B.N. Agrawal, J.
1. All the five appeals arise out of one Judgment rendered by a learned Single Judge of this Court in several writ applications and common questions are involved therein, as such, they are being disposed of by one Judgment. Out of the aforesaid appeals, the first three were heard together and judgment was reserved therein on 10-5-1999. The fourth case was listed thereafter and heard on 13-5-1999 and judgment was reserved directing the same to be delivered along with the judgment of the aforesaid three appeals. The last case was placed for hearing on 14-5-1999 and after hearing the parties judgment was reserved to be delivered along with the first three appeals.
2. Both the appellants in L.P.A. No. 506 of 1999 were petitioners in C.W.J.C. No. 8918 of 1998. The sole appellant of L.P.A. No. 507 of 1999 was petitioner No. 3 in C.W.J.C. No. 9348 of 1998 which was filed by four persons. L.P.A. No. 509 of 1999 has been filed by three persons who were petitioner Nos. 1, 2 and 4 respectively in C.W.J.C. No. 9348 of 1998. The sole appellant in L.P.A. No. 516 of 1999 was petitioner in C.W.J.C. No. 11936 of 1998. In L.P.A. No. 528 of 1999 also, there is sole appellant who was petitioner in C.W.J.C. No. 10001 of 1998. Apart from the aforesaid four writ applications, there was one more writ application in which also common judgment was rendered against the writ petitioners by the learned Single Judge, but it has not been brought to our notice that against the same any appeal has been preferred.
3. All the writ applications were filed for quashing letters dated 11-8-1998 and 25-8-1998 sent by Secretary, Medical Council of India to Secretary-cum-Commissioner, Department of Health, Government of Bihar whereby a request was made to cancel migration/transfer of students of M.B.B.S, course studying in third year from one medical college to different colleges of the State of Bihar and consequential order dated 12-10-1998 issued by Health Department, Government of Bihar whereby it cancelled the earlier notification dated 11-7-1998 by which transfer of 26 students was made from one medical college to another.
4. Short facts leading to filing of the appeals are that for admission in session 1995-2000 of Bachelor of Medicine and Bachelor of Surgery (hereinafter referred to as M.B.B.S.) course, several students appeared including the appellants in Medical and Dental Admission Test (hereinafter referred to as M.D.A.T.) in which they along with others were selected and admitted in different medical colleges after taking into consideration their merit-cum-choice. The appellants of all these cases except L.P.A. No. 516 of 1999 were admitted in Anugrah Narain Medical College, Gaya (hereinafter referred to as Gaya College) and the appellant in L.P.A. No. 516 of 1999 was admitted in Nalanda Medical College, Patna. The appellants of these cases passed first professional examination after completing 18 months' course, as prescribed under Law. Thereafter, applications were invited by State Government on 24-11-1997 from candidates who were desirous of their transfer from one medical college to another and pursuant to the same, the appellants and others applied whereupon the State Government issued notification on 11-7-1998 transferring altogether 26 students from one medical college to another purporting to act under regulations on Graduate Medical Education, 1977 (hereinafter referred to as '1977 Regulations') framed by Medical Council of India (hereinafter referred 'o as the Council) with previous sanction of the Central Government. It appears that by the said notification, 22 students were transferred from Gaya College, 2 from M.G.M. College, Jamshedpur, one from Nalanda Medical College Hospital, Patna (hereinafter referred to as N.M.C.H.) and another from Bhagalpur Medical College. Both the appellants of L.P.A. No. 506/99 and the sole appellant of L.P.A. No. 507/99 were transferred from Gaya College to Patna Medical College Hospital, Patna (hereinafter referred to as P.M.C.H.). Appellant No, 1 in L.P.A. No. 509/99 was transferred from Gaya Medical College to Darbhanga Medical College Hospital, Darbhanga (hereinafter referred to as D.M.C.H.) and appellant No. 2 was transferred from Gaya Medical College to P.M.C. II, whereas appellant No. 3 was transferred from Gaya Medical College to N.M.C.H. The sole appellant of L.P.A. No. 528 of 1999 was transferred from Gaya Medical College to P.M.C.H. whereas only one person who was appellant in L.P.A. No. 516 of 1999 was transferred from N.M.C.H. to S.K. Medical College, Muzaffarpur.
