Soumyadeep Nandi vs State Of West Bengal & Ors
2022 Latest Caselaw 3480 Cal

4   23-06-2022

     AKG
                                         WPA 9992 of 2022
    Ct. 21

                                       Soumyadeep Nandi
                                              Vs.
                               State of West Bengal & Ors.




                            Mr. Bikram Banerjee,
                            Mr. Arka Nandi,
                            Mr. Sutirtha Nayek
                                                ...For the Petitioner
                            Mr. Swapan Kr. Dutta,
                            Mr. Pradyot Kr. Das
                                                ...For the State

                            Mr. Uday Sankar Chatterjee,
                            Mr. Santanu Maji,
                            Ms. Snigdha Saha,
                            Mr. Pranoy Basak
                                              ...For the Respondent No. 7

Mr. Indranil Roy, Mr. Sunit Kumar Roy ...For the National Medical Commission Mr. D. N. Maity ...For the W.B.U.H.S.

The only issue which needs to be decided in this

writ petition is whether the medical college namely, ICARE

Institute of Medical Sciences and Research & Dr. Bidhan

Chandra Roy Hospital at Haldia (in short 'ICARE') can

insist on payment of fees for the remaining medical course

as a condition for granting no-objection to the petitioner

for his migration to Nil Ratan Sircar Medical College and

Hospital (in short 'NRS Medical College').

The petitioner has been knocking the door of this

Court for long. This is the third round of litigation where

he again prays that he should be allowed to migrate from

ICARE to NRS Medical College.

The proceedings of the earlier rounds of litigation

need not be recorded here. Suffice it to say that the

petitioner, as on date, has obtained a no objection letter

from the West Bengal University of Health Sciences vide its

letter dated December 3, 2021. The said letter of no

objection is quoted below in extenso :

"

To, Sri. somyadeep Nandi C/o. Mr. Raju Bhattacharya Advocate, High Court, Calcutta Address: 112/2, Selimpore Road, PO: Dhakuria, (Before Selimpore Rail Line), Kolkata - 700031. Contact: 9732107312 Email: [email protected]

Re: Re: Reasoned Order pursuant to the communications received and Order dated 22.11.2021 passed by the Hon'ble High Court in W.P.A. 15704 of 2021 [Soumyadeep Nandi vs. West Bengal University of Health Science and others]

After carefully perusing all documents and after hearing you at length the undersigned is of the opinion that the West Bengal University of Health Sciences has no objection for transfer of college, if the following terms and conditions as laid in Clause 27 of Chapter III of First Ordinances 2003 of the West Bengal University of Health Sciences under heading "Transfer and withdrawal of students" are being fulfilled.

1. A student admitted in an affiliated college, recognized institutions, conducted institutions or the University for pursuing a course of studies in Health Science shall not ordinarily be allowed to take a transfer certificate.

2. A student may be allowed transfer from one college to another or from the University to another University only on humanitarian ground to the satisfaction of the Academic Council and the Executive Council, subject to payment of a prescribed fee and observance of provisions of the Act, Statutes and Ordinances of the University and also the relevant rules of the Medical

Council of India at the material point of time.

3. A student who is allowed such transfer shall pay all tuition fees due to the college or the University before transfer certificate is issued.

4. A student who desires to withdraw from a college must apply in writing for a withdrawal certificate after paying all the dues relating to tuition fees, hostel charges, library dues, etc. if any.

5. Withdrawal certificate may be issued by the Principal of the college on payment of fee prescribed for the purpose.

6. When a student is granted withdrawal certificate, he shall on re-admission have the benefit of the lectures attended by him/her with the special permission of the Executive Council.

7. A withdrawal or transfer certificate may be refused on the ground that the applicant is guilty of gross misconduct or has failed to pay the money due to the college.

8. A withdrawal certificate shall not entitle a student to admission to any other college which can be secured only on the production of transfer certificate.

9. In all cases not expressly provided for by these Ordinances, the Principal shall make such decision as he thinks fit and equitable in the eyes of law.

