K.G. Rohan Panicker v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **WEDNESDAY, THE 14TH DAY OF OCTOBER 2020 / 22ND ASWINA, 1942** ## **WP(C).No.19171 OF 2020(V)** ## **PETITIONER:** **K.G.ROHAN PANICKER AGED 21 YEARS SON OF P.G.KOSHY PANICKER, PUSHPAMANGALAM, PUNNAMUKKU, PERUMPUZHA P.O., KOLLAM-691 504.** **BY ADVS. SRI.B.ASHOK SHENOY SMT.C.G.PREETHA SRI.P.S.GIREESH SRI.RIYAL DEVASSY** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO THE GOVERNMENT, MEDICAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011.** - **3 KERALA UNIVERSITY OF HEALTH SCIENCE, REPRESENTED BY ITS REGISTRAR, MEDICAL COLLEGE P.O., THRISSUR-680 596.** - **4 THE REGISTRAR, KERALA UNIVERSITY OF HEALTH SCIENCE, MEDICAL COLLEGE P.O., THRISSUR-680 596.** - **5 THE CONTROLLER OF EXAMINATIONS, KERALA UNIVERSITY OF HEALTH SCIENCE, THRISSUR-680 596.** - **6 MEDICAL COUNCIL OF INDIA, REPRESENTED BY ITS SECRETARY, DADA DEV MANDIR ROAD DWARKA PHASE-1, POCKET 14, SECTOR 8 DWARKA, NEW DELHI, DELHI-110 077.** W.P.(C) No.19171/2020 2 - **7 P.K.DAS INSTITUTE OF MEDICAL SCIENCES, REPRESENTED BY ITS PRINCIPAL, VANIAMKULAM, PALAKKAD-679 522.** - **8 DR.SOMERVELL MEMORIAL CSI MEDICAL COLLEGE AND HOSPITAL, REPRESENTED BY ITS PRINCIPAL, K ARAKKONAM P.O., THIRUVANANTHAPURAM-695 504.** **R3-5 BY SHRI.P.SREEKUMAR, SC, KERALA UNIVERSITY OF HEALTH SCIENCES R6 BY ADV. SRI.TITUS MANI R7 BY ADV. SRI.GEORGE JACOB (JOSE)** **SR.GOVERNMENT PLEADER - SMT. NISHA BOSE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14.10.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.19171/2020 3 ## **JUDGMENT** **Dated this the 14th day of October 2020** The petitioner says that he is a medical under - graduate student in the seventh respondent, P.K.Das Institute of Medical Sciences and seeks a transfer to the eighth respondent, Dr.Somervell Memorial CSI Medical College and Hospital. According to him, on account of certain grievous health conditions suffered, it was not possible for him to continue in the 7[th] respondent college and that when he sought a transfer, it was initially objected to; which constrained him to approach this Court and obtain Exhibit P9 judgment. 2. The petitioner says that, as is clear from the said judgment, he was allowed to migrate from the seventh respondent college on remittance of the fees payable and that even though he has done so and has obtained the necessary NOC from the eighth respondent college, his request for transfer to the said college has been rejected by the third respondent W.P.(C) No.19171/2020 4 University, through Exhibit P15 communication, merely saying that such a transfer is in conflict with the provisions of Exhibit P19 Regulations. The petitioner says that he is now in a predicament because he has already paid the entire fees to the seventh respondent college and the eighth respondent has given him an NOC to join there, but the University is refusing to give concurrence for the same saying that there are no vacancies in the said college. 