5. It appears that one Ramdeo Bhandari, who was member of Rajya Sabha from Bihar and written a letter to the Council pointing out therein illegalities committed by the State Government in making the aforesaid transfer of students from one medical college to another whereupon letter was written by Secretary of the Council on 11-8-1998 to Secretary -cum-Commissioner, Department of Health, Government of Bihar making a request therein to clarify as to how order of migration/transfer of 26 students has been issued in violation of the Regulations on Graduate Medical Education, 1997 (hereinafter referred to as '1997 Regulations') pointing out therein that 22 students were transferred from one medical college, that is, Gaya Medical College and the same was neither made by the Council which alone was competent to exercise the powers nor with the approval of the Council. Subsequently on 25-8-1998, another letter was written by Secretary of the Council to Secretary, Department of Health, Government of Bihar whereby request was made to the State Government to cancel the migration/transfer, failing which the Council will consider desirability of recommending to the Central Government for withdrawal of recognition of the Medical College concerned, as required under Section 19 of the Indian Medical Council Act, 1956 (hereinafter referred to as the Act), It was candidly pointed out in the said letter that according to rules, migration/transfer from one recognised Medical College to another such college was permissible upon an application filed within a period of one month after passing the first professional examination and on compassionate grounds, as enumerated in 1997 Regulations, On receipt of the said letter, the State Government having realised that it acted contrary to the 1997 Regulations in effecting transfer/ migration of the aforesaid 26 students from one college to another, by order dated 12-10-1998, the notification dated 11-7-1998, whereby the aforesaid students were transferred, was cancelled, which necessitated filing of the writ application, referred to above.
6. In the writ applications, counter-affidavits were filed on behalf of the State Government from a bare perusal of which it appears that the state Government had not taken a clear-cut stand therein. It would further appear that in C.W.J.C. No. 8918 of 1998, prayer was made for staying the aforesaid order of cancellation passed by State Government which was rejected by a learned Single Judge of this Court on 16-10-1998. Thereafter, again second application was filed for grant of interim relief and when the same was placed before another learned Single Judge of this Court on 16-10-1998, stand was taken on behalf of State supporting the case of the writ petitioners and in view of this, the Court passed an order on 18-11-1998 directing thereby that the petitioners of that writ application shall be allowed to attend their classes in the college where they were prosecuting their studies prior to the passing of the order of cancellation. From this fact, it appears that according to its pleadings before Writ Court, the State Government was conniving with the writ petitioners by supporting their case, though during the course of argument claim of the writ petitioners was contested.
7. On behalf of the Council, counter-affidavit was filed before the Writ Court stating therein that under 1997 Regulations, migration/transfer is not as a matter of right and power of migration/transfer was exclusively vested in the Council and, therefore, the State Government had absolutely no jurisdiction in transferring 26 students from one medical college to another. It was stated that 1997 Regulations were published in the Gazette of India on 17-5-1997 from which date it became effective and 1977 Regulations ceased to operate. It was stated that provisions in 1997 Regulation making changes in syllabus and duration of courses could not be made applicable to those students who were admitted when 1977 Regulations were in force.
8. Alternative case disclosed by the Council before the Writ Court was that the migration/transfer by notification dated 11th July, 1998 was not made even in accordance with the provisions of 1977 Regulations, even if it is assumed that the same did apply whereunder the State Government was empowered to pass an order relating to transfer/migration of students from one medical college to another. Under the said regulations, migration was permissible within three months of passing the first professional examination, but in the case in hand, the order was passed much beyond the aforesaid period. According to 1977 Regulations, migration/transfer from one medical college to another should not exceed limit of 5 per cent of intake of a particular medical college subject to maximum of 5 students in one medical college in one year. According to the Council, apart from the aforesaid violation, there was violation of other provisions of 1977 Regulations. It was further stated in the counter-affidavit filed before the Writ Court that Secretary of the Council had written the aforesaid two letters bona fide as, in his opinion, the order of migration/transfer issued by the State Government was in breach of both the Regulations whereby illegalities in the order of migration/transfer issued by the State Government were pointed out to it and a request was made for its cancellation, failing which the State Government was intimated that the Council will be compelled to make recommendations to the Central Government for withdrawal of recognition of the Institution in question. It is said that the State Government has cancelled the order of migration/transfer not under pressure of the Council but having realised its mistake when the illegalities were pointed out to it by the Council.
