IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR.JUSTICE P.B. BAJANTHRI WRIT PETITION NO.18842 OF 2019 (EDN-RES) BETWEEN:
MR.SHRISHA S HANUMASAGAR AGE 20 YEARS S/O.SHRIRANGA, NO.122 A/B, SRIVENKATARAYA MAYURI ESTATE NEAR NEW CHINMAYA SCHOOL HUBLI-580 023 (BY SRI.M.B.NARGUND, SR.ADV. FOR SMT.SONA VAKKUND, ADV.) AND:
1. THE GOVERNMENT OF KARNATAKA REP. BY ITS PRINCIPAL SECRETARY HEALTH AND MEDICAL EDUCATION DEPARTMENT … PETITIONER M.S.BUILDING, DR.B.R.AMBEDKAR VEEDHI BANGALORE-560 001 2. THE DIRECTOR OF MEDICAL EDUCATION GOVERNMENT OF KARNATAKA ANANDRAO CIRCLE BANGALORE-560 009 3. BOARD OF GOVERNORS IN SUPERSESSION OF MEDICAL COUNCIL OF INDIA REPRESENTED BY SECRETARY GENERAL POCKET NO.14, SECTOR-8, DWARAKA NEW DELHI-110 077 4. SECRETARY GENERAL BOARD OF GOVERNORS MINISTRY OF HEALTH AND FAMILY WELFARE THE GOVERNMENT OF INDIA POCKET NO.14, SECTOR-8 PHASE-1 NIRMAN BHAVAN NEW DELHI-110 011 5. THE REGISTRAR RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCES IV-T BLOCK, JAYANAGAR BANGALORE-560 041 6. THE PRINCIPAL OXFORD MEDICAL COLLEGE AND RESEARCH CENTRE BANGALORE 7. THE PRINCIPAL SDM COLLEGE OF MEDICAL SCIENCES AND HOSPITAL DHARWAD- 580 009 ... RESPONDENTS (BY SMT.PRAMODINI KISHA, AGA FOR R1 & R2 SRI.H.JAYAKAR SHETTY, CGC FOR R4 SRI.N.KHETTY, ADV. FOR R3 SRI.N.K.RAMESH, ADV. FOR R5) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER OF THE BOARD OF GOVERNORS IN SUPER-SESSION OF MEDICAL COUNCIL OF INDIA DATED: 21.12.2018 VIDE ANNEXURE-R AND ETC.
THIS PETITION IS COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:-
ORDER In the instant petition, petitioner has assailed the communication dated 21.12.2018 (Annexure-R) by which petitioner’s grievance relating to migration from the non-recognized Institution to recognized Institution has been turned down in terms of Medical Council of India Regulations on Graduate Medical Education, 1997 (for short ‘Regulations 1997’) under Regulation 6(2).
2. Petitioner was admitted to Oxford Medical College, Hospital and Research Centre, Bangalore (for short – 6th respondent) for MBBS PRIV Course and GM – P category. The petitioner stated to have been completed first year MBBS examination and passes with distinction in the month of July 2018. On 11.8.2018, petitioner obtained NOC from SDM College of Medical Sciences and Hospital, Dharwad, similarly, from the 6th respondent on 21.8.2018. In this background, Rajiv Gandhi University sought a direction from the Medical Council of India as to whether the petitioner is entitled for No Objection Certificate for the purpose of migration. Petitioner approached the Director of Medical Education seeking for migration. Whereas, on 19.11.2018, Board of Governor in super session issued a communication to the Director of Medical Education rejecting the migration of the petitioner. Thereafter, petitioner requested the Board of Governor to re-consider his grievance in terms of the judgment of this Court. Consequently, on 21.12.2018 communication has been made to the petitioner relating to rejection of his migration. Hence, the present petition.
3. Learned counsel for the petitioner submitted that even though petitioner’s grievance relating to migration has been rejected on 21.12.2018 whereas 5th respondent got recognition on 15.3.2019 (Annexure-S). In view of the later development, petitioner is entitled for reconsideration for migration. Further, learned counsel for the petitioner submitted that Director is empowers to exercise power under Note-2 to Regulation No.6 of 1997. In support of these contentions, learned counsel for the petitioner relied on three decisions of this Court:
1. W.P. No.49609/2013 - Rajashekar Reddy Y. Vs. Government of Karnataka, represented by its Principal Secretary.
2. W.P. No. 52998/2018 - Vaishnavi I. Anchatgeri Vs. Government of Karnaaka and Others.
3. Writ Appeal No.1435/218 - Dental Council of India Vs. Miss Trishanthi M.N.
4. Learned counsel for the petitioner stressed his argument in support of migration Note – 2 to Regulation No.6 that Director is empower to consider the migration if there is any request. It was also contended that sub clause (2) of Regulation is not mandatory and it is only directory. Consequently, impugned communication dated 21.12.2018 is liable to be set aside and further, petitioner is entitled for direction.
5. On the other hand, learned counsel for the respondents submitted that in identical circumstances, Supreme Court had an occasion to decide the matter relating to migration i.e., Shirish Govind Prabhudesai Vs. State of Maharashtra and others reported in (1993) 1 SCC 211. He has pointed out from para No.1, wherein extract of the relevant clause relating to migration/transfer of students from one Medical College to another. Each and every conditions stated in clause 5 of Regulation 1997 has been taken into consideration by the Supreme Court. Further, he relied on para Nos.5 to 7 to contend that migration is permissible only from one recognized Medical College to another recognized Medical College. Thus, the cited decisions on behalf of the petitioner are distinguishable with reference to supreme Court decision.
