Gujarat High Court
National Medical Council vs Jana Jhanvi Venukumar on 2 July, 2025
Author: Sunita Agarwal
Bench: Sunita Agarwal
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Reserved On : 08/05/2025
Pronounced On : 02/07/2025
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 662 of 2025
In
R/SPECIAL CIVIL APPLICATION NO. 8729 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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Approved for Reporting Yes No
✔
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NATIONAL MEDICAL COUNCIL
Versus
JANA JHANVI VENUKUMAR & ORS.
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Appearance:
VIKAS V NAIR(7444) for the Appellant(s) No. 1
HETAL PATEL, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 10,11
MR MONARCH K PANDYA(11437) for the Respondent(s) No.
1,2,3,4,5,6,7,8,9
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
This intra-court appeal is directed against the judgment
and order dated 16.12.2024 passed by the learned single
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Judge allowing the writ petition filed by nine medical students
jointly praying for a direction to consider their cases for
migration in light of the GMER, 1997 (Graduate Medical
Education Regulations, 1997), as amended in the year 2008
and for holding that the GMER, 2023 is not applicable to the
them/the petitioners retrospectively. The appellant before us is
the National Medical Council (Commission), an apex body, in
charge of regulating the medical education.
2. The Graduate Medical Education Regulations, 1997
framed by the National Medical Commission governs the
admission process in the State, which is conducted by the
Admission Committee for Professional Under-Graduate and
Post-Graduate Medical Education Courses. The short issue for
consideration before us is as to whether the learned single
Judge Judge has committed an error of law in relying on the
unamended Medical Regulations of 1997 and the amendment
of 2008 holding the field before the GMER, 2023 was
introduced and published finally in the Official Gazette on
02.06.2023, bringing the same into effect from the said date.
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3. At the out set, we may record that there is no prayer in
the writ petition to challenge the validity of the GMER, 2023
framed by the National Medical Commission enforced w.e.f.
02.06.2023. The reliefs as prayed by the petitioners in the writ
petition, are relevant to be noted hereinunder :-
"B. Your Lordships be further pleased issue a writ of OR a Writ
in Nature of Mandamus to adjudge and declare that Rule 18 of
the Graduate Medical Education Regulations, 2023 as
enforced by the respondent No.3 herein, is not applicable to
the present petitioners retrospectively;
C. Your Lordships be further pleased to issue a writ of OR a
writ in nature of Mandamus, directing the Respondent No.1
and 2 herein to consider the case of the present petitioners for
Migration in accordance with the GMER, 1997 and further in
accordance with the Government Resolutions dated
24.07.1997, 26.02.2009, 11.12.2014 and 15.08.2016;
D. Your Lordships be further pleased to direct the Respondent
No.1 and 2 herein that the case of the petitioners be
considered within a reasonable period of time as may be
permitted by this Hon'ble Court;"
4. This means that the prayer made in the writ petition is to
hold the Regulations, 2023 not being applicable to the
petitioners and to consider their cases for migration in
accordance with the GMER, 1997 and the Government
Resolutions issued from time to time.
5. The petitioners, nine in number, have secured admission
in the MBBS course in the year 2022. The contention of the
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petitioners before the writ court was that their admissions in
the MBBS course would be governed by the GMER, 1997,
inasmuch as, at the time when the admission process started,
it was announced that the entire admission process would be
governed for the complete term pursuant to the GMER, 1997.
No other regulations were in force at the relevant point of time,
which can be made applicable to the petitioners. Upon
clearing the first year of MBBS examinations in the year 2023,
the petitioners had applied for migration, however, in view of
the introduction of GMER, 2023 with effect from 02.06.2023,
the respondents have granted the benefit of migration to some
students considering their cases on 18.08.2023 as per GMER,
1997, but the petitioners though were similarly situated and
admitted prior to the enactment of GMER, 2023, have been
refused consideration. It was the case of the petitioners before
the writ court that GMER, 2023 was applied retrospectively
from the date of its publication in the official gazette on
02.06.2023 and since it would not cover the case of the
petitioners for migration, restriction over the migration as per
the GMER, 2023 will apply to the MBBS batch which would be
admitted from 2023 onwards.
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6. The learned single Judge while consider the said prayer
has proceeded to apply the principle of legitimate expectation
to hold that the Academic Calender 2022-2023 shall
commence on 15.11.2022 and public notice dated 12.10.2022
issued by the National Medical Commission, which has framed
the guidelines, categorically provided that the medical
admissions would be governed by the remaining rules and
regulations as per the GMER, 1997. The contents of the public
notice dated 12.10.2022 issued by the National Medical
Commission (Undergraduate Medical Education Board) has
been extracted in the order of the learned single Judge to
reach at the conclusion that in view of Clause-iv of the said
notice, i.e. "the remaining rules and regulations shall be as per
GMER, 1997", the petitioners had expectation that their
admissions would be governed by the GMER, 1997. While
saying so, the learned single Judge has proceeded to discuss
the decisions of the Apex Court on the principle of legitimacy
of the expectation and that the denial of legitimate
expectation lead to violation of Article 14.