9. The Member of Parliament on those complaint the Council acted appeared in the writ application and filed an affidavit in opposition and the stand taken by him was that when he learnt about the aforesaid infirmities in the order of migration/transfer of 26 students, he considered it desirable to bring the same to the notice of the Council.
10. In the writ applications, the order of cancellation of migration/ transfer was attacked on numerous grounds, but as none of the grounds of attack found favour with the learned Single Judge, all the writ applications have been dismissed. Hence, these appeals.
11. Common arguments advanced by learned Counsel appearing on behalf of the appellants in their respective appeals are that the appellants are students of 1995-2000 session when 1977 Regulations framed under Section 33 of the aforesaid act were in force according to which power of migration/transfer could be exercised by the University/State Government, therefore, Secretary to the Council had absolutely no jurisdiction to give any direction to the State Government for cancellation of the order of migration/transfer. It has been submitted that according to 1997 Regulations, which came into force in May, 1997, power of transfer f is vested in the Council in terms of the relevant provision and the same will apply to those students who were admitted after coming into force of the said Regulations and not in the case of the appellants who were admitted into the said course prior to its commencement. Learned Counsel submitted that provisions of 1997 Regulations cannot be made applicable to students like the appellants who were admitted into M.B.B.S. course prior to coming into force of the same when 1977 Regulations were in force. It has been further submitted that Secretary of the Council had given direction to the State Government for cancelling the order of migration/transfer passed by the State Government which is not permissible in law in view of the fact that no such decision has been taken by the Council. Further, it has been submitted that there was violation of the principles of natural justice as none of the appellants of these appeals was given an opportunity of hearing before passing the order cancelling their migration/transfer. It has been also submitted that by virtue of interim order passed by this Court, the appellants have been allowed to prosecute their studies in their respective colleges where they had been transferred and if at this stage they are asked to go back to their respective colleges where they were originally admitted, they would suffer because the second professional examination in those colleges is over and they shall have to wait for another year to appear in the same.
12. Apart from the aforesaid submissions, Shri Ram Balak Mahto, appearing in L.P.A. No. 509 of 1999 further submitted that the Regulation of the Medical Council in relation to migration/transfer is only recommendatory and not mandatory in nature and the same cannot be said have been issued under Section 33 of the Act ; as such, it has no statutory force and, therefore, if the migration/transfer is in violation of the same, it cannot render the order of migration/transfer passed by the State Government illegal, invalid and unconstitutional inasmuch as the order of migration/transfer passed by State Government can be said to have been issued by the State Government in exercise of executive powers of the State under Article 162 of the Constitution.
13. On the other hand, it has been submitted by learned Counsel appearing on behalf of the State and the Council that, there was no illegality at all in order passed by the State Government cancelling order of migration/transfer passed by it earlier.
14. First I propose to consider the last question, referred to above, raised by Shri Mahto. Elaborating the point, Shri Mahto submitted that in the case in hand, the order of migration/transfer passed by the State Government does not in any manner affect standard of medical education, as in none of the medical colleges, even after taking into consideration number of students transferred, the total number of students would exceed its admission capacity fixed by the Council. It has been submitted that the provisions in the Regulations relating to migration/transfer cannot be said to have been incorporated in exercise of powers conferred under Section 33 of the Act; as such, it cannot be said that the same has got any statutory force and consequentially in case, there is any violation of the Regulations, it would not invalidate the order of migration/ transfer issued by the State Government specially when the same can be treated to have been issued by the State Government in exercise of executive powers of the State under Article 162 of the Constitution. For considering this question, it would be relevant to refer to certain constitutional provisions as well as provisions of the Act. Under Article 246 of the Constitution, Parliament has exclusive power to make laws with respect to any of the matters enumerated in List-I of the Seventh Schedule to the Constitution and Entry 66 thereof provides for 'co-ordination and determination of standards in institutions for higher education or research and scientific and technical institutions' whereas Entry 25 in List III provides for 'education, including technical education, medical education and Universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I ; vocational and technical training of labour'. The Act has been promulgated by the Parliament in exercise of powers conferred, upon it under Entry 66 of List I. The Council has been constituted as an apex body for maintaining proper standards in medical colleges. The Council is empowered under the Act to lay down conditions for recognition of medical colleges, minimum educational qualifications and other matters with a view to maintain proper standards in the Medical colleges or institutions.
