[CASE NUMBER] IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 18062 of 2014 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE [ENTITY] 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the [ACT] or any order made thereunder ? [ENTITY] Petitioner(s) Versus [ENTITY] & 7 Respondent(s) Appearance: MR [ENTITY], ADVOCATE FOR MR [ENTITY], ADVOCATE for the Petitioner(s) No. 1 MR [ENTITY], AGP for the Respondent(s) No. 1 MR [ENTITY], ADVOCATE FOR M/S TRIVEDI & GUPTA, ADVOCATE for the Respondent(s) No. 5 MR [ENTITY], ADVOCATE for the Respondent(s) No. 8 MRS [ENTITY], ADVOCATE for the Respondent(s) No. 2 NOTICE SERVED for the Respondent(s) No. 1 , 3 - 4 , 6 - 7 CORAM: HONOURABLE MR.JUSTICE [ENTITY] DATE : 16/06/2015 [ENTITY]
[CASE NUMBER] (1) Bywayofthispetition[SECTION]of the [ACT], the petitioner has prayedforthefollowingrelief(s): "(A) Your Lordships may be pleased to admit and allowthisSpecialCivilApplication. (B) Your Lordships may be pleased to hold and declaretheactionandinactiononthepartofthe 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'tothepetition,fortransferringhim from [ENTITY] Dr.D.Y.Patil Medical college, Pimpri,Pune,MaharashtratoNHLMunicipalMedical College, Ahmedabad on account of his serious medical condition in the second year of MBBS is illegal,arbitraryagainstthefundamentalrights ofthepetitioner,dehorstherelevantRulesand Regulations framed under the [ACT]
(BB) Your Lordships may be pleased to quash and set aside the communication/letter dated 14.01.2015madebytheMedicalCouncilofIndiato the petitioner rejecting the case of petitioner formigrationatAnnexure'O'byholdingthesame tobeillegal,arbitrary,withoutanyapplication of mind and contrary to settled principles of law."
(C) Your Lordships may be pleased to hold and declarethattheactionoftherespondentMedical Council of India in not entertaining the applicationofthepetitionerdated20.08.2014at Annexure'A' and orally informing the petitioner therejectionofthesameonthegroundofdelay isillegal,arbitrary,ismalafide,ispassedwith extraneousreasonsandconsiderations; (D) YourLordshipsmaybepleasedtodirectthe respondentMedicalCouncilofIndiatopermitthe petitionertomigratefromPadmaShriDr.D.Y.Patil Medical College, Pimpri, Pune, Maharashtra to eitherNHLMunicipalMedicalCollege,Ahmedabador PramukhSwamiMedicalCollege,Karamsadinlieuof his application dated 20.08.2014 at Annexure'A' [CASE NUMBER] tothispetition;
(E) Your Lordships may be pleased to hold and declaretheactiononthepartoftherespondent NHL Municipal Medical College, Ahmedabad in not entertaining the case of the petitioner for transfer despite giving No Objection Certificate dated11.08.2014isillegal,arbitrary,extraneous in nature and further be pleased to direct the respondentDeanofNHLMunicipalMedicalCollege, Ahmedabad to intake the petitioner to be transferred from [ENTITY] Dr.D.Y.Patil Medical College,Pimpri,Pune,Maharashtratocompletehis furtherMBBSstudies.
(F) Pending admission, hearing and final disposal of this Special Civil Application, Your Lordships may be pleased to direct respondent MedicalCouncilofIndiatopermitthepetitioner to migrate from [ENTITY] Dr.D.Y.Patil Medical College, Pimpri, Pune, Maharashtra to either NHL Municipal Medical College, Ahmedabad or [ENTITY], Karamsad in lieu of his application dated 20.08.2014 at Annexure'A' to thispetition.
