Medical College claim that they have a right to be transferred to another College on the ground that the institution being new, the facilities are not adequate? This is the short question that arises in this bunch of cases.
2. The Co-operative Medical College, Gandhi Nagar, Kochi, started functioning in the year 2000. The petitioners were admitted to the MBBS course. They have a common complaint. It is alleged that the College does not have the necessary infrastructure. The facilities are not adequate. Thus, they pray for their transfer to the other Colleges. The claim in one of the cases for transfer to another Medical College has been considered and declined by the learned Single Judge. Hence, the Appeal and the connected petitions have been posted together for hearing. Since the basic issue is identical, these cases can be disposed of by a common order. The learned counsel for the petitioners have primarily referred to the factual position in O.P. No. 16142 of 2002. The sequence of events may be briefly noticed.
3. The petitioners belong to the first batch of students who were admitted in December, 2000. The Medical College has been set up and is being managed by the Cooperative Academy for Professional Education (Kerala), the eighth respondent, It is a Society. It was incorporated to carry out the administration and management of Professional Colleges in various disciplines like Engineering, Medicine and Management. The members of the Board of Governors of the Society are the Minister for Cooperation; the Secretary, Co-operation Department; the Registrar of Co-operative Societies; the Managing Director, Kerala State Co-operative Bank Limited; the Director of Technical Education; the Director of Medical Education; an expert in Technical Education (Non-official member) Dr. S. Unnikrishna Pillai, an expert in Medical Education and an Industrialist. The Chief Minister and other members signed the Articles of Association. On this basis, the petitioners maintain that the Society is owned and controlled by the Government.
4. Despite the members of the Society being highly influential, the facilities in the College did not prove to be adequate. Thus, the Government by its order dated March 17, 2001 granted permission to the College to use the facilities at the District Government Hospital, Ernakulam, for teaching purposes without disturbing the affairs of the hospital. This arrangement has continued since then with periodic modifications.
5. The petitioners took the first professional examination held in the year 2001. The result was declared on January 7, 2002. On January 15, 2002 the petitioners joined the classes for the second professional course. On June 14, 2002 the petitioners approached this Court through the present petition under Article 226 of the Constitution with the prayer that a writ of mandamus be issued "directing the respondents to transfer all students now undergoing 2nd MBBS course with the Co-operative Medical College, Kochi from the said College and allot them to Medical Colleges at Thiruvananthapuram..." and other Medical Colleges in the State of Kerala.
6. The petitioners allege that the Medical Council of India has periodically inspected the Medical College. Details regarding the dates of inspection and the deficiencies have been given. It has also been stated that on every occasion certain defects were pointed out. Despite that the Government has not taken any steps for their transfer to the other Colleges which have adequate facilities for medical education. Since the Government had failed to take action, the petitioners were constrained to approach this Court.
7. The respondents contest the petitioners' claim. Counter affidavits have been filed on behalf of different parties. The College as also the Co-operative Society have denied the allegations. Both of them maintain that the facilities are adequate. The Medical Council of India has filed a separate counter affidavit. It has highlighted the deficiencies noted during the course of inspections. It has been stated out that on account of the deficiencies, the Council had not recommended the grant of permission for admission of the second batch of students. However, it was overruled by the Central Government under Section 10-A(4) of the Medical Council of India Act, 1956. Resultantly, only 50 students were admitted despite the fact that initially the College had been granted permission to admit 100 students in the first batch. The Council maintains that the migration of students from one Medical College to another College is governed by Regulations. Thereunder, a student who is studying in an unrecognized Medical College is not entitled to be transferred to a recognized Medical College. Since the petitioners are the students of an unrecognized college, they cannot claim any right to be shifted or admitted to a recognized Medical College.
8. Broadly speaking, these are the pleadings of the parties.
9. The case has been periodically listed before different Benches of this Court. Certain interim directions had been given from time to time. On various occasions affidavits, additional affidavits and replies have been filed. Resultantly, the Paper Book has assumed a size of 389 pages. The number of pages in the additional affidavits/ documents etc., is also fairly sizeable. Despite the volume of the Paper Book, the issue, as already noticed, is short viz; - Do the students have a right to be transferred?
