PARIKH, J. ( 1 ) THE five petitioners in Special Civil Application No. 4131 of 1994 have prayed for an appropriate direction to the respondents Nos. 1 and 4 for issuance of no Objection Certificates" to the petitioners so as to enable them to obtain admission in 2nd M. B. B. S. course in Smt. N. H. L. Municipal Medical College, ahmedabad run by the respondent No. 3 through its Dean - respondent No. 2. xxx xxx xxx xxx ( 2 ) THE stand of the Government can be visualised in Civil Application No. 1047 of 1994 in Special Civil Application No. 4131 of 1994 praying for vacating the ad-interim relief granted on 8-4-1994 in favour of the petitioners. Accordingly, in the matters pertaining to the transfer of the students from one college to another college there are statutory rules and the guidelines framed by the Medical Council of India. Such guidelines or rules are statutory in nature and referable to Indian medical Council Act, 1956. The validity of such guidelines has been upheld by the honble Supreme Court in the case of Shirish Govind Prabhudesai v. State of maharashtra and Ors. , reported in JT 1993 (3) SC 722. The Government of Gujarat has by resolution dated 13-11-1991 framed rules for transfer/migration of students from one medical college to another medical college and Rules 1 and 4 thereof are similar to the rules framed by the Medical Council of India. These rules are applicable to the students who seek transfer to Smt. N. H. L. Municipal Medical college from the Government Medical Colleges of the State. Therefore, such transfers should be governed by these transfer rules, which were published in the gujarat Government Gazette dated 12-12-1991. Reference to rules has been made and, therefore, relevant part of the said rules may be reproduced : the following rules shall regulate transfer/migration of students from one Medical college to another Medical College within the State and from the Medical Colleges of the other States to the Government Medical Colleges of the State. It is clarified that these transfer rules will also be applicable to the students who seek transfer to N. H. L. Municipal Medical College from the Government Medical Colleges of the State. General Clauses : Part I 1. It is clarified that these transfer rules will also be applicable to the students who seek transfer to N. H. L. Municipal Medical College from the Government Medical Colleges of the State. General Clauses : Part I 1. Transfer of medical students from one medical college to another shall be allowed only after the passing of the first professional examination, i. e. , first m. B. B. S. at first attempt. 2. Transfer shall be effected between colleges which are duly and fully recognised by Medical Council of India. If a college is not recognised by M. C. I. , no transfer to or from it shall be given. 3. Such transfer will be allowed only during the first term of 2nd M. B. B. S. course. 4. Transfer to and from the Medical College will be limited to 5% of the intake capacity of the Medical College concerned. For example, if a Medical College has an intake capacity of 100 seats, only 5 students would be transferred from and 5 students transferred to such Medical Colleges. 5. Transfer will be allowed only from regular batch of students. No transfer will be allowed from the repeater batch. Note :- Regular batch means students admitted to 1st professional course in june/july passing the 1st professional course in Oct. / Nov. the next year after completing the 3 academic terms. Candidates admitted at and passing the examination at 1st attempt shall not be considered if the examination is not cleared with the regular students. 6. Merit for the purpose of transfer will be based on the marks obtained at HSC/ cbsc examination and first MBBS University Examination. 50% weightage shall be given for the marks obtained in the theory papers of science subjects (including maths) at HSC/cbsc examination and 50% of the marks obtained at first MBBS university examination in theory as well as practicals, internal as well as external for the purpose of preparing the merits list (Transfer shall be given to only those students who pass HSC/cbsc/mbbs examination in the first attempt only ). xxx xxx xxx xxx xxx ( 3 ) IT has been once again submitted on behalf of the Government that the rules appearing in the Government resolution quoted above are binding to the petitioners. xxx xxx xxx xxx xxx ( 3 ) IT has been once again submitted on behalf of the Government that the rules appearing in the Government resolution quoted above are binding to the petitioners. If that is so, Rule 6 which lays down different eligibility criteria from the eligibility criteria laid down by the Smt. N. H. L. Municipal Medical College Rules would be binding upon the petitioners. The material difference between the eligibility criteria in Rule 6 and the eligibility criteria in the rules of Smt. N. H. L. Municipal Medical college, Ahmedabad is that as per Rule 6, 50% weightage is to be given to the marks obtained in the theory papers of science subjects at HSC/cbsc examination and 50% weightage is to be given to the marks obtained at the First M. B. B. S. exmination in theory as well as practical, internal as well as external. Whereas according to the Municipal Medical College Rules 100% weightage is given for the marks