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State of U. P. Vs. Praveen Kumar Sharma [1994] INSC 461 (9 September 1994)

Mohan, S. (J) Mohan, S. (J) Venkatachalliah, M.N.(Cj)

CITATION: 1995 AIR 220 1994 SCC (6) 605 JT 1994 (6) 113 1994 SCALE (4)173

ACT:

HEAD NOTE:

The Judgment of the Court was delivered by S. MOHAN, J.- Leave granted.

2. The first appellant is the State of Uttar Pradesh. It issued an Order No.2683/Section-14/Five-4/84 dated 13-4-1993 in exercise of the powers under sub-section (5) of Section 28 of the U.P. Universities Act, 1973 (hereinafter referred to as 'the Act'). By this order, the Government laid down the policy and procedure to be followed in cases of migration or transfer of students studying in Bachelor of Dental Surgery course (BDS in short) to and from Dental Faculty of the King George's Medical College, Lucknow. The same is as follows:

"(1) Migration or transfer shall be allowed only within three months of passing the first professional examination.

(2) During any one year a maximum of five per cent students of the intake capacity of the Dental Faculty of the King George's Medical College, Lucknow may be allowed to migrate or transfer to and from an authority or institution subject to a maximum of five students in such year:

Provided that no seat shall be created in the Dental Faculty of the King George's Medical College, Lucknow as a result of migration or transfer.

(3) Migration or transfer under paragraph (2) shall be allowed in the following order:

(a) Students selected through all-India entrance examination for admission to undergraduate medical/dental course conducted by Central Board of Secondary Education and studying in any authority or institution outside the State of Uttar Pradesh.

(b) Student selected through competitive examination and studying in any university or institution outside the State of Uttar Pradesh.

(c) BDS students other than those specified in sub-paragraphs (a) and (b) studying in any authority or institution outside the State of Uttar Pradesh.

(4) Application for migration or transfer shall be made in writing addressed to the Director, Medical Education and Training, Uttar Pradesh, Lucknow through the Principal of the concerned authority or Institution.

607

(5) Subject to the policy and guidelines laid down in paragraphs (1),(2) and (3), the Director, Medical Education and Training, Uttar Pradesh, Lucknow shall decide the applications for migration or transfer strictly on merit to be determined on the basis of marks obtained in the first professional examination. The decision of the Director, shall be final and binding.

Explanation.- In this order the expression 'authority or Institution' means an authority or Institution in India, the dental qualifications granted by which are included in Part 1 of the Schedule to the Dentists Act, 1948.

By Order, Atul Chaturvedi, Secretary, Medical Education."

3. The respondents are students of BDS course pursuing their study outside the State of U.P. Praveen Kumar Sharma is a student of Budha Institute of Dental Science and Hospital, Gandhi Nagar, Kauberbagh, Patna. That College is recognised by the Dental Council of India. The other respondents Manoj Kumar Srivastava, Ajay Gupta, Rachana Batra, Satvinder Singh Kalra and Rajat Mehrotra are students of Budha Institute of Dental Science and Hospital, Patna which is also a recognised college. Vijay Pandey is a student of Ramarao Adik Educational Societies, Dental Narul, New Bombay. Sharad Chandra Pandey is a student of College of Dental Surgery, Manipal. Sharad Chandra Pandey applied for transfer from the Dental College, Manipat to the Dental Faculty of King George's Medical College, Lucknow, in the third year course of the BDS on 12-11-1992. That transfer was not ordered. As a result, Sharad Chandra Pandey continued his study at Manipal, completed his third year and went to the fourth year of study.

4. The other respondents barring Sharad Chandra Pandey filed six writ petitions in the High Court at Lucknow Bench seeking transfer to the Dental College at Lucknow. The learned Single Judge by his order dated 1-3-1993 allowed those writ petitions directed the transfer of the petitioners as also those whose application for transfer which were pending at that time, they were directed to be considered for transfer to the Dental Faculty of King George's Medical College, Lucknow.

5. Sharad Chandra Pandey though his application for fourth year class of BDS was not pending, yet applied for transfer to the fourth year of study. In April 1993, the results of third year BDS at Lucknow were declared. The next sessions for the fourth year BDS commenced in May 1993. Therefore, the request of Sharad Chandra Pandey for transfer to fourth year BDS at Lucknow was rejected by the State Government.

Aggrieved by the same, he filed WP No. 970 (M/S) of 1993.

It was contended by reason of judgment of the High Court dated 1-3-1993, the claims of the students for transfer were bound to be considered and failure to do so was bad. An interim order was passed in WP No. 970 of 1993 permitting Sharad Chandra Pandey for pursuing his study in Lucknow.

