S. K. Dhaon, J. - (1.) THE prayer is that the Vice-Chancellor of the Banaras Hindu University and the Director, Institute of Medical Sciences, Banaras Hindu University may be commanded to admit the petitioner in the second Professional MBBS. course in the Institute of Medical Sciences of the said University.
(2.) A counter -affidavit has been filed on behalf of the two respondents aforementioned. The petition has not been admitted as yet. However, with the consent of the learned counsel for parties we have heard this petition with a view to dispose it of finally. We are, therefore, proceeding to do so. The petitioner had been admitted to the M.B B.S. course in the Ganesh Shanker Vidyarathi Memorial Medical College, Kanpur (hereinafter referred to as the Kanpur Medical College), He passed the first Professional M.B.B S. Examination and was studying in the third year as a First Term student in the second Professional MBB S. course in the said College. The petitioner was desirous of being permitted to migrate/transfer to the Institute of Medical Sciences of the Banaras Hindu University (hereinafter referred to as the Institute). The Medical Council of India in March, 1981, adopted certain recommendations on Graduate Medical Education. The petitioner's sheet-anchor is the said recommendations. Paragraph S of the recommendations has the heading : Migration/Transfer of students from one Medical College to another. The recommendations under this head are : "(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 per 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/transfering 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 nummber of students migrating/transfering to/from any one medical college should not exceed the limit of 5 percent of its intake in any one medical college in one year. (e) Cases not covered under the above regulations are to be referred to the council for consideration on individual merits. (f) An intimation about the admission of migrated/transferred student into any medical college should be sent to the Council forthwith." It is not in dispute that only 3 students of other medical colleges could be permitted to migrate/transfer to the Institute under the quota of 5 percent referred to in (d) as quoted above. A competative test was held to select three students. This competative test has been described as the migration test in the counter-affidavit filed on behalf of the two respondents. 41 candidates, including the petitioner, appeared. On the basis of merit, i.e., the marks secured by the candidate in the migration test the three seats were filled up. The petitioner and the other candidates remained unsuccessful The position of the petitioner was 9th in the merit list.
(3.) THE petitioner having failed to succeed in the migration test, his father, on 29th May, 1989, submitted an application to the Secretary of the Indian Medical Council through the Director of the Institute with a prayer that the Medical Council may permit the migration of the petitioner to the Institute. On 29th May, 1989, the Director of the Institute (Professor Vaidya) was not available. On that day the Acting Director forwarded the case of the petitioner for consideration under paragraph V (e) of the recommendations afore quoted It appears that on 30th June, 1989, the Secretary of the Medical Council of India inquired from the Director of the Institute of the number of students present in the First Term of the second MB BS. course. In reply, the Director wrote that 54 regular candidates were in the third year M B.B.S. class having passed the first year M.B.B.S. examination conducted by the Institute. 3 candidates had been selected in the migration test under *he 5 percent quota. Two of them had joined and the third was likely to join in the near future Upon his joining the total strength would be 57 students. On 27th July, 1989, the Secretary of the Medical Council of India wrote to the Director of the Institute that the Medical Council had no objection to migration of the petitioner from the Kanpur Medical College to the Institute in the first term of the second M.B.BS. course as a special case. The material averments in the counter affidavit are these. The Acting Director ought not to have forwarded the case of the petitioner to the Medical Council of India. The Vice-Chancellor, the Dean Faculty of Medicines and the Director of the Institute considered the case of the petitioner along with the case of some other similar candidates, who had sought migration as a special case and they decided not to permit the migration of any one. It will not be in the interest and reputation of the Institute to permit a back-door entry in the institute of a candidate who failed in the migration test. It will be unjust to permit the migration of the petitioner even though 8 candidates having higher merit than him are not being permitted to do so. A candidate, who has taken resort to a migration test, cannot be permitted to take resort to paragraph V (e).;