JUDGMENT O.P. Garg, J.
1. Having been successful in the All India Entrance Examination. 1996 for admission to M.B.B.S. Course, the petitioner Km. Angna Singhal was allotted and admitted in Kasturba Medical College, Manlpal. After completing 1st year of the said course, she applied for migration from Manlpal Medical College to King George Medical College, Lucknow. Both the colleges have Issued 'No Objection Certificates'. Manipal Academy of Higher Education, a deemed University, with which Manipal Medical College is affiliated has also issued 'No Objection Certificates' in favour of the petitioner.
2. The Medical Council of India (for short 'Council') which is a statutory body, constituted under the Indian Medical Council Act, 1956, has the authority to pass appropriate orders for migration/transfer. There are regulations, which have been framed with the previous sanction of the Central Government and are known as Regulations on Graduate Medical Education, 1997 (hereinafter referred to as the 'Regulations'). Under Regulation 6 of the Regulations, migration of the medical students takes place. Relevant provision is extracted below for ready reference :
"6. Migration :
(1) Migration from one medical college to other is not a right of a student. However, migration of student 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 migrations 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 M.B.B.S. 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 (M.B.B.S.) examination.
(5) The applicant candidate must submit an affidavit stating that he/she will pursue 18 month of prescribed study before appearing at IInd Professional Bachelor of Medicine and Bachelor of Surgery (M.B.B.S.) examination at the transferee medical 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 2 to the aforesaid Regulation lays down the following compassionate grounds criteria :
"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 the Medical College area."
3. The petitioner applied for migration after completing all the necessary formalities on compassionate ground (ii) above. The matter with regard to the migration of the petitioner was placed before the Migration Subcommittee of the Council at its meeting held on 13.7.1998. The Committee took the following decision :
"The Migration Sub-committee in the light of Regulations of the Council notified with regard to migration from one Ms. Angna Singhal from Kasturba Medical College, Manipal to K. G.'s Medical College. Lucknow. Since the reasons given by the candidate is not covered by any provision as enumerated and specified under Note 2-i.e., 'compassionate grounds criteria' of migration rules of Council Regulations on Graduate V Medical Education, 1997."
Yours faithfully.
Sd./-Dr. K. K. Arora, Deputy Secretary"
The decision of the sub-commit tee was communicated to the petitioner by letter dated 14th July, 1998. a copy of which is contained in Annexure-14 to the writ petition. It is this order, which is subject-matter of challenge before this Court under Article 226 of the Constitution of India.
4. Counter and rejoinder-affidavits have been exchanged. Heard Sri Ravi Kant, learned counsel for the petitioner, and Sri Vikram Nath. learned counsel for the council.
5. Sri Ravi Kant, learned counsel for the petitioner urged that the decision of the council dated 13.7.1998 as communicated by letter dated 14.7.1998, Annexure-14 to the writ petition is against Regulation 6 as well as settled medical dictum pertaining to the disease--Bronchial Asthma and consequently it is illegal, arbitrary and discriminatory. It was also pointed out that the continuance of the petitioner at Manipal is not congenial to her health and if she is shifted from Manipal to Lucknow, the disability which the petitioner has incurred would come to an end. Certain instances were also cited to indicate that the candidates whose grounds were much weaker than that of the petitioner, were allowed to migrate. Sri Vikram Nath, learned counsel for the Council repelled the submissions and maintained that Bronchial Asthma is not a disease causing 'disability' necessitating migration, and, therefore, the case of the petitioner is not covered under the criteria of compassionate ground from migration from one medical college to another. It was also pointed out that the migration committee of the Council is of the strict opinion that the Bronchial Asthma is not perpetual and continuous illness and, therefore, the decision taken by the council in rejecting the case of the petitioner for migration does not suffer from any infirmity.
