Dayan Jacob Madhu v. Registrar, Kerala University of Health Sciences; Director of Medical Education; Principal, Government Medical College, Thiruvananthapuram; Principal, Government Medical College, Manjeri; Medical Council of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** ## **FRIDAY, THE 1ST DAY OF DECEMBER 2017/10TH AGRAHAYANA, 1939** **WP(C).No. 36453 of 2017 (F) ----------------------------** **PETITIONER:** **----------** **DAYAN JACOB MADHU, AGED 19 YEARS, S/O.MADHU RADHAKRISHNAN, SECOND YEAR MBBS STUDENT, GOVERNMENT MEDICAL COLLEGE, MANJERI, MALAPPURAM DISTRICT, PIN-676122.** **BY ADVS.SRI.P.K.SURESH KUMAR (SR.) SRI.NELSON JOSEPH SRI.M.D.JOSEPH** **RESPONDENTS:** **-----------** **1. REGISTRAR, KERALA UNIVERSITY OF HEALTH SCIENCES, THRISSUR-580596.** **2. DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695011.** **3. PRINCIPAL, GOVERNMENT MEDICAL COLLEGE , THIRUVANANTHAPURAM-695011.** **4. PRINCIPAL, GOVERNMENT MEDICAL COLLEGE, MANJERI-676122.** **5. MEDICAL COUNCIL OF INDIA, SECTOR 8, POCKET-14, PHASE-1, DWARKA, NEW DELHI-110077.** **R1 BY ADV. SRI.P.SREEKUMAR,SC,KERALA UNIVERSITY HEALTH AND CIENCE R2-R4 BY SR. GOVERNMENT PLEADER SRI.K.P. HARISH R5 BY ADV. SRI.TITUS MANI VETTOM, SC, MEDICAL COUNCIL OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01-12-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 36453 of 2017 (F) ----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** |**PETITIONER(S)' EXHIBITS**|**PETITIONER(S)' EXHIBITS**| |---|---| |**-----------------------**|| |**EXHIBIT P1**|<br>**TRUE COPY PROVISIONAL MARK LIST MADE AVAILABLE BY THE 1ST**| ||**RESPONDENT**| |**EXHIBIT P2**|<br>**TRUE COPY OF RULE 6 OF THE MCI REGULATIONS.**| |**EXHIBIT P3**|<br>**TRUE COPY OF LETTER SUBMITTED BY THE PETITIONER FOR ISSUANCE**| ||**OF NO OBJECTION CERTIFICATE TO THE 3RD COLLEGE.**| |**EXHIBIT P4**|<br>**TRUE COPY OF LETTER SUBMITTED BY THE PETITIONER FOR ISSUANCE**| ||**OF NO OBJECTION CERTIFICATE TO THE 4TH RESPONDENT COLLEGE.**| |**EXHIBIT P5**|<br>**TRUE COPY OF APPLICATION SUBMITTED BY THE PETITIONER FOR**| ||**TRANSFER ALONG WITH ALL AVAILABLE DOCUMENTS AND THE**| ||**PRESCRIBED FEES TO THE 1ST RESPONDENT.**| - **EXHIBIT P6 TRUE COPY OF THE ORDER DATED 10.11.2017 ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P7 TRUE RELEVANT EXTRACT OF REGULATIONS FRAMED BY 1ST RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE GUIDELINES FOR COLLEGE TRANSFER FOR STUDENTS FRAMED BY THE 1ST RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF MARK LIST OF THE PETITIONER IN HIS X STD EXAMINATION.** - **EXHIBIT P10 TRUE COPY OF MARK LIST OF THE PETITIONER IN HIS XII STD EXAMINATION.** - **EXHIBIT P11 TRUE COPY FIRST SCHEDULE PUBLISHED BY THE MEDICAL COUNCIL OF INDIA IN ITS WEB SITE ALONG WITH SECTION 65 B CERTIFICATIONUNDER THE INDIAN EVIDENCE ACT** - **EXHIBIT P12 TRUE COPY OF THE RELEVANT EXTRACT OF PROSPCTUS ISSUED BY THE COMMISSIONER OF ENTRANCE EXAMINATION FOR THE YEAR 2016** - **EXHIBIT P13 TRUE COPY OF THE RELEVANT EXTRACT OF PROSPECTUS ISSUED BY THE COMMISSIONER OF ENTRANCE EXAMINATION FOR THE YEAR 2017** - **EXHIBIT P14 TRUE COPY OF THE REQUEST FILED BY PETITION UNDER RULE 6 NOTE 2 OF THE REGULATIONS THROUGH THE 2ND RESPONDENT TO THE 5TH RESPONDENT ALONG WITH DOCUMENTS** ## **RESPONDENT(S)' ANNEXURE** ## **-----------------------** - **ANNEXURE R5(A) TRUE COPY OF THE STATUS OF THE COURSE M.B.B.S AT GOVERNMENT MEDICAL COLLAGE, MANJERI PUBLISHED IN THE WEBSITE OF THE MEDICAL COUNCIL OF INDIA** ## **TRUE COPY** **P.S. TO JUDGE** **EL** ## **SHAJI P. CHALY, J.** ## ----------------------------------------------- **W.P.(C) No.36453 of 2017 ----------------------------------------------Dated this the 1[st] day of December, 2017** ## **J U D G M E N T** This writ petition is filed by the petitioner, who is 1[st] year MBBS student at the Government Medical College, Manjeri, the 4[th] respondent herein. Petitioner has passed the 1[st] year examination with 70.3% marks in accordance with the results published on 4.11.2017, evident from Ext.P11. Petitioner was alloted a seat in the 4[th] respondent college under sports quota based on his rank in the KEAM examination and the marks alloted to him on account of his performance in the game of Tennis by the Kerala Sports Council. Petitioner has won various distinctions in tennis and has won several laurels for the District and State by winning National level tournaments and State level tournaments. However, petitioner found that, in the 4[th] respondent college, there are no facilities available to play or practice the game of tennis. Even though petitioner made enquiries, there are no facilities in the whole of Malappuram District to practice the said game. Thus for the last one year petitioner, who has W.P.