7. It was concluded that the determination of substantive
legitimate expectation can be successfully invoked by the
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individuals to claim substantive benefits or entitlements based
on an existing promise or practice of a public authority. It was,
thus, observed by the learned single Judge that the petitioners
while taking admission in the first year MBBS course
considered their cases on the basis on the notice dated
12.10.2022 issued by the National Medical Commission, which
has specifically mentioned that the admission process shall be
governed by the GMER, 1997. The public notice was published
alongwith the Academic Calender, hence the petitioners had a
legitimate expectation that all throughout during the term of
their studies, their cases would be considered and their
admission for the entire term would be governed by the GMER,
1997. It was concluded that the petitioners are, thus, right in
pressing their claim on the principle of legitimate expectation.
8. The learned single Judge has further recorded that the
GMER, 2023 which came into effect on 02.06.2023 attaches
disability on the students from being considered for migration
and is made applicable to those students who were already
pursuing MBBS course prior to the enforcement of the GMER,
2023. Being a delegated legislation, the disability imposed by
it has to be treated prospectively. It was, thus, held that the
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GMER, 2023 cannot operate retrospectively and should be
given prospective effect.
9. The contention of the respondents is that when the
petitioners applied for migration in the year 2024, as GMER,
2023 was in force, the request for migration of the petitioners
would have to be considered under the prevalent Regulations
GMER, 2023 as on the date of the application, which has been
rejected by the learned single judge referring to the public
notice dated 12.10.2022 holding that in view of the statement
made in the said notice, any application for migration even if
made in the year 2024, the same would be governed by the
GMER, 1997 and not as per the GMER, 2023. Lastly, the
learned single Judge has held that in a case of conflict between
the two regulations, the subsequent regulations and the
regulations which were in force when the admission process
had started, the consideration has to be made in a manner
that it may benefit the students.
10. Considering the reasoning given by the learned single
Judge to accept the case of the petitioners about the
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applicability of the GMER, 2023, we are required to note that
the National Medical Commission is a statutory body created
under the National Medical Commission Act, 2019. Section 10
read with Section 57 of the National Medical Commission Act,
2019 enumerates the powers of the National Medical
Commission. The National Medical Commission Act, 2019 has
been enacted with effect from 8th August, 2019 providing for
constitution of a National Medical Commission by the Central
Government to exercise the powers conferred upon and to
perform the functions assigned to, under the Act, 2019.
Amongst various powers and functions to be exercised by the
National Medical Commission as aligned in Section 10, its
functions are (a) to lay down policies for maintaining a high
quality and high standard in medical education and make
necessary regulations in this behalf; (b) to lay down policies for
regulating medical institutions, medical researches and
medical professional and make necessary regulations in this
behalf. Section 57 of the Act, 2019 confers powers upon the
Commission to make regulations regulating the medical
education for maintaining its quality and standards and
medical institutions, as aligned in Section 10. Section 60 is a
repeal and saving clause which provides for the repeal of the
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Indian Medical Council Act, 1956 and that the Medical Council
of India constituted under sub-section(1) of Section 3 of 1956
Act shall stand dissolved, which means with effect from
08.08.2019, the National Medical Commission came into
charge of medical institutions and medical education in the
Country.
11. The learned single Judge has noted Clause(b) of sub-
section(2) of Section 60 of the Act, 2019 to record that any
right, privilege, obligation or liability acquired, accrued or
incurred under the Act, 1956 so repealed, shall be continued or
enforced as if that Act had not been repealed. By referring to
the said provisions, it was noted by the learned single judge
that the saving Clause 60 (2)(b) of the Act, 2019 saves the
right of the petitioners to be considered for migration by a
legislative mandate. It is further noted that the regulations do
not envisage any clause which mandates retrospective
application of the same to already admitted batches.
12. It is argued by Mr. Vikas Nari, the learned counsel
appearing for the appellant-National Medical Council
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(Commission) that the learned single judge has misdirected
himself by misreading Section 60(2)(b) to hold that the
regulations framed in the year 1997 by the previous body will
hold the field, inasmuch as, the petitioners were admitted
under the said regulations.
13. The submission is that no medical student has a right to
seek migration. The right to seek migration does not flow with
the admission in a medical college. Even under the 1997
regulations, the migration was not conceived as a right of the
medical students. The attention of the Court is invited to the
notification dated 4th March, 1997 issued by the Medical
Council of India to submit that the question of migration from
one institution to another institution, is not a fundamental or
statutory right of any medical student. Option was available
under the old regulations namely the Under-Graduate Medical
Regulations, 1997 to the students in urgent needs. The
provision pertaining to migration contained in the regulations
and amended Clause 6 of the regulations pertaining to the
migration further substituted in terms of the notification dated
20.10.2008 and further substitution in terms of the notification
published on 22.12.2008, contained in the notification brought
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on record has been placed before us, which are relevant to be
noted herein.
