Supreme Court - Daily Orders
Lipika Gupta vs U.O.I on 3 November, 2014
Bench: Dipak Misra, Uday Umesh Lalit
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IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
INTERLOCUTORY APPLICATION NOS. 27-28 OF 2014
IN
WRIT PETITION(CIVIL) NO. 737 OF 2013
LIPIKA GUPTA & ANR Petitioner(s)
VERSUS
U.O.I & ORS Respondent(s)
IN THE MATTER OF :
MS. ILLHAAM ASHRAF Applicant(s)
VERSUS
MEDICAL COUNCIL OF INDIA & ORS. Respondent(s)
O R D E R
By Interlocutory Application No. 27 of 2014,
the following prayers have been made:-
“(a) Allow the present I.A. and thereby direct the
Medical Council of India to clarify its Regulation
relating to migration as the same has been followed
in a particular manner in all the States except in
the State of Karnataka and further hold that the MCI
Regulation being uniform has to be followed by the
State of Karnataka and the MCI should not maintain
silence under the guise that a schedule has been
fixed for admission by this Hon'ble Court by virtue
of order dated 19.05.2014 passed in W.P. (C) No. 737
of 2013 although it has nothing to do with
migration; and
Signature Not Verified
Digitally signed by
Rajesh Dham
Date: 2014.11.05
(b) Pass such further or other order or orders as
16:22:49 IST
Reason: may be deemed fit and proper in the facts and
circumstances of the case and in the interest of
justice.”
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It is submitted by Mr. Dilip Annasaheb Taur,
learned counsel for the applicant, that the present
application has been filed as the Medical Council of
India on the basis of the schedule fixed by this
Court has not expressed any opinion to the letter
issued by the Directorate of Medical Education,
Karnataka as a result of which the applicant has been
deprived of the benefit of the migration.
Mr. Gaurav Sharma, learned counsel appearing
for the Medical Council of India, submitted that
migration has nothing to do with the fixation of the
schedule and migration is permissible in law.
To get the things clear, we thought it apt to
deal with the said issue.
It is not in dispute that the Regulations on
Graduate Medical Education, 1997 (for short,
'Regulations') have been framed in exercise of power
conferred under Section 33 of the Medical Council of
India Act, 1956. Regulation 6, as amended on
20.10.2008, reads as follows:-
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“6. Migration.
(1) Migration of students from one medical college to
another medical college may be granted on any genuine
ground subject to the availability of vacancy in the
college where migration is sought and fulfilling the
other requirements laid down in the Regulations.
Migration would be restricted to 5% of the sanctioned
intake of the college during the year. No migration
will be permitted on any ground from one medical
college to another located within the same city.
(2) Migration of students from one College to another
is permissible only if both the colleges are
recognised 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 examination. 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 and the university to which that
college is affiliated and also from the college to
which the migration is sought and the university to
it that college is affiliated. He/She shall submit
his application for migration within a period of 1
month of passing (Declaration of result of the 1 st
Professional MBBS examination) alongwith the above
cited four “No Objection Certificates” to :(a) the
Director of Medical Education of the State, if
migration is sought from one college to another
within the same State or (b) the Medical Council of
India, if the migration is sought from one college to
another located outside the State.
(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).
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Note-1: 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.
Note -2: 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.
Note -3 : 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
to the Council to undertake verification of the
compliance of the provisions of the regulations
governing migration by the Colleges at any point of
time.”
Thereafter, on 22.12.2008, there was a further
amendment to the Regulations. Regulation 6(1) of the
Regulations as modified reads as follows:-
“6(1) Migration of students from one medical college
to another medical college may be granted on any
genuine ground subject to the availability of vacancy
in the college where migration is sought and
fulfilling the other requirements laid down in the
Regulations. Migration would be restricted to 5% of
the sanctioned intake of the college during the year.
No migration will be permitted on any ground from one
medical college to another located within the same
city.”
Clause 6(4) of the Regulations, as modified,
provides as follows:-
“6(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 and the university to which that
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college is affiliated and also from the college to
which the migration is sought and the university to
it that college is affiliated. He/She shall submit
his application for migration within a period of 1
month of passing (Declaration of result of the 1 st
Professional MBBS examination) alongwith the above
cited four “No Objection Certificates” to :(a) the
Director of Medical Education of the State, if
migration is sought from one college to another
within the same State or (b) the Medical Council of
India, if the migration is sought from one college to
anther located outside the State.”
The State of Karnataka, till last year, had
been following the Regulations in a different manner.