(C) No.36453 of 2017 2 represented the District and has regularly been playing the State level and national level tournaments, has not even practiced his game and thereupon, petitioner has submitted an application seeking migration to the Trivandrum Medical College, which is having all facilities to practice the said game. According to the petitioner, as per rule 6 of the Medical Council Regulation, which is the only window of opportunity to seek a transfer/migration to another Medical College arises at the end of the 1[st] year after passing the 1[st] year MBBS examination and further that, in the ensuing years transfer would be impossible. Thereupon, petitioner sought for transfer from the 4[th] respondent college to the 3[rd] respondent college with the hope of pursuing his medical education without abandoning the sport of tennis. Other legal contentions are also raised enabling the petitioner to file such application in accordance with the provisions of the Regulation and other laws. With the aforesaid facts on board, petitioner has sought the following reliefs: a) Issue a Writ of certiorari calling for records ## W.P.(C) No.36453 of 2017 3 leading passing of Ext.P6 orders and quash the same - b) Issue a writ of mandamus directing the 1[st] respondent to issue an order allowing for migration transfer of the petitioner from the 4[th] respondent college to the 3[rd] respondent college. - c) In the alternative, issue a writ of mandamus or any other writ order or direction directing the 1[st] and 2[nd] respondents to accommodate the petitioner in any other government colleges where there are tennis facilities. - d) Issue a writ of mandamus directing the 2[nd] respondent to complete the formalities of the transfer migration of the petitioner at the earliest and at any rate within 7 days. - e) Issue a writ of mandamus directing the 1[st] respondent to give credit for attendance of the petitioner for the classes attended by him in the - 2[nd] year at the 3[rd] respondent college for the purpose of considering his attendance requirements for writing the 2[nd] year MBBS examination. - f) Issue such other writ order or direction as this Hon'ble court may deem fit and proper. - g) Award the costs of the writ petition. 2. A statement is filed for and on behalf of the 5[th] respondent contending that, petitioner is not entitled to W.P.(C) No.36453 of 2017 4 get the benefit of provisions of Regulations in order to seek transfer since the 4[th] respondent college is not recognized and the Regulations apply only if both the institutions are recognized. A reply affidavit is also filed and various documents are produced. The arguments were addressed by the learned senior counsel for petitioner and counsel for respondents relying upon the provisions of the Regulations specified above, which are repelling in nature and which could be sorted out, only after elaborate consideration of the matter. However, in order to have a quietus to the issue and bearing in mind the future of the petitioner, I am of the considered opinion that, a via media is to be adopted. Petitioner has submitted Ext.P14 application as per Note (2) to Ext.P2 Regulations, which read thus: “Any request for migration not covered under the provisions of these Regulations shall be referred to the Medical Council of India for consideration on individual merits by the Director (Medical Education) of the State or the Head of Central Government Institution concerned. The decision taken by the Council W.P.(C) No.36453 of 2017 5 on such requests shall be final.” 3. In view of the submission of the said application, I do not propose to consider the matter on merits. Ext.P14 is addressed to the 5[th] respondent and submitted through 2[nd] respondent in accordance with the stipulations contained under Note (2) specified above. 4. Having heard learned senior counsel for petitioner, learned Standing Counsel for University, learned Senior Government Pleader and perusing the pleadings and documents on record, there will be a direction to the 2[nd] respondent to forward Ext.P14 submitted by the petitioner along with all appended documents to the 5[th] respondent at the earliest possible and at any rate within a week from the date of receipt of a copy of this judgment, and 5[th] respondent shall take a decision on Ext.P14 application in accordance with law bearing in mind the talent of the petitioner in the sport of Tennis, and also taking into account the reality that, in Malappuram District, the game of Tennis is not having any facilities enabling the petitioner to have a regular W.P.(C) No.36453 of 2017 6 practice. While doing so, the issue in respect of vacancies shall be taken into account as per the proposition of law laid down by the Apex Court in the judgment in **Lipika Gupta v. Union of India** dated 3.11.2014, in which it is laid down that, migration of student can be considered from one Medical College to another Medical College also taking into account the vacancies that have occurred consequent to the failure of the students. The said judgment is also produced along with Ext.P14 application. The 5[th] respondent shall take a decision within three weeks from the date of receipt of the same. I make it clear that, the question of facts and law raised by either side are left open to be agitated in any appropriately constituted proceedings. Writ petition is disposed of accordingly. Sd/- **SHAJI P. CHALY JUDGE** smv 1.12.2017 W.P.(C) No.36453 of 2017 7