10. Mr. Radhakrishnan, learned counsel for the petitioners, has contended that the Regulations govern 'Migration.' The petitioners are not seeking migration. They are merely wanting to be transferred. The prayer has been made on account of the inadequacy of the facilities. Since the petitioners are merely seeking transfer, the Regulations made by the Medical Council of India are not applicable. The counsel has further submitted that the seats are available in various Medical Colleges in the State. The Government having certified that the facilities in the respondent-College were adequate by issuing an Essentiality Certificate, despite the inadequacy thereof, it is under an obligation to accommodate the petitioners in one or the other of the Medical Colleges in the State. Still further, with reference to the documents, produced as Exts. P8 and P9, it has been contended by the learned counsel that the seats are actually available in various Medical Colleges being run by the Government. On these premises, a claim for transfer from the present College to the other Colleges has been made.
11. The factual position in the other cases being similar, the-argument of the counsel for the petitioners in O.P. Nos. .19937 of 2002 and 28191 of 2001 is on the same lines. Mr. Radhakrishnan has adopted the same contentions in O.P. No. 20865 of 2002. In O.P. No. 1119 of 2003, the contention is slightly different. It has been submitted that the facilities in the respondent-College are not adequate, but shifting of the students may not be possible on account of the regulations of the Medical Council of India and other factors. However, in the interest of students; who had paid substantial amounts for their admission, viz., US $40,000 each, the Government should be held liable to take over the control of the College, put it on the rails, and then hand it over to the appropriate management for smooth running. On these premises, counsel for the petitioners have prayed for the grant of reliefs as mentioned above.
12. On behalf of the respondents, Mr. Dandapani, learned counsel for the College has controverted the claim as made by the petitioners. It has been pointed out that the facilities are adequate. Yet it was only to avoid any controversy that the facilities in the District Government Hospital have been provided. The petitioners have no cause for complaint. On behalf of the Medical Council of India Mr. George Poonthottam has submitted that there is no distinction between transfer and migration. In essence, a student shifts from an unrecognized College to a recognized college. Learned counsel for the respondents have submitted that according to the decisions of the Supreme Court, no migration in violation of statutory regulations is permissible. Thus, no case for the issue of a writ of mandamus is made out.
13. It is in the light of these submissions that the question as posed at the outset has to be considered.
14. Admittedly, the respondent-College had initially projected that it had a 300 bed hospital, which would be sufficient to meet the needs of the students. It is probably on the basis of this claim that the authorities had considered it appropriate to grant the Essentiality Certificate and permission for the starting of the Medical College.
Subsequent reports indicate that the number of beds in the hospital has come down from 300 to about 200. In view of this fact, permission for admission to the subsequent years has not been granted. Still further, a reference to the various communications, referred to by the learned counsel for the parties, indicates that there are certain inadequacies in the facilities. Yet, the question that arises is - Should the petitioners be ordered to be transferred to other Medical Colleges?
15. On a consideration of the matter, we find that the institution is in a stage of infancy. It is passing through certain teething troubles. These are merely the problems that every institution faces in the beginning.
16. Mr. Radhakrishnan submits that the career of a number of students is involved. It is undoubtedly so. However, if all the 150 students studying in the Medical College are ordered to be shifted to the other five Medical Colleges in the State, the result would be an addition of 30 students in each College. This would create problems in the other Colleges. An effort to help the petitioners may result in disturbing the educational facilities to the other students. It deserves to be mentioned that nothing has been pointed out to show that the infrastructure facilities that are available in the other colleges are sufficient to absorb the burden of additional students. In the absence of evidence, the prayer, if granted, would mean that the court is robbing one to pay the other. It would also lead to the virtual closure of the respondent medical college. This is an avoidable consequence.
