TEJALBEN SURESHCHANDRA SHAH Vs. STATE OF GUJARAT

JUDGEMENT

(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 Hon'ble 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. 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. 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. 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 :