IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA CWP No.462 of 2009 alongwith CWP No.2402 of 2009. Judgment reserved on:24.7.2009. Date of Decision: 28th July, 2009. In CWP No.462 of 2009: Ankita Dadwal …Petitioner. Versus. State of Himachal Pradesh and others …Respondents In CWP No.2402 of 2009: Parul Tanwar ….Petitioner Versus State of H.P. and others …..Respondents Coram: The Hon’ble Mr.Justice Deepak Gupta, Judge. The Hon’ble Mr. Justice Surinder Singh, Judge. Whether approved for Reporting? Yes For the Petitioner(s): Mr.Anup Rattan, Advocate in CWP 462 of 2009. Mr.Shrawan Dogra, Advocate in CWP 2402/2009. For the Respondent(s): Mr.R.M. Bisht and Mr.Vikas Rathore, Dy.A.Gs for respondents-State. Mr.Sandeep Sharma, Assistant Solicitor General for respondent Dental Council of India. Mr.B.C. Negi, Advocate for HPU. Mr.Praneet Gupta, Advocate for respondents No.8,9,11, 15 to 17 and 19. 2 Mr.Shrawan Dogra, Advocate for R-18 in CWP No.462 of 2009. Mr.V.D. Khidtta, Advocate for R-13. Mr.B.C. Attri, Advocate for Principal, MNDAV Dental College and Hospital Solan. Mr.Lovneesh Kanwar, Advocate for Himachal Institute of Dental Sciences, Paonta Sahib. Deepak Gupta, J. This case is a classic example of how misplaced sympathy can sometimes wreck the careers and put in jeopardy the future of young students. The petitioner and private respondents 5 to 19 and Ms.Parul Tanwar, petitioner in CWP No.2402 of 2009 (hereinafter referred to as the students) are all students of BDS. They were all admitted to the BDS course in the academic session 2007-2008. All the students were admitted to private Colleges in the State. It is a well known fact that the fees in the private Colleges is much higher than the fees being charged in H.P. Dental College and Hospital at Shimla. The difference is manifold. Therefore, we can understand the anxiety of the parents as well as the students to ensure that the students get admission into the Government Dental College. After the combined entrance test is held, admission to the various Colleges is made on the basis of counselling. It is borne out from the record and is a matter of public knowledge that the students who have qualified the entrance 3 test with higher marks opt to join the Government Medical and Dental Colleges. The Principal of the Government Dental College issued an advertisement which appeared in the newspaper on 6th December, 2008 inviting applications for migration to the 2nd Professional BDS Course in Government Dental College, Shimla. The last date for submission of application was 15th December, 2008. The relevant terms and conditions stipulated in the advertisement were as follows: “Terms and conditions: 1.Migration to the student to H.P. Govt. Dental College and Hospital Shimla will be considered by the Dental Council of India only in exceptional cases on extreme compassionate grounds i.e. (i) Death of supporting guardian issued by competent authority, (ii)Disturbed conditions declared by the Government in the Dental College area. Migration on other grounds shall not be allowed. 2.He/She must have passed first professional BDS from the Institution recognized by the Dental Council of India/Govt. of India. 3.The applicant/candidate should have passed 1st professional BDS examination. The copy of first year BDS mark sheet is to be attached.” Pursuant to this advertisement a number of students applied for migration. Their cases were forwarded to the Dental Council of India and consequently an order was issued on 31st January whereby respondents 5 to 19 were permitted to migrate from private Dental Colleges to H.P. Dental College and Hospital, Shimla. From the letter allowing the migration it is apparent that the migration was allowed 4 strictly on the basis of marks obtained in the first year BDS in order of merit. The petitioner had also applied for migration on 29th January, 2009 when she came to know that the migration was being allowed on the basis of merit and not on the basis of the conditions laid down in the advertisement. Her application was not considered and therefore she has filed the writ petition being CWP No.462 of 2009. The main allegation of the petitioner is that the migration of respondents 5 to 19 has been allowed without following the Regulations of the Dental Council of India (DCI). According to the petitioner, in case migration was to be allowed on the basis of merit this should have been specifically stated in the advertisement. The petitioner verily believed that the migration would be allowed only on the compassionate grounds mentioned in the advertisement by following the DCI Regulations and therefore did not apply for the same. If she had known that the respondents were going to permit migration on the basis of the merit in the first year BDS course she would have also applied for migration. Since she had obtained 519 marks in the BDS course she would have ranked 7th in the merit and would have definitely been allowed migration. According to the petitioner in case the DCI decided to relax the conditions and allow migration on merit basis, fresh advertisement should have been made. 5 On these basis a prayer has been made that fresh migration process be started and the petitioner be granted migration. The stand of the State is that after applications were received they were all forwarded to the DCI and DCI allowed migration vide letter dated 13.1.2009 and thereafter the migration was allowed in the meeting of the Committee held on 28th January, 2009. The stand of the DCI is that as per the revised BDS Course Regulations, 2007 the migration of the students is allowed only on exceptional grounds and according to the DCI none of the students were eligible for migration. However, since the students belong to the 2007-2008 batch the Executive Committee of the DCI permitted migration on the basis of merit. Even during the course of the present petition it has not been disputed by any of the parties that as far as respondents 5 to 17 and 