G) Exparte adinterim relief in terms of prayer(F)abovemaykindlybegranted. (H) YourLordshipsmaykindlybepleasedtopass anyotherfurtherorder/sasaredeemedfit,just andproperinthefactsandcircumstancesofthe caseandintheinterestofjustice." (2) The following noteworthy facts emerge from therecordofthepetition: 2.1 Thepetitionerisastudentofsecondyear MBBSCourseandstudiesatpresent,inPadmaShri Dr.D.Y.Patil Medical College, Pimpri, Pune, Maharashtra.ThepetitionergotadmissiontoMBBS Course in the said college and was admitted on [CASE NUMBER] 29.06.2013.Thepetitionerafterattendingclass foroneyear,passedfirstyearofMBBSfromthe said college, result of which was declared on 02.08.2014. The petitioner thereafter made an application for migration from [ENTITY] Dr.D.Y.Patil Medical College to NHL Municipal Medical College, Ahmedabad on 20.08.2014 in prescribedformtotheMedicalCouncilofIndia. The said application spells out the following vitalfacts:
(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 : Allergicreaction.
(iv) NOC from receiving college (date of issue):NHLMunicipalMedicalCollege,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 [CASE NUMBER] 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 dated09.09.2014.Thereafter,thepetitionergot certificatefromB.J.GovernmentMedicalCollege, as well as Sasson General Hospital, Pune dated 26.09.2014andthesameweresubmittedbeforethe Medical Council of India. Thereafter, the petitioner was asked to obtain another certificatefromproposedtransfereecollegei.e. NHLMunicipalMedicalCollegeshowingthatthere 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"fromPramukhSwamiMedicalCollege, KaramsadandSardarPatelUniversitystatingthat thesaidcollegesarereadyandwillingtoaccept him.
2.3 Itisfurtherthecaseofthepetitionerthat [CASE NUMBER] thepetitionerhadtopaythefeesof(approx.) Rs.28,09,786/ with [ENTITY] 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.Itisfurtherallegedthatthoughthe petitionerishaving"NoObjectionCertificates", NHL Municipal Medical College, Ahmedabad closed itsdoorsforthepetitionerandsuchanaction on part of NHL Municipal Medical College is arbitraryanddiscriminatory.
(3) Itmaybenotedthatthepresentpetitionis filed by the petitioner before this Court on 09.12.2014 and this Court (Coram:Hon'ble Mr.Justice [ENTITY]) has passed the following orderon12.12.2014: "HeardMr.[ENTITY],learnedadvocatefor thepetitioner.
Mr.[ENTITY], learned advocate forthepetitioner submitted that [1] NHL Medical College, Ahmedabad[2]GujaratUniversity,Ahmedabad,[3] Dean,PramukhSwamiMedicalCollege,Karamsadas well as [4] DPU Padmashree Dr. D.Y. Patil Medical College, Pune have issued `No Objection Certificate'infavourofthepetitioner.
[CASE NUMBER] NOTICE,returnableon12.1.2015." (4) It further appears that while the petition waspending,theMedicalCouncilofIndiadecided 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 amendmentinthispetition.Itisfurtheralleged bythepetitionerthatbecauseoflaxityonpart of NHL Municipal Medical College, Ahmedabad in notinformingthevacancypositiontotheMedical CouncilofIndia,thepetitionerhassufferedand such inaction on part of said college is arbitraryandmalafideinnature.Itiscontended 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 [SECTION] and [SECTION] onGraduateMedicalEducation,1997(hereinafter referred toas "theRegulations" for short) and [CASE NUMBER] therefore,theprayers,asprayedfor,needtobe 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, explainingtheprovisionsofClause6ofthesaid 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 werenotappliedforbythepetitionerhavebeen dealtwith.
(6) The NHL Municipal Medical College has also filed an AffidavitinReply and has denied the [CASE NUMBER] contentions raised by the petitioner giving all minutedetailsanddecisiontakenbytheMedical CouncilofIndia.
(7) The petitioner has also filed Affidavitin Rejoinder to the same denying the contentions raisedbytherespectiverespondents. (8) TheStateofGujaratthroughInchargeR.M.O, Civil Hospital, Ahmedabad, has filed an AffidavitinReply as per the order passed by this Court dated 06.05.2015 explaining the certificateissuedbyB.J.MedicalCollegeandthe basisofit.
