1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR O R D E R Kunica Mittal v. State of Rajasthan S.B.CIVIL WRIT PETITION NO.10074/2009 under Article 226 of the Constitution of India. Date of Order :: 4th December, 2009 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Shailesh Prakash Sharma, for the petitioner. Ms. Shruti Dixit, for the respondents. ..... BY THE COURT : After qualifying All India Pre Medical Test 2007 the petitioner was admitted in M.B.B.S. Course at K.A.P. Viswanatham Government Medical College, Tiruchy, Tamilnadu. On being suffered with certain ailment she desired for her transfer from Medical College, Tiruchy to Government 2 Medical College, Kota, however, being not permissible to do so without qualifying first year M.B.B.S. Examinations, her request was turned down. After qualifying first year M.B.B.S. Examinations the petitioner's father submitted an application seeking transfer of his daughter from Tiruchy Medical College to Government Medical College, Kota and the application submitted was supported by all necessary documents, including No Objection Certificate from both the medical colleges. No response was given to the application aforesaid, thus, the petitioner's father demanded certain necessary informations as per Right to Information Act from the Principal Secretary to the Government Rajasthan, Department of Medical and Health Service under an application dated 27.7.2009. In response thereto the Deputy Secretary to the Government of Rajasthan, Department of Medical Education (Group-I) by a letter dated 21.8.2009 informed the petitioner that transfer sought by her is not permissible being not in accordance with the conditions settled by the department. A challenge is given by the petitioner for denial of transfer from Tiruchy Medical College to Government Medical College, Kota. According to counsel for the petitioner, the petitioner is suffering from a serious ailment and according to migration rules and regulations prescribed by the Medical Council of India, she is eligible for 3 migration. It is also stated that at least two vacant seats are available in the course concerned at Government Medical College, Kota, where transfer is sought. Counsel for the petitioner also pointed out the document Anx.15 dated 12.1.2009 whereby the Government of Rajasthan notified terms and conditions regarding migration of M.B.B.S. students from one recognised medical college to another recognised medical college, and as per that a priority will be given to girl students while making transfer by way of migration. Per contra, the respondents while defending denial for migration asserted that the petition suffers from lacuna of non-joinder of necessary party being Medical Council of India, Government Medical College, Kota and Rajasthan University of Health Sciences are not party to the proceedings. It is also stated that migration can be considered only for extreme compassionate reasons and no such reasons exist in present case. A rejoinder is preferred by the petitioner mainly reiterating whatever already said in the writ petition. On 30.11.2009 this Court directed the respondents to make available the original record, wherein case of the petitioner was considered for migration from Medical 4 College, Tiruchy to Medical College, Kota and the same is made available for perusal of the Court today by counsel for the respondents. Heard counsel for the parties, considered the rival contentions and also examined the original record relating to the issue. The preliminary objection raised by the respondents regarding non-joinder of necessary parties is of no consequence in view of the fact that the Medical Council of India, New Delhi by its notification dated 20.10.2008 has authorised the State Government for effecting migration from one recognised medical college to another, though in exceptional cases for good and sufficient reasons. In view of the notification dated 20.10.2008, entire power for effecting migration vests with the State Government and, therefore, neither the Medical Council of India nor Government Medical College, Kota and the Rajasthan University of Health Sciences, Jaipur are necessary parties to the proceedings. As per the document Anx.R/2 (Extract taken from Chapter-II as prescribed in Medical Council of India Regulations on Graduate Medical Education, 1997), Migration Rules and Regulations are as follows:- 5 “6. Migration Rules and Regulations (1)Migration from one medical college to other is not a