IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07-11-2017 CORAM :
THE HONOURABLE MR.JUSTICE N.KIRUBAKARAN W.P.No.10323 of 2017 and W.M.P.Nos.11256 & 11257 of 2017 Fathima Thameema PK Vs ... Petitioner
1. The Secretary, Government of Tamil Nadu, Health and Family Welfare (ME) Department, St. George Fort, Chennai 600 009.
2. The Secretary, The Dental Council of India, Aiwan-B-Galib Marg, Kotla Road, Temple Lane, New Delhi - 110 002.
3. The Registrar, Tamil Nadu Dr.M.G.R.Medical University, No.69, Anna Salai, Guindy, Chennai 600 032.
4. The Director, Directorate of Medical Education, Kilpauk, Chennai 600 010.
5. The Principal, Sri Venkateshwara Dental College and Hospitals, Thalambur, Kancheepuram District 600 130.
6. The Principal, Tamil Nadu Government Dental College and Hospital, Chennai 600 001 ... Respondents Prayer: Writ petition is filed under Article 226 of the Constitution of India for issuance of Writ of certiorarified Mandamus, to call for the entire records from the second respondent for the order passed in No.DE- 114-2017/201 dated 5/4/2017 by the 2nd Respondent and quash the same and directing the respondents to migrate the petitioner from the 5th respondent college to the 6th respondent dental college for the second year BDS course on the application made by the petitioner on 24/11/2016 to 1st to 4th respondents and also to direct the respondents to add the days attended in the 5th respondent college along with attendance of the 6th respondent on migration from the 5th respondent college to the 6th respondent college.
For Petitioner : Mr.K.P.Sathish Kumar For Respondents : Mr.T.M.Pappiah (for R1, R4 & R6) Ms.S.Seethalakshmi (for R2) Mr.P.R.Gopinathan, (for R3) Standing counsel O R D E R The petitioner got admission in 5th respondent Dental college namely Sri Venkateshwara Dental College and Hospitals, Kancheepuram District in BDS course during the academic year 2015-2016. After admission she completed first year BDS course with more than 75% attendance and passed the course with two distinctions and one honour.
2. Due to an accident occurred on 13.09.2010, the petitioner's Lumbar Lordosis was affected, resultantly, D3 and D4 discs of the backbone were dislocated. The petitioner has been taking treatment for Lumbar Lordosis. Apart from undergoing Physiotherapy and regular medication, the petitioner has to travel 42 Kms from her residence to the 5th respondent college and she has to cover 42 Kms on her return. The travel causes pain in D3 and D4 of petitioner's vertebrae. Doctors from whom the petitioner has been taking treatment advised the petitioner to avoid long travel in view of her health condition. Therefore, the petitioner applied for transfer from 5th respondent college to 6th respondent/Tamilnadu Government Dental College and Hospital in which 24 second year seats are vacant.
3. In this regard, petitioner gave application to respondents 1 to 4 on 24.11.2016, seeking transfer/migration. Since, the petitioner's request was not considered, the petitioner was compelled to file Writ Petition No.43010 of 2016 and this Court by order dated 06.01.2017, directed the petitioner to approach the University with necessary certificates and recommendation from college and that the University shall give ''No Objection Certificate" for forwarding the same to the Dental Council of India which shall pass orders on the petitioner's request for transfer. Pursuant to the orders passed by this Court in the above Writ Petition, the Dental Council of India considered the petitioner's request for transfer and rejected her request on the ground that the provisions of migration do not contemplate medical grounds. The said order is challenged before this Court.
4. Heard Mr.K.P.Sathish Kumar, learned counsel appearing for the petitioner; Mr.T.M.Pappiah, learned Special Government Pleader appearing for the respondents 1, 4 and 6; Ms.S.Seethalakshmi, learned Standing counsel appearing for the 2nd respondent; Mr.P.R.Gopinathan, learned Standing counsel appearing for 3rd respondent. Though the 5th respondent has been served with notice and the name is printed, no one has entered appearance.
5. The Dental Council of India has relied upon Regulation IV of Dental Council of India revised BDS course regulation 2007, which speaks about migration and Note 2 of Regulation IV speaks about migration on compassionate grounds. Regulation IV is extracted as follows:
"IV.Migration:
(1) Migration from one dental college to another 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 grounds*, provided the 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 recognised 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 recognised Institutions.
(ii) All applications for migration shall be referred to Dental Council of India by the college authorities. No Institution/University shall allow migration directly without the prior 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.
Note2: *Compassionate ground criteria:
(i) Death of supporting guardian.
(ii) Disturbed conditions as declared by Government in the Dental College area.
6. The reading of the above rule would prove that there is a provision for migration and the students get migrated from one institution to another institution. Though it is not a matter of right, Regulation IV(3) permits migration of students, who have passed the first year professional BDS examination, which the petitioner has already done.
7. As per clause (1) of Regulation IV, the Dental Council of India could give permission for migration on compassionate ground. The compassionate ground pleaded by the petitioner is her health ground. The petitioner was referred to Regional Medical Board, Rajiv Gandhi Government General Hospital and on examination of the petitioner it is stated that she is suffering from lumbar disc disease with degeneration of L4, L5 and L5-S1 disc bulge. Further, it is stated that the above said condition would get aggravated due to prolonged travel. When the Medical Board has opined that her condition would aggravate if she undertakes travel. If the petitioner has to undergo the course in 5th respondent college, she has to travel 84 Kms every day, which is not advisable medically, as it would aggravate her medical problem. Therefore, the petitioner's position fits into the definition of compassionate ground.
8. Though Note 2 of Regulation IV speaks about only two grounds namely death of supporting guardian and disturbed conditions as declared by Government Dental College area, it is not exhaustive. The medical ground should also be one of the grounds which should find place under the compassionate ground. The petitioner's case has to be viewed with compassion only, in view of her health condition as evidenced by the proceedings of Medical Board dated 13.10.2017.
9. Therefore, the reasoning on which the petitioner's case was rejected for migration has to be quashed. The rules cannot be construed very technically. The rule for migration would not have foreseen many eventualities like the illness from which the petitioner is suffering. That apart, medical ground should always be a ground available and the case under the medical ground should be considered very compassionately. The Dental Council of India cannot strictly go by the two conditions alone. After all, rules or laws are handmaids of justice and justice should be done to the parties. Since the petitioner's case has to be considered very compassionately, taking into consideration her health condition, the petitioner's case cannot be rejected, on a technical ground. Therefore, the impugned order is quashed. The Dental Council of India is directed to approve the migration of petitioner from 5th respondent college to 6th respondent college within a period of two weeks from the date of receipt of a copy of this order.
With the above directions, this Writ Petition is allowed.
Consequently, connected Miscellaneous Petitions are closed. No costs.
07.11.2017 tkp/sai Note: Issue order copy by 08.11.2017 To
1. The Secretary, Government of Tamil Nadu, Health and Family Welfare (ME) Department, St. George Fort, Chennai 600 009.
2. The Secretary, The Dental Council of India, Aiwan-B-Galib Marg, Kotla Road, Temple Lane, New Delhi - 110 002.
3. The Registrar, Tamil Nadu Dr.M.G.R.Medical University, No.69, Anna Salai, Guindy, Chennai 600 032.
4. The Director, Directorate of Medical Education, Kilpauk, Chennai 600 010.
5. The Principal, Sri Venkateshwara Dental College and Hospitals, Thalambur, Kancheepuram District 600 130.
6. The Principal, Tamil Nadu Government Dental College and Hospital, Chennai 600 001
N.KIRUBAKARAN,J
tkp/sai W.P.No.10323 of 2017
07.11.2017