The right to education is fundamental, and migration of medical students can be permitted under the doctrine of necessity despite regulatory prohibitions.

JUDGMENT :

J.NISHA BANU, J.

These writ appeals are filed against the order dated 07.06.2024 made in W.P(MD)No.2267 of 2024.

2. The facts leading to the filing of the writ appeals are as follows:

The 1^st respondent in both the appeals/writ petitioner completed MBBS course and obtained her degree in the year 2020. She joined MD (Physiology) in Annapoorna Medical College and Hospital, Salem, in the academic year 2023-2024. According to the writ petitioner, only two seats were sanctioned to Annapoorna Medical College, in which, she joined and another seat is vacant and the college instructed her to pay capitation fee of Rs.10,00,000/-, in addition to the regular course fee. According to the writ petitioner, she paid a sum of Rs.5,00,000/- and was unable to pay the balance amount. Finding that because of non payment of balance capitation fee, she was not permitted to attend the classes, the writ petitioner sought migration to Sree Mookambika Institute of Medical Sciences/4^th respondent in both the appeals and the Annapoorna Medical College replied that if the writ petitioner is ready to pay Rs.30 Lakhs towards three years course fee including capitation, they would give willingness for her migration to the 4^th respondent college. Hence, the 1^st respondent/writ petitioner filed the writ petition.

2.1. Before the Writ Court, the learned standing counsel for the University contended that though Regulation 6 of the Medical Council of India Regulations on Graduate Medical Education, 1997 provided for migration of students from one medical college to another medical college on any genuine ground, it was repealed and the Post-Graduate Medical Education Regulations, 2023, have come into force and Regulation 4.7 categorically states that no student designated to a medical institution, notwithstanding anything stated in these Regulations, shall be permitted migration to any other medical institution.

2.2. However, the Writ Court, taking note of the ambience, in which, the 1^st respondent was placed and observing that the right to education is a basic right and such right of the 1^st respondent cannot be frustrated in this fashion, allowed the writ petition by impugned order. The relevant passage of the order passed by the Writ Court is extracted hereunder:

3.Before I answer this question, I must take note of the ambience in which the petitioner is placed. It is unenviable to say the least. The third respondent has not appeared before this Court notwithstanding the service of notice on them to rebut the allegation made against them. The rule of non-traverse will apply. One can take judicial notice of the fact that capitation fee is demanded by many a private educational institutions. That is why, Tamil Nadu Educational Institutions (Prohibition of Collection of Capitation Fee), Act, 1992 was enacted. The Hon'ble Supreme Court of India in Rashtreeya Sikshana Samithi Trust Vs. Committee for Fixation of Fee Structure of Private Professional Colleges ( AIR 2022 SC 2434 ) had held that the management of private medical colleges have been strictly prohibited from accepting the payment of fees in cash in order to avoid the charging of capitation fee. The petitioner is obviously unable to pursue her post-graduate studies in the third respondent college.

4.Right to education is a basic right. The petitioner's right cannot be frustrated in this fashion. In order to effectuate the fulfilment of the petitioner's right, the writ Court will be justified in invoking the doctrine of necessity. The Hon'ble Supreme Court in Lalit Kumar Modi v. BCCI (2011) 10 SCC 106 held that the aforesaid doctrine is a common law doctrine and is applied to tide over the situations where there are difficulties. Law does not contemplate a vacuum and a solution has to be found out rather than allowing the problem to boil over. The Hon'ble High Court of Telengana vide order dated 27.10.2022 in Writ Petition No.23420 & 35173 of 2022 granted the relief of migration in another context. I am i