right of a student. However, migration of students from one medical college to another medical college in India may be considered by the Medical Council of India, only in exceptional cases on extreme compassionate grounds, provided following criteria are fulfilled. Routine migration on other grounds 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 recognised by the Medical Council of India. (3)The applicant candidate should have passed first professional MBBS 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 Medicine and Bachelor of Surgery (MBBS) examination. (5)The applicant candidate must submit an affidavit stating that he/she will pursue 18 months of prescribed study before appearing at IInd professional Bachelor of Medicine and Bachelor of Surgery (MBBS) examination at the transferee medical college, which should be duly 6 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 during clinical course of study shall not be allowed on any ground. ii)All applications for migration shall be referred to Medical Council of India by college authorities. No institution/university shall allow migrations directly without the approval of the Council. iii)Council reserves 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 grounds criteria:- i)Death of a supporting guardian. ii)Illness of the candidate causing disability. iii)Disturbed conditions as declared by Government in Medical College area.” The Government of Rajasthan also vide order dated 12.1.2009 prescribed terms and conditions for migration and those too are quoted below:- 7 “ORDER In pursuant of the Notification No.MCI-34 (41)/2008-Med/29527 dated 20-10-2008 issued by the Medical Council of India, New Delhi regarding migration of the MBBS students from one recognised medical college to another recognised medical college, the State Government hereby prescribes the following terms and conditions for migration:- 1)Migration will be allowed from one recognized medical college to another recognized medical college in India only in exceptional cases to the most deserving applicants for good and sufficient reasons. 2)Number of students migrating to/from any medical college shall not exceed 5% of its sanctioned intake in one academic year. In other words, the maximum number of students who can be migrated to or from the recognized medical college of Rajasthan will be as follows: a)SMS Medical College, Jaipur 8 b)JLN Medical College, Ajmer 5 c)SP Medical College, Bikaner 5 d)SN Medical College, Jodhpur 5 e)RNT Medical College, Udaipur 5 f)Government Medical College, Kota 5 The above migration will be subject to availability of a clear vacancy in the receiving medical college. 8 3)There shall be no migration from one medical college to another located in the same city. 4)Migration will be permitted only if it does not result in increase in the sanctioned intake capacity for the academic year concerned in respect of the receiving medical college. In other words, there should be a clear vacancy in the receiving medical college to which the migration is permitted. 5)Migration will be allowed only after qualifying in the first profession MBBS examination. Migration during clinical course of study shall not be allowed on any ground. 6)For the purpose of migration, an applicant student shall first obtain 'No Objection Certificates' from the college where he is studying for the present and university to which the college is affiliated to, the college to which migration is sought and the University to which that college is affiliated to. 7)The student will submit the application for migration within one month of declaration of results of the first professional MBBS examination along with No Objection Certificates (clause 6 above) to Deputy Secretary, Medical Education Department, Government of Rajasthan. For the first year, (2008-2009), the applications already submitted to MCI will be considered provided these were submitted to MCI within one month of 9 declaration of result of I professional MBBS exam. The Deputy Secretary will scrutinize the applications and put up for final decision to Secretary, ME and Hon'ble Minister, ME. The decision of Government will be conveyed to the student within one month from the date of receipt of the application. 8)The students who join another college after migration shall be eligible to appear in the second professional MBBS examination only after attaining the minimum attendance in that college in the subjects/lecturers/seminars required for appearing in the examination prescribed under the relevant regulations. 