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J&K High Court · body

2008 DIGILAW 323 (JK)

Harleen Singh v. State

2008-08-28

SUNIL HALI

body2008
1. The facts leading to the admission of the petitioner in the Government Medical College, Jammu are not in dispute. The only question that is required to be decided in this petition is as to whether Statutes 5.1 and 5.5 of the University Calendar can be invoked where student is allotted a different college which is affiliated with the same University. 2. In order to appreciate the controversy the brief facts relating to the admission of the petitioner in the Medical College are enumerated herein below:- The petitioner questioned the criteria framed by the Government regarding providing reservation for outstanding sportsmen in the professional colleges. The petitioner had questioned this criteria on the ground that while granting benefit of reservation in the sports category, the candidates have not been graded as per achievements in the International level, National level and State level. This contention of the petitioner found favour with the learned Single Judge who observed as under:- The object and purport of reservation of sports personal in the nature of a compensation to the sports person who has devoted time and energy for acquiring proficiency in sports and earned name for himself, the institution, the State and the country to which he belongs. Therefore, what is to be rewarded is excellence in sports by providing reservation. This obliviously means that best amongst the persons for whom reservation is made. 3. As a consequence of the direction issued by the court it was ordered that the criteria needs to be re-casted for providing grading to the sports persons in reference to their participation/ achievements in the international, national or State events. During the pendency of this writ petition, the Government had finalized the admission of the students in this category on the basis of the criteria which was subject matter of challenge before the court. 4. This judgment of the learned Single Judge came to be challenged in LPW (W) No. 92/2005. The said LPA came to be decided vide judgment dated 30. 9.2005. The Division Bench concurring with the view of learned Single Judge framed the criteria till the rules were re-casted and accordingly ordered that the admission should be made strictly on the basis of criteria so framed. The court further directed that persons appointed in pursuance to the earlier criteria, their selection shall stand cancelled. 9.2005. The Division Bench concurring with the view of learned Single Judge framed the criteria till the rules were re-casted and accordingly ordered that the admission should be made strictly on the basis of criteria so framed. The court further directed that persons appointed in pursuance to the earlier criteria, their selection shall stand cancelled. As a consequence of this direction, selection of the candidates made came under cloud. The State Government filed a Special Leave Petition before the Supreme Court. The Supreme Court had initially stayed the operation of the order but the said order came to be vacated on 7.9.2006. After the vacation of stay order the petitioner filed contempt application before the court seeking implementation of the order of Division Bench. It is important to mention here that during this period the petitioner got selected for the MBBS course in ASCOMS Sidhra, Jammu and completed the first professional MBBS examination. As a consequence of contempt application having been filed, the respondents took a decision to grant admission to the petitioner in the MBBS course in the Government Medical College, Jammu. In this respect a government order dated 7.6.2007 was passed. The matter was also referred to the Board of Professional Entrance Examination for ratifying the admission of the petitioner. The Board took the decision and passed order on 7.6.2007 in pursuance to the orders of High Court dated 25.5.2007 and 6.6.2007. The admission of the petitioner was ratified. This court while disposing of contempt application directed that the petitioner be admitted in the 2nd Professional MBBS course in which she was studying which is Acharya Shri Chandra College of Medical Sciences, Jammu. The import of this application was that the petitioner was reallocated a new college and it was not a case of fresh admission to the studies undertaken by the petitioner in the college where she was studying. She had to continue her studies in the Govt. Medical College, Jammu on the premises that it had the same syllabus and both the colleges were affiliated to Jammu University. 5. A Coordinate Bench of this court vide order dated 3.9.2007 discharged the rule after the learned counsel for respondents produced a communication dated 7.6.2007 relating to the admission of the petitioner in the Government Medical College, Jammu. Meanwhile Special Leave Petition pending before the Supreme Court came to be disposed of 6th December 2007. 5. A Coordinate Bench of this court vide order dated 3.9.2007 discharged the rule after the learned counsel for respondents produced a communication dated 7.6.2007 relating to the admission of the petitioner in the Government Medical College, Jammu. Meanwhile Special Leave Petition pending before the Supreme Court came to be disposed of 6th December 2007. This SLP was disposed of on the statement made by the State Counsel. Admission had already been granted to the petitioner in the Govt. Medical College, Jammu. 6. That in pursuance to the admission being granted by the respondent-State and conferred by the Board of Professional Entrance Examination the University granted provisional admission in favour of the petitioner in the second professional MBBS course subject to the condition that she is required to satisfy the conditions laid down in the Statute 5.1 and 5.5. It is this communication of the University which has been challenged by the petitioner. 7. I have heard learned counsel for the parties. 