(9) Heard Mr.[ENTITY], learned counsel for Mr.[ENTITY], learned advocate for the petitioner, Mr.[ENTITY], learned Assistant Government Pleader for respondent No.1State, Mrs.[ENTITY], learned counsel forrespondent No.2 Medical Council of India, Mr.[ENTITY], learned counsel for M/s.[ENTITY], Advocates for respondent No.5NHL Municipal [CASE NUMBER] Medical College, Ahmedabad and Mr.[ENTITY], learnedcounselforrespondentNo.8PramukhSwami Medical College, Karamsad. Though served, none appearsforrestoftherespondents. (10) Learnedcounselforthepetitionerhastaken thisCourtthroughthefactualmatrixarisingout oftherecordofthepetitionrightfromthedate ofadmissionofthepetitionertopassingofthe impugned communication dated 14.01.2015 by the Medical Council of India. Itwas contended that the NHL Municipal Medical College, Ahmedabad as well as Sardar Patel University granted "No ObjectionCertificates",whichweredulysentto the Medical Council ofIndia with therequisite formofmigrationfilledupbythepetitioner.It wascontendedthatalltherequisitescalledfor bytheMedicalCouncilofIndiaarecompliedwith as well as "No Objection Certificates" and all compliancesweremadeincludingpaymentoffees. Itwascontendedthatthepetitionercametobe grantedpermissionformigrationbytheMigration [CASE NUMBER] SubCommitteeoftheMedicalCouncilofIndiaon 08.10.2014 and therefore, the petitioner stands entitled to admission to NHL Municipal Medical College, Ahmedabad against migration seat in second yearMBBS. It wasfurther contended that whenthesaiddecisionwastakenbytheMigration SubCommittee oftheMedicalCouncilofIndiaon 08.10.2014, vacant seats were available in NHL MunicipalMedicalCollegeandthepetitionercame to knowabout the same videcommunication dated 14.01.2015, whereby the request made by the petitioner came to be declined by the Medical CouncilofIndiaandtherefore,[SECTION] of the [ACT], this Court has ample power to direct the Medical Council of Indiatoconsiderthecaseofthepetitionerfor migration from [ENTITY] Dr.D.Y.Patil Medical College, Pune to [ENTITY], Karamsad,whereinseatsarestillvacant.Learned counsel for the petitioner further pointed out that the Migration SubCommittee of Medical Council of India allowed the migration of the [CASE NUMBER] petitionerasprayedforon08.10.2014andonthe verysaidday,thisCourthaspassedanorderin [CASE NUMBER] and by interim relief, directedthatthemeritlistofthemigrationin the second year MBBS course, Medical College shall not befinalized. Learned counsel for the petitioner harpering upon the fact that on 12.12.2014, [CASE NUMBER] came to be disposed of, which shows that the vacant seats wereavailableatNHLMunicipalMedicalCollege, 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 decliningtherequestmadebythepetitioner,is per se, arbitrary and unconstitutional, and the same deserves to be remedied by this Court in exercising its power under [SECTION] of the [ACT]
(11) Learned counsel for the petitioner further [CASE NUMBER] contendedthatthepetitionersuffersfromType1 severe Anaphylactic Allergy and therefore, his caseshouldbeconsideredevenatthisstageby the Medical Council of India for migration to PramukhSwamiMedicalCollege,Karamsadifnotto NHLMunicipalMedicalCollege,Ahmedabad.Evenas perMr.[ENTITY],learnedcounselforthepetitioner 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 [ENTITY] Dr.D.Y.Patil Medical College to NHL Municipal Medical College, Ahmedabad and "No ObjectionCertificates"ofPramukhSwamiMedical College aswell asSardar 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 [CASE NUMBER] migration to [ENTITY], Karamsad. It was also contended that when the MigrationSubCommitteeoftheMedicalCouncilof Indiahasalreadytakenadecision,theExecutive Committee could not have taken a contrary decision.Inlightoftheaforesaidsubmissions, it was submitted that the petition deserves considerationandthesamedeservestobeallowed asprayedfor.