9)In case there are more applicants than the available seats, priority will be given to girl students coming from outside the city in which the receiving medical college is located. Inter-se merit of the students will be decided on the basis of marks obtained in the first MBBS examination.” With original record the application submitted by the petitioner and the documents annexed thereto are available at page 505 to 533/C. The application is supported by “No Objection Certificates” given by the competent authorities of both the medical colleges, the medical certificates issued by competent medical practitioners regarding ailment suffered by the petitioner and the affidavit sworn in by the petitioner herself making 10 a definite statement regarding certain facts desired by the respondents. From perusal of the note sheets it appears that office of the respondents made a detailed note on 12.5.2009 and found that migration of the petitioner can be considered under the category of migration on medical reasons. The aforesaid note was placed before the Joint Secretary, Medical Education who in turn noted “please discuss”. After necessary discussion a note was made on 26.5.2009 “Discussed. Please process in the light of pre- requisites, prescribed in our policy for migration. MCI guidelines may also be seen”. In view of the note aforesaid case of the petitioner and certain other students seeking migration were considered and a detailed note was drawn on 30.5.2009. While drawing the note dated 30.5.2009, case of the petitioner was found fit for migration as it appears from relevant portion of the noting which is quoted below:- "ǒवभाग Ʈारा जारȣ Ǒदशा-िनदȶशɉ मɅ उƠ कारण सǔàमिलत नहȣं है। परÛतु असाधारण ूकरणɉ पर ǔजनमɅ आवेदक के पया[Ư समुिचत कारण हो पर ǒवचार Ǒकया जावेगा। तथा ǐरसीǒवंग कालेज मɅ ःथान ःपƴ Ǿप से ǐरƠ होना चाǑहए। अनुÍछेद 166 तथा कुिनका िमƣल के कारण सǑफिसयेÛट ूतीत होते है। राÏय मɅ ǑƮतीय वष[ एमबीबीएस पाठयबम कȧ परȣ¢ा फरवरȣ 2010 मɅ आयोǔजत होगी। अनुÍछेद 204(1) के बम मɅ आदेशाथ[ ूःतुत है।" The Deputy Secretary of the respondent department 11 then made a note to deal with all the applications received and to submit report thereon collectively. Accordingly, a note was again drawn on 5.6.2009, wherein too it was reiterated that two seats are available at Government Medical College, Kota. The matter then was pending consideration, however, in the meantime on 27.7.2009, petitioner's father submitted an application seeking information relating to matter in question, as per provisions of the Right to Information Act. After receiving the application aforesaid a note was drawn and therein it was noted that as per note 216 the petitioner is not covered by the guidelines settled for migration. The note drawn by the departmental authorities after receiving the application seeking information reads as follows:- "कृपया ूाƯ पऽ के माÚयम से सूचना अिधकार अिधिनयम अÛतग[त ूाथȸ ने िनàनांǑकत सूचना चाहȣ है- वांिछत सूचना ǒवभागीय ǑटÜपणी 1.सुौी कुिनका िमƣल IInd MBBS इनके आवेदक पी 505 से 533/सी पर ितǾिचरापãली मेǑडकल कालेज से मेǑडकल उपलÞध है, जो अनुÍछɅद 187 से कालेज, 220/एन कोटा मɅ माईमेशन के आवेदन Ǒदनांक पर ूःतुत Ǒकये गये है। MCI Ʈारा 2.4.2009 एवं 28.4.2009 पर आपके माईमेशन हेतु तीन कारण इंिगत Ǒकये गये है- Ʈारा Èया िनण[य िलया गया । 1. सपȾǑटंग गाǔज[यन कȧ मृ×यु 2. बीमारȣ के कारण िनशƠा 3. जहां छाऽा/छाऽ अÚययनरत है वह कालेज,अशांत¢ेऽ घोǒषत हो। 12 उƠ छाऽा उƠ तीनɉ कारणɉ मɅ नहȣं आती है। एन/216 के अनुसार भी इनका ूकरण ǒवभाग Ʈारा जारȣ Ǒदशा िनदȶशɉ मɅ कवर नहȣं होता है। 2.ऐसे आवेदनɉ पर आप Ʈारा Ǒकतने ǒवभाग Ʈारा जारȣ आदेश Ǒदनांक Ǒदवस मɅ िनण[य िलया जाता है उसकȧ 12.01.2009 पी 152-153/सी के ǒबÛदू कोई समय सीमा है तो बताएं संÉया 7 मɅ आवेदन ूािƯ के एक माह मɅ सूिचत करने का है। 3.आवेदन पर िनण[य कȧ सूचना इसका उƣर ǒबÛद संÉया ू 2 मɅ Ǒदया गया है åयǒƠश: देने का ूावधान है या ऐसे åयǒƠश: का उãलेख नहȣं सूचना ूेǒषत केसेज को ǑकÛहȣं अÛय संःथा को करने का उãलेख है। अमेǒषत Ǒकया जाता है। अत: ूाथȸ को सूिचत कर Ǒदया जावे Ǒक आपका ूकरण उƠ अंǑकत तीनɉ कारणɉ मɅ नहȣं आता है। इस कारण माईमेशन Ǒकया जाना संभव नहȣं है। राÏय मɅ IInd MBBS का सऽ अगःत-िसतàबर 2008 से ूारàभ हो गया था ǔजसे एक वष[ होने जा रहा है इस कारण िमड-सेशन मɅ माईमेशन कȧ अनुमित नहȣं है। आदेशाथ[" After taking the decision aforesaid a note was also drawn by competent officer of the department on 31.7.2009 in the terms that “kindly peruse para 4/205 and onwards. None of the case seems to fulfil the condition mentioned in para 4/216. Submitted for perusal and further orders. If approved, we may inform