6. On behalf of the petitioner, entire energy was concentrated to establish that Bronchial Asthma is such a disease which comes within the term of the expression 'disability' and if the petitioner is shifted from Manipal to Lucknow. she may get rid of the serious ailment. To support this submission, a number of text books, journals, magazines and articles were brought to the notice of this Court. A reference was also made to Quarterly Medical Review. Vol. 37, No. 4--October. 1985 ; Suraj Gupte's--The Short Textbook of Pediatrics. 8th Edition--Jay pee (pages 214 and 218) ; Davidson's Principles and Practice of Medicine--Seventeenth Edition by C.R.W. Edwards/1.A.D. Bouchier/C. Haslett/ E.R. Chtlvers (page 340} ; British Medical Journal-Indian Edition. Vol. 13. No. 6. August 1997 (page 549(; Crofton and Douglas's Respiratory Diseases. 4th Edition (page 677 onwards); O. P. Ghai's Essential Pediatrics. 4th Edition (page 286) and THORAX-the Journal of the British Thoracic Society-Guidelines on the Management of Asthma (Supplement Editor Magazine by Mark Woodhead) (pages 4 and 6). On the basis of these medical books and Journals as well as articles, it was shown as to what is Bronchial Asthma and what is not, and what is its impact; remedial measures and management of the disease etc. A pointed emphasis was laid on the remedial aspect that a change of environment may remove the offending allergen and also the functional stimuli. Removal of a patient of Bronchial Asthma from a particular surrounding to another place having a changed environment is one of the remedial measures besides other treatments such as appropriate antibiotics, postural drainage, breathing exercise, surgical resection of the particular segment or lobe should only be done when the medical measures have failed surgical drainage is obsolete now etc. For the avoidance of allergence. a patient has to change his/her life style, which may produce dramatic Improvement.
7. It was further pointed out that Asthma like many other diseases is incurable. It also has a frightening reputation among the public, many of whom have known a relative or friend seriously disabled by the disease. The thrust of the arguments on behalf of the petitioner is that though the petitioner has not acquired the disability but the disease is such which may ultimately disable or incapacitate her and before the petitioner acquires serious disability, it would be proper if she is removed from the environment where she is prone to allergy and has actually suffered the disease. It was also pointed out that the petitioner is undergoing treatment for the said disease but has not been able to get any relief as the drugs have failed to produce the desired result and now the only course left is that the petitioner should be shifted from Manipal to Lucknow.
8. I have given thoughtful consideration to the matter and I feel that this Court does not have the expertise to decide the question whether a patient of Bronchial Asthma is to be treated in the category of 'illness causing disability'. In common parlance, the expression 'disability' means deprivation of ability, i.e., a state of being disabled or incapacitated : absence of physical competency ; incapacity, impotence, weakness, a want of competent power, strength or physical ability and may Include mental as well as bodily disability. Sometimes, disability may result as well from the condition of the mind and nerves as from other causes and where a man is so inattentive or forgetful as a result of mental disorder that he cannot be trusted to carry on even simple forms of work. The meaning and Import of the expression 'disability' in different forms have been mentioned in 'Words and Phrases, Permanent Edition, Volume 12A (St. Paul Minn. West Publishing Co.) (from pages 198 to 228).
9. Sri Vikram Nath, learned counsel for the respondent-Council made a reference to the definition of the expression 'disability' as is contained in central enactment, viz. The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 (No. 1 of 1996). Under Section 2(i), the expression 'disability' has been defined to mean (i) blindness,
(ii) low vision, (iii) leprosy cured; (iv) hearing impairment, (v) locomotor disability, (vi) mental retardation, (vii) mental illness. It was urged that there is no better definition of the expression 'disability' as mentioned in the aforesaid Act with reference to the health of a person.
10. The gamut of the varying definitions and meanings is that a person. In order to become 'disabled' should be incapacitated and may have lost the power to work. If his/her ability to do the work stands deprived, then only it would be a case of disability. As a matter of fact, every disease causes 'disability' in one form or the other but it would not fall under the ambit of 'compassionate ground' for migration. Even a simple/ordinary disease may in course of time turn out to be grave or hazardous. It may be cured by the various treatments prescribed. There is nothing on record to indicate that the petitioner has become disabled on account of her Illness due to Bronchial Asthma. It is also not indicated from any document that the disease by which the petitioner is afflicted is such which is not curable at Manipal or that in case the petitioner is not shifted from Manipal, which is in the southern part of the country to Lucknow in the northern part, she would acquire disability.
11. Regulation 6 of the Regulations dealing with migration of the students from one medical college to another is prefaced from a warning that migration 'is not a right of student'. In the normal course, therefore, if a student has been admitted to a particular medical college and is studying there, he/she is not to be shifted from one medical college to another as of right. It is only in exceptional circumstances of compassion that a student may be allowed to migrate. 'Illness of the student causing disability' is one such ground. The ailment of the petitioner is not of such a magnitude as would attract the aforesaid compassionate ground criteria. Lltigative zeal and compassion do not go together. Compassion is not to be evoked as a matter of right.
