The failure of a student in the previous year creates a vacancy in the subsequent year's batch, making migration permissible under Regulation 6 of the Medical Council of India Regulations on Graduate Medical Education, 1997.

JUDGMENT

Prashant Kumar Mishra, J. - The petitioner, a student of 2 nd year MBBS in the Government Medical College, Raigarh, (respondent No.6 herein) has approached this Court seeking migration from the said college to the Chhattisgarh Institute of Medical Science (CIMS), Bilaspur under Regulation 6 of the Medical Council of India Regulations on Graduate Medical Education, 1997 (for short ''the Regulations, 1997'').

2. It is not disputed that the petitioner applied for migration in accordance with the procedure prescribed under Regulation 6 and thereafter necessary No Objection Certificate (NOC) has been issued by the Government Medical College, Raigarh and the CIMS, Bilaspur. The Director of Medical Education (DME) is required to pass necessary orders within a period of one month from the date of application, however, no order having been passed, the writ petition has been preferred.

3. Shri Gagan Tiwari, learned State Counsel would submit that the NOC issued by the CIMS, Bilaspur is a conditional NOC impliedly stating that there is no vacancy in the 2 nd year MBBS Course of the concerned batch at CIMS, Bilaspur, therefore, the DME has not passed any order.

4. Countering the said objection, Shri BP Sharma, learned counsel for the petitioner would refer to the law laid down by the Hon''ble Supreme Court in the matter of Fraz Naseem and Others Vs. Union of India and Others {(2016) 13 SCC 521}, particularly paras136 to 138 thereof, to submit that if a student of previous MBBC batch has failed, he is not treated to be student for 2 nd year MBBS Course for which migration is sought. Such failed student is treated as supplementary batch student and not of the main batch of the relevant year. He would refer to the result sheet of first year MBBS examination of CIMS, Bilaspur showing that one student namely, Swaraj Rai has failed in one of the subject and is thus no longer a student of 2 nd year MBBS Course of CIMS, Bilaspur of the relevant batch.

5. In the matter of Fraz Naseem (Supra), the Hon''ble Supreme Court has held thus at paras136 to 138:

'' 136. On a scrutiny of the letter written by the Directorate of Medical Education, Karnataka, it is absolutely limpid that he has misconstrued Regulation 6. Regulation 6 of the Regulations, as we find, conveys imposition of certain conditions, namely, there should be vacancy in the college where migration is sought and migration has to be restricted to 5% of the sanctioned intake of the college during the year and no migration will be permitted on any ground from one medical college to another located within the same city. The disqualification which has found place in Regulation 6 does not apply to the applicant herein. The question is whether the vacancy had occurred.

137. The Directorate of Medical Sciences has noted that the students who fail to qualify 1st MBBS examination should be treated as a part of the same batch, so that the strength of the whole institution remains stable and meets the requirement of Regulation 6(2) of the Regulations.

138. On a query being made, Mr Gaurav Sharma, learned counsel for the Medical Council of India submitted that when the students fail, they do not remain as students of the same batch and, in fact, they go to the supplementary batch. Further, the learned counsel for the Medical Council of India submitted that the 5% of the total intake capacity has to be filled up with utmost seriousness and there cannot be quarrel over the same. To elaborate, if the intake capacity is 250 and 27 students fail, as submitted by the learned counsel for the applicant, 5% would come to 13. Therefore, there are 13 vacancies available for migration. Figures will be different if the intake capacity is more. The learned counsel would submit that the actual intake capacity is 250. This is basic arithmetic.''

6. It is thus apparent that if one student of CIMS, Bilaspur has failed in the first year MBBS Course for which results have been declared in October, 2019 (vide Annexu