Bombay High Court
Manali Chandrashekhar Barde vs The Director Of Medical Education ... on 4 January, 2021
Bench: S.B. Shukre, Avinash G. Gharote
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1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION ST. NO.9800/2020
PETITIONER : Manali Chandrashekhar Barde,
Age : 20 years, Occ. : Student
Residing at Plot No.5, Greater Nagpur
Housing Society, New Verma Layout
Nagpur - 440033.
...VERSUS...
RESPONDENTS : 1. The Director of Medical Education
And Research, Government
Dental College And Hospital
Building, St. Georges Hospital
Compound, Mumbai - 400 001.
2. The Medical Council of India
Pocket - 14, Sector 8, Dwarka
New Delhi - 110077.
3. The State of Maharashtra
Through its Government Pleader
Original Side, Bombay High Court
Mumbai - 400 001.
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Dr. Uday P. Warunjikar and Mr. V.N. Walawalkar, Advocates h/f
Mr. A.C. Sawant, Advocate for petitioner
Mr. N.R. Patil, AGP for respondent nos.1 and 3
Mr. Dhruv Sharma, Advocate h/f Mr. R.M. Bhangde, Advocate
for respondent no.2
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CORAM : SUNIL B. SHUKRE AND
AVINASH G. GHAROTE JJ.
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2
Judgment reserved on : 09/12/2020
Judgment pronounced on : 04/01/2021
J U D G M E N T (PER : AVINASH G. GHAROTE , J.)
1. Heard. Rule. Rule made returnable forthwith.
2. The present petition seeks to quash and set aside
clause 13 (a) (ii) of the brochure for transfer of medical students in
the State published by the respondent no.1/Director of Medical
Education and Research (DMER, hereinafter) and so also the
communication dated 20/8/2020 by the respondent no.1/DMER
and to allow the application of the petitioner dated 25/6/2020,
seeking transfer to the Nagpur college on account of petitioner's
health and the prevailing pandemic of Covid-19.
3. The petitioner is a student of MBBS course and is
presently pursuing her studies in Government Medical College,
Akola, having been admitted on 10/7/2018. The petitioner on
25/6/2020 (pg.79), made an application, to the authorities for her
migration, from the Government Medical College (GMC), Akola to
either of the Government Medical Colleges at Nagpur, under
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Regulation 6 (1) of Chapter II of the Regulations of respondent
no.2/Medical Council of India (MCI, hereinafter), as modified on
22/12/2008.
4. The petitioner who claimed to be suffering from allergic
bronchitis with chronic bronchial asthma, of a moderate persistent
nature, frequently leading to breathlessness, obtained medical
certificates in that regard dated 31/1/2019, 17/4/2019,
29/10/2019 and 5/11/2019 (Annexures 1 to 4) to contend, that
these demonstrate that the illness was genuine and she has been
suffering throughout the year. It is further contended that due to the
Covid-19 pandemic, considering her high co-morbidity, she was
highly susceptible, which was the reason, the transfer was sought to
any of the Government Colleges in Nagpur.
5. The application of the petitioner was turned down by
the respondent no.1/DMER, by communication dated 20/8/2020
(pg.84) for the reasons that DMER had published notice for transfer
after 1st MBBS in respect of 2019-20 regulatory and supplementary
batch on 22/1/2020 and as the petitioner had not applied for the
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transfer as per the notice in the prescribed format and the requisite
fees and since the process of transfer for the year 2019-20 batch, as
per the MCI guidelines, had already been completed, DMER was
unable to consider her application.
6. This communication is challenged in the present
petition. The basic grounds for contention by Dr. Uday Warunjikar,
learned Counsel for the petitioner are (a) that the brochure issued
by the respondent no.1/DMER was contrary to the MCI Regulations;
(b) there was no source of power to the State/DMER to frame
regulations; (c) the transfer, was to be considered on "genuine
grounds" and the ground raised by the petitioner was a genuine
ground.