obtained in the theory papers of science subjects at HSC/cbsc examination with a further eligibility criteria of the students having passed First M. B. B. S. examination at first attempt. The respective eligibility criteria are not subject to challenge. However, if Rule 6 of the Government resolution is rationally read, it would mean that the merit criteria prescribed therein is for the purpose of transfer inter-se the government Medical Colleges and the transfers inside such Medical Colleges from the Medical Colleges other than the Government Medical Colleges or the Medical colleges from outside the State of Gujarat. The reason is obvious that the standards could be prescribed by the Govt. or the body for receiving students from outside or from transferring students from one college to another college under its administration. Rule 6 cannot be construed so as to by-pass the rules of the other autonomous bodies. This Court in Special Civil Application No. 2632 of 1994 by its decision dated 23-3-1994 has ruled that the Smt. N. H. L. Municipal Medical college is an autonomous body and its rules would be applicable for the students, who want entry into that college. These rules apply to all the students uniformly according to the eligibility criteria prescribed by the said college. These rules apply to all the students uniformly according to the eligibility criteria prescribed by the said college. Therefore, the conflict that apparently shapes out between Rule 6 and the relevant rule of Smt. N. H. L. Municipal Medical College is wiped off if Rule 6 is reasonably and rationally construed. It is no doubt true that in the Preamble to the rules following clarification has been added :"it is clarified that these transfer rules would also be applicable to the students who seek transfer to Smt. N. H. L. Municipal Medical College from Government Medical colleges of the State. "however, this clarification shall also have to be construed in the same manner, namely, reasonably and rationally so as not to render the rules of transfer contained in the resolution as absurd or prohibiting absolutely the transfers of Government medical Colleges-students to other medical colleges. In this view of the matter, rule 6 would be applicable to the inter-se transfers, namely, transfers from one government Medical College to the other Government Medical Colleges. Students who seek transfers or migration to Smt. N. H. L. Municipal Medical College and the Medical Colleges outside the State of Gujarat would have to answer the merit criteria of such colleges and not Rule 6. It cannot be said that the merit is not the criteria for giving admissions to the students on transfer in so far as Smt. N. H. L. Municipal Medical College is concerned. The question then would be as to how the aforesaid construction of Rule 6 could be reconciled with the provision of intake capacity contained in Rule 4. It is in this connection that reference has been made to the following decisions by both the sides : (i) Shirish Govind Prabhudesai v. State of Maharashtra and Ors. , reported in JT 1993 (3) SC 722. (ii) Home Secretary, U. T. of Chandigarh and Anr. v. Darshjit Singh Grewal and Ors. , reported in JT 1993 (4) SC 387. In Shirish Govinds case (supra) the question involved for decision was a 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 M. B. B. S. examination. , reported in JT 1993 (4) SC 387. In Shirish Govinds case (supra) the question involved for decision was a 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 M. B. B. S. examination. In the present case there is no such question involved, but the decision would render some assistance in construing the rules. It would be appropriate to reproduce what the Supreme court has said in para 6 of the citation :"learned Counsels were unable to show that a right of migration/transfer of a student from one medical college to another inheres to a student de hors the conditions subject to which the migration/transfer is permitted. It is also not disputed that in case a recognised medical college chooses not to take any student by migration/transfer from another medical college, it cannot compelled to do so. It follows that unless a recognised medical college offers to admit by migration/ transfer some student from another medical college no student can claim as of right admission by migration/transfer to that medical college. The limited question, therefore, is whether a recognised medical college when it decides to admit by migration/transfer some students after passing the first MBBS examination from another medical college, it can restrict its choice only to students who were admitted to and have passed the first MBBS examination from a recognised medical college only, excluding from consideration such students from nonrecognised medical colleges. Undoutedly, it is one of the recommendations on graduate Medical Education adopted by the Medical Council of India which is being acted upon by recognised medical colleges while taking students by migration/transfer. "the answer to the question posed in the aforesaid paragraph can be found in para 7 of the citation. Accordingly, the recommendation on Graduate Medical Education by an expert body of Medical Council of India, which is entrusted with certain statutory functions relating to medical