IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 27TH OCTOBER 2010 / 5TH KARTHIKA 1932 WP(C).No. 733 of 2010(N) ------------------------ PETITIONER(S): --------------- LAVANYA BONNY, AGED 19 YEARS, D/O.DR.BONNY NASTESH, 2ND YEAR M.B.B.S.STUDENT, T.D.MEDICAL COLLEGE, ALAPPUZHA. BY ADV. SRI.E.K.NANDAKUMAR SRI.A.K.JAYASANKAR NAMBIAR SRI.K.JOHN MATHAI SRI.P.BENNY THOMAS SRI.P.GOPINATH SRI.V.J.ANAND RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. 3. THE PRINCIPAL, T.D.MEDICAL COLLEGE, ALAPPUZHA. 4. THE PRINCIPAL, GOVERNMENT MEDICAL COLLEGE, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SMT.K.R.DEEPA FOR R1 TO 4 ALEXANDER THOMAS(S.C.FOR M.C.I.) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 27/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. ----------------------------------------- W.P(C).No.733 of 2010 ----------------------------------------- Dated this the 27th day of October, 2010 JUDGMENT The petitioner is a student undergoing the M.B.B.S degree course in T.D.Medical College, Alappuzha. She joined the first year M.B.B.S. degree course in 2008. The petitioner is suffering from acute bronchial asthma. She also suffers from various types of allergies. She belongs to Trivandrum. With a view to continue her studies at Government Medical College, Trivandrum, where a seat was lying vacant, the petitioner submitted the original of Ext.P8 application dated 23.12.2009 before the Director of Medical Education seeking transfer. As per the Regulations issued by the Medical Council of India applications for transfer from one Medical College to another have to be submitted within one month from the date of publication of the result of the first professional M.B.B.S. degree examinations. However, it is also stipulated that once the clinical course of study commences such transfer will not be permitted on any ground. Initially the stipulation was that migration will be considered only on extreme compassionate W.P(C).No.733 of 2010 -:2:- grounds. Later in the year 2008 the Regulations were amended to stipulate that migration can be granted on any genuine ground. However, the stipulation that once the clinical course of study commences migration will not be allowed, continues to operate. 2. The Government of Kerala had in tune with the initial stipulation in the Regulations issued by the Medical Council of India issued Ext.P7 order dated 22.7.2009 to the effect that migration will be given only on extreme compassionate grounds. The Government however, failed to take note of the amendment made by the Medical Council of India to its Regulations whereby extreme compassionate grounds was substituted by genuine grounds. Relying on the stipulations in Ext.P7 government order the petitioner's application for transfer to Medical College, Trivandrum was rejected and the decision communicated to the petitioner by Ext.P12 letter dated 2.1.2010. The instant writ petition was filed before Ext.P12 order was passed challenging the stipulation in Ext.P7 that migration from one Medical College to another will be granted only on extreme compassionate grounds. The petitioner has also prayed for a direction to the Director of Medical Education to pass orders on Ext.P8 application strictly in accordance with the Regulations framed by the Medical Council of W.P(C).No.733 of 2010 -:3:- India and without reference to the extreme compassionate grounds mentioned in Ext.P7 government order. 3. The State has filed a counter affidavit dated 22.5.2010. The counter affidavit proceeds on the basis that migration can be granted only on extreme compassionate grounds. It is contended that as the petitioner does not satisfy the said requirement, notwithstanding the availability of a vacant seat in the Government Medical College, Trivandrum, her application was rejected. It is also stated in the counter affidavit that the clinical course of study has commenced and therefore, the petitioner's application for migration cannot be considered. 4. I heard Sri.P.Gopinath Menon, learned counsel appearing for the petitioner, Smt.K.R.Deepa, learned Government Pleader, appearing for the respondents and Sri.Alexander Thomas, learned standing counsel appearing for the Medical Council of India, who assisted the Court on request. It is common ground that Ext.P7 government order does not take note of the amendment to the Regulations of the Medical Council of India. Ext.P7 proceeds on the basis that migration from one college to another can be granted only on extreme compassionate grounds. As per the Regulations of the Medical Council of India applications for W.P(C).No.733 of 2010 -:4:- migration can be made only after the student appears for the first professional MBBS degree examinations and the results are published. Applications for migration have to be submitted within one month from the date of publication of the results. In the instant case it is evident from Ext.P12 that the petitioner's application was rejected on the ground that migration can be granted only on extreme compassionate grounds. It is evident from the materials on record that the Government have proceeded on a misconception of law when it rejected the petitioner's application. The stipulation in Ext.P7 that migration can be granted only on extreme compassionate grounds is not in tune with the Regulations issued by the Medical Council of India as amended in the year 2008. I am therefore, of the considered opinion that the decision taken by the Director of Medical Education to reject the petitioner's request for transfer from Medical College, Alappuzha to Medical College, Trivandrum, on the ground that it does not disclose extreme compassionate grounds, cannot be sustained. In the result I allow the writ petition, quash Ext.P12 and direct the Director of Medical Education to consider the petitioner's application for transfer from Medical College, Alappuzha to W.P(C).No.733 of 2010 -:5:- Medical College, Trivandrum with reference to the state of affairs as it obtained on 23.12.2009, the date on which the petitioner applied for migration in terms of the Regulations issued by the Medical Council of India. The Director of Medical Education shall take a fresh decision in the matter uninfluenced by the stipulations in Ext.P7 which run counter to the Regulations issued by the Medical Council of India. Revised orders in the matter shall be passed within two weeks from the date on which the petitioner produces a certified copy of this judgment before the Director of Medical Education. P.N.RAVINDRAN, Judge. ahg. P.N.RAVINDRAN, J. --------------------------- W.P(C).No.733 of 2010 ---------------------------- JUDGMENT 27th October, 2010