17. The factual position apart, even legally we find it difficult to accept the petitioners' claim. Leaving aside technicalities, the fact remains that shifting of the students from one college to another, whether labelled as transfer or migration, would lead to the same result. In law and in fact, there will be no material difference in an order of migration or transfer. The end result shall be identical. Thus, we cannot accept the plea that the Regulation framed by the Medical Council regarding migration is not applicable to the present case
18. Still further, if the plea for shifting of students was accepted on the ground that the facilities are inadequate, a large number of students studying in various Government schools may claim that they should be shifted to Public Schools where facilities are available. Acceptance of the petitioners' prayer can have, serious consequences for the institutions and the managements concerned with the imparting of education. Thus, we find it difficult to hold that in every case where the facilities are alleged to be insufficient, the students have a right to claim that they be transferred to another institution.
19. Still further, Mr. George Poonthottam, learned counsel for the Medical Council of India, has submitted that the students do not have a right to be transferred from one institution to another, merely because the facilities are inadequate. In fact the migration of students is governed by Regulations. These are called "Regulations on Graduate Medical Education, 1997". Under regulation 6, it has been inter alia provided as under:
"6. Migration :
i. Migration from one medical college to other is not a right of a student. However, migration of students from one medical college to another medical college in India may be considered by the Medical Council of India only in exceptional cases on extreme compassionate grounds, provided following criteria are fulfilled. Routine migrations on other grounds shall not be allowed.
ii. Both the colleges, i.e. one at which the student is studying at present and one to which migration is sought, are recognised by the Medical Council of India.
iii. The applicant candidate should have passed first professional MBBS examination.
iv. The applicant candidate submits his application for migration, complete in all respects, to all authorities concerned within a period of one month of passing (declaration of results) the first professional Bachelor of Medicine and Bachelor of Surgery (MBBS) examination.
v. The applicant candidate must submit an affidavit stating that he/she will pursue 18 months of prescribed study before appearing at IInd professional Bachelor of medicine and Bachelor of Surgery (MBBS) examination at the transferee medical college, which should be duly certified by the Registrar of the concerned University in which he/she is seeking transfer. The transfer will be applicable only after receipt of the affidavit.
Note 1: (i) Migration during clinical course of study shall not be allowed on any ground."
A perusal of the above extract of Regulation 6 shows that migration is not a right. It is not a rule. The Medical Council of India can permit migration only in 'exceptional' cases. Even in those cases, the permission can be granted "on extreme compassionate grounds." Still further, before the Council permits migration on the ground of compassion, stringent conditions have to be fulfilled. The first condition is that the College in which the student is studying should be a recognized institution. It should have been recognised by the Medical Council of India. Secondly, the application has to be submitted within a period of one month of the declaration of results of the first professional examination. Thirdly, the applicant has to submit an affidavit stating that he will pursue 18 months of prescribed study before appearing for the second professional examination. Still further, a Note is there which provides that migration during the 'clinical' course of study shall not be allowed on any ground.
20. The petitioners do not fulfil these conditions. In any case, it is the admitted case that the petitioners in O.P. No. 16142 of 2002 are undergoing the clinical part of their study. The regulations specifically prohibit migration in such a situation. This being the position, the claim of the petitioners cannot be sustained. The respondents cannot be directed to transfer the petitioners. The court cannot issue a writ of mandamus in violation of the regulations.
21. Not only on principle, but even on precedent, we find that the claims as made by the petitioners cannot be sustained. As pointed out by the counsel for the respondents, their Lordships of the Supreme Court have found fault with the action of authorities in permitting transfer of students even on compassionate grounds. Reference may be made to the decision of their Lordships of the Supreme Court in The State of Punjab and Ors. v. Renuka Singla and Ors. (JT 1993 (6) SC 524). It was inter alia observed by their Lordships that "it cannot be disputed that technical education, including medical education, requires infrastructure to cope with the requirement of giving proper education to the students, who are admitted. Taking into consideration the infra-structure, equipment, staff, the limit of the number of admissions is fixed either by the Medical Council of India or Dental Council of India. The High Court cannot disturb that balance between the capacity of the institution and number of admissions, on 'compassionate ground'. The High Court should be conscious of the fact that in this process they are affecting the education of the students who have already been admitted, against the fixed seats, after a very tough competitive examination." Thus, even on the ground of compassion the Court is not free to issue a writ of mandamus.