7. Dr. Warunjikar, learned Counsel for the petitioner,
further submits that Regulation 6 of the MCI, would always have a
primacy, over any guidelines, which may be framed by the
State/DMER, for which he relies upon :
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(A) Amey Prakash Kasbekar Vs.The Director, Medical
Education and Research, Mumbai and others, 2012
SCC Online Bom. 1265.
(B) Lipika Gupta Vs. U.O.I. (2014) 12 SCALE 533
(C) Pankti M. Pancholi Vs. State of Maharashtra
AIRONLINE 2018 BOM 194 .
(D) Mahin Chetan Bhatt Vs. State of Maharashtra and
others, 2018 SCC OnLine Bom 10413.
8. Dr. Warunjikar, learned Counsel for the petitioner
further contends that the expression "subject to provisions of these
Regulations", would necessarily mean that any guidelines for
transfer, which may be framed by the State Government, cannot be
contrary to what was contained in Regulation 6, framed by the MCI.
He submits that the guidelines as given in the brochure by the DMER
and specifically clause 13 (a) (ii), which required that the medical
certificate to be submitted by the students, seeking migration,
should certify that the illness had caused permanent disability of
40% or above, was contrary to the Regulation 6 (1) of the MCI
Regulations, in as much as, the Regulations did not specify or
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require any such certification of permanent disability of 40% or
above. He therefore submits that clause 13 (a) (ii) of the brochure
issued by the DMER/State to that extent was ultra vires the power of
the DMER/State, and was therefore required to be quashed and set
aside.
9. The DMER in its reply contends that the petitioner had
not applied during the ongoing process; there was no challenge to
the Rules of brochure for transfer; as the petitioner was pursuing
clinical course at GMC, Akola and would be appearing for 2 nd MBBS
examination, the guidelines, which state that migration during
clinical course of study shall not be allowed on any ground, would
be applicable. Reliance is placed upon :
(a) Order dated 19/6/2020, passed in Ex Servicemen
Social, Education and Sports Foundations/The Directorate of
Medical Education, PIL No. CJ-LD-VC-1A 1/2020 in PIL (L)
No.18/2020.
(b) Order dated 7/2/2020, in Ms. Tanvi Abhay Gore /
The State of Maharashtra and Ors.,WP (ST) No.2489/2020.
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10. The respondent no.2/ MCI in its reply by relying on
Medical Council of India / State of Karnataka and others (1998) 6
SCC 131 and Harish Verma and others/ Ajay Srivastava and another
(2003) 8 SCC 69, has submitted that the Regulations as framed by
the MCI have a statutory force and are mandatory and have an
overriding effect over all guidelines as framed by the DMER and the
State, to the extent they are inconsistent with the MCI Regulations.
It is contended that the MBBS course is divided into three parts,
which are as under :-
"a) First Medical Professional : Phase - I (two
semesters) :- consisting of teaching only in the class rooms
pre-clinical subjects including Bio-Physics, Bio-Chemistry
and introduction to Community Medicine including
Humanities). (12 months duration). The content and
order in which the subjects are taught is similar in almost
all the medical institutions in the country.
b) Second Medical Professional : Phase - II (3
semesters) :- consisting of para-clinical/clinical subjects.
During this phase teaching of para-clinical and clinical
subjects shall be done concurrently. The first 18 months of
the Second Medical Professional and Third Medical
Professional overlap and run concurrently. However, the
content and order of the training varies from college to
college.