12. There is yet another aspect of the matter. In the academic field, the Courts have not ventured into such 'exclusive thickets' to discover the ways out when the matters are appropriately left to the wise experts of academicians Interested in equality and Integrity of education. This conclusion flows from the decision of the Apex Court in the case of Javid Rasool Bhatt v. State of Jammu and Kashmir, AIR 1984 SC 873. Academic freedom demands responsibility on the part of academicians to raise high standard of education. In spite of the fact that the horizon of judicial review is expanding the Apex Court has been, by and large, sticking to the aforesaid approach while dealing with various matters relating to higher education, though unwittingly and unconsciously, sometimes inroads have come to be made in the autonomy and freedom of the educational Institutions under the label of discharging the constitutional duty to prevent 'arbitrariness and dental of equal opportunity' as well as to uphold the majesty of law. While undue interference and Intervention by the Courts is not feasible. It sometimes becomes inevitable to put a stop to bizzare exploitation of the students in the matter of their admission, migration, reservation, discipline and examination. The delicate task of balancing the rights of the two independent branches is to be performed without transgressing the limits of each other. The Court is not supposed to overstep in the academic field. Nevertheless, occasions may arise when the authorities responsible to Implement educational policies fail or omit to take initiative or are lethargic in the matter. It is now well-settled that in a society ruled by taw, unfettered discretion is a contradiction in terms. In such a situation, the question arises : can justice remain a cloistered virtue shutting it s eyes to social realities and mores? Will not innovative judicial strategies, sometimes described as inroads and trespasses into the exclusive domains of the Legislature and the executive, become unnecessary for maintaining the unity of the legal system in such crisis? The Courts cannot sit idle in such situations. They cannot abdicate their duty of stepping-in and calling it to perform its lawful duty under the obligation which has been Imposed upon the Court by the Constitution of the country. In respect of all these. Courts have been cautious enough in upholding academic freedom and the autonomy of the educational institutions and, have, therefore, shown great reluctance to Interfere with the academic decisions of the experts. In this connection, a reference may be made to J. P. Kulsreshtha and others v. Chancellor. Allahabad University, (1980) 3 SCR 902 ; Dr. M. C. Gupta v. 'Arun Kumar, (1979) 2 SCC 339 ; Krishna Priya Ganguli v. University of Lucknow and others, AIR 1984 SC 186 ; Maharashtra State Board v. Paritosh Bhupesh Kumar Sheth. AIR 1984 SC 1545 ; University of Mysore v. C. D. Govlnda Rao. AIR 1965 SC 491 ; Jawaharlal Nehru University Students' Union v. J. N. University and others, AIR 1985 SC 567 ; Principal Patna College v. K. S. Roman. AIR 1966 SC 707 : Dr. Uma Kant v. Bhika Lal Jain, (1992) 1 SCJ 45 ; Board of High School v. Bateshwar Prasad, AIR 1966 SC 875 ; State of Bihar v. Dr. Asis Kumar Banerjee, (1975) 2 SCR 894 ; Suresh Koshy v. University of Kerala. AIR 1969 SC 169 ; Vice-Chancellor, Utkal University v. S. K. Ghosh, AIR 1954 SC 217 ; P. K. Ram Chandra Iyer v. Union of India, W.P. No. 587 of 1975. decided on December 16, 1983 ; Dalpat Abasaheb v. Dr. B. S. Mahajan, (1990) 1 SCJ 571 ; Jagdlsh Sharan v. Union of India, AIR 1980 SC 820 ; Neelima Misra v. Harinder Kaur Paintal (1990) 2 SCC 746 ; State of Kerala v. T. P. Roshna. AIR 1979 SC 765 ; Javid Rasool Bhatt (supra) ; PrincipoTK. G. Medical College v. Vishnu Kumar Agarwal. AIR 1984 SC 221 and Bhushan Uttam Kharey v. Dean B. J. Medical College. All these decisions law down a firm principle of law that the Courts must look with respect to the performance and duties of experts in their respective fields.
13. It is an indubitable fact that Medical Council of India, which is apex body in the field of education in Medical Science is an expert body and is manned by renowned experts and men of reputation. If they have taken the decision that the illness of the petitioner is not such as would cause disability. It would be too genteel for this Court to discourse on the issue. The decision taken by the Council cannot be interfered with on any ground, whatsoever.
14. In the conspectus of above facts, the present petition falls and is accordingly dismissed without any order as to costs.