1. Transfer of medical students between institutions — Regulation of admissions under Section 28(5), U.P. Universities Act, 1973 — Validity of government notifications. (Para 2 , 3 , 4 , 5 , 6 , 7 )
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1994 Supreme(SC) 882
SUPREME COURT OF INDIA
M.N. VENKATACHALIAH, C.J.I. AND S. MOHAN, J.
State of U.P. and another, Appellants
Versus
Praveen Kumar Sharma and others, Respondents.
Civil Appeals Nos. 6078 with 6079-81 of 1994 (arising out of S.L.P.(C) Nos. 9239 with 16139-41 of 1994
Decided on 9-9-1994.
Advocates appeared
Mr. Gaurav Banerjee and Mr. R. B. Sharma, Advocates, for Appellants; Mr. Sushil Kumar, Sr. Advocate and Mr. R. P. Wadhwani, Addvocate with him, for Respondents.
* (1) W.P. No. 780 (M/S) of 1994, Dated 13-4-1994 (All.)
(2) S.A. Nos.22,27 and 30 of 1993, Dated 10-1-1994(All.)
Advocates:
Gaurav Agrawal, R.B.SHARMA, R.P.VADHVANI, SUSHIL JAIN
Gaurav Agrawal, R.B.SHARMA, R.P.VADHVANI, SUSHIL JAIN
The State Government has the power under Section 28(5) of the U.P. Universities Act, 1973, to regulate medical admissions. Transfer applications must be considered in accordance with government notifications and statutory provisions, including Section 10(A) of the Dentist Act, 1948, regarding institutional capacity.
Headnote:
Arbitration Act, 1940 - Section 15 – Section 16 - Antiquities and Art Treasures Act, 1972 - Constitution of India - Article 363 - Article II, sub-Article (3) - Nizams Jewellery – Jewellery Amount Reduced By Typographical Error - Dispute relates to jewels belonging to two Trusts, namely HEH Nizams Supplementary Jewellery Trust - Writ petitions and connected civil appeals were disposed of by an order referring same to arbitration -There was a divergence of opinion between two arbitrators and matter was referred to Mr. Justice A.N.Sen as Umpire - He rendered an Award that Government of India would pay a sum of Rupees - This amount was reduced by Rs. 45 crores since there was a typographical error with reference to Item 33 of Schedule of Valuation of the Award - As a result, liability of Union of India to purchase 173 items of jewellery comprised in two Trusts came to Rs. 180,37,33,959/ - Award was submitted to this Court for appropriate orders - Parties had notice of filing of Award – Held, If any dispute arises as to whether any item of property is private property of His Exalted Highness Nizam of Hyderabad or State property, it shall be referred to such independent person as Government of India may nominate and decision of that person shall be final and binding on all concerned - Some of them were contending that agreements were taken from them by intimidation; some others were contending that there were blanks in agreements signed by them and those blanks had been filled in without their knowledge and to their prejudice - Merger process went on hurriedly - Constitution-makers could not have ignored possibility of future challenge to validity of Merger Agreements. Naturally they would have been anxious to avoid challenge to various provisions in Constitution which are directly linked with Merger Agreements - That is why Article 363 really embodied principles of Acts of State which regulated and guided rights and obligations under covenants or merger agreements by incorporating doctrine of unenforceability of covenants or merger agreements coming into existence as Acts of State - This affords a complete answer to contentions raised by applicants - Hence, Court conclude intervention applications misconceived and is wholly devoid of merit – Appeal Disposed Off.
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2. State contends no inherent right to transfer and that notifications are binding; respondents argue that prior court orders created vested rights for transfer consideration. (Para 8 , 9 )
3. The State possesses statutory power to regulate admissions; however, transfers must comply with the Dentist Act, 1948, regarding institutional capacity limits. (Para 10 , 11 )
4. Transfer applications must be decided in accordance with statutory prohibitions on increasing institutional capacity and applicable government notifications regulating admissions. (Para 11 )
5. Direction to consider transfer applications in light of the applicable government notification by a specified date through reasoned orders. (Para 12 )
6. Does the State have the power to regulate medical admissions retrospectively?
Yes, under Section 28(5) of the U.P. Universities Act, 1973, the State Government may make orders to regulate admissions to medical and engineering colleges, and such orders may be made with retrospective effect, provided they are not effective prior to January 1, 1979. (Para 10 )
7. Can a judgment directing the consideration of transfer applications be treated as a judgment in rem?
No, if the writ petitions were not filed in a representative capacity, a judgment directing the consideration of applications is not a judgment in rem and does not automatically grant rights to all similarly situated persons. (Para 11 )
8. What statutory restriction governs the increase of capacity in medical institutions for transfers?
Section 10(A) of the Dentist Act, 1948, imposes a complete embargo on any institution increasing its capacity in any course of study and training without the previous permission of the Central Government. (Para 11 )
JUDGMENT
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 Sec. 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 (B.D.S. in short) to and from Dental Faculty of the King George 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 Georges 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 Georges 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) B.D.S. 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.
(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 "or Institution" means an authority or Institution in India, the dental qualifications granted by which are included in Part I of the Schedule to the Dentists Act, 1948.
By Order,
Atul Chaturvedi,
Secretary, Medical Education.
3. The respondents are students of B.D.S. 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, Rachna 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 Ramarrao Adik Educational Societies, Dental Narul, New Bombay. Sharat Chandra Pandey is a student of College of Dental Surgery, Manipal. Sharat Chandra Pandey applied for transfer from the Dental College, Manipal to the Dental Faculty of King George Medical College, Lucknow, in the third year course of the B.D.S. on November 12,1992. 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