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c) Third Medical Professional : Phase - III
(continuation of study of clinical subjects for seven
semesters after passing Phase-I."
and that no migration is permissible either during the
Second Professional or Third Professional. It is contended that
migration is permitted after passing of first professional MBBS
examination and before the starting of teaching and training of
Second Professional MBBS and that migration during clinical course
of study is not allowed on any ground whatsoever. It is contended
that the petitioner who was a resident of Nagpur, was granted
admission in GMC, Akola and wanted to go to her home town which
was not a genuine ground. Though her mark-sheet was not annexed
to her application, however, in her application dated 25/6/2020
addressed to DMER, she had stated that she was admitted in GMC,
Akola on 10/7/2018, which clarified that the petitioner was already
in her 2nd year course of MBBS in the 4th quarter of 2019 and
therefore could not be permitted to migrate during the clinical phase
of MBBS course. Reliance is placed on the judgment of the Gujrat
High Court in the case of Bhaveshgiri Surajgiri Goswami -Vs-- State
of Gujrat and others in LPA No.1029/2015 dated 25/6/2015 as
affirmed by the Apex Court in SLP(C) No.27991/2015, decided on
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7/12/2015 and of the Delhi High Court in Ravi Singhal -Vs-- Guru
Gobind Singh Indraprstha University and another
W.P.(C)No.10055/2016, dated 14/7/2017 and so also on Dental
Council of India -Vs-- Anhad Raj Singh and another , in Civil Appeal
No.18766/2017 dated 15/11/2017 of the Apex Court. It is thus
submitted that there is no merit in the petition which needs to be
dismissed.
11. The Regulations referred to are the Regulations on
Graduate Medical Education, 1997 (Regulations, for short) which
have been framed in exercise of power conferred under Section 33
of the Medical Council of India Act, 1956. There cannot be any two
views that the Regulations framed by the MCI, being framed by
virtue of the Statutory power under Section 33 of the Medical
Council of India Act, 1956, have primacy, over any guidelines, which
may be framed by the DMER and the State by use of the power and
authority as conferred upon it by Note-1, Regulation 6 of MCI. This
is further substantiated by use of the expression, "subject to
provisions of these Regulations" as used in Note-1, Regulation 6 of
MCI. The position in this regard is no longer res integra and is
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clearly spelt out by the Courts in MCI/ State of Karnataka [The
Indian Medical Council Act is relatable to Entry 66 of List I (Union List).
It prevails over any State enactment to the extent the State
enactment is repugnant to the provision of the Act even though the
State Acts may be relatable to Entry 25 or 26 of List III (Concurrent
List). Regulations framed under Section 33 of the Medical Council Act
with the previous sanction of the Central Government are statutory.
These regulations are framed to carry out the purposes of the
Medical Council Act and for various purposes mentioned in
Section 33. If a regulation falls within the purposes referred under
Section 33 of the Medical Council Act, it will have mandatory force. ],
Amey Kasbekar [The State Government is permitted by the
Regulations, as amended in 2008, to frame appropriate guidelines
for the grant of no objection certificates for migration but those
guidelines have to be consistent with guidelines framed by MCI],
Pankti Pancholi [Brochure at the most can be considered to be
administrative instructions and they cannot have overriding effect
framed by the MCI, which are in the nature of subordinate
legislation] and Mahi Chetan Bhatt [The guidelines of the State
Government are not sacroscant. The MCI regulation and
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amendments thereto would have to be adhered to and no guideline
contrary thereto can be invoked].
12. To consider the next contention by Dr. Warunjikar,
learned Counsel for the petitioner that the procedure for transfer as
laid down in clause 13 of the brochure, issued by the respondent
no.1/DMER was contrary to Regulation 6 of MCI relating to
migration, it is necessary to consider the language of Regulation 6 of
MCI in juxtaposition to clause 13 of the brochure issued by DMER.
Regulation 6 of MCI relating to migration/transfer of the students,
as it stands amended in terms of notification published on
22/12/2008, which is extant as of present reads as under :-
"6. Migration :-
(1) Migration of students from one medical college
to another medical college may be granted on any genuine
ground, subject to the availability of vacancy in the college,
where migration is sought and fulfilling the other
requirements laid down in the Regulations. Migration would
be restricted to 5 % of the sanctioned intake of the college
during the year. No migration will be permitted on any
ground from one medical college to another located within
the same city.
