Compliance with MCI regulations, including the eligibility criteria for migration, is essential for seeking transfer in medical education.

JUDGMENT :

AVINASH G. GHAROTE, J.

1. Heard. Rule. Rule made returnable forthwith.

2. The present petition seeks to quash and set aside clause 13 (a) (ii) of the brochure for transfer of medical students in the State published by the respondent no.1/Director of Medical Education and Research (DMER, hereinafter) and so also the communication dated 20/8/2020 by the respondent no.1/DMER and to allow the application of the petitioner dated 25/6/2020, seeking transfer to the Nagpur college on account of petitioner's health and the prevailing pandemic of Covid-19.

3. The petitioner is a student of MBBS course and is presently pursuing her studies in Government Medical College, Akola, having been admitted on 10/7/2018. The petitioner on 25/6/2020 (pg.79), made an application, to the authorities for her migration, from the Government Medical College (GMC), Akola to either of the Government Medical Colleges at Nagpur, under Regulation 6 (1) of Chapter II of the Regulations of respondent no.2/Medical Council of India (MCI, hereinafter), as modified on 22/12/2008.

4. The petitioner who claimed to be suffering from allergic bronchitis with chronic bronchial asthma, of a moderate persistent nature, frequently leading to breathlessness, obtained medical certificates in that regard dated 31/1/2019, 17/4/2019, 29/10/2019 and 5/11/2019 (Annexures 1 to 4) to contend, that these demonstrate that the illness was genuine and she has been suffering throughout the year. It is further contended that due to the Covid-19 pandemic, considering her high co-morbidity, she was highly susceptible, which was the reason, the transfer was sought to any of the Government Colleges in Nagpur.

5. The application of the petitioner was turned down by the respondent no.1/DMER, by communication dated 20/8/2020 (pg.84) for the reasons that DMER had published notice for transfer after 1st MBBS in respect of 2019-20 regulatory and supplementary batch on 22/1/2020 and as the petitioner had not applied for the transfer as per the notice in the prescribed format and the requisite fees and since the process of transfer for the year 2019-20 batch, as per the MCI guidelines, had already been completed, DMER was unable to consider her application.

6. This communication is challenged in the present petition. The basic grounds for contention by Dr. Uday Warunjikar, learned Counsel for the petitioner are (a) that the brochure issued by the respondent no.1/DMER was contrary to the MCI Regulations; (b) there was no source of power to the State/DMER to frame regulations; (c) the transfer, was to be considered on “genuine grounds” and the ground raised by the petitioner was a genuine ground.

7. Dr. Warunjikar, learned Counsel for the petitioner, further submits that Regulation 6 of the MCI, would always have a primacy, over any guidelines, which may be framed by the State/DMER, for which he relies upon :

(A) Amey Prakash Kasbekar Vs. The Director, Medical Education and Research, Mumbai and others, 2012 SCC Online Bom. 1265.

(B) Lipika Gupta Vs. U.O.I. (2014) 12 SCALE 533

(C) Pankti M. Pancholi Vs. State of Maharashtra AIRONLINE 2018 BOM 194.

(D) Mahin Chetan Bhatt Vs. State of Maharashtra and others, 2018 SCC OnLine Bom 10413.

8. Dr. Warunjikar, learned Counsel for the petitioner further contends that the expression “subject to provisions of these Regulations”, would necessarily mean that any guidelines for transfer, which may be framed by the State Government, cannot be contrary to what was contained in Regulation 6, framed by the MCI. He submits that the guidelines as given in the brochure by the DMER and specifically clause 13 (a) (ii), which required that the medical certificate to be submitted by the students, seeking migration, should certify that the illness had caused permanent disability of 40% or above, was contrary to the Regulation 6 (1) of the MCI Regulations, in as much as, the Regulations did not specify or require any such certification of permanent disability of 40% or above. He t