608

6. in the meanwhile, the State preferred a writ appeal against the order dated 1-3-1993. The writ petition filed by Sharad Chandra Pandey and other students praying for consideration of claims for transfer in the light of judgment dated 1-3-1993 was dismissed by a learned Single Judge on 5-10-1993. Against this order, appeals were preferred by Sharad Chandra Pandey and other students. By an order dated 10-1- 1994, it was directed that Sharad Chandra Pandey should continue his study as a bona fide student. As far as other students were concerned, it was held that they will be given admission after their cases were considered by the State Government. This was in Special Appeal Nos. 22 of 1993, 27 of 1993 and 30 of 1993.

Against this order dated 10-1-1994, present SLP (C) No. of 1994 (CC No. 25475) has been filed.

7. Respondent Parveen Kumar Sharma filed a separate Writ Petition No. 780 (M/S) of 1994 in the High Court. By order dated 13-4-1994, learned Single Judge of High Court directed the appellant to admit the respondent Parveen Kumar Sharma to the third year course of Bachelor of Dental Surgery in the faculty of Dental Sciences, King George's Medical College, Lucknow within a period of two days from the date of service of a certified copy of the said judgment. It was further directed that he shall pay Rs 1000 to the respondent. SLP (C) No. 9239 of 1994 has been filed against the order dated 13-4-1994.

8. It is submitted on behalf of the State that:

(i) The High Court erred in considering as though the judgment dated 1-3-1993 passed by the learned Single Judge was a judgment in rem. The writ petitions were not filed in representative capacity.

(ii) There is no right to seek transfer from one Medical College to another. Merely because Sharad Chandra Pandey and other students applied for transfer, they were not entitled to transfer to BDS course. There was no equity in favour of the students because admittedly they failed to secure admission in BDS course at Lucknow through the competition.

(iii) The finding of the High Court that the Rules promulgated on 13-4-1993 were prospective in nature and did not govern the case of Sharad Chandra Pandey and others is wrong. Though judgments of this Court were cited to hold against this proposition, they were not properly considered by the High Court. The High Court failed to note that the Regulations made by the Medical Council of India were not made after consulting the State Government and as such they were not enforceable.

(iv) In the case of Sharad Chandra Pandey, the grant of interim order was not warranted.

It ran counter to the ruling of this Court.

9. The learned counsel for the respondent would urge that the State has been consistently and continuously disobeying the orders of the High Court. In spite of the clear direction to consider the cases of transfer on merits, some technical objections or other were raised so as to deny the just claims of the respondents. Once, there is an order of the High Court on 1-3-1993 609 directing consideration of the claims for transfer, that order having become final, the transfers ought to have been considered. That order vested the respondents with right; that right cannot be defeated; thus no exception could be taken to the impugned judgment.

10. On a careful consideration of the above arguments and impugned judgment, we are clearly of the view that it is totally unnecessary to go into the question whether the notification dated 13-4-1993 is retrospective in its operation, Section 28(5) of the Act reads as follows:

"Notwithstanding anything contained in any other provision of this Act, admission to medical and engineering college and to course of instruction for degrees in education or Ayurvedic and Unani System of Medicine (including the number of students to be admitted), shall be regulated by such orders (which if necessary may be with retrospective effect, but not effective prior to 1-1-1979) as the State Government may by notification, make in that behalf:

Provided that no order regulating admission under this sub-section shall be inconsistent with the rights of minorities in the matter of establishing and administering educational institutions of their choice."

11. Therefore, any regulation made in this regard could have effect more so in the absence of any regulation made by the Dental Council. The State Government has the power under Section 28(5) of the Act to regulate admission in medical institutions by issue of orders. The judgment dated 1-3-1993 directed consideration of applications for transfer in not only the cases of writ petitioners before the court but also other pending applications. Undoubtedly, this was not a judgment in rem. The writ petitions were not filed in any representative capacity. There were also orders by the High Court directing consideration of applications for transfer in the light of the statutory provisions. The statutory provision which is relevant at this stage is Section 10-A which came to be introduced in the Dentists Act, 1948 under Dentist (Amendment) Ordinance, 1993. That section imposes a complete embargo that no institution could increase its capacity in any course of study and training except with the previous permission of the Central Government. The representation of candidates seeking transfer came to be rejected on 15-5-1993. By that time, the notification dated 13-4-1993 had come into force.

Another representation came to be decided on 3-5-1993. By then the Dentist (Amendment) Ordinance, 1993 had come into force introducing Section 10-A, noted above. Therefore, the applications for transfer will have to be considered in the light of this statutory provision read with the notification dated 13-4-1993. In this view, we are unable to uphold the judgment of the Division Bench.

12. Accordingly, a direction be issued that the cases of respondents for transfer shall be considered in the light of the notification dated 13-4-1993 on or before 30-9-1994 by passing reasoned orders. The civil appeal is ordered in the above terms. However, there shall be no order as to costs.

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