10. An aggrieved student may, however prefer an appeal to the Pro Vice Chancellor-in-Charge of discipline concerned for redressal of his grievances, if he/she so desires, and the decision of the Pro Vice Chancellor in this behalf shall be final.

Also, the candidate has to fulfil the "Migration Rules and Regulations" as laid in Clause-6 in the Graduate Medical Education Regulation, 1997 (Amended)". [copy attached]

It is also to be noted that the West Bengal University of Health Sciences has no power to impose the colleges for issuing NOC.

Sd/-

Registrar The West Bengal University of Health Sciences

"

The petitioner has also obtained a no-objection

certificate from NRS Medical College which is appearing at

page 4 of the supplementary affidavit filed by the

petitioner.

The said no objection certificate reads:

"Memo No.: NMC/3530 Kolkata, the 28/05/2022

No Objection Certificate

In compliance of order passed by the Hon'ble High Court, Kolkata vide case no. WPA 15704 of 2021 & WPA 5534 of 2022, the NOC is being issued in favour of Shri Soumyadeep Nandi for admission in the vacant seat of 3rd Professional Part I MBBS course at NRS Medical College, Kolkata subject to issuance of NOC from his parent college, i.e. ICARE Institute of Medical Sciences & Research, Haldia and obtainment of the approval from the WB University of Health Sciences, Kolkata.

Sd/-

Principal NRS Medical College, Kolkata"

Mr. Bikram Banerjee, learned advocate appearing

for the petitioner submits that since no-objection has been

given by the NRS Medical College and also by the West

Bengal University of Health Science, there is no ground on

the part of ICARE to stand in the way and not to give the

no-objection. Mr. Banerjee submits that due to the

pandemic situation, mother of the petitioner, who was a

working lady, lost her job leading the family to a huge

financial crisis for which the petitioner was not able to

continue with his study in ICARE.

By referring to Clause 3 of the no objection letter of

the West Bengal University of Health Science, he submits

that the petitioner had paid the due fees of his medical

course in ICARE and, therefore, the said college is obliged

to grant no objection for the migration.

The prayer of the petitioner has been vehemently

opposed by Mr. Uday Sankar Chatterjee, learned advocate

appearing for the College. Mr. Chatterjee has drawn the

attention of this Court to paragraph 8 of the judgment

reported at (2003) 6 SCC 697 (Islamic Academy of

Education Vs. State of Karnataka). The relevant part of

the said paragraph 8 is quoted below:-

"8. ... If an institution feels that any particular student may leave in midstream then, at the highest, it may require that student to give a bond/bank guarantee that the balance fees for the whole course would be received by the institute even if the student left in midstream. If any educational institution has collected fees in advance, only the fees of that semester/year can be used by the institution. The balance fees must be kept invested in fixed deposits in a natioinalised bank. As and when fees fall due for a semester/year only the fees falling due for that semester/year can be withdrawn by the institution.

The rest must continue to remain deposited till such time that they fall due. At the end of the course the interest earned on these deposits must be paid to the student from whom the fees were collected in advance."

It has been submitted by Mr. Chatterjee that

pursuant to the said direction of the Hon'ble Supreme

Court, a bond was obtained from the petitioner wherein

he, inter alia, undertook as follows :-

"Alternatively, in case, for any reason whatsoever, the obligator/ student quits or does not or can not or is unable to pursue or complete the said course, then the obligator/Student shall be obliged to make payment of the fees for all the remaining semesters and upon the Obligator/Student makes payment thereof, this bond shall be void, otherwise the same shall be and remain in full force and virtue."

It has been argued by Mr. Chatterjee that the

petitioner was admitted under the management quota.

Now he seeks admission in a government medical college.

When the petitioner took admission in a private college

under the management quota, he was aware that he would

have to bear the educational expenses. In the name of

migration, the petitioner cannot now seek admission in a

free government medical college where he otherwise could

not secure a seat on the basis of his rank in the merit list

and deprive ICARE of its legitimate dues towards fees for

all the remaining semesters.

