Anita Singh v. State of Bihar — 1999 DIGILAW 345 (PAT)

JUDGMENT NAGENDRA RAI, J. 1. The common question of law and facts are involved in all the five cases and as such with the consent of the parties they have been heard together and are being disposed of by this common judgment. 2. The petitioners in all the five cases have filed the present writ applications for quashing the letter dated 11.8.1998 & 25.8.1998 (Annexure-5 & 6 to CWJC No. 9348 of 1998) written by the Secretary of the Medical Council of India to the Secretary, Government of Bihar, Department of Health, requesting him to cancel the migration/transfer of 26 students of M.B.B.S. Course studying in third year from one College to different Medical Colleges of the State of Bihar and the order dated 12.8.1998 (Annexure-4 to CWJC No. 9348 of 1998) issued by the Department of Health, Government of Bihar canceling the earlier notification dated 11.7.1998 by which the transfers of the students were made. The said documents have been annexed in all the writ applications. However, for convenience the annexure numbers given are mentioned in CWJC No. 9348 of 1998 which shall be referred to hereinafter. Letter dated 11.8.1998, 25.8.1998 and 12.10.1998 have been referred to as Annexure- 5, 6 & 4 respectively. 3. The factual matrix for disposal of the present writ applications are as follows:– The matter relates to the transfer of the students of the M.B.B.S. Course of 1995-2000 Sessions. These students appeared in M.D.A.T. Examination and they were selected and their placement in the medical colleges was made on the basis of their merit-cum-choice basis. The petitioners of all the writ applications except CWJC No. 11936 of 1998 were admitted in Anugraha Narain Magadh Medical College Gaya (hereinafter referred to as the A.N.M.M. College) and petitioner of CWJC No. 11936 of 1998 was admitted in Nalanda Medical College, Patna. On 24.11.1997 the State Government invited applications from the candidates desirous of the transfer from one Medical College to another. According to the petitioners, they along with others applied and the State Government after having considered the matter issued a notification on 11.7.1998 transferring these students from one Medical College to another. Out of whom 22 students are from A.N.M.M. College, Gaya, two students are from M.G.M. College, Jamshedpur, one student from N.M.C. Hospital and one student from Medical College, Bhagalpur. Out of whom 22 students are from A.N.M.M. College, Gaya, two students are from M.G.M. College, Jamshedpur, one student from N.M.C. Hospital and one student from Medical College, Bhagalpur. The petitioners of CWJC No. 8918 of 1998 have been transferred from A.N.M.M. College, Gaya to Patna Medical College Hospital, Patna, Petitioner nos. 2 & 3 Rajesh Ranjan and Tulika Priya of CWJC 9348 of 1998 have been transferred from A.N.M.M. College, Gaya to Patna Medical College Hospital, petitioner no. 1 of CWJC No. 9348 of 1998, namely, Anita Singh from A.N.M.M. College, Gaya to Darbhanga Medical College Hospital, Darbhanga and petitioner no. 4 of CWJC No. 9348 of 1998, namely, petitioner of CWJC No. 9378 of 1993 has been transferred from A.N.M.M. College, Gaya to Medical College, Bhagalpur, petitioner of CWJC No. 10001 of 1998, namely, Wandarity Mawlong has been transferred from A.N.M.M. College Gaya to Patna Medical College Hospital and petitioner of CWJC No. 11936 of 1998, namely, Mirza Sadique Ali has been transferred from N.M.C.H., Patna to S.K. Medical College, Muzaffarpur. Respondent No. 8 Ramdeo Bhandari, Member of Parliament, Rajya Sabha, New Delhi hailing from Bihar, who has been added as party respondent in CWJC No. 9348 of 1998, wrote a letter to the Medical Council of India (hereinafter referred to as the Council) requesting the Secretary to the Council to look into the illegality committed in the matter of transfer of the students of M.B.B.S. course studying in different Medical Colleges of the State of Bihar. Thereafter, the Council took cognizance of the matter and wrote a letter to the State Government that it has come to know that 26 students of the Medical Colleges have been transferred from one college to another, out of which 22 belong to one Medical College i.e. A.N.M.M. College, Gaya. According to the regulations no Institution/University shall direct for migration of students in M.B.B.S. Course without approval of the Council and accordingly the Council asked the department to clarify as to how these migrations have been effected in violation of the regulations. The said letter has been annexed as Annexure-5. According to the regulations no Institution/University shall direct for migration of students in M.B.B.S. Course without approval of the Council and accordingly the Council asked the department to clarify as to how these migrations have been effected in violation of the regulations. The said letter has been annexed as Annexure-5. Thereafter, the Council again issued a direction in its letter dated 25.8.1998 to the State government to cancel the migration/transfer immediately without intimation to the Council failing which the Council will consider to recommend the Central Government for withdrawal of recognition of the concerned Medical Colleges in terms of the provisions under section 19 of the Indian Medical Council Act, 1956 (hereinafter referred to the Act). It was clearly mentioned in the said letter as per migration rules, migration from one recognised medical college to another recognised medical college is permissible only after passing 1st professional examination and on the compassionate ground criteria as enumerated under the Regulations framed under section 33 of the Act. The said letter has been annexed as Annexure-C. Therefore, the State Government issued an order dated 12.10.1998 cancelling the earlier notification dated 11.7.1998 transferring/migrating the students from one medical college to other. 