As far as this year is concerned, a Government order
was issued on 22.09.2014. On 30.09.2014, the State
of Karnataka issued a Government Order, as a
consequence of which the process of migration got
stalled. Suffice it to say at this juncture, on
09.10.2014 the Directorate of Medical Education
communicated to the Secretary, Medical Council of
India seeking clarification as regards Clause 6.
After reproducing Clause 6, the Directorate of
Medical Education stated thus:-
“In the State of Karnataka, all medical
colleges/institutions have reported admission of
complete strength of sanctioned intake for the year
2013-14.
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Following admission of complete strength of students
during 1st MBBS, there will not be any vacancy during 2 nd
year MBBS.
As it was also opined that – The students who fail
to qualify 1st MBBS examination should be treated as a
part of the same batch, so that the strength of the
whole institution will remain stable and meets clause
6(2) of regulations.
However, after the successful completion of 1st
MBBS examination, till this day Thirty Four (34)
students have requested for migration transfer to other
institutions within our state. (List enclosed)
Your specific clarification is requested, If any of
the students fail to qualify the Ist MBBS examination,
whether these seats of failed students should be treated
as vacant for the purpose of allowing migration transfer
or not.
The matter may kindly be treated as most urgent and
it is requested to send the clarification to this
Directorate at the earliest.”
The said communication though not replied to
by the Medical Council of India, its stand is very
clear that there can be migration upto a particular
percentage on certain conditions and the MCI
Regulations are binding on the States and all the
States are bound to follow a uniform pattern.
Presents to the grievance of the applicant.
The applicant, who is studying at Basaveshwara
Medical College and Hospital, Chitradurga, was
admitted during 2013-2014 under the Government
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quota. She had applied for “No Objection Certificate”
for being considered for transfer to Bangalore
Medical Council & Research Institute, Bangalore.
Be it stated, both the institutions, namely,
Basaveshwara Medical College and Hospital and
Bangalore Medical Council & Research Institute, have
been recognised by the Medical Council of India and
are affiliated to the Rajiv Gandhi University of
Health Sciences.
Basaveshwara Medical College and Hospital
granted “No Objection Certificate” but the same was
not considered by the Bangalore Medical Council &
Research Institute because of the letter of
clarification issued by the Directorate of Medical
Education, State of Karnataka on the basis of the
Government Notifications.
The thrust of the matter is : What precisely
Regulation 6 conveys and its effect.
Learned counsel for the applicant has referred
to the judgment of the High Court of Bombay. The
High Court of Bombay in Writ Petition (Civil) No.
3086 of 2011 dated 31.08.2012 had interpreted the
Regulations regarding migration as follows:-
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“11. The regulations which have been framed by the MCI
are in exercise of the power conferred by section 33 of
the Act of 1966. These regulations have been framed in
pursuance of the overriding statutory power of MCI to
supervise medical education and prescribe standards of
education. The regulations framed by MCI have
statutory force and are binding. In the regulations, as
originally framed, MCI had sought to define
compassionate criteria. Subsequently in the first
amendment of 20 October 2008, MCI made it clear that
migration should be granted only in exceptional cases
to the most deserving among the applicants for good and
sufficient reasons and not on routine grounds. By the
subsequent amendment of 22 December, 2008, it has been
provided that a migration from one medical college to
another may be granted on genuine grounds subject to
the availability of the vacancies. A ceiling on
migrations has been imposed of 5% of the intake
capacity of the receiving college. The State
Government is permitted by the regulations, as amended
in 2008, to frame appropriate guidelines for the grant
of no objection certificates for migration but those
guidelines have to be consistent with the guidelines
framed by MCI.”
On a scrutiny of the letter written by the
Directo of Medical Education, Karnataka, it is
absolutely limpid that he has misconstrued clause 6.
Clause 6 of the Regulations, as we find, conveys
imposition of certain conditions, namely, there
should be vacancy in the college where migration is
sought and migration has to be restricted to 5% of
the sanctioned intake of the college during the year
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and no migration will be permitted on any ground from
one medical college to another located within the
same city. The disqualification which is found place
in Clause 6 does not apply to the applicant herein.
The question is whether the vacancy had occurred.
The Directorate of Medical Science has noted
that the students who fail to qualify 1 st MBBS
examination should be treated as a part of the same
batch, so that the strength of the whole institution
remains stable and meets the requirement of clause
6(2) of regulations.