3. The petitioner, through his learned counsel, Smt.Preetha, further asserts that since the eighth respondent says that there are vacancies, on account of the fact that certain students had failed in the batch and had joined the supplementary batch, there is no reason why the University should say to the contrary. The petitioner, therefore, prays that Exhibit P15 be set aside and he be allowed to join the eighth respondent college, on the strength of the NOC issued by them. 4. In response, the learned Standing Counsel for the University, Sri.P.Sreekumar, submitted that Exhibit P15 has been W.P.(C) No.19171/2020 5 issued solely on the basis of Clause No.7 of Kerala University of Health Sciences First Ordinances, 2017 (Academic), which makes it clear that an application for transfer can be considered only when there is an “open vacancy”, which has been defined to mean one arising consequent to non joining or permanent discontinuance with cancellation of registration of a student. He says that the NOC issued by the eighth respondent shows that the vacancies therein are not on account of these factors, but because some students have failed and have been relegated to the supplementary batches. He, therefore, prays that this Writ Petition be dismissed. 5. Sri.Titus Mani, learned Standing Counsel appearing for the MCI, however, argued to the contrary and submitted that even if a student has failed in a particular batch, that would amount to a vacancy, since he would be pushed to a supplementary batch. In substantiation, he relied the judgment of the Honourable Supreme Court in _**Fraz Naseem v. Union of India [(2016) 13 SCC 521]**_ , and further contended that, as is W.P.(C) No.19171/2020 6 clearly declared in paragraph 138 therein, the Honourable Court has categorically stipulated that when a student fails in a particular batch, there arises a vacancy since that student will be relegated to a supplementary batch. 6. On hearing the learned Standing Counsel for the MCI as afore, Sri.P.Sreekumar submitted that since the Honourable Supreme Court has declared the law so, his client will be willing to reconsider Exhibit P15. 7. When I assess the afore submissions, it is indubitable that the declaration of law by the Honourable Supreme Court over sides the stipulations and Regulations of the first respondent University. In fact, this is also admitted by Sri.P.Sreekumar and says that they are willing to reconsider Exhibit P15 taking note of **Fraz Nazeem** (supra). 8. In the aforesaid circumstances, I am of the firm view that the University must reconsider the matter and issue a fresh order adverting to **Fraz Naseem** (supra) as also the submissions of Sri.Titus Mani as afore. W.P.(C) No.19171/2020 7 In the result, this Writ Petition is ordered, setting aside Exhibit P15 communication of the University ; with a consequential direction to them to reconsider the petitioner's application seeking transfer to the eighth respondent college adverting to **Fraz Naseem** (supra), as also the submissions of the MCI afore, as expeditiously as is possible, but not later than two weeks from the date of receipt of a copy of this judgment and to communicate the resultant order to the petitioner within that time. I make it clear that I am fixing the time short because the petitioner has already been greatly prejudiced on account of the delay and this Court is firm that no further delay should be caused. **Sd/-** ## **DEVAN RAMACHANDRAN** ## **JUDGE** **csl** W.P.