RAJESH BALIA,J. - (1.) THE petitioner has joined M.B.B.S. course at Sardar Patel Medical College, Bikaner on 27.2.92. After completing first year M.B.B.S. Course in the month of September, result of which was declared in November, 93, the petitioner applied for his transfer to S.P. Medical College, Bikaner within the time prescribed for such transfer. The petitioner also obtained a No Objection Certificate from the Government as well as from the S.P. Medical College, Bikaner which disclosed that the admission of the petitioner to S.P. Medical College, Bikaner will be within the 5% intake capacity of the said college. This N.O.C. is dated 3.12.93. Both the N.O.Cs. Annexure 3 dated 3.12.93 and Annexure 4, dated 7.1.94 were placed before the Principal, S.N. Medical College, Jodhpur. However, the petitioner alleges that Principal, S.N. Medical College, Jodhpur is not so far taken any action for issuing a mandamus to the respondent No. 4 in this regard.
(2.) THOUGH , no reply has been filed but it has been stated by the learned Counsel for the respondent as well as the Officer Incharge, who is present in person in Court, that the application of the petitioner has not been considered because the S.N. Medical College has already permitted 5% of its intake capacity of students to be migrated to the other college in Rajasthan and under the Rules it is not permissible for the Principal, S.N. Medical College, Jodhpur to permit migration from its college beyond 5% of its intake capacity. Learned Counsel for the petitioner urges that the relevant factors is to be considered the intake capacity of the college to which the student is seeking transfer and not the college from which the student is seeking transfer.
(3.) IT would be relevant to refer to ordinance 85 and 86 of the University of Rajasthan to which the concerned colleges are affiliated and are relevant for the present purposes of dealing the transfers: Order 85... A scholar shall not ordinarily be allowed to migrate during the session from one college to another after his name has been set up for the examination. In genuine cases, however, as that transfer of guardian etc., a student could be permitted to accompany his parents or guardian to the place of transfer and admitted in a college there. Attendance of such a student in the college where he seeks admission will be taken into account by the old Institution from which he migrated and sent to the University by it. The examination center of such a student shall be where the student from the college from which migrated will appear. Such a transfer shall be permitted in the case of M.B.B.S. course only within a period of three months after the candidate has passed his First M.B.B.S. examination (and at no other stage), provided that the number of students transferred to a Medical College shall not exceed the limit of 5% of intake capacity and that both the medical colleges concerned are recognised by the Medical Council of India. Provided further that the aforesaid maximum limit of transfer shall be inclusive of migrations from other universities permissible under Order 86. Order 86... In exceptional circumstances for reasons of health, transfer of guardian for permanent change of residence of whole family to Rajasthan, Inter University migrations to the M.BB.S. course may also be permitted subject to the following conditions: (c) Number of students migrating to Medical Colleges affiliated to the University during one academic year shall be kept to the minimum and in any case the total number of students so migrating shall not exceed the limit of 5% of the total intake capacity of the College to which migration is sought. The aforesaid maximum limit of migrations shall be Inclusive of Inter college transfers permissible under the forgoing ). Order 85.' (e) Cases not covered under the above regulation shall be referred to the MCI for consideration on individual merits. In this connection reference may also be made to a circular issued by Medical Council of India laying down the guidelines of migration: V. 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 1s 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 student migrating/transferring from one medical college to another medical college during one year will be kept to the maximum so that the training of the regular students of that college is not adversely affected. The number of students migrating/transfering to/from any one medical college should not exceed the limit of 5% 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 of individual merits. (f) An intimation about the admission of migrated/transferred students into any medical college should be sent to the Council forthwith. From the aforesaid, it is clear that while wholesale and frequent migration/transfers are not to be accepted but migration/transfer from the institution where a student is studying is permitted. The restrictions is that such transfer or migration should be within three months after passing the first M.B.B.S. Examination. Apart from the general transfers inter - colleges affiliated to same University in the exceptional circumstances even inter -University migrations are also permissible. The ordinance 85 of the Rajasthan University as well as the Explanation of Ordinance 86 referred to above makes it abundantly clear that migration/transfer to anyone college is restricted to 5% of its intake capacity. The Ordinance of the Rajasthan University does not put any restriction on the number of students to be migrated from one college, provided migration or transfer to any of the college affiliated to Rajasthan University imparting education in medical discipline does not exceed 5% of the intake capacity of the concerned college. The emphasis of the circular issued by the Medical Council of India is also that transfer should not exceed the limit of 5% of its intake capacity in anyone medical college in one year. The rational behind it is clear that any one college should not be disturbed unduly by permitting more than 5% of its intake capacity by new entrance in the continuing course. The person leaving the parent Institution in that sense does not effect the remaining students. Leaving the college may be in other circumstances, which may not necessarily for continuing further studies in M.B.B.S. in other college. Obviously, restriction can be only to intake and not on out going of students. If that basic purpose is kept in mind, in my opinion, the two provisions referred to above are to be read in harmony, so as to restrict the admission by transfer to any one college to the extent of 5% of its intake capacity, but that restriction is not applicable to the college from which a candidate is seeking transfer or migration. It is true that if the college to which a candidate is seeking migration or transfer has already admitted candidates upto 5% of its intake capacity by transfer or migration, he cannot be granted permission to migrate or transfer to such college, even if the tranferring college has not permitted migration upto the 5% of its intake capacity. ;