(12) Per contra learned counsel for respondent No.2-MedicalCouncilofIndiahasreliedupon the AffidavitinReplies filed by the Medical Council ofIndia and contended thatMBBS degree Courseisofdurationof4.5yearsandmigration ispermissibleonlyasprovidedunderClause6of the said Regulations. Learned counsel for respondent No.2 relying upon the averments made in the AffidavitinReply, which is based on recordoftheMedicalCouncilofIndia,contended that the application ofthe petitioner has been duly scrutinized and decision taken by the [CASE NUMBER] MedicalCouncilofIndia,ascommunicatedtothe petitioner vide communication dated 14.01.2015 impugned inthis petition, islegal and proper. Itwascontendedthateveninexerciseofpowers under [SECTION] [ACT] this Court cannot give any extended meaning to the Regulations of theMedical Council ofIndia andassuchthereisnoapplicationmadebythe petitioner for migration from [ENTITY] Dr.D.Y.Patil Medical College, Pune to Pramukh SwamiMedicalCollege,Karamsad.Learnedcounsel forrespondentNo.2submittedthatasperclause 6 of the said Regulations, the application has been rightly declined by theMedical Council of India.ItwasfurthercontendedthattheMedical courseisintegratedcourseof4.5yearsandas ondate,oneyearofsecondyearMBBScoursehas alreadypassedandthepetitionerhasstudiedall throughout in [ENTITY] Dr.D.Y.Patil Medical College, Pune and therefore, no interference is called for by this Court. It was contended hat thepetitionismeritlessandthesamedeserves [CASE NUMBER] tobedismissedinlimine.
(13) Inadditiontotheabove,learnedcounselfor respondent No.2 has relied upon the following judgments:
(i) Medical Council of India Vs. Diparani P. Deshmukh & Anr.
[(2009)9SCC163];
(ii) MedicalCouncilofIndiaVs. [ENTITY] & Ors.[(2001)8SCC427];
(iii) Medical Council of India Vs. Madhu Singh&Ors.[(2002)7SCC258]And
(iv) [PRECEDENT].
(14) Learned counsel for respondent No.5 - NHL Municipal Medical College has adopted the argumentsmadebylearnedcounselforrespondent No.2 and has contended that as stated in the AffidavitinReplyfiledbyNHLMunicipalMedical College,onlybecause"NoObjectionCertificate"
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 [CASE NUMBER] incompletetill26.09.2014,whichisevidentfrom the letters dated 07.10.2014 as well as 13.10.2014. It was further contended that NHL MunicipalMedicalCollegehasalreadyundertaken the procedure to fill up the vacancies after issuance of advertisements and NHL Municipal Medical College had already responded the query raisedbytheMedicalCouncilofIndiaasregards thevacancyvidecommunicationdated01.10.2014, andon01.10.2014,NHLMunicipalMedicalCollege had already taken decision to admit 8 students andthesamewasalsocommunicatedtotheMedical Council of India. Therefore, the petition is misconceived and atthis stage, norelief/s may begrantedagainstNHLMunicipalMedicalCollege.
(15) LearnedcounselforrespondentNo.8-[ENTITY], Karamsad, contended that the petitioner was granted "No Objection Certificate" and therefore, if the Medical CouncilofIndiapermits,theyhavenoobjection in admitting the petitioner. It was, however, [CASE NUMBER] 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 Indiapermitsit.
Nootherandfurthersubmissionsaremadeby learnedcounselfortherespectiveparties. (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 petitionaswellastheaffidavitsfiledbythe respectiverespondents:
(i) It may be noted that the petitioner filed an application in requisite form for migration from [ENTITY] Dr.D.Y.Patil Medical College, Pune to NHL Municipal MedicalCollege,Ahmedabadon20.08.2014.
(ii) The said application is based on certificateissuedbyoneDr.[ENTITY], Sanjivani Hospital, Radhanpur dated [CASE NUMBER] 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.[ENTITY] of Ahmedabad.
(iii) The case of the petitioner is also based on the medical certificate issued by Medical Supdt., Civil Hospital, Ahmedabad dated04.09.2014,whichonperusalindicates that the same was signed by RMO. Similar certificate is also issued by Dr.[ENTITY],Ahmedabad dated 05.09.2015. The petitioner has also placedonrecordamedicalcertificatedated 26.09.2014 issued by Medical Board of Maharashtra State, which says that "the petitioner was suffering from TypeI Hypersensitivity reaction". It further indicatesthatthesameisbasedonallergic testingconductedon22.11.2005attheclinic ofDr.[ENTITY],Ahmedabad.