(C) No.19171/2020 8 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF MEDICAL CERTIFICATE DATED 14.03.2019 ISSUED BY DR.G.PRAMOD OF SAMANWAYA HOSPITAL, KOLLAM TO PETITIONER.** - **EXHIBIT P2 TRUE COPY OF MEDICAL CERTIFICATE NO.ISBJSH-TW/01/20 DATED 27.01.2020 ISSUED BY DR.W.H.ISSAC SUNDER SEN, ISSAC HOSPITALS, MARTHANDAM TO PETITIONER.** - **EXHIBIT P3 TRUE COPY OF EVALUATION SUMMARY DATED 01.02.2020 ISSUED BY DR.HIRAN DAS.K., PSYCHIATRIST TO PETITIONER.** - **EXHIBIT P4 TRUE COPY OF ADMIT CARD (PROVISIONAL) WITH REGISTERED NO.170013627 OF FIRST PROFESSIONAL MBBS DEGREE SUPPLEMENTARY EXAMINATIONS, JANUARY 2019 ISSUED BY 3RD RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF ADMIT CARD (PROVISIONAL) WITH REGISTRATION NO.170013627 OF FIRST PROFESSIONAL MBBS DEGREE SUPPLEMENTARY EXAMINATIONS, AUGUST 2019 ISSUED BY 3RD RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF LETTER NO.11118/2019/B1/EX.MED/KUHS DATED 03.04.2019 ISSUED BY 3RD RESPONDENT TO PRINCIPAL OF AZEEZIA INSTITUTE OF MEDICAL SCIENCES AND RESEARCH, KOLLAM.** - **EXHIBIT P7 TRUE COPY OF PRINT OUT OF EXAMINATION RESULTS OF PETITIONER PUBLISHED ON 30.10.2019 ON THE WEBSITE OF THE 3RD RESPONDENT.** - **EXHIBIT P8** - **TRUE COPY OF LETTER NO.13260/2018/ACI/GEN/A3/KUHS DATED 10.05.2019 SENT BY 3RD RESPONDENT TO PETITIONERS FATHER, P.G.KOSHY PANICKER.** W.P.(C) No.19171/2020 9 **EXHIBIT P9** - **TRUE COPY OF JUDGMENT DATED 03.02.2020 IN WPC NO.32765 OF 2019 OF THIS HON'BLE COURT.** - **EXHIBIT P10** - **TRUE COPY OF NO OBJECTION CERTIFICATE DATED 10.02.2020 ISSUED BY 7TH RESPONDENT TO PETITIONER.** - **EXHIBIT P11 TRUE COPY OF LETTER ENCLOSING NO OBJECTION CERTIFICATE NO.PKDIMS/ACADEMICS/2020-2021 DATED 10.02.2020 ISSUED BY 7TH RESPONDENT TO PETITIONER.** - **EXHIBIT P12 TRUE COPY OF NO OBJECTION CERTIFICATE DATED 17.12.2019 ISSUED BY 8TH RESPONDENT TO PETITIONER.** - **EXHIBIT P13 TRUE COPY OF APPLICATION DATED 18.02.2020 SUBMITTED BY PETITIONER TO 3RD RESPONDENT.** - **EXHIBIT P14 TRUE COPY OF ORDER DATED 11.03.2020 IN RP NO.239 OF 2020 IN WPC NO.32765 OF 2019 OF THIS HON'BLE COURT.** - **EXHIBIT P15 TRUE COPY OF LETTER NO.6325/2020/ACI, GEN A3/KUHS DATED 30.06.2020 ISSUED BY 3RD RESPONDENT TO PETITIONER.** - **EXHIBIT P16 TRUE COPY OF LETTER NO.PKDIMS/RPWP/2019-21-ESTT-01 DATED 09.07.2020 ISSUED BY 7TH RESPONDENT TO 3RD RESPONDENT.** - **EXHIBIT P17 TRUE COPY OF LETTER NO.PKDIMS/RPWP/2019-21-ESTT-02 DATED 22.07.2020 ISSUED BY 7TH RESPONDENT TO PETITIONER.** - **EXHIBIT P18 TRUE COPY OF RELEVANT PROVISION OF CLAUSE 6 OF GRADUATE MEDICAL EDUCATION REGULATION 1997 ISSUED BY 6TH RESPONDENT.** W.P.(C) No.19171/2020 10 **EXHIBIT P19 TRUE COPY OF KERALA UNIVERSITY OF HEALTH SCIENCES FIRST ORDINANCES 2017 (ACADEMIC) PUBLISHED IN THE KERALA GAZETTE NO.2638 DATED 24.10.2018.** **EXHIBIT P20 TRUE COPY OF NOTIFICATION NO.B1/22/2020/MED.ED DATED 18.08.2020 OF ISSUED BY 2ND RESPONDENT.** - **EXHIBIT P21 TRUE COPY OF GOVERNMENT ORDER GO(RT) NO.1509/2020/H & FWD DATED 17.08.2020 OF 1ST RESPONDENT.** **EXHIBIT P22 TRUE COPY OF THE EMAIL COMMUNICATION DATED 21/9/2020 RECEIVED BY PETITIONER AND SENT BY 7TH RESPONDENT** **EXHIBIT P23 TRUE COPY OF THE LETTER NO.6325/2020/ACI/GEN A3/KUHS DATED 10/9/2020 ISSUED BY THE 3RD RESPONDENT TO THE 7TH RESPONDENT**