4. The stand of the Medical Council of India as appears from the counter affidavit is that the migration/transfer is not as a matter of right and the State government has no power, authority and jurisdiction to allow migration/transfer of the students from one recognised medical college to other. The matter of migration/transfer falls within the exclusive domain of the Council and the order of the State government dated 11.7.1998 is without jurisdiction. The Council with previous sanction of the Central Government has framed a regulation, namely, Regulations on Graduate Medical Education, 1997 (hereinafter referred to as the Regulation, 1997) which vas published in the Gazette of India on 17.5.1997 and it came into force from that date. Prior to that Regulation of 1977 was in operation which cease to exist after coming into a force of the Regulation, 1997. Change of Syllabus/duration of course in the Regulations of 1997 will not make the Regulations of 1997 applicable to the students who were admitted prior to coming into force of the Regulations, 1997. 5. Prior to that Regulation of 1977 was in operation which cease to exist after coming into a force of the Regulation, 1997. Change of Syllabus/duration of course in the Regulations of 1997 will not make the Regulations of 1997 applicable to the students who were admitted prior to coming into force of the Regulations, 1997. 5. Further stand of the Council is that even if 1977 regulations is to be applicable even then migration/transfer by the Department of Health is contrary and violation of Clause V which deals with migration of 1977. The students of 1st M.B.B.S. of 1995 batch cannot be allowed migration in 1998 i.e. after three years. Under the old Regulations migration could be allowed within three months after passing the 1st professional examination which does not appear to be the case in the present writ applications. Mass migration/ transfer of 22 students of one College is in violation of Clause V(d) of the Regulations 1977 which provides that in no case the migration/transfer from one medical college to another should exceed the limit of 5% of its in-take subject to maximum of 5 students in anyone medical college in one year. This apart even the other provisions of Clauses (e) & (f) of Regulations V have also not been complied with. It is stated that the Council has never issued the letter dated 25.8.1998 under pressure on the other hand the Secretary of the Council issued the aforesaid letter after having come to know about the illegality committed by the State Government. 6. In the Supplementary counter affidavit the Council has asserted that it had only requested the State Government to cancel its order as the same was in breach of the rules failing which the Council may take steps to recommend for withdrawal of the recognition and thereafter the State Government itself has cancelled the order of transfer. In other words, the Council has only informed about the legal position and thereafter the State Government has cancelled its earlier notification. 7. The State Government has not come out with a clear stand in the counter affidavit. In other words, the Council has only informed about the legal position and thereafter the State Government has cancelled its earlier notification. 7. The State Government has not come out with a clear stand in the counter affidavit. The only inference that can be drawn from the counter affidavit is that the State Government is conniving with the petitioners which will be evident from the fact that after filing of the writ application by the petitioners a prayer was made in CWJC No. 8918 of 1998 for staying the impugned order cancelling the transfer which was rejected on 16.10.1998 by a learned single Judge of this Court. Again a prayer was made for grant of an interim order and the another learned single Judge of this Court taking into consideration the stand of the State that it is supporting the case of the petitioners directed the petitioners to attend their classes at the transfer place by order dated 17.11.1998. 8. The respondent no. 8, namely, Ramdeo Bhandari, Member of Rajya Sabha, has also filed an affidavit in CWJC No. 9348 of 1998 wherein he has stated that he has no malice or animus against the petitioners. He being the resident of Bihar and Member of Rajya Sabha having come to know about the aforesaid violations of the rules brought the matter to the notice of the Council. 