"6. Migration
(1) Migration from one medical college to other is not a right
of a student. However, migration of students 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 MBBS 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 (MBBS) examination.
(5) The applicant candidate must submit an affidavit stating
that he/she will pursue 18 months of prescribed study before
appearing at IInd professional Bachelor of Medicine and
Bachelor of Surgery (MBBS) 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 1
(i) Migration during clinical course of study shall not be
allowed on any ground.
(ii) All applications for migration shall be referred to Medical
Council of India by college authorities. No institution /
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University shall allow migrations directly without the 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.
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.
The above clause 6 has been substituted in terms of
notification published on 20.10.2008 in Gazette of India
and the same is as under:-
6. Migration
(1) Migration of students from one medical college to another
medical college in India shall be granted only in exceptional
cases to the most deserving among the applicants for good
and sufficient reasons and not on routine grounds. The
number of students migrating to/from any one medical college
shall be kept to the minimum which shall in any case not
exceed the limit of 5% of its sanctioned intake in one
academic year. There shall be no migration on any ground
from one medical college to another located in the same city.
(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, 1956 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
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migration only after qualifying in the first professional 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 Certificates' from the college where
he is studying for the present, the University to which it is
affiliated to, the college to which migration is sought and the
University to which that college is affiliated to. He shall submit
his application for migration within a period of one month of
passing (declaration of results) of the first professional MBBS
examination alongwith the said 'No Objection Certificates' to
the Director, Medical Education of the State where the
College/Institutions including Deemed Universities to which
migration is sought is situated or to the Head of the Institution
in case migration is sought to a Central Government
institution. The Director, Medical Education of the State
concerned or the Head of the Central Government institution,
as the case may be, shall take a final decision in the matter as
to whether or not to allow migration in accordance with the
provisions of these Regulations and communicate the same to
the applicant student within a period of one month from the
date of receipt of the request for migration.
(5) A student who has joined another college on migration
shall be eligible to appear in the IInd professional MBBS
examination only after attaining the minimum attendance in
that college in the subjects, lectures, seminars etc. required
for appearing in the examination prescribed under Regulation
12(1)
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.
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.
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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.
The above clause 6(1) and 6(4)have been further
substituted in terms of notification published on
22.12.2008 in Gazette of India and the same is under:-
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.
6(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 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."
14. A perusal of the original Clause 6 of the Regulations
pertaining to migration, makes it evident that migration from
one medical college to other is not a right of a student.
Routine migrations are not permissible. However, migration of
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the student from one medical college to another medical
college in India could be considered by the Medical Council of
India only in exceptional cases on extreme compassionate
grounds, provided the other criteria mentioned therein were
fulfilled. One of the criteria is that before seeking for
migration, a medical student has to pass the first professional
MBBS examination and within one month of declaration of the
result of the first professional MBBS examination, a medical
student was permitted to submit his application for migration
alongwith his/her affidavit duly certified by the Registrar of the
concerned University in which he/she is seeking transfer. Even
the 'compassionate ground criteria' has been specified in the
regulation itself.
15. The amended regulation-6 applicable with effect from
20.10.2008 also provided that migration shall be granted only
in exceptional cases to the most deserving amongst
applicants for good and specific reasons and not on routine
grounds, apart from other conditions attached thereto. The
eligibility condition as provided in the amended regulations
remained the same that a medical student shall be eligible to
apply for migration only after qualifying the first professional
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medical examination. Further amendments were brought in
clauses 6(1) and 6(4) of the Regulations notified on 20.10.2008
by the subsequent notification of 22.12.2008 in the Gazette of
India wherein it is provided that migration of students from one
medical college to another medical college may be granted on
any genuine ground subject to availability of vacancy in the
college where the migration is sought with the fulfilling of the
other requirements laid down in the regulations. While there
was a slight change in the Clause(1) of regulation 6 and in
place of words "exceptional cases to the most deserving
amongst the applicants for good and sufficient reasons and not
on routine", the words used are "any genuine ground subject
to availability of the vacancy in the college" have been
substituted, the eligibility condition of the applicants being
eligible to apply for migration only after passing the first
professional examination remained the same throughout.