education by the Indian Medical Council act, 1956 were made. The recommendations having been accepted by the Medical council, such a condition of eligibility for migration/transfer from one medical college to another adopted by the recognised medical college cannot be termed unreasonable or arbitrary. The recommendations having been accepted by the Medical council, such a condition of eligibility for migration/transfer from one medical college to another adopted by the recognised medical college cannot be termed unreasonable or arbitrary. Following observations would also assume importance while determining the fate of these petitions :"movement of students between recognised medical colleges only is quite often to facilitate the students thereof in certain circumstances without conferring on them any additional benefit after the initial entry in a medical college duly recognised. "thus, the Supreme Court was concerned with a condition restricting transfer from a non-recognised medical college appearing in the rules of admission on migration/ transfer of a recognised medical college. The result is that once the rules permit transfer of students from recognised medical college to other recognised medical college, it would be the rules of the transferee colleges which would be applicable in so far as eligibility criteria are concerned; unless it can be shown that such rules are irrational or unreasonable or in any manner unconstitutional. One of the migration rules set out in Shirish Govinds case (supra) reads :"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% its intake in any one medical college in one year. "now Rule 4 is said to have been framed in the similar line. That may be again reproduced :"4. Transfer to and from the Medical College will be limited to 5% of the intake capacity of the medical college concerned. For example, if a Medical College has an intake capacity of 100 seats, only 5 students would be transferred from and 5 students transferred to such Medical Colleges. "it cannot be disputed that transfer to and from Smt. N. H. L. Municipal Medical college from and to the Government Medical Colleges of the State has been in contemplation under the rules set out in the Government resolution. Therefore, the availability of 5% intake or 5 seats in Smt. N. H. L. Municipal Medical College is quite within the consideration and calculation of 5% intake capacity. Therefore, the availability of 5% intake or 5 seats in Smt. N. H. L. Municipal Medical College is quite within the consideration and calculation of 5% intake capacity. As a matter of fact, the real grievance was that the results of M. S. University at Baroda for the First m. B. B. S. examination were declared much later than the extended cut off date of smt. N. H. L. Municipal Medical College; that is how the students of that University were not eligible for admission to Smt. N. H. L. Municipal Medical College at ahmedabad. Three petitions have been dismissed by this Court as narrated above in so far as the students of that college are concerned. The Government, therefore, could not have remained tight by applying the rules in a manner different from it might be doing in the past years. Be that it may, when the question has arisen, it clearly appears to me that the eligibility criteria as contained in Rule 6 would be applicable to inert-se transfers. The provision made for intake capacity in Rule 4 is to include not only transfers as per Rule 6, but also transfers from Smt. N. H. L. Municipal medical College and Government Medical Colleges outside the State of Gujarat. Therefore, the students who opt for their transfers to medical colleges outside the state of Gujarat and to medical colleges other than the Government Medical College in the State of Gujarat have to say that they are granted admission in such colleges and the Government has to decide whether they can be granted No Objection certificate. Rule 4 of intake capacity, in my opinion, should not bother the government authorities when they have to send out such students for intake capacity would mean capacity to satisfy action of taking in and not of sending out. In the excerpted passage from Shirish Govinds case (supra) also such intake capacity rule is highlighted in upholding the transferee colleges rule of eligibility. In the excerpted passage from Shirish Govinds case (supra) also such intake capacity rule is highlighted in upholding the transferee colleges rule of eligibility. ( 4 ) THE second decision in Home Secretary, U. T. of Chandigarhs case (supra) is relied upon for the purpose of bringing to the notice of this Court the following note of caution expressed by the Supreme Court :"at the same time we are constrained to add that it would have been more appropriate if the High Court had not directed the respondents to be admitted in Chandigarh college by way of interim orders; it could have made these orders more appropriately at the final stage. Such interim orders, it is obvious, foreclose the options at the final hearing. Even if the W. P. fails, the mischief of the interim orders cannot be rectified in view of the change in situation, coupled with lapse of time. This is precisely the situation confronting us. We are, therefore, compelled to say that the High Court should not pass such orders - except in