It has further been pointed out by Mr. Chatterjee

that as per the relevant regulations of the Medical Council

of India, migration is permissible only after the first

professional examination and no migration is permissible

during clinical course study. Since the petitioner is now in

the third year of his medical course, at this juncture, no

migration is permissible.

Mr. Indranil Roy, learned advocate appearing for

the National Medical Commission also supports the

contention advanced on behalf of ICARE.

State is also, in fact, opposing the prayer of the

petitioner.

I am of the opinion that the college cannot insist on

payment for the remaining semesters as a condition for

giving no objection to migration.

The migration of a medical student is governed by

the Graduate Medical Education Regulation, 1997 and

Chapter III of First Ordinances 2003 of the West Bengal

University of Health Sciences. The rights and obligations of

a student seeking migration have to be adjudged in the

context of the aforesaid two statutory regulations.

Regulation 6 (1) of the Graduate Medical Education

Regulations, 1997 reads:

"6(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."

Again, Clause 27 (3) of The West Bengal University

of Health Sciences First Ordinances - 2003, which deals

with transfer and withdrawal of students reads:-

"A student who is allowed such transfer shall pay all tuition fees due to the college or the University before transfer certificate is issued."

An affiliated college to the West Bengal University

of Health Science is bound by the First Ordinances-2003.

In my view as per Clause 27 (3) as quoted above, a student

is obliged to pay "all tuition fees due to the College," which

means a student is required to pay tuition fees for the

semesters he has undergone in the College. He is not

obliged to pay fees for the remaining semesters.

It is well settled that the judgment is an authority

for what it actually decides. Islamic Academy of Education

deals with three issues:

(1) whether educational institutions are entitled to fix their own fee structure; (2) whether minority and non-minority educational institutions stand on the same footing and have the same rights;

(3) whether private unaided professional colleges are entitled to fill in their seats, to the extent of 100%, and if not, to what extent; and"

The issue of migration was not before the Supreme

Court. Therefore, the observations made in paragraph 8 as

suggested by the learned advocate cannot be applied to a

case of migration.

The said observations may be applicable to a case

where a student "leave" the College "in midstream."

Migration is a special circumstance that cannot be

equated with the leaving the college in the midstream. In

case of a migration, a student leaves the college to resume

his course in the migrated college.

It is true that the college got a bond executed from

the petitioner on the terms indicated above. Compliance

with the said bond will lead to an iniquitous situation.

Where there is a genuine ground for migration, a student

cannot be compelled to pay his tuition fees twice, once for

the semesters in the migrated college and again for the

same semesters in the college wherefrom he seeks

migration.

Migration is to be granted as an exceptional case on

genuine grounds. The relevant regulations of the

University as well as of the Medical Council of India do not

provide for payment of fees for the remaining semesters as

insisted by ICARE. An affiliated college under the

University cannot insist for the payment for remaining

part of the medical course dehors such regulations on the

plea that it has got a bond executed from the petitioner for

the same.

In that view of the matter, I dispose of the writ

petition giving a direction upon ICARE (respondent no.7) to

grant the no objection certificate for migration to the

petitioner without insisting on the payment of tuition fees

for the remaining semesters. Such no objection should be

granted within 15 days from date of communication of this

order.

Thereafter, the petitioner will be at liberty to apply

for migration before the Director, Medical Education,

Government of West Bengal, who shall decide the issue of

migration of the petitioner in accordance with the

Graduate Medical Education Regulation, 1997.

It is clarified that I have not decided whether the

petitioner is entitled to migrate or not. It will be the

decision of the Director, Medical Education, Govt. of West

Bengal.

Accordingly, WPA 9992 of 2022 is disposed of.

Let urgent photostat certified copies of this order, if

applied for, be supplied to the parties upon compliance

with all the necessary formalities.

(Kausik Chanda, J.)