On a query being made, Mr. Gaurav Sharma,
learned counsel for the Medical Council of India,
submitted that when the students fail, they do not
remain as students of the same batch and, in fact,
they go to the supplementary batch. Further, the
learned counsel for the Medical Council of India
submitted that the 5% of the total intake capacity
has to be filled up with utmost seriousness and there
cannot be quarrel over the same. To elaborate, if the
intake capacity is 250 and 27 students fail, as
submitted by the learned counsel for the applicant,
5% would come to 13. Therefore, there are
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13 vacancies available for migration. Figures will be
different if the intake capacity is more. Learned
counsel would submit that the actual intake capacity
is 250. This is basic arithmetics.
This being the position, the applicant is
entitled in law to apply for migration to the
Bangalore Medical Council & Research Institute,
Bangalore and, accordingly, we permit her and the
other students to apply within a period of two weeks
hence. The applications shall be considered
accordingly as per Medical Council of India
Regulations as interpreted by us. It should be
treated as an extension of period by this Court for
the purpose of migration. This Court hopes and trusts
that the respondent State shall take an attitude of
sympathy and empathy and not a negative attitude or
an attitude of obstinancy. No authority of the State
Government even remotely think to overreach the
orders of this Court and religiously follow the
command. The decision shall be taken within four
weeks from the date of receipt of the applications.
The State of Karnataka shall file a report before
this Court within four weeks hence.
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Let the Interlocutory Applications be listed
on December 1, 2014.
The Writ Petition pending before the High
Court shall be deemed to have been disposed of as we
have passed the order and fixed another date for
compliance.
.............................J.
(DIPAK MISRA)
NEW DELHI; .............................J.
NOVEMBER 3, 2014. (UDAY UMESH LALIT)
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ITEM NO.57 COURT NO.5 SECTION X
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
I.A. Nos. 27-28/2014 in Writ Petition(s)(Civil) No(s). 737/2013
LIPIKA GUPTA & ANR Petitioner(s)
VERSUS
U.O.I & ORS Respondent(s)
IN THE MATTER OF :
MS. ILLHAAM ASHRAF Applicant(s)
VERSUS
MEDICAL COUNCIL OF INDIA & ORS. Respondent(s)
(for clarification/modification of Court's order dated 19.05.2014
and exemption from filing O.T. and office report)
Date : 03/11/2014 These applications were called on for hearing
today.
CORAM :
HON'BLE MR. JUSTICE DIPAK MISRA
HON'BLE MR. JUSTICE UDAY UMESH LALIT
For Petitioner(s)
Mr. Vikas Mehta,Adv.
For Respondent(s) Mr. V.N. Raghupathy, Adv.
Mr. Parikshit P. Angad, Adv.
Mr. Irshad Ahmad, A.A.G.
Mr. Abhisth Kumar,Adv.
Ms. Archana Singh, Adv.
Mr. Somraj Choudhury, Adv.
Mr. Ramesh Babu M. R.,Adv.
M/s Corporate Law Group
Mr. Ajay Choudhary,Adv.
Mr. Rameshwar Prasad Goyal,Adv.
Mr. C. D. Singh,Adv.
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Mr. Amit Kumar,Adv.
Mr. Aniruddha P. Mayee,Adv.
Mr. Charudatta Mahindrakar, Adv.
Mr. A. Selvin Raja, Adv.
Ms. Ruchi Kohli,Adv.
Mr. Mishra Saurabh,Adv.
Mr. Gaurav Sharma,Adv.
Mr. Prateek Bhatia, Adv.
Ms. Amandeep Kaur, Adv.
Mr. T. Sighdev, Adv.
Mr. Harsh Vardhan Surana,Adv.
Mr. Sarad Kumar Singhania,Adv.
Mr. Tara Chandra Sharma, Adv.
Ms. Neelam Sharma, Adv.
Mr. Anip Sachthey, Adv.
Mr. Saakaar Sardana, Adv.
Ms. Pragati Neekhra, Adv.
Mr. Sunny Choudhary, Adv.
Ms. Mishra Saurabh, Adv.
Mr. Kuldip Singh, Adv.
Mr. V.G. Pragasam, Adv.
Mr. C.J. Aristotle, Adv.
Mr. Manjit Singh, A.A.G.
Ms. Nupur Choudhary, Adv.
Mr. Kamal Mohan Gupta, Adv.
Ms. Pinky Anand, A.S.G.
Mr. R.K. Rathore, Adv.
Ms. Rekha Pandey, Adv.
Mr. S.S. Rawat, Adv.
For Applicant(s) Mr. Dilip Annasaheb Taur, Adv.
UPON hearing the counsel the Court made the following
O R D E R
In terms of the signed order, let the 14 Interlocutory Applications be listed on December 1, 2014.
(RAJESH DHAM) (H.S. PARASHER) COURT MASTER COURT MASTER (signed order is placed on the file)