those rare cases where the non-passing of such order would cause such injury as could not be repaired later. These were not such cases. The respondents have been studying in the Guru Nanak Dev College, or such other college as the case may be, for a period of one year or more. They had obtained admission therein, in the management quota, with their eyes open. They could have been and ought to have been asked to wait till the final disposal of the writ petitions, which could be-and, indeed, were-expeditiously heard. We are obliged to make these observations in view of the fact that we have come across several such orders passed by High Courts. Such mandatory orders ought not to be made at an interlocutory stage, except in rare cases, as emphasised hereinabove. "it should be noted that the present matter is for final hearing and decision. The adinterim relief was granted and again by the interim order it was vacated while issuing the rule. Thus, the five petitioners are still deprived of the admissions into smt. N. H. L. Municipal Medical College, Ahmedabad, only beacuse the concerned respondents have not issued/released No Objection Certificates. The adinterim relief was granted and again by the interim order it was vacated while issuing the rule. Thus, the five petitioners are still deprived of the admissions into smt. N. H. L. Municipal Medical College, Ahmedabad, only beacuse the concerned respondents have not issued/released No Objection Certificates. In fact in para 15 the Supreme Court has said the rules and regulations referred to in that case are statutory; whereas the policy guidelines referred to in that case are relatable to the executive power of Chandigarh administration. In the present case, the Government has not satisfied how the Government has met with the alleged anomalous situation arising from Rule 6 and the relevant Rules of Smt. N. H. L. Municipal Medical college in past. The Government is bound to adhere to its policy in the manner in which it has been adhered to in the past. ( 5 ) REASONABLE and rational approach to the observance of the rules contained in the Government resolution would be in the manner in which it is suggested hereinabove, if the rules are to be saved from being struck off as arbitrary and unreasonable. It may be reiterated that these rules are administrative in nature and that fact has been taken care of while construing the rules as stated above. Nothing much, therefore, turns out from the second decision of the Honble Supreme Court in so far as the facts of the present case are concerned. Mr. Panchal, learned a. G. P. then placed reliance upon a decision of the Honble Supreme Court in the case of State of Punjab v. Renuka Singla, reported in 1994 (1) SCC 175 . The construction placed on Rule 6 as aforesaid, in my opinion, would not be contrary to what the Honble Supreme Court has said in this decision. The Court cannot direct creation of additional seats contrary to statutory provisions in order to accommodate the litigating candidates. Here in the present case no direction is to be given to enable the respondents for creation of additional seats. In the present case either there would remain vacancies in Smt. N. H. L. Municipal Medical College if the petitioners cannot step in that college pursuant to the provisional admissions granted. If they are able to step in that college, there might be some vacancies left out in their parent (transferor) college. In the present case either there would remain vacancies in Smt. N. H. L. Municipal Medical College if the petitioners cannot step in that college pursuant to the provisional admissions granted. If they are able to step in that college, there might be some vacancies left out in their parent (transferor) college. Reliance has been placed on following observations appearing in para 8 of the citation :"we fail to appreciate as to how the High Court can be generous or liberal in issuing such directions which in substance amount to directing the authorities concerned to violate their own statutory rules and regulations, in respect of admissions of students. It cannot be disputed that technical education, including medical education, requires infrastructure to cope with the requirement of giving proper education to the students, who are admitted. Taking into consideration the infrastructure, equipment, staff, the limit of the number of admissions is fixed either by the Medical Council of India or dental Council of India. The High Court cannot disturb that balance between the capacity of the institution and number of admissions, on "compassionate ground". The high Court should be conscious of the fact that in this process they are affecting the education of the students who have already been admitted, against the fixed seats, after a very tough competitive examination. According to us, there does not appear to be any jurisdiction on the part of the High Court, in the present case, to direct admission of respondent 1 on "compassionate ground" and to issue a fiat to create an additional seat which amounts to a direction to violate Sec. 10a and Sec. 10-B (3) of the Dentists Act referred to above. " in the present case there is no question at all of creating any additional seats, instead the situation is otherwise. xxx xxx xxx xxx xxx mr. S. R. Shah, however, argued