Jayashree P vs State Of Karnataka & Others

E.S. Indiresh, J

The petitioner herein is calling in question the Notification dated 01st August, 2022 issued by the Directorate of Medical Education (Annexure-H) inter alia sought for direction to the Director of Medical Education to admit the petitioner to the II year MBBS Course inter alia sought for direction to the Director of Medical Education to admit the petitioner to the II year MBBS Course in the Mysuru Medical College and Research Institute, Mysuru or in the alternative to Mandya Medical College and Research Institute, Mandya.

It is the case of the petitioner that the petitioner had appeared in All India NEET Examination and on being successful in the competitive examination, she was allotted a seat in MBBS Course in Government Medical College, Kannur, State of Kerala as per allotment letter dated 06th November, 2020. The petitioner passed the First year MBBS Examination. In the meanwhile, petitioner has suffered severe health issue of irritable bowel syndrome and she was not able to continue her study at Kannur and as such, approached the respondent No.1 for migration from Medical College, Kannur to Mysuru Medical College and Research Institute, Mysuru. Petitioner had appeared before the Medical Board of Victoria Hospital, Bengaluru and the Medical Board recommended the petitioner to transfer from Medical College, Kannur to Mysuru Medical College and Research Institute, Mysuru. The Rules governing migration of students from one college to another college is governed by Notification dated 04th July, 2022 issued by the respondent-State. Petitioner has produced the No Objection Certificate issued by both colleges, viz. the Government Medical College, Kannur and the Mysuru Medical College and Research Institute, Mysuru. It is further stated in the writ petition that Mysuru Medical College and Research Institute, Mysuru has not published the merit list of the applicants who have applied for migration from other colleges. In the meanwhile, the Directorate of Medical Education issued Notification dated 01st August, 2022 notifying the students who had applied for migration from one college to another college and the case of the petitioner was not considered and on the other hand, the respondents 6 and 7 were migrated to Mysuru Medical College and Research Institute, Mysuru from Mandya Medical College and Research Institute, Mandya. Feeling aggrieved by the same, the petitioner has presented this writ petition.

On service of notice, the respondent entered appearance. The respondent-State has filed detailed statement of objection stating that the petitioner ought to have made an application to directorate of medical education with No objection certificate from colleges and National Medical Council on or before 22nd July, 2022 and as the petitioner has not approached the Government at the earliest, the case of the petitioner cannot be considered at this stage and accordingly, sought for dismissal of the writ petition.

Heard Sri H.C. Shivaramu, learned counsel appearing for the petitioner and Smt. Pramodhini Kishan, learned Additional Government Advocate for respondents 1 and 2; Sriyuths Chandrakanth R. Goulay, learned counsel appearing for respondent No.3; N. Khetty, learned counsel appearing for respondent No.4; B.S. Sachin, learned counsel appearing for Respondent No.5 and Smt. Sumana Baliga, learned counsel appearing for the respondent No.8. Respondent No.7 is served, remained absent.

Sri H.C. Shivaramu, learned counsel appearing for the petitioner, contended that respondents 6 and 7 are studying in a college which is 40 kilometers away from Mysuru, however, the petitioner herein is having health issue and also has obtained No Objection Certificate from both the colleges, as well as from the respondent No.4, however, the respondent No.1 has not acted in a transparent manner while considering the applications made by the students seeking migration from one college to another college and accordingly, sought for interference of this Court.

Per contra, Smt. Pramodhini Kishan, learned Additional Government Advocate appearing for the respondent-State argued that the Mysuru Medical College had only two vacant seats under migration transfer; and the respondent-State has received five applications and only two students were eligible for migration, i.e. respondents 6 and 7 herein and respondent No.6 was also having health issue and therefore, the case of respondents 6 and 7 was considered for migration from Mandya Medical College and Research Institute, Mandya to Mysuru Medical College and Research Institute, Mysuru and accordingly, sought for dismissal of the writ petition. She further contended that the last date for making application to Directorate of Medical Education with No Objection Certificate from the colleges was 22nd July, 2022 and the last day for reporting to college was 06th August, 2022 and already three months period is over and at this juncture, no interference be made in respect of the migration of the petitioner.