9. It is submitted on behalf of the petitioners that the impugned orders are vitiated in law on the ground that these orders were issued in breach of the principle of natural justice as the petitioners were not given an opportunity of hearing before passing the impugned orders. It was further submitted on their behalf that they are students of 1995-2000 Sessions and at that time the regulation of 1977 framed under S. 33 of the Act was in force and according to which the power of migration/transfer is vested in the University/State Government. As such the Council has no right to interfere in the matter of migration/ transfer. Accordingly, the direction issued by the Council to the State government to cancel the migration is impermissible in law. As such the Council has no right to interfere in the matter of migration/ transfer. Accordingly, the direction issued by the Council to the State government to cancel the migration is impermissible in law. Elaborating this submission it was asserted that according to Regulations framed by the Council in 1997, which came into force in May, 1997 the power of transfer is vested in the Council in terms of the relevant provision and the same will apply only to those M.B.B.S. students who were admitted after coming into force of the said regulations and not in the case of the petitioner. In other words, no retrospective operation can be given to the provisions dealing with the migration/transfer as contained in 1997 Regulations. It was further submitted that even if 1997 regulation is held to be applicable the same is recommendatory and not mandatory and in that view of the matter non-observance of the provisions of the Regulation will not vitiate the order of transfer dated 11.7.1998. In the alternative it is submitted that the Council is competent to pass an order cancelling migration/transfer in terms of the provisions of the Regulations, 1997 but the same has not been done by the Council and on the other hand it has been passed by the Secretary and accordingly the orders dated 11.8.1998, 25.8.1998 vide Annexure-5 & 6 are vitiated in law. Lastly, it was submitted that now the students are allowed to attend the classes by an interim order passed by this Court and if at this stage they are allowed to go to the transfer colleges then they would suffer in the sense that second year examination is over and they transfer have to wait for another year to appear in the examination. 10. As stated above, the State stand is very vague and as a matter of fact it has tried to justify the order in the counter affidavit by not giving the clear stand. However, the learned counsel appearing for the State during the course of argument supported the order of cancellation of migration/transfer of the students on the ground that the State government has no power to issue migration/transfer order after coming into force of 1997 Regulations. 11. Before adverting to the respective submissions advanced at the Bar it will be useful to refer the provisions having relevancy to the matter in controversy. 12. 11. Before adverting to the respective submissions advanced at the Bar it will be useful to refer the provisions having relevancy to the matter in controversy. 12. The Act has constituted a Council (Apex Body) for maintaining the proper medical standard in medical colleges or the institutions necessary for obtaining recognised medical qualifications. The Council has power to lay down the conditions for recognition of the medical colleges, minimum educational qualification and other matters with a view to maintain the proper medical standard in the colleges or institutions. The power of the Council was considered by the Apex Court in the case of State of Kerala vs. Kumari P.P. Roshana, (1979) 1 SCC 572 and the Apex Court held as follows:– "The Indian Medical Council Act, 1956 has constituted the Medical Council of India as an expert body to control the minimum standards of medical education and to regulate their observance. Obviously, this high powered Council has power to prescribe the minimum standards of medical education. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. Thus there is an overall invigilation by the Medical Council to prevent sub-standard entrance qualifications for medical courses." 13. Section 33 of the Act empowers the Council to make regulations to carry out the purpose of the Act. It further provides that the Council may frame regulations with regard to matters enumerated therein. The Council framed a regulation in exercise of the aforesaid power in the year, 1977 titled as Recommendation on under graduate Medical Education. It contains several provisions including minimum qualification for admission in the medical colleges and migration/transfer of students from one medical college to another. The relevant provision with regard to migration/transfer of student from one medical college to another has been given under Regulations V which runs as follows:– Migration/Transfer of students from one Medical College to another:– (a) A student studying in a recognised medical college may be allowed to migrate/ transfer to another recognised medical college under another/same university. (b) The migration/transfer can be allowed by the University concerned within three months after passing the 1st professional examination as a rule. (c) Migration/Transfer of students during the course of their training for the clinical subjects should be avoided. (b) The migration/transfer can be allowed by the University concerned within three months after passing the 1st professional examination as a rule. (c) Migration/Transfer of students during the course of their training for the clinical subjects should be avoided. (d) 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 anyone medical college should not exceed the limit of 5% of its intake subject to a maximum of 5 students in anyone medical college in one year. (e) Cases not covered under the above regulations, may be referred to the Council for consideration on individual merits. (f) An intimation about the admission of migrated/transferred students into any Medical College should be sent to the Council forthwith. 