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(2) Migration of students from one College to
another is permissible only if both the colleges are recognised
by the Central Government under Section 11 (2) of the
Indian Medical Council Act, 1965 and further subject to the
condition that it shall not result in increase in the sanctioned
intake capacity for the academic year concerned in respect of
the receiving medical college
(3) The applicant candidate shall be eligible to
apply for migration only after qualifying in the first
profession MBBS examination. Migration during clinical
course of study shall not be allowed on any ground.
(4) For the purpose of migration, an applicant
candidate shall first obtain 'No Objection Certificate' from the
college where he is studying for the present and the
University to which that college is affiliated and also from the
college to which the migration is sought and the university to
it that college is affiliated. He/She shall submit his
application for migration within a period of 1 month of
passing (Declaration of result of the 1 st Professional MBBS
examination) alongwith the above cited four "No Objection
Certificates" to : (a) the Director of Medical Education of the
State, if migration is sought from one college to another
within the same State or (b) the Medical Council of India, if
the migration is sought from one college to another located
outside the State.
Note -1 : The State Governments /Universities
/Institutions may frame appropriate guidelines for grant of
No Objection Certificate or migration, as the case may be, to
the students subject to provisions of these regulations.
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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.
Note - 3 : The College/Institutions shall send
intimation to the Medical Council of India, about the number
of students admitted by them on migration within one month
of their joining. It shall be open to the Council to undertake
verification of the compliance of the provisions of the
regulations governing migration by the Colleges at any point
of time."
(emphasis supplied)
Regulation 13 of the brochure issued by DMER detailing
the procedure for transfer reads as under :-
"13. Procedure for Transfer :
(a) The transfer shall be considered on the
following genuine ground.
(i) Death of Father/Mother or
supporting guardian as declared at the time of
admission will be considered as genuine ground.
However to be eligible under this ground the death of
Father/Mother or supporting guardian should have
been occurred after taking admission to the 1 st MBBS
course. The candidate should attach copy of Death
Certificate with his/her application form.
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(ii) Illness of candidate causing
permanent disability shall be considered as genuine
ground. To be eligible under this ground, the candidate
should submit illness/medical certificate stating that
the illness has caused Permanent Disability of 40% or
above. The specified disability should be as permitted
in the schedule provided in Clause (Zc) of Section 2 of
the Rights of Persons with Disabilities Act, 2016. The
Percentage of disability should be calculated as
notified by the Gazette Notification issued by
Government of India, dated 04.01.2018. The disability
should have occurred on the date of or after 1 st year
MBBS admission. (in Annexure-E)
(iii) The illness/disability of any other family
member will not be accepted as a ground for transfer.
Procedure for Obtaining Medical Certificate :
i. The candidate seeking transfer after 1 st
year MBBS on Medical/Health ground should submit
medical certificate issued by Special Referral Medical
Board (s) as which have been authorised for issuing
disability certificate for 1 st year admission to MBBS
course (Grant Government Medical College & Sir JJ
Hospital, Mumbai or All India Institute of Physical
Medicine and Rehabilitation, Mumbai) Medical
Certificate should mention that illness of candidate
causing permanent disability of 40% or above.
ii. Candidates should approach to the Dean/
Chairman of the Special Referral Medical Board(s)
well in advance. Applications without medical
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certificates will not be accepted. Late issue of medical
certificate by the medical board will not be accepted as
a reason for extension of last date.
iii. The Special Referral Medical Board
should handover the medical certificate directly to the
candidate and one set of medical certificate should be
submitted to the DMER office. The candidate should
attach medical certificate alongwith the application
form. The candidate submitting two medical
certificates i.e. Annexure E1 and E2 will be held
ineligible for transfer.
(b) Candidate who has passed 1st MBBS
University examination before May/June 2019 should
not apply along with this 2019 batch, as they are not
eligible as per Medical Council of India guidelines for
the transfer.
(c) The seats reserved for candidate
belonging to the reserved category shall be 50% of
admissible seats.
(d) The candidate can apply for transfer to
maximum 5 (five) receiving medical colleges.