8. In order to appreciate this controversy, it is important to quote aforementioned statute:- 5. Migration: 5.1 Migration from one medical college to another 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 migration on other grounds shall not be allowed. 5.2 Xxxx 5.3 Xxxxx 5.4 Xxxxx 5.5 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 courses 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. 9. Mr. Thakur appearing for the University states that the present admission of the petitioner is a migration from one college to the other, even though both the colleges are affiliated to the same University. No Institution/University shall allow migration directly without the approval of the Council. 9. Mr. Thakur appearing for the University states that the present admission of the petitioner is a migration from one college to the other, even though both the colleges are affiliated to the same University. His precise argument is that in order to seek admission in 2nd Professional MBBS course she should have completed 18 months of studies in the college where she has been admitted. This according to him is a condition for permitting her transfer from one college to the other. On the other hand Mr. Johal states that the aforementioned statute does not cover the present case. 10. I have perused the aforementioned statute. While understanding the scheme of the statute, it is necessary to examine the import of this statute. The statute relates to migration of students. Statute 5.1 envisages that migration from one medical college to other is not a right of a student. This can be permitted only with the intervention of Medical Council of India and that too in exceptional cases on compassionate grounds. The essence of this statute is that no migration is permitted unless it is approved by the Medical Council of India. It is not the case of Mr. Thakur that in the present case approval of Medical Council is required. Statute 5.5 indicates that the candidates must submit an affidavit stating that she/he will pursue 18 months of prescribed studies before appearing at 2nd Professional Bachelor of Medicine and Bachelor of Surgery (MBBS) Examination at the transferee medical college and this is to be certified by the Registrar of concerned University in which he/she is seeking transfer. A bare reading of statute clearly reveals that a candidate has to study for 18 months in the transferee college which has to be certified by the Registrar of concerned University in which he/she is seeking transfer. Import of this statute is clear and visible that the mandate of statute 5.5 is required to be followed only in case where there is an inter-University transfer. If it were to cover cases from one college to other college in the same University, the word transferee University could not have been mentioned therein. The statute is clear and unambiguous. It covers only migration from one University to other University and not from one college to other college in the same University. If it were to cover cases from one college to other college in the same University, the word transferee University could not have been mentioned therein. The statute is clear and unambiguous. It covers only migration from one University to other University and not from one college to other college in the same University. There is other reason to say so. Once a student is transferred from one University to another University he is required to complete tenure of 18 months because the University has different syllabus and academic session may also be different. So what implies from the aforementioned discussion is that statute 5.5 does not cover cases where transfer is from one college to another within the same University. There is another aspect to this case that the present transfer is not at the asking of the petitioner but is pursuant to the direction issued by this court. She has been admitted by the Government in pursuant to direction issued by this court. This transfer does not amount to fresh admission but is re-allocation of the college. She has to be permitted to complete 2nd profession MBBS course after taking into account the time spent by her in the previous college and in the transferee college. This is so because both the colleges are pursuing the same syllabus and time table and are affiliated to the same University. A joint reading of two statutes according to this court clearly takes the present case out of its purview. The petitioner was studying in ASCOMS and her admission in Government Medical College, Jammu was granted in terms of direction issued by this court. 11. There is no dispute that both the colleges where the petitioner was initially selected and consequently recommended for transfer are affiliated with the University of Jammu and the course being perused is the same in both the colleges. The academic session of both the colleges is the same. Examinations are also held by the University on the same dates in both the colleges. 12. The other ground taken by Mr. Johal is that this is not a voluntary migration and statute 5 is not attracted. He placed reliance on a judgment of this court delivered in OWP No. 24/2006 titled Romil Dutt Sharma vs. State of J&K & Ors. There is no dispute to this preposition of law laid down by this court. 13. The other ground taken by Mr. Johal is that this is not a voluntary migration and statute 5 is not attracted. He placed reliance on a judgment of this court delivered in OWP No. 24/2006 titled Romil Dutt Sharma vs. State of J&K & Ors. There is no dispute to this preposition of law laid down by this court. 13. The result is that the conditions imposed by the University in its order dated 6.8.2007 that petitioner is required to comply with the requirement of statute 5.1 and 5.5 are not attracted in the present case. I direct that this condition be deleted and petitioner be allowed to sit in the examination of 2nd Professional MBBS course. In case the petitioner has already appeared in the examination her result be declared within a weeks time after the copy of judgment is delivered. This writ petition is accordingly allowed without any orders as to costs.