14. In 1997 the Council again framed regulation which was published in the official Gazette on 17th May, 1997. The Chapter II of the said regulation contains the provisions with regard to admission/selection/migration and training. Regulation VI contains the provisions with regard to the migration which are as follows:– 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 M.B.B.S. examinations. (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 result) the first professional Bachelor of Medicine and Bachelor of Surgery (M.B.B.S.) 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 (M.B.B.S.) examination at the transferee medical college, which should be only certified by the Registrar of the concerned University in which he/she is seeking transfer. (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 (M.B.B.S.) examination at the transferee medical college, which should be only 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/University shall allow migration 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. 15. The Act itself was amended by the Amendment Act 31 of 1993 which came into force w.e.f. 27.8.1992. Section 10A, 10B & 10C were added in Act. In terms of the amended provisions now it is the Medical Council which can prescribe the number of students to be admitted in the medical course and medical education and the Central Government can only increase the number of candidates to be admitted in the Institutions but only on the recommendation of the Council. The State Government has no authority to increase or decrease the number of students in any medical college. 16. According to the 1977 Regulations the power of transfer from one recognised medical college to another was vested in the University which is to be exercised within three months after passing of the first professional examination and in no case the number of students migrating/transferring from one recognised medial college to another should exceed the limit of 5% of its intake subject to a maximum of 5 students in any one medical college in one year. In cases not covered by the aforesaid provision were to be referred to the Council for consideration on individual merits. The said provisions also provides that the intimation about migration/transfer by the University has to be given to the Council forthwith. 17. In cases not covered by the aforesaid provision were to be referred to the Council for consideration on individual merits. The said provisions also provides that the intimation about migration/transfer by the University has to be given to the Council forthwith. 17. The new Regulation which has been framed after coming into force of section 10(A) of the Act provides that the migration cannot be claimed as a matter of right and the same has to be considered in exceptional and on extreme compassionate ground. The transfer has to be effected from one recognised medical college to other and the candidate must have passed the 1st M.B.B.S. professional examination and should file an affidavit that he will pursue 18 months of prescribed study before appearing at IInd professional Bachelor of Medicine and Bachelor of Surgery (M.B.B.S.) examination at the transferee medical college which should be duly certified by the Registrar of the concerned University and no University or Institution shall allow migration directly without approval of the Council. 18. Thus, after taking into consideration the provisions of the two regulations it is clear that after May, 1997 when the Regulation 1997 came into force it is the Council which has power to pass an order of migration/transfer and this provision appears to have been made taking into consideration the fact that now as the Council has power to fix number of students to be admitted in M.B.B.S. Course and the same can be increased and decreased only by Central Government on the recommendation of the Council. The power of transfer given to the University or the State Government without approval of the Council will frustrate the said object as by transferring the students the University/State Government may increase or decrease the seats contrary to the statutory provisions contained under the Act. 19. The Apex Court in the case of Medial Council of India vs. State of Karnataka and Other, 1998 S.C. 2423: 1999(1) PLJR 10(SC) has considered the provisions of the Act and the Regulations and has held that it is the Council which is primarily responsible for fixing standards of medical education and over seeing that these standards are maintained. It is the Medical Council which is the principal body to lay down conditions for recognition of medical colleges which would include the fixing of intake for admission to a medical college. It is the Medical Council which is the principal body to lay down conditions for recognition of medical colleges which would include the fixing of intake for admission to a medical college. It was further held that after insertion of Sections 10A, 10B & 10C in the Medical Council Act, the Medical Council has framed regulations with the previous approval of the Central Govt. which were published in the Gazette of India dated September 19, 1993. Any medical college or institution which wishes to increase. the admission capacity in M.B.B.S. higher courses has to apply to the Central Government for the permission alongwith the permission of the State Government and that of the University with which it is affiliated and in conformity with the regulations framed by the Medical Council. No Medical College can admit any student in excess of its admission capacity fixed by the Medical Council subject to any increase thereof as approved by Central Government. 