19 are concerned their case does not fall under compassionate grounds. Even according to the respondents, compassionate ground is attracted only in the case of Respondent No.18 Tejasvita Chandel and Ms.Parul Tanwar petitioner in CWP No.2402 of 2009. It would be apposite to first of all refer to the Dental Council of India Revised BDS Course Regulations, 2007 notified vide notification dated 25th July, 2007 and published in the Gazette of India Extraordinary on 10th September, 2007. With regard to migration the Regulations read as follows: “IV. Migration: 6 (1) Migration from one dental college to other is not a right of a student. However, migration of students from one dental college to another dental college in India may be considered by the Dental Council of India. Only in exceptional cases on extreme compassionate ground, provided following criteria are fulfilled. Routine migrations on other ground shall not be allowed. (2) Both the colleges, i.e. one at which the student is studying at present and one to which migration is sought, are recognized by the Dental Council of India. (3) The applicant candidate should have passed first professional BDS examination. (4) 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 Dental Surgery (BDS) examination. (5) The applicant candidate must submit an affidavit stating that he/she will pursue 240 days of prescribed study before appearing at IInd Professional Bachelor of Dental Surgery (BDS) examination at the transferee dental 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 is permitted only in the beginning of IInd year BDS course in recognized Institution. (ii) All applications for migration shall be referred to Dental Council of India by college authorities. No Institution/University shall allow migrations directly without the prior approval of the Council. (iii) Council reserved the right, not to entertain any application which is not under the prescribed compassionate grounds and also to take independent decisions where applicant has been allowed to migrate without referring the same to the council. Note 2: Compassionate Ground Criteria: (i) Death of supporting guardian. 7 (ii) Disturbed conditions as declared by Government in the Dental College area.” A perusal of the aforesaid Regulations and the advertisement clearly show that the terms and conditions mentioned in the advertisement were drawn from these Regulations only. Under these Regulations the migration of a student from one Dental College to another is not a matter of right and can be considered in exceptional cases on extreme compassionate grounds subject to certain criteria being fulfilled. Clause (3) makes it mandatory that the applicant- candidate should have passed the first professional BDS examination. Clause (4) lays down a mandatory condition that the migration should be applied for within a period of one month of passing, i.e. declaration of result, of the first professional BDS examination. Note (1) (i) lays down that the migration is permitted only in the beginning of 2nd year BDS Course. Note (1)(ii) mandates that all applications for migration must necessarily be referred to the Dental Council of India and that no Institution/University has a right to allow migrations directly without the prior approval of the Council. Note (2) lays down the criteria for compassionate grounds. Only two grounds have been defined. The first is the death of a supporting guardian and the second is disturbed conditions as declared by the Government in the Dental College area. From a reading of the Regulations it is absolutely clear that migration is allowed only on two compassionate grounds, first being 8 the death of a supporting guardian and the second being declaration of disturbed condition in the Dental College area. Sh.Shrawan Dogra, learned counsel for Tejasvita Chandel and Parul Tanwar has urged that the Note (2) cannot be used to restrict the meaning of extreme compassionate ground. He contends that even if any other extreme compassionate ground is made out then the DCI can allow migration and the extreme compassionate grounds cannot be limited to the two grounds mentioned in Note (2) which are only illustrative in nature. We cannot accept such an argument. This is an argument of despair. On going through the original regulations, we find that there is an asterisk at the end of a phrase “extreme compassionate ground”. This asterisk refers to Note (2) which lays down the criteria for compassionate grounds. The DCI in its wisdom has formulated the two criteria. These are valid criteria. One being the death of a supporting guardian. In such an eventuality the student may not have the funds to pursue his/her studies in a far off place and migration is allowed. The second is when there are disturbed conditions in the area where the Dental College is situated. These disturbed conditions must be declared to be so by the Government. Therefore when a state of emergency is declared or some area is so disturbed making it virtually impossible for a student to go there to pursue his/her studies migration is permitted. The Rules admit of no other ground for grant 9 of migration. In our considered view, none of the students including Tejasvita Chandel or Parul Tanwar fulfilled these requirements and therefore could not have been granted migration. We are constrained to observe that the respondents 1 to 4 have had misplaced sympathy with the students which has virtually put their future in jeopardy. As far as respondents 5 to 17 and 19 are concerned it is virtually not disputed that their cases did not fall under the Regulations. In this behalf it would be necessary to refer to the decision taken by the Executive Committee of the Dental Council of India as detailed in its letter dated 13th January, 2009 which reads as follows: “The Executive Committee noted that as per the BDS Course Regulations, 2007, the migration in 2nd year may be allowed only on the companionate ground as mentioned in the BDS