Karnataka High Court
Bibi Ayisha D/O A.Ganjihal vs Union Of India Rep. By Its Secretary & Ors on 12 September, 2012
Author: Aravind Kumar
Bench: Aravind Kumar
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH, GULBARGA
DATED THIS THE 12TH DAY OF SEPTEMBER, 2012
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
WRIT PETITION No.83790/2012 (EDN-RES)
BETWEEN:
Bibi Ayisha
D/o A.Ganjihal
Aged 20 years,
Occ: Student
II Phase, B.A.M.S.
Dr.Basavaraj Nagur Medical
College Bijapur,
R/o: College Hostel,
Bijapur - 586 101. ..PETITIONER
(BY SRI.P.S.PATIL, ADVOCATE)
AND:
1. The Union of India
Represented by its
Secretary to the Govt.
Ministry of Health and
Family Welfare,
Department of Ayurvedic,
Yoga and Naturopathy, Unani,
Siddha and Homeopathy (Ayush),
IRCS Building,
2
New Delhi - 110001.
2. The State of Karnataka
By its Secretary to Government
Medical Education,
Department of Health and
Family Welfare, Education,
M.S.Building,
Bangalore - 560 001.
3. Rajiv Gandhi University of
Health Science
Represented by its
Registrar,
4th 1st Block, Jayanagar,
Bangalore - 02.
4. The C.C.I.M
New Delhi 630 001,
By its Secretary
5. Dr.Basavaraj Nagur Memorial
Rural Ayurvedic Medical College
And Hospital,
Smt.Sushila Devi Nagar Colony,
Bijapur
Rep. By its Principal
Ramesh,
S/o Ningappa Gennur,
Aged 51 years,
Occ: Principal
Bijapur - 586 101. ...RESPONDENTS
(BY SRI.R.S.SIDHAPURKAR, ADVOCATE FOR R-1,
SRI.MALLIKARJUN SAHUKAR, HCGP FOR R-2,
SRI.VEERESH B.PATIL, ADVOCATE FOR R-3,
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SRI.SANGANAGOUDA V.BIRADAR, ADVOCATE FOR R-
5. R-4 DELETED VIDE ORDER DATED 06.09.2012)
THIS WRIT PETITION IS FILED UNDER ARTICLES
226 & 227 OF CONSTITUTION OF INDIA PRAYING TO
ISSUE WRIT IN THE NATURE OF MANDAMUS
DIRECTING THE FIRST RESPONDENT TO TRANSFER
THE PETITIONER FROM THE 4TH RESPONDENT
COLLEGE TO SOME OTHER RECOGNIZED COLLEGE
WHICH OFFERING B.A.M.S COURSE BY THE 1ST AND
3RD RESPONDENTS TO CONTINUE HER STUDY IN 2ND
PHASE B.A.M.S. COURSE ETC.
THIS WRIT PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
Petitioner is a student of 2nd year B.A.M.S course pursuing her education in 5th respondent-college and seeks for relief of mandamus and other direction namely to transfer her from 5th respondent-college to any other college which is recognised by respondents 2 and 3.
2. Petitioner joined 5th respondent-college in the academic year 2009-10 for B.A.M.S course to pursue her career which course is for a period of four years and 4 term of each phase being 1 ½ years plus one year of internship which would be totally 5 ½ years. At the time of admission, admission fee of `25,000/- has been paid by petitioner. Thereafter petitioner is said to have paid fees for the entire period of her education which is not admitted by 5th respondent -institution. It is contended by petitioner she was under the bonafide belief that 5th respondent is recognized by respondents 2 and 3 and as such she got admitted to 5th respondent -college and neither the petitioner nor her father were aware of the fact that 5th respondent is unrecognized by respondents 2, 3 and 4 and only on refusal by first respondent to grant permission to 5th respondent - college vide order dated 30.11.2010 petitioner became aware of the fact that 5th respondent-college is unrecognized. Petitioner also contends that she came to know that 5th respondent-college had approached this court challenging the order dated 30.11.2010 Annexure-B in W.P.80559/2011 which came to be dismissed on 5 28.11.2011. On account of 5th respondent-college being unrecognized and functioning without recognition from the academic year 2008-09 she seeks for transfer to any other college and in support of her submission she relies upon the judgment of this court in W.P.Nos.14627/2012, & 14781-14817/2012 C/w W.P.Nos.82089-93/2012 & 82096-82100/2012 dated 15.06.2012 whereunder students studying in 5th respondent-college in second phase of B.A.M.S course were ordered to be transferred to other colleges by this court. Copy of the said order is annexed to the petition as Annexure-E.