that the petitioners cannot succeed in this petition because no student has a fundamental or legal right to get transfer. Reliance is placed upon a decision of the Bombay High Court in the case of Miss Nidhi Kumar v. State of Maharashtra, reported in AIR 1990 Bombay 390. xxx xxx xxx xxx xxx mr. S. R. Shah, however, argued that the petitioners cannot succeed in this petition because no student has a fundamental or legal right to get transfer. Reliance is placed upon a decision of the Bombay High Court in the case of Miss Nidhi Kumar v. State of Maharashtra, reported in AIR 1990 Bombay 390. The facts of that case indicate that there was a rule relating to migration prohibiting transfer in any case in the following terms :"no application of migration to other medical college would be entertained of the students admitted to this Institute. "therefore, in the facts of that case petitioner was held to have no fundamental right or even legal right to obtain transfer from one medical college to another medical college and that it was found that there was no discrimination against her in the circumstances of that case. In the present case, there is no such absolute prohibition against transfer or migration. In fact, transfer or migration is permitted and legal right is created in favour of the five petitioners when they got admission in the transferee college, they having satisfied the eligibility criteria. Therefore, if this decision is to apply it would be applicable against the petitioners of Baroda, who has not got any provisional admission into Smt. N. H. L. Municipal Medical College. It would not be applicable to the five petitioners in whose favour some legal rights have been created by virtue of the facts noted hereinabove. It has then been submitted that Smt. N. H. L. Municipal Medical College must advertise admission in the Second M. B. B. S. course afresh, if any relaxation of condition is to be granted. This argument is misconceived. In the present case, the five petitioners are not at fault for having not received the no Objection Certificates within time. In fact they have rushed to this Court well in time. Smt. N. H. L. Municipal Medical College would accept them only if the Gujarat University permits the five petitioners to have their entry into Smt. N. H. L. Municipal Medical College at this belated stage. Therefore, there is no question of directing Smt. N. H. L. Municipal Medical College to have the whole exercise undergone afresh. Smt. N. H. L. Municipal Medical College would accept them only if the Gujarat University permits the five petitioners to have their entry into Smt. N. H. L. Municipal Medical College at this belated stage. Therefore, there is no question of directing Smt. N. H. L. Municipal Medical College to have the whole exercise undergone afresh. To reiterate what has been said by the Supreme Court in Shirish Govinds case (supra) movement of students between recognised medical colleges is quite often to facilitate the students in certain circumstances without confining on them any additional benefits. In this view of the matter, the decision in the case of Professor A. N. Karia and Ors. v. M. S. University, reported in [1991 (2)] XXXII (2) GLR 881 would not be applicable. This is not a case of public employment and in the facts of the case noted above, the ratio in the case of Professor A. N. Karia (supra) could hardly be said to be applicable. By virtue of the provisional admission given to the five petitioners, a separate class is created. The submissions of Mr. S. R. Shah, therefore, cannot be accepted so as to deny the limited relief as aforesaid to the five petitioners. xxx xxx xxx xxx xxx ( 6 ) IT is, therefore, recommended to the Gujarat University that the five petitioners of Special Civil Application No. 4131 of 1994 be given treatment similar to the other students stated in the Government resolution, who are transferred beyond the prescribed time. In that event the respondent Nos. 1 and 4 shall forthwith issue the no Objection Certificates to the five petitioners so as to enable them to take admission and so as to enable Smt. N. H. L. Municipal Medical College to give admission. Rule made absolute to this limited extent. No order as to cost. ( 7 ) SPECIAL Civil Application No. 5470 of 1994 of the petitioner of Baroda is dismissed. Rule discharged with no order as to cost. ( 8 ) TODAY when the judgment has been pronounced Mr. Amit Panchal, learned a. G. P. for the State prays for the stay of the operation of this judgment for a period of four weeks to enable the State to carry the matter further. Mr. A. H. Mehta and Mr. K. K. Nair, learned Advocates for other side oppose this request. Amit Panchal, learned a. G. P. for the State prays for the stay of the operation of this judgment for a period of four weeks to enable the State to carry the matter further. Mr. A. H. Mehta and Mr. K. K. Nair, learned Advocates for other side oppose this request. ( 9 ) HEARD the learned A. G. P. as well as learned Advocates for the other side. In so far as recommendation to the Gujarat University is concerned, it will take some time and, therefore, that part of the order is not stayed. In so far as the direction to issue no Objection Certificates is concerned, that part of the order is stayed for a period of three weeks from today. .