[CASE NUMBER]
(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 [ENTITY], Karamsad along with "No Objection Certificates" of the said college aswellasSardarPatelUniversity.Thesaid communicationalsofurtherindicatesthatthe petitioner prayed for migration to AMC MET College,L.G.Hospital,Ahmedabadandhasalso declared that it is not a recognized institution.
Theaforesaiddocumentsarealsoproducedby the Medical Council of India in its affidavit dated 04.02.2015. The aforesaid factual matrix therefore, indicates and establishes the fact thatthepetitionerclaimedmigrationfrom[ENTITY] Dr.D.Y.Patil Medical College, Pune to NHL MunicipalMedicalCollege,Ahmedabadonbasisof [CASE NUMBER] allergictest,whichwasconductedon22.11.2005. Evenatthecostofrepetition,itmaybestated thattheMaharashtraMedical Boardhasissued a certificate, wherein it is specifically averred that"thepetitionerwassufferingfromthesaid 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 opinionexpressedbyDr.Ms.[ENTITY],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 examinethepetitioner.
Clause(6)ofthesaidRegulationprovides asunder: (1) Migration of students from one medcial [CASE NUMBER] collegetoanothermedicalcollegeinIndiashall begrantedonlyinexceptionalcasestothemost deserving among the applicants for good and sufficient reasons and not on routine grounds. Thenumberofstudentsmigratingto/fromanyone medical college shall be kept to the minimum whichshallinanycasenotexeedthelimitof5% 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 samecity.
(2) Migration of students from one college to anotherispermissibleonlyofboththecolleges are recognized by the Central Government under [ACT] shall not result in increase in the sanctioned intake capacity for the academic year concerned inrespectofthereceivingmedicalcollege. (3) Theapplicantcandidateshallbeeligibleto applyformigrationonlyafterqualifyinginthe first professional MBBS examiantion. Migration during clinical course of study shall not be allowedonanyground.
(4) For the purpose of migration, an applicant candidate shall first obtain "No Objection Certificate" from the college where he is studyingforthepresent,theUniversitytowhich it is affiliated to, the college to which migrationissoughtandtheUniversitytowhich that college is affiliated to. He shall submit hisapplicationformigrationwithinaperiodof onemonthofpassing(declarationofresults)of thefirstprofessionalMBBSexaminationalongwith 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 casemigrationissoughttoaCentralGovernment institution. The Director, Medical Education of the State concerned or the Head of the Central Governmentinstitution,asthecasemaybe,shall takeafinaldecisioninthematterastowhether ornottoallowmigrationinaccordancewiththe provisions of these Regulations and communicate thesametotheapplicantstudentwithinaperiod of one month from the date of receipt of the [CASE NUMBER] requestformigration.
(5) Astudentwhohasjoinedanothercollegeon migrationshallbeeligibletoappearintheIInd professional MBBS examination only after attainingtheminimumattendanceinthatcollege inthesubjects,lectures,seminarsetc.required forappearingintheexaminationprescribedunder Regulation12(1).
Note1: The State Governments/Universities/Institutions may frame appropriateguidelinesforgrantof"NoObjection Certificate"ormigration,asthecasemaybe,to the students subject to provisions of these regulations.
Note2: Any request for migration not covered under the provisions of these Regulations shall bereferredtotheMedicalCouncilofIndiafor consideration on individual merits by the Director(MedicalEducation)oftheStateorthe HeadofCentralGovernmentInstitutionconcerned. The decision taken by the Council on such requestsshallbefinal.
Note3: The College/Institutions shall send intimationtotheMedicalCouncilofIndiaabout the number of students admitted by them on migrationwithinonemonthoftheirjoining.It shall be open for the Council to undertake verificationofthecomplianceoftheprovisions of the regulations governing migration by the collegesatanypointoftime."