20. The first question to be reconsidered is as to whether Regulations of 1977 or 1997 is applicable in this case. 21. The petitioners were admitted in 1995-2000 Sessions. When the Regulations 1997 came into force they were studying as M.B.B.S. students. Their assertion is that the new regulations do not cover their case. Regulations 1997 are silent as to whether the earlier regulation ceased to exist or not. In other words, no express provision of repeal has been made in the Regulations, 1997. 22. Even in absence of any provision of repeal the Court has to consider as to whether by virtue of subsequent statutory provision the earlier provision is repealed or not by implication. Repeal may be either express or implied. General principle is that there is presumption against repeal by implication and the same is founded on the ground that the legislature while making a new law has a complete knowledge of the existing law and if repeal was intended it should have been specially provided for the said repeal. However, this presumption does not hold the field if the new statutory provision of law is inconsistent to the old law. Inconsistency and repugnancy manifest the intention to repeal existing statutory provision as both cannot stand together. The repeal by implication may be inferred either with regard to the entire provision of existing law or part of it. However, this presumption does not hold the field if the new statutory provision of law is inconsistent to the old law. Inconsistency and repugnancy manifest the intention to repeal existing statutory provision as both cannot stand together. The repeal by implication may be inferred either with regard to the entire provision of existing law or part of it. The Apex Court in the case of Deep Chand vs. State of U.P., 1959 S.C. 548 held that to assertain the repugnancy between the two statutes the three principles are to be applied, (i) whether there is a direct conflict between the two provisions (ii) whether they occupy the same field and (iii) whether the legislative intended to provide exhaustive law in respect of the subject matter covered by existing law. 23. Though the said tests were applied to consider the question of repugnancy under Article 254 of the Constitution of India but it is well settled that the same principle applies in deciding the question of implied repeal. In the case of Municipal Council of Palia vs. T.J. Joseph, 1963 S.C. 1561 the said principle was applied in case of implied repeal. It was held therein that if the provisions of the new Act are inconsistent with the old one and both cannot stand together the presumption against implied repeal is rebutted. 24. The Apex Court in the case of State of Orissa & another vs. M/s M.A. Tullich and Co., AIR 1964 S.C. 1284 (V 51 C 165) held that the entire theory underlying implied repeals is that there is no need for the later enactment to state in express terms that an earliest enactment has been repealed by using any particular set of words or form of drafting but that if the legislative intent to supersede the earlier law is manifested by the enactment of provisions as to effect such supersession, then there is in law a repeal notwithstanding the absence of the word 'repeal' in the later statute. It further held that there is no difference between an express provision and a provision which is necessarily implied, for it is only the form that differs in the two cases and there is no difference in intention or in substance. It further held that there is no difference between an express provision and a provision which is necessarily implied, for it is only the form that differs in the two cases and there is no difference in intention or in substance. A repeal may be brought about by repugnant legislation without even any reference to the Act intended to be repealed for once legislative competence to effect the repeal is posited it matters little whether it is done expressly or inferentially or by the enactment of repugnant legislation. 25. The provisions with regard to migration and transfer have been quoted above. A bare perusal of the relevant provision of the two regulations shows that the provisions regarding migration/transfer contained in both the regulations are contradictory and conflicting. The earlier power of migration/transfer was vested in the University or the State Government as the case may be. Under the new regulations the power is vested in the Council and the University or the State Government has no power to migrate or transfer without approval of the Council. Both the provisions with regard to the migration/transfer cannot stand together. One is in conflict with other. The latter provisions contained a detail procedure with regard to migration/transfer and the same have been made by the Council with a view to achieve the object of the Act after insertion of Sections 10A, 10B & 10C. Thus, after coming into force of the Regulations, 1997 with regard to the migration/transfer the provisions of 1977 Regulations which was occupying the same field has been impliedly repealed. 26. The submission advanced on behalf of the petitioners that as they were admitted in M.B.B.S. course and pursuing the study is terms of the Regulations, 1977 their migration/ transfer is governed by old regulations and not by new Regulations, 1997, is devoid of any substance. 