Sri N. Khetty, learned Counsel appearing for respondent No.4 invited the attention of the Court to the approval granted by the Respondent No.4 for migration of the petitioner (Annexure-G) and argued that if the migration is from one college to another college located outside the State, respondent No.1 alone is the competent authority to accept the application for seeking migration. Accordingly, the learned Counsel argued that in terms of Annexure-G, writ petition deserves to be allowed.

Sri Chandraknth R. Goulay, learned counsel appearing for the respondent No.3-College and Smt. Sumana Baliga, learned counsel appearing for respondent No.8-College, submitted that the college has given No Objection Certificate to the petitioner seeking migration.

In the light of the submission made by the learned counsel appearing for the parties, careful consideration of the writ papers would indicate that the petitioner has passed First year MBBS examination at Government Medical College, Kannur and thereafter approached the respondent No.1 seeking transfer from Government Medical College, Kannur to Mysuru Medical College and Research Institute, Mysuru on health ground. The petitioner has produced No Objection Certificate from both the colleges. The Rules governing migration of students from one college to another college is as per Notification dated 04th July, 2022 issued by the respondent No.1, as per Section 11(2) of the Indian Medical Council Act, 1956. The Government, in furtherance of the application made by the students seeking migration, prepare the merit list of the applicants and such migration is restricted to 5% of the annual sanctioned intake capacity of the college. The last dated for issuing orders for migration to eligible candidates was 02nd August, 2022. Clauses 15 and 16 of the Notification dated 04th July, 2022 read as under:

“15. All migration transfers are to be effected as per the National Medical Commission Rules and Regulations. No migration transfer is permissible from or to the permitted or unrecognised medical colleges.

All Migration Transfers are subject to final approval by National Medical Commission or competent authorities designated by the regulators.”

(emphasis supplied)

In order to accord permission for migration of the MBBS student, the relevant provision that is applicable under the Graduate Medical Education Regulations, 1997 is Clause 6. One of the criteria for consideration of the application for migration of student is set out in Clause 2(4) as is set out in the letter dated 01st August, 2022 (Annexure-G). The same reads thus:

“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 the application for migration within a period of 1 month of passing (Declaration of result of the 1st Professional MBBS examination) along with 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.”

(emphasis supplied)

Undisputably, the petitioner has secured No Objection Certificate from the respondent No.4 as well as both the Colleges. In view of the fact that the migration in the instant case is from one State to another State, the approval made by the respondent No.4 alone plays a vital role, as the State Government has no say in the matter except forwarding the request of the student. It is also made clear in the Notification dated 04th July, 2022 by the Government that the migration transfers are subject to final approval by the respondent No.4 and any such migration of the student are subject to the final approval by the respondent No.4. The petitioner has produced the sanction accorded by the respondent No.4 as per Annexure-G to the writ petition and taking into account the relevant documents granting sanction by both the colleges and the respondent No.5 as per Annexure-E series, thus I am of the opinion that the respondent No.1 ought to have considered the case of the petitioner for migration to the Mysuru Medical College and Research Institute, Mysuru. However, it is submitted at the Bar that respondents 6 and 7 have already been migrated to Mysuru Medical College and Research Institute, Mysuru and are attending classes for the second year which has already commenced three months back inter alia leaving two vacant seats at Mandya Medical College and Research Institute, Mandya on account of migration of respondents 6 and 7 to Mysuru Medical College and Research Institute, Mysuru, and further, in view of the fact that petitioner has also sought for alternative prayer to accommodate her at Mandya Medical College and Research Institute, Mandya, I am of the opinion that the respondent No.8-College Mandya Medical College and Research Institute, Mandya be directed to accept the migration of the student, as ordered by the respondent No.4 since the respondent No.4 alone has to take decision in respect of the migration of the student from one State to another State, so also, taking into account the letter dated 28th August, 2022, addressed by the Directorate of Medical Education, Bengaluru to Respondent No.4, in the peculiar facts and circumstances of the case. In the result, I pass the following:

ORDER

Writ petition is allowed;

Letter dated 25th August, 2022 issued by the Directorate of Medical Education to the Respondent No.4 shall be considered at the earliest and in any event, within a period of one week from today, taking into account the observation made above.