15. In the case of State of Kerala v. Kumari T. Roshana : [1979]2SCR974 , while considering the powers of the Council, the apex Court observed thus:
The Indian Medical Council Act, 1956 has constituted the Medical Council of India as an expert body to control the minimum standards of medical education and to regulate their observance. Obviously this high-powered Council has power to prescribe the minimum standards of medical education. It has implicit power to supervise the qualifications or eligibility standards for admission into medical institutions. Thus, there is an overall invigilation by the Medical Council to prevent sub-standard entrance qualifications for medical course.
Further, the Supreme Court in the case of Medical Council of India v. State of Karnataka and Ors. : [1998]3SCR740 , has considered the provisions of the Act and the Regulations and laid down that it is the Council which is primarily responsible for fixing standards of medical education and overseeing that these standards are maintained. It is the medical council which is the principal body to lay down conditions for regulation of medical colleges which would include the fixing of in take for admission to medical colleges. It was further laid down that after insertion of Sections 10A, 10B and 10C in the Act by Medical Council (Amendment) 1993 (Act 31 of 1993) published in the Gazette of India dated September 19, 1993, the Council has framed regulations with the previous approval of the Central Government which are known as 1997 Regulations. After the amendment, any Medical College or institution which wishes to increase the admission capacity in M.B.B.S./higher courses has to apply to the Central Government for the permission along with the permission of the State Government and that of the University with which it is affiliated and in conformity with the regulations framed by the Medical Council. No medical college can admit any student in excess of its admission capacity fixed by the Medical Council subject to any increase thereof as approved by Central Government.
16. Section 33 of the Act empowers the Council to make regulations for carrying out purpose of the Act. It further provides that Council may frame regulations with regard to matters enumerated therein. In exercise of powers conferred upon it by Section 33 of the Act, the Council framed a regulation in the year 1977 wherein provisions have been made prescribing minimum qualification for admission in medical colleges and for migration/transfer of students from one medical college to another to maintain standard of medical education. Regulation V of 1977 Regulations relates to migration/transfer which reads thus:
Migration/transfer of students from one Medical College to another:
(a) A student studying in a recognised medical college be allowed to migrate/transfer to another recognised medical college under another/same University,
(b) The migration/transfer can be allowed by the University concerned within three months after passing the first professional examination as a rule.
(c) Migration/transfer of students during the course of their training for the clinical subjects, should be avoided.
(d) The number of students migrated/transferred from one medical college to another medical college during the year will be kept to the minimum so that the training of the regular students of that college is not adversely affected. The number of students migrated/transferred from any one medical college should not exceed the limit of 5% of its in take subject to a maximum of 5 students in any one medical college in one year.
(e) Cases not covered under the above regulations may be referred to the Council for consideration on individual merits.
(f) An intimation about the admission of migrated/transferred students into any medical college should be sent to the Council forthwith.
17. In the year 1997, the Council framed a regulation which was published in the Official Gazette on 17th May, 1997 and came into force with effect from that date.
Regulation 6 of 1997 Regulations relates to migration relevant potion whereof reads thus : 'Migration:
(1) Migration from one medical college to another is not a right of a student. However, migration of students from one medical college to another medical college in India may be considered by the Medical Council of India only in exceptional cases on extreme compassionate grounds provided following criteria are fulfilled. Routine migration on other grounds shall not be allowed.
(2) Both the colleges, i.e. at which the student is studying at : present and to which migration is sought, are recognised by the Medical Council of India.
(3) The applicant candidate should have passed first professional M.B.B.S. examination.
(4) The applicant candidate submits his application for migration, complete in all respects, to all authorities concerned within a period of one month of passing (declaration of result) the first professional Bachelor of Medicine and Bachelor of Surgery (M.B.B.S.) examination.