Course Regulations, 2007 and no student as mentioned in the above said letter received from the DME, Shimla fulfils the said conditions. However, since the Govt. Dental College & Hospital, Shimla has implemented the BDS Course Regulations, 2007 in their institutions from the session 2008-2009 and all the students under reference belong to 2007-08 batch, the Executive Committee on exceptional case decided that the migration in 2nd year in respect of the students mentioned in the request letter of the DME, Shimla may be allowed according to their merit except the student mentioned at serial no.14 and 18 since both have not cleared their first year till date. So far as the students mentioned at the serial no.14 and 18 are concerned, the Council may consider their cases after passing their first year BDS Course only and there is no provision in the DCI Regulations to temporary allow them to study at H.P.Govt. Dental College and Hospital, Shimla without passing first year. In case, H.P. University Shimla have such provision to allow them, the DCI may not object for 10 transfer/migrating them also and they may also be allowed migration according to the merit once they passed their first year. The above permission is allowed by the Council only one time measure and should not be quoted as precedent in future. From the next session, the provision of the BDS Course Regulations, 2007 for migration of students from another college to H.P. Govt. Dental College and Hospital, Shimla, will be applicable and council will not give any relaxation. The above permission is subject to the no objection of the concerned colleges and university also.” This letter had been sent by the DCI in response to the communication dated 22nd December, 2008 sent by the Director Medical Education and Research in which cases of 18 students were sent to the DCI. In the grounds column, various grounds were given to justify the migration. To say the least the grounds given in respect of 16 of the students could not even be called compassionate grounds what to say, extreme compassionate grounds. In some cases, no reasons whatsoever were given but the applications were forwarded. The only two cases in which some reasons were given were those of Tejasvita Chandel and Parul Tanwar to which reference will be made later. However, from a perusal of the first paragraph of the letter of the DCI it is apparent that the DCI came to the conclusion that none of the students mentioned in the said letter fulfilled the conditions necessary to permit migration. However, since the Government Dental College and Hospital, Shimla had implemented the BDS 11 Regulations from the Sessions 2008-2009 and all the students belonged to the academic sessions 2007-2008 the Executive Committee as an exceptional case permitted the migration of the students except Tejasvita Chandel and Parul Tanwar. It is apparent that DCI were under the impression that both had not cleared their BDS Examination. In fact this was not correct since Tejasvita Chandel had already passed the first year professional examination. Her case was also considered on merit basis and not on compassionate ground by the duly constituted Committee on 28th January, 2009 and since only 15 seats were lying vacant in the Government Dental College, Shimla 15 students were permitted to migrate on merit basis. As far as 14 candidates are concerned there is no ground whatsoever made out for their migration. Now we may consider the individual cases of Tejasvita Chandel and Parul Tanwar. Tejasvita Chandel: As far as this student is concerned, the record reveals that she is the daughter of Sh.R.P. Chandel who was a former member of the H.P. State Legislative Assembly. He had died prior to her admission to the BDS Course. She applied for migration even before the advertisement was issued in terms of DCI Regulations. In her application she stated that she had lost her father who was an MLA a few years ago. According to her there was a property dispute relating 12 to the property of her father and civil and criminal cases are pending in the High Court. She claimed that she had to regularly appear in the High Court to attend these cases. She also apprehend danger to her life at Solan from some persons. It was claimed that since her mother is an employee permanently based at Shimla and she is facing danger to her life she may be allowed migration from MN DAV Dental College, Solan to H.P. Dental College, Shimla. This application was addressed to the Principal Secretary (Health) to the Government of Himachal Pradesh. The Principal Secretary (Health) forwarded this application to the H.P. Government Dental College for consideration on 28.11.2008. In the meantime, an advertisement was issued and her case was also forwarded to the Dental Council of India. As observed by us above, the DCI came to the conclusion that the case of none of the students was covered under the Regulations. We are also of the considered view that the case of Tejasvita Chandel was not covered under the DCI Regulations. Her case did not fall under any of the two criteria laid down. Admittedly her supporting guardian that is her mother is still alive. There was virtually no material placed on record in support of her case and even her application is taken to be the gospel truth, then also her case does not fall within the criteria laid down in the Regulations. 