27. The petitioners may pursue the study in terms of the old course but so far as the migration is concerned there is implied repeal of the aforesaid provisions by the new Regulations. The provisions of both the regulations with regard to transfer are inconsistent and both cannot hold the field and as such it is held that after May, 1997 the migration/transfer has to be made in terms of Regulations, 1997 and not according to Regulations, 1977. 28. The provisions of both the regulations with regard to transfer are inconsistent and both cannot hold the field and as such it is held that after May, 1997 the migration/transfer has to be made in terms of Regulations, 1997 and not according to Regulations, 1977. 28. At this stage, I would like to consider the submission advanced on behalf of the petitioners as to the nature of the regulations as according to the petitioners it is only recommendatory and not mandatory and as such its violation will entail no consequence. The Apex Court in the case of Medical Council of India (supra) has held that if the regulations fall with in the purpose referred under section 33 of the Act it will be mandatory. The regulations framed with regard to the migration/transfer has been framed with a view to maintain proper medical standard. If no proper check would be maintained by the Council with regard to transfer and migration the proper standard will not be maintained in the medical education for the reason that each medical college has its strength of student and the facilities are provided for the fixed number of students. If the number is increased by migration/transfer then the students of the transferee medical college will suffer and the students who could not get admission in a particular medical college by virtue of their merit cum choice basis will enter through the back door in the transferee colleges. As such the provisions for migration/transfer in the regulations is referable to the power under section 33 of the Act. The said provisions are mandatory and not regulatory as submitted by the learned counsel for the petitioners. Thus, it has to be held that the regulations with regard to migration/ transfer is mandatory and migration/transfer after May, 1997 is regulated by the regulations, 1997. 29. In view of the aforesaid findings now it is clear that the State Government has no power to migration or transfer the students without approval of the Council and accordingly the notification dated 11.7.1998 is illegal as it has been issued without following the procedure regarding migration/transfer. 30. Even assuming that 1977 regulations is applicable even then the same has not been followed in this case. 30. Even assuming that 1977 regulations is applicable even then the same has not been followed in this case. Even according to the said regulations in no case the number of students should exceed 5% of its intake subject to the maximum 5 in anyone medical college of one year. Twenty two students of A.N.M. Medical College has been transferred from Gaya to different medical colleges. The sanction strength of Gaya Medical College is only 50 (fifty). This apart no information to the Council has been given in terms of the provisions contained for migration. No doubt four of the students have been transferred from other medical colleges but there is no material on the record to show that apart from them no other students of the said medical colleges has been transferred. Thus, even 1977 regulations have not been followed though I have stated above the same is not applicable in the case of the petitioners. 31. Much emphasis has been given on behalf of the petitioners that the orders have been passed in breach of the principle of natural justice. 32. Audi Alteram Partem is one of the fact of the natural justice. The natural justice means fairness and it demands that no order should be passed against a person without hearing him. However, the requirement of natural justice is flexible and can be moulded in such way as to advance the cause of justice. It is not a unruly horse or lurking mine. Its unnatural explanation will result in miscarriage of justice. Justice means justice between both the parties and the principle of natural justice means to achieve the ends of justice. It cannot be used to achieve the opposite one. It is not a rites or ritual which is to be observed in all the cases irrespective of its consequences. It cannot be used to help wrong doers. 33. When the authority which passed the order is not competent to pass the order the order is nullity in the eye of law and recall of such order on being informed does not require observance of the principle of natural justice. 34. In this case, admittedly, the State Government has no power to pass an order and when the matter was brought to its notice by the Council it has recalled its order of migration/transfer. 34. In this case, admittedly, the State Government has no power to pass an order and when the matter was brought to its notice by the Council it has recalled its order of migration/transfer. The Council by the impugned orders had only requested the State Government to cancel the migration/transfer orders which were contrary to the rules and as such it was not necessary to hear the petitioners before passing the aforesaid order. Similarly, so far the State Government is concerned it has only recalled its earlier order having realised that it is wrong. In such as case, in my view, there is no requirement of giving prior hearing for the reason that the authority who passed the order of migration/ transfer was devoid of any power. This apart no prejudice has been caused to the petitioners. 