3. It is to be noticed that in W.P.80559/2011 filed by management and the college, an interim order was passed on 08.04.2011, staying the order impugned in the writ petition, i.e., the one issued by the Union of India on 30.11.2010, declining to grant permission to the College and to make admissions to BAMS Course 6 with 50 intake capacity. Petitioners and other students of the College were permitted, by an order dated 21.10.2011, passed on I.A.3/11, to appear for PG and UG examinations scheduled to be held in the months of November and December, 2011. The writ petitions (supra), filed by the College-Management and the Council were dismissed by a common order passed on 28.11.2011. The prayer for transfer of students to other Colleges was not granted, on the ground that the students were not before the Court. In the said order, it was made clear as follows:
"Therefore, it is made clear that the dismissal of the writ petitions shall have no bearing on the interim order made by this Court on 21.10.2011 which in fact was made bearing in mind the interests of students".
4. As already observed herein above the grievance of the petitioner is that on the bonafide belief that respondent college is recognized college, admission was 7 taken by her in the academic year 2009-10 and in view of the order passed by first respondent dated 30.11.2010 not granting permission/refusing to grant permission to 5th respondent-college petitioner is now left in the lurch and she is unable to pursue her career in education namely complete her course in B.A.M.S and as such direction is sought for.
5. Sri.Veeresh B.Patil, learned advocate appearing for the University, having taken instructions from the Authority of the University, submitted that the University is prepared to allot admission to the petitioner in the College wherever there is vacancy in the II Phase BAMS Course. In view of the stand taken by the University, there appears to be no complication or difficulty in granting the request of the petitioner for her allotment/transfer to any other approved College/s in the State, offering BAMS Course.
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6. It is also submitted by Sri.Veeresh Patil that writ petition filed by the management in W.P.Nos.80559/2011 and 81276/2011 came to be rejected by order dated 28.11.2011 along with other connected matters and being aggrieved by the said order, the Central Council for Indian Medicine had filed writ appeal and he submits in the said appeal a direction has been given to the University to accommodate all the students to the present 5th respondent college or any other college and university have also given liberty to seek for enhancement of seats if there is any shortage. In view of the observations made by the Division Bench as submitted by learned counsel for the University the said observations can be made use of by the University even in respect of present claim relating to petitioner if the situation so demands.
7. The learned counsel though has contended that entire fees for 4 ½ years has been paid, same 9 cannot be gone into by this court which is a disputed question of fact particularly when learned advocates dispute this fact and as such petitioner has to work out her remedies in accordance with law in appropriate forum.
8. In view of the interim order passed in W.P.80559/2011 and other connected matters I am of the considered view that prayer sought for by writ petitioner deserves to be allowed. Hence the following order:
ORDER
1. Writ petition is hereby allowed.
2. Third respondent -University is directed to transfer the petitioner from Dr.Basavaraj Nagur Memorial Rural Ayurvedic Medical College and Hospital i.e.,5th respondent herein to any other recognized college/s in the State offering B.A.M.S to enable the petitioner to continue her course in B.A.M.S. 10
3. 5th respondent-college is directed to issue `No Objection Certificate' and return the testimonials/original certificates collected from the petitioner at the time of her admission to 2nd phase of B.A.M.S course.
4. No order as to costs.
Ordered accordingly.
Sd/-
JUDGE SBN