Still further, in Shirish Govind Prabhudesai v. State of Maharashtra ((1993) 1 SCC 211) it was inter alia observed that "the recommendations on Graduate Medical Education are by an expert body of the Medical Council of India which is entrusted with certain statutory functions relating to medical education by the Indian Medical Council Act, 1956. The Medical Council of India having chosen to accept these recommendations, such a condition of eligibility for migration/transfer from one medical college to another adopted by the recognized medical colleges cannot be termed unreasonable or arbitrary." Thus, "the condition of eligibility for migration/transfer to a recognized medical college permitting only students of recognized medical colleges" was held to be fair and reasonable. Their Lordships were further pleased to hold that "there being .
no inherent right in a student admitted to a non-recognised medical college to claim such migration/transfer, this restriction for migration/transfer imposed by the recognised medical colleges on the basis of the recommendations adopted by the Medical Council of India, there is no foundation for the claim for such migration/transfer made by the students of non-recognised medical colleges." Thus, even the claim that there is some distinction between migration and transfer has been rejected.
22. In view of the above authoritative pronouncement by the Apex Court, the distinction between migration and transfer, as sought to be made by the learned counsel, cannot be accepted. Equally, the claim for transfer from a non-recognised college to a recognised college cannot be allowed.
23. Mr. Radhakrishnan pointed out that their Lordships of the Supreme Court had permitted transfer of students in the case of Union of India v. All India Children C. & E.D. Society, Azamgarh (2002 AIR SCW 1153). He has also made reference to the decision in Asheesh Pratap Singh and Ors. v. M. Sachdeva and Ors. (JT 2002 (10) SC 511).
The factual position in these cases was peculiar. Students had been admitted. They had passed the first professional examination. They were studying for the second professional. They were informed that the Medical Council of India will consider the transfer of the students. Certain colleges had reported that there were vacant seats. The Director General of Medical Education had proposed that the students be accommodated. Subsequently, the college came to be closed. In paragraph 6 of the judgment, their Lordships noticed the fact regarding the closure of the college. In this situation, a direction was given by their Lordships. In paragraph 7, it was mentioned that it was in view of the 'special facts' of the case that the direction was being given. We have not found those special facts in the present set of cases.
24. Learned counsel for the petitioners have pointed out the actual inadequacy of the available facilities. Thus, different suggestions have been made. In this context, it may be noticed that different Benches have made continuous efforts to help the students. On January 9, 2003 a Bench of this Court had directed the Government to find out whether it can accommodate the students of the Co-operative Medical College in the five colleges available in the State or "make adequate facilities available for clinical studies etc., by handing over the administration of the District Government Hospital at Ernakulam to the College so that adequate facilities for Clinical Education and accommodation are available."
25. In pursuance to the directions issued by this Court, the matter was considered by the Government in a meeting held on January 24, 2003. The Chief Minister, the Ministers for Health, Co-operation, Welfare of Backward/Scheduled Communities and some Members of the Legislative Assembly had met and discussed. It was found that the sanctioned strength of students, who can be admitted to various Medical Colleges being limited, it was not possible to accommodate the petitioners and others students in the Government colleges. Even the difficulty of permitting migration under the Regulations of the Medical Council of India was noticed. With regard to the alternative suggestion of handing over of the District Government Hospital, it was noticed that the expansion projects at a cost of Rs. 16 crores provided by the Government of India are going on. In this situation, handing over of the complete College was difficult. However, to avoid any hardship to the students, it was stated that some time back, five wards having a total of 209 beds were temporarily transferred to the Medical College. Other facilities such as the services of 57 paramedical staff of the General Hospital were also made available. Besides these facilities, it was further stated that "the entire ground floor of the Pay Ward in General Hospital, Ernakulam was allotted to CAPE for converting and modifying the same into an Operation Theatre, Labour Room and ICU." The students were also permitted to see the patients in the wards of the General Hospital. Still further, in pursuance to the directions issued by this Court, the Government had agreed to provide all facilities available in the Govt. Hospital, Ernakulam to the Cooperative Medical College for the clinical education of their students for a period of 18 months from today. The Out Patient Department and Casuality Services were permitted to be fully handled by the Medical College for a minimum of 2 days in a week.