The said Regulation clearly provides that a candidate after passing first year MBBS course hastoapplyformigrationwithinonemonth.The fact indicates that the petitioner applied on 20.08.2014,whichwasadmittedlywithinthelimit prescribed under the said Regulations. However, [CASE NUMBER] the fact remains that the said application was fortransferfromPadmaShriDr.D.Y.PatilMedical College,Pune,toNHLMunicipalMedicalCollege, Ahmedabad and not to [ENTITY], Karamsad. The petitioner came out with such a request first time vide communication dated13.10.2014,whichisadmittedlymuchafter stipulated period. Clause6(3) of the said Regulations clearly provides that migration cannot be permitted during clinical course of studyonanyground.Recordclearlyindicatesand as brought on record by NHL Municipal Medical College that there is no vacant seats are available since 01.10.2014. Only because Sub CommitteeofMigrationoftheMedicalCouncilof India considered the application of the petitioneron08.10.2014,thesamewasnotfinal decision of the Medical Council of India as clearlyaverredinitsaffidavit.Theapplication ofthepetitionerwasplacedbeforetheExecutive Committee and after considering the same, the application has been dealt with as per the [CASE NUMBER] 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 impugnedcommunicationdated14.01.2015,thesame isfoundtobeinaccordancewiththeprovisions of [SECTION] said Regulations. Therefore, this Court in the writ jurisdiction under [SECTION] of the [ACT] cannot substitute the said decision taken in accordancewiththeRegulations.
(18) At this juncture, it would be appropriatetorefertothefollowingjudgments, which are relied upon by Mrs.[ENTITY], learnedcounselforrespondentNo.2:
(i) [PRECEDENT];
"3. TheRegulationframedbytheMedicalCouncil ofIndiapertainingtomigrationisRegulation6. 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 extremecompassionategroundsthatmigrationcan be allowed. [SECTION] in Regulation6stipulatesthattheMedicalCouncil reserves the right not to entertain any application which is not under the prescribed [CASE NUMBER] compassionategrounds.Note2readsasfollows:
"Note2.Compassionategroundscriteria:
(i) Deathofasupportingguardian.
(ii) Illnessofthecandidatecausingdisability.
(iii) Disturbed conditions as declared by Governmentinthemedicalcollegearea."
4. AswereadthesaidRegulationandNote2in particular, it is clear that the extreme compassionate grounds criteria contemplated by thesaidRegulationareonlythree,namely,death of a supporting guardian, illness of the candidate causing disability and lastly, disturbed conditions as declared by the Governmentinthemedicalcollegearea.[ENTITY] heldthattheseRegulationsaremandatory."
(ii) MedicalCouncilofIndiaVs. [ENTITY] & Ors. [(2001)8SCC427];
"In matters of academic standards, courts should notnormallyinterfereorinterprettherulesand suchmattersshouldbelefttotheexpertsinthe field.Thispositionhasbeenmadeclearbythis Court in The [PRECEDENT] thecourse ofstudyleadingtoIIndprofessional examinationiscommontoallmedicalcolleges,the sequence of coverage of subjects varies from collegetocollege.Therefore,therequirementof 18monthsofstudyinthecollegefromwhichthe student wants to appear in the examination is appropriately insisted upon. Migration is not normally allowed and has got to be given in exceptionalcircumstances. In the absence of such a stipulation as contained in [SECTION], 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 [SECTION], is not [CASE NUMBER] permissible.Thuswedisagreewiththeviewtaken by the High Court and state that the correct interpretationisasgivenbytheMedical CouncilofIndiasetforthabovebyus.
(iii)Medical [PRECEDENT].
[(2002)7SCC258]And ;
"Thereis,however,anecessityforspecifically providing the time schedule for the course and fixing the period during which admissions can takeplace,makingitclearthatnoadmissioncan be granted after the scheduled date, which essentially should be the date for commencement ofthecourse.
Inconclusion:
(i) there is no scope for admitting students midtreamasthatwouldbeagainstveryspiritof statutesgoverningthemedicaleducation;
(ii) evenif,seatsareunfilledthatcannotbea groundformakingmidsessionadmissions;
(iii) therecannotbetelescopingofunfilled seats of one year with permitted seats of the subsequentyear;
(iv) the MCI shall ensure that the examining bodies fix a time schedule specifying the durationofthiscourse,thedateofcommencement ofthecourseandthelastdateforadmission;
(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 admissionsareconcernedshallbeallowed;
(vii) in case of any deviation by the concernedinstitution,actionasprescribedshall betakenbytheMCI.