(5) The applicant candidate must submit an affidavit stating that he/she will pursue 18 months of prescribed study before appearing at 2nd professional Bachelor of Medicine and Bachelor of Surgery (MBBS) Examination at the transferee medical college, which should be duly certified by the Registrar of the University concerned in which he/she is seeking transfer. The transfer will be applicable only after receipt of the affidavit.
Note-1
(i) Migration during clinical course of study shall not be allowed on any ground.
(ii) All applications for migration shall be referred to Medical Council of India by College authorities. No Institution/University shall allow migration directly without the approval of the Council.
(iii) Council reserves the right not to entertain any application which is not under the prescribed compassionate grounds and also to take independent decisions where applicant has been allowed to migrate without referring the same to the Council.
Note-2
Compassionate grounds criteria:
(i) Death of a supporting guardian.
(ii) Illness of the candidate causing disability.
(iii) Disturbed conditions as declared by Government in the Medical College area.
18. In the year 1993, an amendment was made in the Act by Amending Act 31 of 1993 which came into force with effect from 27-8-1992 whereby Sections 10A, 10B and 10C were incorporated in the Act. By virtue of the amended provision, referred to above, the Medical Council alone can prescribe number of students to be admitted in medical course and medical education and Central Government can only increase number of candidates to be admitted in their institutions but only on the recommendation of the Council. So far State Government is concerned, it has absolutely no authority to increase or deceased the number of students in any medical college.
19. From 1977 Regulations, referred to above, it would be clear that power of migration/transfer from one medical college to another was -vested in the University and the said power could have been exercised within a period of three months after passing of the first M.B.B.S. examination. According to the said Regulations, the number of students to be migrated/transferred from one medical college to another should not, in any case, exceed the limit of 5 per cent of its intake subject to maximum of 5 students in one medical college in one year. 1977 Regulations further provided that if cases of migration/transfer were not covered by the aforesaid provision, the same were required to be referred to the Council for consideration of individual case on merits. Under the said Regulations, intimation about migration/transfer was required to be given by University to the Council forthwith.
20. From a bare perusal of 1997 Regulations, it would appear that according to the same, migration/transfer cannot be claimed as a matter of right. The power of migration/transfer can be exercised by the Council alone and, in any view of the matter, University or Institutions cannot directly allow migration without approval of the Council. The power under Regulation 6 of 1997 Regulations relating to migration/transfer can be exercised only from one recognised medical college to other within a period of one month after passing first M.B.B.S. professional examination and only upon compassionate grounds enumerated therein, viz., death of supporting guardian, illness of candidate causing disability and disturbed conditions as declared by Government in medical college area. Even if any of the compassionate grounds is available, the power can be exercised only when an affidavit is filed by student to the effect that he will pursue 18 months of prescribed study before appearing at second professional M.B.B.S. examination at the transferee college which should be duly certified by Registrar of the University concerned.
21. Elaborating the point further Shri Mahto submitted that as in the present case, even after transfer of 26 students to different medical colleges, number of students in none of the medical colleges exceeded the total number of seats fixed for that college by the Council, the order of migration/transfer would not affect standard of medical education. Regulation 6 of 1997 Regulations in relation to migration/transfer cannot be said to be mandatory as it cannot be treated to have been framed in exercise of powers under Section 33 of the Act. The question is not whether in a given case, by migration the total number of students has increased with reference to the same fixed by the Council. But it may happen that by migration/transfer, total number of seats may increase vis-a-vis admission capacity of the institution concerned as fixed by the Council. Therefore, to put -'heck valve thereon, by 1997 Regulations, power of migration/transfer has now been vested in the Council to maintain standard of medical education, as, if the total number of students after migration/transfer goes beyond the total number of seats fixed for a particular institution by the Council, it would definitely affect the standard of medical education in the institution concerned. Thus, I have no hesitation in holding that 1997 Regulation relating to transfer has been framed in exercise of powers under Section 33 of the Act for maintaining the standard of medical education.