6. Learned counsel for the respondents further pointed out from Note – 2 to Regulations 6 of 1997 and it reads as under:
Note – 2 “any request for migration not covered under the provisions of these Regulations shall be referred to the Medical Council of India for consideration on individual merits by the Director (Medical Education) of the State or the Head of Central Government Institution concerned. The decision taken by the Council on such requests shall be final.
7. Learned counsel for the respondents submitted that present matter is not covered under the provisions of these Regulations means if sub Regulation – 2 do not stipulate only if both the colleges are recognized had not been interpreted. Therefore, note – 2 do not assist the petitioner’s case in view of sub Regulations – 2 of Regulations – 6.
8. Learned counsel for the petitioner submitted that Supreme Court decision cited supra is a matter relating to dealing with Regulations 1993 which has no application in view of the present matter is concerned. The present matter is relating to Regulation 1997. For which learned counsel for the respondents pointed out from para No.1 of the Supreme Court decision wherein clause (V) how Migration/Transfer of students from one medical college to another. Each and every clause are identical. In the present case, matter relates to clause (2) of Regulation 6 which is identical to that of clause (a) of V Regulation of 1993. Further, clause - V is identical to that of clause (b). Similarly, to that of clause (e). Therefore, each and every issues arising in the present petition has already dealt by the Apex Court in the cited decision.
9. Heard learned counsel for the parties.
10. Question for consideration in the present petition is;
‘Whether Annexure – R dated 21.12.2018 is in terms of Regulation 1997 or not? Further, in the present petition, whether petitioner is entitled for migration?
11. Undisputedly, as on the date of terms of Annexure - R dated 21.12.2018, 6th respondent – college was not a recognized Institution. It was recognized only on 15.3.2019. Therefore, as on 21.12.2018, rejection of the petitioner’s grievance relating to migration from Respondent No.6 is in terms of Regulations 1997.
12. Petitioner has not questioned the validity of 6 (2) of Regulations 1997 or has he sought for reading down the provision that both the colleges must be recognized. That apart, in the cited decisions provision has not been read down so as to appreciate the contention of the petitioner. Even in the absence of one of the college is not recognized still petitioner or a student is entitled for migration cannot be appreciated, in view of the Supreme Court decision cited supra which clarifies each and every issues like Regulations 6 r/w note – 2. Identical provision which were incorporated in the 1993 Regulation which was subject matter of the Supreme Court decision and it has been considered elaborately. The relevant para in Shirish Govind Prabhudesai’s case reads as under:
“The common question involved for decision in these matters is the right of a student admitted in a medical college not recognised by the Medical Council of India to claim migration/transfer to a medical college recognised by the Medical Council of India after passing the first MBBS examination from the medical college to which the student has been admitted. The students claiming the right to such migration/transfer assert that no discrimination can be made for this purpose between a student admitted initially to the MBBS course in a medical college not recognised by the Medical Council of India and one who has been admitted initially to a medical college recognised by the Medical Council of India. In substance the contention is that both these categories of students belong to the same class being admitted to a medical college wherefrom they obtain the MBBS degree recognised by a university. This question arises in the context of a condition for eligibility to such migration/transfer prescribed by medical colleges recognised by the Medical Council of India for entertaining the application from a student for migration/transfer to the recognised medical college after passing the first MBBS examination only if the applicant had been initially admitted to and had passed the first MBBS examination from a medical college recognised by the Medical Council of India. Such a condition of eligibility for migration/transfer to a recognised medical college is prescribed by the recognised medical colleges on the basis of one of the recommendations on Graduate Medical Education adopted by the Medical Council of India which is as under:
“V. Migration/Transfer of students from one Medical College to another (a) A student studying in a recognised medical college may be allowed to migrate/transfer to another recognised medical college under another/same university.
(b) The migration/transfer can be allowed by the University concerned within three months after passing the first professional examination, as a rule.
(c) Migration/transfer of students during the course of their training for the clinical subjects should be avoided.
(d) The number of students migrating/transferring from one medical college to another medical college during one year will be kept to the minimum so that the training of the regular students of that college is not adversely affected. The number of students migrating/transferring to/from any one medical college should not exceed the limit of 5 per cent of its intake in any one medical college in one year.
(e) Cases not covered under the above regulations are to be referred to the Council for consideration on individual merits.
(f) An intimation about the admission of migrated/transferred students into any medical college should be sent to the Council forthwith.”
13. Proceeding 1993 Regulations are paramateria to Regulations 1997 like 6(2) - V (a), 6(4) – v(b) and note (2) (e). Thus, petitioner’s argument is that Director is empower to consider which ignoring conditions imposed in the Regulation – 6 is not tenable. Cited decision on behalf petitioner do not assist petitioner’s case in view Supreme Court’s decision cited Supra. Thus, the petitioner has not made out a case so as to interfere with Annexure-R dated 21.12.2018.
Accordingly, petition is liable to be rejected. Further, in view of the later development that the Respondent No.6 - Institution has got recognization w.e.f. 15.3.2019, in this background, petitioner is at liberty to make necessary application for migration for the ensuing academic year in the event of relevant Regulation provides for such migration.
Sd/- JUDGE BS