The High Court was obviously in error in directing midsession admission. The impugned order is, therefore, set aside. But as was earlierdirectedbythisCourt,theadmissionof respondentNo.1wouldnotbeaffectedbyallowing theappeal."
(iv) [PRECEDENT] .
"We are in respectful agreement with the view expressedintheabovereferredtocase.Thetask of laying down guidelines for admission to be effectedisintherealmofapolicydecisionof the executive and as policy decision is not arbitrary,directioncouldnothavebeengivento theauthoritiestoconsidercaseofthedaughter oftherespondentforadmissionintheyear1995 ignoring requirement of [SECTION] that a candidate mustpassqualifyingexaminationinthemonthof March/April of the current year or in October/Novemberoftheprecedingyear.Todirect the authorities that requirement of passing qualifying examination by the student in the month March/April of the current year or October/November oftheprceeding yearshould be ignored tantamounts to directing the authorities to commit breach of essential requirement of rule1. A Court while hearing petition under Article226oftheConstitutioncannotdirectthe authoritiestocommitbreachoftheruleanddoa thingwhichisnotcontemplatedbyarule. If such a direction is given, it is bound to resultintochaosandthosestudentswhohavenot 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 powersmaybeexercisedbytheauthoritiesinan arbitrary manner if direction is issued by the Court to the authorities to ignore requirement relating topassing ofqualifyingexamination in the month of March/April of the current year or October/Novemberoftheprecedingyear. Moreover, the purpose of requirement that a studentshouldpassqualifyingexaminationinthe 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 scheduleandtobecompletedwithintheschedule 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 [CASE NUMBER] passingofqualifyingexaminationbyastudentin the month of March/April of the current year or October/November of the preceding year would resultintoadmittingastudenttothecoursein the midstream disturbing the course and also would work as handicap to the candidates themselves to achieve excellence. In case of [PRECEDENT], the Supreme Court has held that direction by the High Court to admit the candidatesinthemidstreamisbadinlaw.Ifthe interpretationputbythelearnedSingleJudgeis upheld, it would mean that a student would be entitled to admission to medical course in the midstreamcausinglotofinconveniencetoall.In our opinion, a student, who has not passed qualifying examination in the month of March/April of the current year or October/Novemberoftheprecedingyear,cannotbe admitted to medical course next year in view of clear and mandatory provisions of [SECTION] of the Rules. Therefore, the finding recorded by the learned Single Judge to the effect that mention aboutthemonth"March/Aprilofthecurrentyear orOctober/Novemberoftheprecedingyear"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 petitionerhascontinuedinthesecondyearMBBS course and two semesters are also over by now. The contention raised by thepetitioner is that the Migration SubCommittee vide its decision dated 08.10.2014 decided to allow migration of the petitioner asprayed forinthe application filedbythepetitionerdoesnotcreateanyright in favour ofthe petitioner andthereafter, the [CASE NUMBER] executive committee after due deliberation has declinedtherequestmadebythepetitioner.The contention raised bythe petitioner isthat the Medical Council of India asked for further certificate from the Maharashtra State Board whichwaswithinthepowerofMedicalCouncilof India as the migration is permissible only in exceptionalcasesandnotasamatterofright. ThoughthepetitionercontendedbeforetheCourt thathewasnotawareaboutthefactthattheNHL MunicipalMedicalcollegehadfilledintheseats tilltheimpugnedcommunicationwasreceived,is contrary to the communication of the petitioner himselfdated13.10.2014.Thesaidcommunication clearlyestablishesthefactthatthepetitioner wasawareason13.10.2014itselfthatthereis novacancyintheNHLMunicipalMedicalCollege, Ahmedabad. Strictly speaking once there is no vacancy in the transferee college i.e. NHL MunicipalMedicalCollege,theapplicationdated 20.08.2014 filed by the petitioner gets exhausted. The contention raised by the [CASE NUMBER] petitioner is that [CASE NUMBER] was pending andstay was granted, which was totally different matter between different parties and admittedlythepetitionerwasnotpartytothose proceedings. The NHL Municipal Medical College, Ahmedabad has stated onoath that theadmission to second year MBBS course was given on 01.10.2014.Inlightoftheaforesaidfacts,stay granted in [CASE NUMBER] by this Court does not and would not take the case of the petitioneranyfurther.