(e) The manner of filing the seats reserved
for Scheduled Castes, Scheduled Tribes, De-notified
Tribes (Vimukta Jatis), Nomadic Tribes and Other
Backward Classes shall be filled in as per procedure
laid down vide Government Order No.MED
2006/1196/CR-204/06/Edu-1 - 24 th June 2006. The
candidate belonging to Maharashtra State (Domicile)
will only be considered under Reserved Category.
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Reserved Category candidate from Outside
Maharashtra will only be considered as a Open
Category candidate for transfer."
13. A careful consideration of the language of Regulation 6
of the MCI Regulations would demonstrate that it is only on a
'genuine ground', subject to the availability of vacancy in the college,
where migration is sought, and upon fulfilling other requirements
laid down in the Regulations, could migration be permitted, which
in turn was restricted to 5% of the sanctioned intake of the receiving
college during the year. A perusal of Note-1 of Regulation 6 of the
MCI Regulations, would indicate that the State Government/
Universities/Institutions have been granted the power and authority
to frame appropriate guidelines for grant of no-objection certificate
or migration, as the case may be, to the students, subject to the
provisions of these Regulations. The framing of any guidelines by the
DMER/State, under the power/authority entrusted to them under
Note-1, Regulation 6 of MCI has to be considered, in light of the
fact, that Regulation 6 of MCI, does not lay down, prescribe or
define, what the expression "genuine ground", as used in
Regulation 6 (1) of the MCI would mean. In the absence of defining
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the expression "genuine ground", by the MCI, in its Regulations, it
would become open and permissible, for the DMER/State to frame
and lay down guidelines, defining the parameters of the expression
"genuine ground". This is further evident from the fact that the
earlier Regulation 6(1) (pg.21) instead of the expression "genuine
ground", used the expression "on extreme compassionate grounds".
It is further material to note that the expression "compassionate
grounds", was defined in Note-2 of Regulation 6 of MCI. In the
present case, after its amendment, while replacing the expression
"extreme compassionate grounds" by "genuine ground", by not
defining what the expression "genuine ground" would mean, the
MCI appears to have left the decision of the parameters of the
expression "genuine ground" with the DMER/State, by virtue of the
authority as indicated in Note-1 of Regulation 6 of MCI. Though
Note-2, states the criteria of the earlier expression 'compassionate
grounds' and does not appear to have been deleted, there is no such
criteria set out for the expression 'genuine ground', in Regulation 6
or the Notes appended thereunder. Thus the vacuum created in
Regulation 6 of MCI, in absence of the expression 'genuine grounds',
being defined, would be permissible to be filled in, by laying down
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requisite parameters/criteria by use of the power/authority as
conferred by Note-1 of Regulation 6 of MCI and that is what has
been done by the DMER/State by framing the guideline No.13 in its
Brochure, setting out parameters for the above expression. That
being the position, the contention of Dr. Warunjikar, learned Counsel
for the petitioner that the respondents did not have any power or
authority to frame a criteria or guideline, is clearly without any
merits whatsoever.
14. The next contention that the guidelines framed under
clause 13 (a) (ii) of the brochure by the DMER/State, requiring
disability to be a permanent disability of 40% or above, so as to fall
within the expression "genuine grounds", are contrary to
Regulation 6 of MCI, is also untenable, for the same reason of
absence of any parameters being set to the expression "genuine
grounds" in the MCI Regulations, leaving the field open for the
respondents to do so, under the authority imparted to them under
Note-1 of Regulation 6 of the MCI.