all these applicants”. From narration of the facts stated above, it is apparent that at initial stage a noting was made favouring admission of the petitioner at Government Medical College, 13 Kota by migration from K.A.P. Viswanatham Government Medical College, Tiruchy, Tamilnadu and no final decision thereon was taken uptil the petitioner's father submitted an application seeking information relating to action taken by the respondents in the matter pertaining to migration of his daughter. It is only while receiving comments on the application submitted by the petitioner's father demanding information, a note was made that none of the three reasons as per para N/216 are applicable in present case and, therefore, migration is not permissible. No independent decision prior to that was taken by the respondents. It appears that the respondents after receiving application under Right to Information Act choose to reject the petitioner's demand for admission at Government Medical College, Kota by migration from K.A.P. Viswanatham Government Medical College, Tiruchy, Tamilnadu. I do not want to make any comment regarding attitude of the respondents while rejecting claim of the petitioner just on receiving an application demanding certain informations, without examining merits of that as per the policy drawn, however, the reason given while making comments relating to supply of information to the petitioner is also quite vague. The petitioner claimed her transfer from Tiruchy Medical College to Government Medical College, Kota on the ground of ailment. According to the 14 respondents' policy, if a person is suffering from illness causing disability, the migration is permissible. The disability in present context means the circumstances, those may disable the student even to pursue the studies at a specific place/college. The petitioner's father in most unambiguous terms stated that if migration as claimed is not allowed then looking to ailment, her daughter will not be in position to further undergo studies at K.A.P. Viswanatham Government Medical College, Tiruchy, Tamilnadu. The application submitted on behalf of the petitioner was also supported by medical opinion. As such the petitioner is certainly having a disability due to illness and that may have an effect of leaving the studies at Tiruchy. It is also pertinent to note that vacancies too are available at Government Medical College, Kota and at initial stage officers of the respondents were also of the view that the petitioner deserves admission at Government Medical College, Kota by migration from Tiruchy Medical College. A specific note was made to the effect that sufficient cause is available for petitioner's migration. In such circumstances, I do not find any just reason to reject the petitioner's claim. At this stage, I could have remanded the matter to the respondents to take appropriate decision with regard to admission of the petitioner at Government Medical College, 15 Kota by way of migration from Tiruchy Medical College, however, instead of doing so I am proceeding to direct the respondents for admission of the petitioner at Government Medical College, Kota by way of migration on the count that further remission of the petitioner shall be nothing but to prolong the petitioner's agony. I am also not inclined to remit the matter to the respondents in view of the fact that the claim of the petitioner was rejected without fair consideration and merely on receiving an application demanding certain information. I am also satisfied that the petitioner is suffering from an ailment that may disable her to undergo further studies coupled with the fact that two vacancies are available at Government Medical College, Kota, and thus, the interest of justice shall be served by accepting this petition for writ in totality. Accordingly, this petition for writ is allowed. The decision of the respondents rejecting petitioner's claim for admission at Government Medical College, Kota by migration from K.A.P. Viswanatham Government Medical College, Tiruchy, Tamilnadu, is declared illegal. The respondents are directed to admit the petitioner in MBBS second year by way of migration as per norms settled under letter dated 12.1.2009 (Anx.5) read with notification No.MCI-34(41)/2008-Med/29527 dated 20-10-2008. The admission to the petitioner in pursuant to the directions 16 aforesaid is required to be given as early as possible, preferably on or before 18th December, 2009. ( GOVIND MATHUR ),J. kkm/ps.