U. P. Vs. Praveen Kumar Sharma 
INSC 461 (9 September
S. (J) Mohan, S. (J) Venkatachalliah, M.N.(Cj)
1995 AIR 220 1994 SCC (6) 605 JT 1994 (6) 113 1994 SCALE (4)173
Judgment of the Court was delivered by S. MOHAN, J.- Leave granted.
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:
Migration or transfer shall be allowed only within three months of passing the
first professional examination.
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:
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.
Migration or transfer under paragraph (2) shall be allowed in the following
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.
Student selected through competitive examination and studying in any university
or institution outside the State of Uttar Pradesh.
BDS students other than those specified in sub-paragraphs (a) and (b) studying
in any authority or institution outside the State of Uttar Pradesh.
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.
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.
Order, Atul Chaturvedi, Secretary, Medical Education."
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.
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.
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
by the same, he filed WP No. 970 (M/S) of 1993.
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.
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
this order dated 10-1-1994, present SLP (C) No. of 1994 (CC
No. 25475) has been filed.
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.
is submitted on behalf of the State that:
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.
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.
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.
In the case of Sharad Chandra Pandey, the grant of interim order was not
counter to the ruling of this Court.
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.
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:
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:
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."
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.
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.
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