13 Parul Tanwar: The case of Parul Tanwar is a clear reflection of the shocking state of affairs where all laws, rules and regulations are thrown to the wind by senior officials of the State just to accommodate one person. On a perusal of the record we find that Parul Tanwar made a request directly to the Minister of Health and Family Welfare Himachal Pradesh. We fail to understand how an application would lie to the Minister. The application could have been filed to the College or Dental Council of India but could not have been addressed to the Minister. The Minister in charge in all fairness should have returned the application for being filed before the proper authority. He instead chose to make a positive recommendation in favour of Ms.Parul Tanwar. It is obvious that this recommendation was made without even caring to see whether Parul Tanwar was even eligible for migration or not. According to Parul Tanwar she could not carry out her students in Paonta Sahib since her room-mate had committed suicide in April, 2008. The room-mate committed suicide when Parul was at Shimla. When she went back to join her college, she was informed that her room-mate had committed suicide. Then the police came to investigate the matter and according to Parul she was forced to make a statement alleging that some College lecturers were harassing and torturing her deceased room-mate. According to Parul due to this the Management and staff of the College were against her 14 and therefore she could not continue her studies at Paonta Sahib. This was not a ground covered under the DCI Regulations. At that stage Parul Tanwar had not even appeared in the BDS first year examination. Migration is permitted only after the declaration of the result of BDS first year examination and only in cases of candidates who have passed the examination. Despite the fact that the case of Parul Tanwar was not covered, the Minister concerned recommended that it is a fit case of migration and deserves sympathetic consideration as a special case and further directed the Principal Secretary (Health) to look into this matter personally and get the needful done at the earliest. The Principal Secretary (Health) thereafter wrote a letter to the Director, Medical Education and Research, Himachal Pradesh forwarding therewith the note of the Minister and the application of Parul Tanwar. The Principal of the Government Dental College sent a communication on 5th July, 2008 to the Director, Medical Education and Research making reference to the earlier migration Rules and the revised DCI Regulations. Thereafter the Director Medical Education and Research wrote a letter on 10th July, 2008 to the Principal Secretary 9Health) informing him that as per the existing Rules and Regulations the Principal, H.P. Dental College, Shimla was unable to consider the migration case. It was clearly stated that the migration cannot be allowed till the first year result is declared. Surprisingly, however, it was recommended that 15 Parul Tanwar be allowed to continue her studies in H.P. Dental College, Shimla. How a student of one College could have been permitted to attend classes in other College without migration is something which has not been explained till now. Thereafter, on 26th July, 2008 the Principal Secretary (Health) sent a communication to the Registrar, H.P. University with copies to the Director, Medical Education, Principal, H.P. Dental College and Principal, Himachal Institution of Dental Sciences, Paonta Sahib stating that the State Government has no objection if Parul Tanwar is allowed to appear in final first profession BDS examination from H.P. Government Dental College, Shimla. Another letter was also sent on the same date that the Government has no objection to the migration of Parul Tanwar but it was made clear that migration should be on fulfillment of conditions of DCI Regulations. When the DCI Regulations did not permit such migration we fail to understand how the Government could have granted its sanction to the same. Though Parul Tanwar was never allowed to migrate from the College at Paonta Sahib to the H.P. Dental College, Shimla she was permitted to join her first year classes at the Government Dental College at Shimla. Thereafter, the Assistant Registrar ( Examination), H.P. University sent a letter on 21st August, 2008 to the Principals of Colleges at Shimla and Paonta Sahib stating that Parul Tanwar had been permitted to sit in BDS Examination at H.P. Dental College Shimla as a special case. 16 Thereafter, Parul Tanwar wrote letters to the Principal Secretary (Health) praying that since she had been allowed to migrate she may be permitted to attend her second year classes at Shimla. On 22nd December, 2008 the Director, Medical Education and Research issued an office order which reads as follows: “OFFICE ORDER The following two students facing extreme compassionate circumstances whose requests stand referred to Dental Council of India for consideration, are allowed to study in 2nd year course from H.P. Govt. Dental College, Shimla at their own risk & peril and further subject to approval of Dental Council of India besides the Himachal Pradesh University. 1.Ms.Tejasvita Chandel D/o late P. Chandel 2.Parul Tanwar D/o Sh.L.R. Tanwar” We fail to understand under what authority of law the Director issued the aforesaid order. There was no reply to our repeated queries as to how these orders could have been passed. Till migration is allowed the students must continue the studies in the College which they have been admitted to. Under no circumstances can they be permitted to attend some other College without migration being allowed as per the Rules. As far as Parul Tanwar is concerned, we are clear that in her case every law and rule was broken and thrown to the winds. She was studying in the first year when she applied for migration whereas the Rules specifies that migration can be applied for within one month of the declaration of the result. She at the behest of certain high ups was permitted to attend classes and appear in the examination at 17 Government Dental College, Shimla. Her case was not covered under the DCI Regulations since only a person who had passed first year examination could be considered for migration. A bare reading of the Regulations show that the applications must be made within one month of the declaration of the result. The result being referred to is the result in respect of all candidates. The result was admittedly declared on 25th November 2008 and applications had to be filed within one month. Since