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15. The expression "genuine grounds" as laid down in
Regulation 6 (1) of the MCI, on the face of it, is of very wide import
and in absence of any parameters, criteria being laid down in the
MCI Regulations is incapable of specific or precise definition, and
would depend upon the reason given for migration in an individual
application, which is required to be considered on an individual
basis and would be based upon the subjective satisfaction of the
authority for whose consideration it is so presented. This is more so,
in light of the fact, that there is no restriction placed in the
Regulations, in the matter of considering the expression in one way
or the other. The expression 'genuine grounds', if left unfettered,
uncontrolled and undefined, has the capability of great misuse and
abuse, for what one person may consider to be a genuine ground,
may not be so, in the eyes and perspective of another, reasons being
varied, depending upon the viewpoint of the person considering the
expression. Does the absence of any parameters to consider the
expression 'genuine grounds', in the MCI regulations, prohibit the
DMER/State to bring in guidelines, to define the parameters of the
expression. The answer, in our humble opinion, has to be found in
the language of Note-1 of Regulation 6, which empowers the DMER/
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State to frame guidelines. Thus clause 13 (a) (ii) of the Brochure,
attempts to define parameters of this expression, which is to some
extent also based upon the criteria of the earlier expression
"compassionate grounds", which is clearly permissible by virtue of
the power/authority vested in the DMER/State by Note-1 of
Regulation 6 of MCI. That apart the requirement of the permanent
disability being 40% or above, so as to be considered as a 'genuine
ground' is based upon Section 2(Zc) of the Rights of Persons with
Disabilities Act, 2016 and the schedule as appended thereunder, and
thus has a statutory backing to it. Thus the challenge to clause 13
(a) (ii) as laid by Dr. Warunjikar, learned Counsel for the petitioner
also fails.
16. Dr. Wrunjikar, learned Counsel for the petitioner, by
relying on Amey Kasbekar; Pankti Pancholi; Mahin Bhatt (supra)
submits that the matter in hand is squarely covered. The position, in
our humble opinion, however, on facts is quite to the contrary, which
would be demonstrable hereinafter.
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17. Clause (4) of Regulation 6 of MCI requires the following
acts to be done, before a student, can be held to be eligible to
transfer/migration :-
(i) obtain 'No Objection Certificate' from the college
where he is studying for the present.
(ii) obtain 'No Objection Certificate' from the University
to which that college is affiliated.
(iii) obtain 'No Objection Certificate' from the college
to which the migration is sought.
(iv) obtain 'No Objection Certificate' from the
university to which that college is affiliated.
After obtaining the above mentioned four 'No objection
Certificates', the student has to :
(v) submit his application for migration within a
period of 1 month of passing (Declaration of result of
the 1st Professional MBBS examination) alongwith the
above cited four "No Objection Certificates" to :
(a) the Director of Medical Education of the State, if
migration is sought from one college to another within
the same State or
(b) the Medical Council of India, if the migration is
sought from one college to another located outside the
State.
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18. Thus, the application, had to be filed by the petitioner
along with the requirements as enumerated in clause (4) of
Regulation 6 within a period of one month of the declaration of
result of first professional MBBS examination. In the instant case,
the following position is uncontroverted :-
(a) The first MBBS results were declared in May, 2019.
(b) The window within which the application for
migration/transfer was to be submitted, as published was
between 22/1/2020 to 7/2/2020, which came to be extended
till 9/2/2020.
(c) It is an admitted position that the petitioner did not
apply within the above period.
(d) The application of the petitioner, is admittedly dated
25/6/2020, which is way beyond the period prescribed,
within which the same was to be submitted, which would
make it ineligible for consideration, that too when the entire
process of migration, was over, nearly four months earlier on
9/2/2020.
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(e) That apart, the four 'No objection Certificates', as were
required by Regulation 6(4) of MCI, which were to be
obtained from the Special Medical Referral Board, authorised
for issuing the disability certificate, in the prescribed forms at
Annex-E-1 & E-2, were also not obtained nor were available
with the petitioner, even on 25/6/2020, much less, during the
period within which the application for transfer/migration was
required to be made, as per the schedule published.
(f) The Medical certificates as filed on record by the
petitioner, were issued by Private Medical Practitioners and
not by the Special Medical Referral Board, authorised for
issuing the disability certificate.
all of which clearly indicate that the petitioner had not
complied with the requirements of Regulation 6(4) of the MCI, and
thus was not eligible to be considered for transfer/migration.