16. Considering the above, we find that even if it is accepted
for a moment that the admission of the petitioners would be
continued to be governed by the 1997 regulations amended by
the notification dated 20.10.2008 and 22.12.2008, the right of
the petitioners to seek for or even apply for migration had
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accrued only after passing of the first professional MBBS
examination. No student admitted in an MBBS course in any
medical institution can even apply for the migration to another
medical college unless and until he/she has qualified the first
professional MBBS examination prior to the submission of such
application. This leads us to draw a conclusion that on the
date of admission i.e. in the year 2022, no right could have
been said to have accrued in favour of the petitioners with the
public notice dated 12.10.2022 which was issued as a
guideline for admission in MBBS in the Academic Calender
2022-2023. Heavy reliance placed by the learned single Judge
on Clause-iv of the public notice dated 12.10.2022 by taking
into consideration of Section 60 (2)(b) of the Act, 2019, is
nothing but a result of ignorance of the above noted facts.
17. Be that as it may, from a perusal of the regulations
governing the claim of migration for medical students from one
medical college to another, there cannot be any shadow of
doubt that a medical student cannot claim migration as a
matter of right. At the best, right if any, is to seek
consideration that too after a medical student fulfills the
eligibility criteria to apply or move application seeking
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migration. In light of these regulations governing the
migration originally from the GMER Regulations, 1997 till the
GMER, 2023, there is no question of any legitimate
expectation, of any of the medical students admitted in MBBS
course, of any substantive benefit or entitlement based on
existing promise or practice of the concerned authority. As
noted by the learned single Judge, determination of
substantive legitimate expectation can be successfully invoked
by individuals to claim substantive benefits or entitlements
based on a existing promise or practice of a public authority.
The claim of the petitioners of having right to consideration of
their applications seeking migration, can not fall within the
meaning of any substantive benefit or entitlement based on
existing promise, inasmuch as, the regulations itself clarifies
that migration cannot be claimed as a matter of right and
further on the date of admission of the petitioners in the MBBS
course in 2022, there was no promise to consider their
application seeking migration. The right to consideration of
the application, if any, would accrue in favour of the petitioners
(9 in number herein) only after they have passed the first
professional MBBS examination and by the time GMER, 2023
came into force w.e.f. 02.06.2023. On the date when the
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petitioners became eligible to even move an application
seeking migration, the GMER, 2023 puts a ban on migration.
18. The effective regulation holding the field after 02.06.2023
has clearly prohibited any student designated to a medical
college to seek migration to any other medical institution. It is
not a case where any substantive right accrued in favour of the
petitioners has been taken away with effect from the
enforcement of the regulations namely the GMER, 2023 w.e.f.
02.06.2023.
19. All arguments made by the petitioners weighed in their
favour by the learned single Judge on the doctrine of legitimate
expectation and retrospective operation of the regulations,
namely GMER, 2023, are therefore, found to be misconceived.
20. In so far as the claim of the petitioners that others
similarly situated students have been considered and some of
them have been permitted migration in terms of their
applications, suffice it to note that it has been brought before
us that those who have passed the MBBS first professional
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examination and applied prior to the enforcement of GMER,
2023 w.e.f. 02.06.2023, were considered under the old
prevailing regulations. As noted hereinabove, the National
Medical Commission is the body constituted under the Act,
2019 and is empowered to make regulations under Section
57(2) of the said Act. The Regulation GMER, 2023
promulgated in exercise of the powers conferred upon the
National Medical Commission vis-a-vis medical education in
general, are holding the field with effect from 02.06.2023 and
will govern all such matters, which are within the powers
conferred by the National Medical Commission Act' 2019.
21. Lastly, having perused the averments made in the writ
petition, pertinent is to note that nine medical students who
have jointly filed the writ petition seeking migration from one
medical college to another medical college, have simply made
vague assertions with regard to the hardships being faced by
them and the financial constraints faced by their families. In a
table extracted in paragraph No. 3(i) of the writ petition, it is
stated by the petitioners that during the first year of their
medical education, they had to face several hardships due to
poor financial condition of their families and several other
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distinct reasons. None of the reasons can be said to be such
which may be considered to be a genuine reason. The reasons
given therein are pertaining to the circumstances being faced
by the family of the students because they are financially hard
pressed. There may be many other similarly situated students
admitted in other medical colleges who may be facing the
same situation, but are trying to cope up to pursue their
medical education in the colleges allocated to them at the time
of admission. Any indulgence granted to the petitioners
herein, as has been granted by the learned single Judge, would
open the flood-gate or grant undue privilege to the petitioners
herein, only because they have been able to approach this
court inspite of being financially hard-pressed.
22. From all angles, the opinion drawn by the learned single
Judge about the non-applicability of the GMER, 2023 in the
case of the petitioners herein, cannot be said to be just and
proper from any legal perspective.
23. For the reasons given hereinabove, the judgment and
order dated 16.12.2024 passed by the learned single judge,
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cannot be sustained and is hereby set aside. The appeal
stands allowed. The writ petition is hereby dismissed. No
order as to costs.
(SUNITA AGARWAL, CJ )
(PRANAV TRIVEDI,J)
C.M. JOSHI/PPS