(20) Onplainreadingof[SECTION]and6(4)of thesaidRegulations,itclearlybornesoutthat the application for migration has to be within theperiodofonemonthfromthedateofpassing offirstyearMBBSexamination.Thoughtherewas no formal application for transfer to [ENTITY], 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 [CASE NUMBER] CouncilofIndiaandhasbeenrightlyrejectedby 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 diseasei.e.allergyreaction,especiallywhenhe completedhisstudiesupto12thstandardandwhen he got himself admitted in [ENTITY] Dr.D.Y.PatilMedicalCollege,Puneon29.06.2013. Insuchafactualscenario,thepetitionercannot bepermittedtoinsistformigrationasamatter ofright.
(21) As held by the Apex Court in the case of [PRECEDENT] as well as the Division Bench of this Court in the case of [PRECEDENT], this Court in exercise of powers under [SECTION] [ACT]not direct the Medical Council of India to permit midsessionadmission.
[CASE NUMBER] (22) Similarly,[ENTITY]
thecaseofMedicalCouncilofIndiaVs.[ENTITY]& Ors.,RegulationsoftheMedicalCouncilofIndia aretobefollowedasitisandthesamecannot beinterpretedinadifferentmanner.TheMedical CouncilofIndiabeinganexpertbodyhadtakena decision as per the Regulations and no case is made out for interference of this Court in its extraordinary jurisdiction under [SECTION] of [ACT]
(23) This Court is not sitting in an appeal overthedecisiontakenbytheMedicalCouncilof Indiaasanexpertbody.TheMedicalCouncilof India in themeeting oftheExecutive Committee held on 20.11.2014 after due discussion and deliberation decided to disapprove the request madebythepetitioner.
(24) OnperusalofthestandtakenbytheMedical Council of India in the affidavits that are broughtonrecordofthispetition,itcannotbe [CASE NUMBER] said that the decision taken by the Medical Council of India is without appreciating the provisions of the Regulations of the Medical CouncilofIndiaandwithoutproperprocedure.In opinion of this Court, on the contrary even though there is no application of migration to [ENTITY], Karamsad, even such a request made by the petitioner has been consideredbytheMedicalCouncilofIndiaasper the Regulations. The contention raised by the petitionerthatastheMigrationSubCommitteeof the Medical Council of India had decided in favourofthepetitionervideitsdecisiondated 08.10.2014, the application of the petitioner stands allowed is misconceived and de hors the Regulations ofthe Medical Council ofIndia. It needstobenotedthatitwasadecisionofthe Migration SubCommittee, whereas when the said decision was deliberated in the meeting of the Executive Committee and application of the petitionerwasnotaccorded.Thereisnoinherent rightofthepetitionertoinsistformigration.
[CASE NUMBER] Migration has to be as per the Regulations and thesamecannotbeclaimedasamatterofright muchlessastatutoryright.
(25) Considering the submissions made by learned counselforthepetitionerandonperusalofthe stand taken by the respective respondents, no right much less any fundamental right is breached.[PRECEDENT] [ENTITY].,migrationcannotbeclaimedasa matter of right of a student. Even while consideringthepresentpositionasondate,the petitioner has already completed his two semestersi.e.oneyearinthesecondMBBSCourse atPadmaShriDr.D.Y.PatilMedicalCollege,Pune andasthisCourtcometotheconclusionthatthe 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 [SECTION] [ACT]
[CASE NUMBER] Even the alternative prayer made by learned counselforthepetitionerthatthepetitionerbe permitted to migrate to [ENTITY], Karamsad and even though the said college hasno objection forsuch migration, in opinion of this Court the same would amount to permittingmidtermmigration,whichwouldbe de hors clause6ofthesaidRegulationsandnotin consonancewiththebindingdecisionsoftheApex Court as well as the Division Bench of this Court.
Fortheforegoing,thepetitionfailsandis herebydismissedinlimine.Noticeisdischarged. Nocosts.
([ENTITY], J.) Suchit (P.S)