35. The other submission raised on behalf of the petitioners is that the order has been passed by the Secretary and not by the Council and as such it has no force. This submission is also of no substance as the Council has not passed the order of cancellation of migration/transfer. Only it has brought to the notice of the State Government the regulations and requested to cancel it as the State Government has no such power and thereafter the order has been passed by the State Government. 36. Learned counsel for the petitioners submitted that in pursuance of an interim order passed by this Court the petitioners are allowed to attend the classes at the transferee colleges and if at this stage they will be allowed to send back to the transfer colleges where the second year examination is already over they will be put to harassment. 37. As stated above, earlier this court rejected the petitioners' prayer to stay the impugned orders. However, later on in view of the stand taken by the State Counsel supporting their case a learned single Judge of this court allowed them to attend the classes. 38. The order of migration/transfer is wholly without jurisdiction and the State Government has connived in passing the aforesaid order. If sympathy is shown in such a case then that will amount to giving impetus and encouragement to the perpetrator of fraud and wrong doers. Even passing an interlocutory order staying the order of transfer in such a case has been deprecated by the Apex Court. If sympathy is shown in such a case then that will amount to giving impetus and encouragement to the perpetrator of fraud and wrong doers. Even passing an interlocutory order staying the order of transfer in such a case has been deprecated by the Apex Court. In this connection a reference may be made to the order dated 18.5.1994 passed by the Apex Court in the case of Secretary, Medical Health & Education & other vs. Anuj Ram Sharma etc. [(Civil) Appeal No. 94 arising out of SLP(C) Hos.2318 of 1994 etc.]. From the facts of the said case it appears that large number of students either from the recognised or un-recognised medical colleges obtained migration/transfer and admitted in different medical colleges in U.P. The Council took (sic) against them and they filed writ application wherein the High Court passed an interlocutory order allowing them to continue the study. The Apex Court held that though it cannot be said that the High Court has no jurisdiction to grant interlocutory injunction in a mandatory terms, the injunctions are almost always, negative in form to restrain the defendant from doing some acts. In exceptional cases it may be mandatory compelling positive act to be done. It was further held that undue liberal judicial attitudes will raise unjustified expectations in similar cases. Interlocutory orders passed by a High Court do lack visible legal support. 39. The Apex Court in the case of Haryana Urban Development Authority and another vs. Roochira Creamics and another (1996) 6 S.C.C. 584 has held that the power under Article 226 of the Constitution is the power of judicial review. There is no room for any benevolence under Article 226. If the Court departs from law and enters into the arena of benevolence the perils and pitfalls are too many to recount. There will be no objective standards of judging. Justice becomes personalised. It would vary from judge to judge. In the absence of any procedural irregularity the High Court had no jurisdiction .to interfere in the matter. The extraordinary jurisdiction under Article 226 is to be exercised to advance the cause of justice and to prevent perpetration of legal fraud. It cannot be exercised in favour of a defaulting party. 40. It would vary from judge to judge. In the absence of any procedural irregularity the High Court had no jurisdiction .to interfere in the matter. The extraordinary jurisdiction under Article 226 is to be exercised to advance the cause of justice and to prevent perpetration of legal fraud. It cannot be exercised in favour of a defaulting party. 40. Thus, after considering the matter from the different angles I am of the view that the order dated 11.7.1998 was wholly illegal order as the State has no power to pass an order of migration/transfer and as such the State Government has rightly recalled the cancellation order after aforesaid illegality was brought to its notice by the Council. There is no legal infirmity in the order on any ground and the petitioners do not deserve the sympathy of this Court in such matters. 41. Accordingly, all the writ applications are dismissed. The interim orders allowing the petitioners to attend the classes are recalled. They should join their transfer previous colleges within two weeks from today and the periods during which they attended the classes at the transferee medical colleges should be counted as periods of studying by them on filing of certificate granted by the concerned authority of the transferee colleges in support of the facts that they pursued the study there. In case the second year examination has been held in the transfer previous medical colleges, which falls within the Magadh University, as asserted by them in that case special examination of second year is to be held with regard to these petitioners. In case the examination has not been held then this direction will not be given effect to. 42. In the result, all the writ applications are dismissed with the aforesaid observations. In the facts and circumstances of the case, there shall be no order as to cost.