26. On a consideration of the matter, we find that the attitude of the Government has been fair and reasonable. It has tried to help the students as well as the College. We cannot find any fault. Thus, not even a ground for interference.
27. The facilities, as proposed by the Government, should be adequate. Still further, it is clarified that in case the College or the students experience any difficulty, they may approach the Government with a representation and we have no doubt that it will be examined on the basis of the factual position.
28. Mr. Radhakrishnan contended that there are vacancies at the various medical colleges in the State. He referred to the documents produced as Exts. P8 and P9. With reference to Ext. P8, it was contended by the learned counsel that 58 vacancies exist. The petitioners can be admitted against these seats.
29. The figures do not reveal the position as projected by the Counsel. What actually appears is that 300 students had appeared in the professional examination. Only 242 had passed. On this basis, it was contended that 58 seats are available for the second professional course. The learned counsel had missed to note the fact that out of those who had appeared for the second professional examination, some students had also failed. The number has not been disclosed. They shall have to be accommodated. Thus, it cannot be said that 58 vacancies are available for the students in the second professional course being run by the medical colleges in the State.
30. Mr. Radhakrishnan submitted that the facilities are poor. The Government is obliged to provide proper facilities- On the other hand, it has been pointed out by the counsel for the respondents that the petitioners are paying less than 10% of the total cost by way of fee, Their merit was low. They have no cause to complain. We do not think that it is necessary to go into the question of fee. However, it deserves notice that the petitioners were admitted to the college on the basis of their position in the merit list and after they had exercised the option. Now, they should not crib. The plea of the respondents shows that there is no injustice so as to call for interference.
31. Mr. P. Gopalakrishnan Nair, learned counsel for the petitioner in O.P. No. 1119 of 2003, contended that the Government should be directed to take over the Medical College, as had been done in the case of the T.D. Medical College, Alappuzha. He has pointed out that the petitioners in O.P. No. 1119/2003 were admitted against the seats reserved for the NRIs. Each one of them has paid 40,000 US Dollars by way of fee. A substantial amount of money having been paid, the petitioners are entitled to a reasonable standard of education.
32. The counsel is right. The petitioners are entitled to be provided requisite facilities. But it has to be borne in mind that all the problems cannot be solved overnight.
We hope and trust that the arrangements, as proposed by the Government shall work. In case of deficiency, adequate remedial measure shall be adopted. We have no doubt that the Medical Council of India shall keep in view the facts while considering the case of the Institution for the grant of recognition. With some co-operation, the institution may be able to get out of its teething troubles.
33. Before parting with the case, we may notice that the appellants in Writ Appeal No. 1839 of 2002 had made a claim for transfer but the plea was rejected. In this appeal, Mr. Radhakrishnan has adopted the arguments as have been raised in O.P. No. 16142 of 2002. We have found that the contention cannot be accepted. Thus, no further consideration is necessary.
34. Mr. K.P. Dandapani, learned counsel for the respondent Society and the College has stated before us that the Society has funds. It has also taken loan of Rs. 44 crores. The workers have been engaged for three shifts. They are working round the clock. The work will be completed at the earliest possible. In any case, the building shall be completed within 18 months from today and steps for functioning of the College in the new premises shall be taken. The Society and the College shall be bound by the undertaking given by them.
35. No other point has been raised,
36. In view of the above, it is held that in the circumstances of these cases, there is no distinction between Transfer and Migration. The plea of the petitioners for transfer on the ground of inadequacy of facilities is not tenable. In view of the reasons given above, we find no ground for interference. Resultantly, the writ petitions and the appeal are dismissed. The parties are left to bear their own costs.