19. The contention of Dr. Warunjikar, learned Counsel for
petitioner that the period prescribed, for filing the application, ought
not to be strictly construed and the application as filed by the
petitioner on 25/6/2020, can be considered by the DMER/State,
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even today, in light of the pandemic situation created due to
Covid-19, is clearly unjustified, for the reason, that neither the
Regulations as framed by MCI nor the guidelines framed by the
DMER/State, as indicated in the brochure, grant any authority or
power to the respondents to make any exception to what is stated in
clause (4) of Regulation 6 of the MCI and therefore, no exception
can be made out for the petitioner. Then, the period during which
application was to be made was the one when neither any difficulty
nor any disability on account of imposition of lockdown to contain
spread of Covid-19 had arisen. Rather, such difficulty was there
when the petitioner submitted her application on 25/6/2020, after a
delay of about 4 months. The fact that she could make her
application irrespective of the grim situation prevailing then, itself
would show that at least for the petitioner to make an application,
that situation posed no difficulty and so the pandemic situation
ground would not be available to the petitioner even on facts.
20. There is yet another hurdle in the way of the petitioner
for claiming transfer/migration. Note-3 of MCI Regulation 6,
expressly mandates that migration during clinical course of study,
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shall not be allowed on any ground. The petitioner admittedly has
completed her First MBBS in May 2019 and has since thereafter
embarked upon her Second MBBS, which as per MCI, is the Second
Medical Professional : Phase-II (3 semester) consisting of
para-clinical/clinical subjects. The application for transfer was made
on 25/6/2020, by which time the petitioner was nearly a year into
her second MBBS (clinical course) due to which the prohibition as
contained in Note-3 of MCI Regulation, clearly applies, thereby
prohibiting migration/transfer, at this stage.
21. We are aware of the dicta in Lipika Gupta (supra) and
therefore we were initially inclined to consider the transfer, if it
could be demonstrated on record as an admitted position, that there
were seats vacant in the Government Colleges at Nagpur, for the
purpose of transfer as per the MCI Regulations. Though
Dr. Warunjikar, learned Counsel for the petitioner, submitted that
this position stood admitted by the DMER/State on account of non
traverse of the averments in this regard, however, except for a bare
averment in the petition, there was nothing on record to substantiate
it, due to which the plea could not be viewed even on a sympathetic
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consideration, however, further delving into the matter, brought out
the position as narrated and discussed above, which obliterated the
consideration of this plea altogether.
22. In view of what has been stated above, the issue of
considering whether the reason given by the petitioner, seeking
migration, falls within the expression "genuine grounds" or not, is
clearly rendered otiose.
23. The writ petition therefore is clearly without any merits
and is dismissed accordingly. Rule stands discharged. No costs.
24. While parting with this judgment, we are constrained to
observe that as the Regulations framed by the MCI, are applicable
throughout the country, in light of the dictum of Note-1 of the
Regulations, each State Government/University/Institution, would
be entitled to frame guidelines for grant of NOC or migration,
subject to the provisions of the Regulations. This would
automatically lead to different guidelines, being framed by different
State Governments/Universities/Institutions, thereby leading to a
w.p.st.9800 of 2020.odt
lack of uniformity in the policy of migration. It would thus be
proper, if the MCI defines and sets the parameters or criteria of the
expression "genuine grounds" as occurring in MCI Regulation 6 (1),
so as to have a uniformity for its application throughout the country,
which would not only avoid contrary meanings, but would also save
the students from the vagaries of litigation and the time spent, due
to pursuing them, which could be beneficially spent in the pursuit of
the profession for which they are preparing themselves. We hope
that appropriate steps would be taken in this regard by the MCI as
soon as possible.
(AVINASH G. GHAROTE,J.) (SUNIL B. SHUKRE, J.)
Wadkar
Digitally signed
by Shailendra
Shailendra Wadkar
Wadkar Date:
2021.01.04
15:42:48 +0530