22. Learned Counsel for the appellants has placed reliance upon a decision of the apex Court in the case of State of Madhya Pradesh and Anr. v. Kumari Nivedita Jain and Ors. : [1982]1SCR759 . In the said case, there was challenge to the validity of the executive order passed by the State Government relaxing the conditions relating to the minimum qualifying marks for selection of students to medical colleges of the State in respect of candidates belonging to Scheduled Castes and Scheduled Tribes categories being violative of the Regulations framed under Section 33 of the Indian Medical Council Act, 1956. The Court referred to the object of the Act and to its various provisions relevant being Sections 19 and 19A of the Medical Council Act. Nivedita Jain, who was a candidate for admission to the medical college in the State of Madhya Pradesh, contended that the order of the State Government, lowering the qualifying marks for Scheduled Castes and Scheduled Tribes candidates for admission to medical colleges, contravened Regulation II and would be hit by Section 19 of the Medical Council Act exposing the Medical colleges to the risk of being derecognised. High Court had struck down the Government's order being violative of Regulation II which had the force of a statute. The apex Court considered Regulations I and II. While Regulation I provided for admission to medical course stating that no candidate shall be allowed to be admitted to the medical curriculum until he had attained certain age and had passed certain examination. Regulation-II provided for selection of students and it said that selection of students to a medical college should be based solely on merit of the candidate and it laid certain criteria to be adopted uniformly throughout the country for the determination of merit. In the said case, the apex Court observed thus:
Regulation I prescribes the eligibility of a candidate for admission to medical courses. For maintaining proper standards in Medical colleges and Institutions, it comes within the competence of the Council to prescribe the necessary qualification of the candidates who may seek admission into the Medical Colleges. As this regulation is within the competence of the Council, the Council has framed this Regulation in a manner which leaves no doubt that this Regulation is mandatory. The language of this Regulation, which starts with' the words 'no candidate shall be allowed to be admitted to the medical curriculum until...' makes this position absolutely clear. On the other hand, the language in Regulation II which relates to selection of candidates clearly goes to indicate that the Council itself appears to have been aware of the limitation on its powers to frame any such regulations regarding the procedure or process of selection of candidates for admission to the medical course out of the candidates qualified or eligible to seek such admission.
23. In the said case, it was laid down that Regulation II, which was in the nature of recommendation and directory in nature, had no statutory force so as to render, the executive order passed by State Government acting under Article 162 of the Constitution, nullity whereby conditions relating to minimum qualifying marks for selection of students for admission into the medical college were relaxed. It has been laid down that the matter enumerated in Regulation II related to process or procedure for selection from amongst candidates who were eligible for such admission and Entry 25 of List III is wide enough the include within its ambit the question of selection of candidate to Medical college especially when there is nothing in Entries 63, 64 and 65 of List I to suggest to the contrary. Further the Court ruled that as there was no legislation covering the field of selection of candidates for admission to Medical Colleges, the State Government would, undoubtedly, be competent to pass executive order in this regard acting under Article 162 of the Constitution.
24. In my view, the said case can be of no avail to the appellants as there the matter related to selection for admission which was covered by Entry 25 of List III and not Entry 66 of List I, but it cannot be said that question of migration/transfer would be covered by the said entry, rather I am clearly of the view that the said matter would, undoubtedly, be covered by Entry 66 of List I as migration/transfer may affect standard of medical education in a medical college, in view of the fact that by migration/transfer, number of students may be increased to such an extent so as to exceed the outer limit of total number of students, as fixed by Medical Council. In the case in hand, advisedly, no executive order has been issued by the State Government purporting to act under Article 162 of the Constitution prescribing therein that the State Government would be empowered to exercise powers of migration /transfer. The notification whereby 26 students have been migrated/transferred from one medical college to another cannot be treated to be an executive order issued by the State Government acting under Article 162 of the Constitution. This being the position, I am clearly of the view that Regulation 6 of 1997 Regulations relating to migration/transfer was framed in exercise of powers under Section 33 of the Act for maintaining standard of medical education and the same has not only statutory force but is mandatory in nature, as would appear from the language used therein. This being the position, I do not find any substance in this submission.
25. The next question to be considered is as to which regulation would be applicable in the case in hand, whether 1977 Regulations or 1997 Regulations. Undisputedly, the appellants of these cases were admitted in 1995-2000 session much before commencement of 1997 Regulations and they were prosecuting their studies in M.B.B.S. course. According to the appellants, 1997 Regulations had no application in their case as they were admitted prior to its coming into force. In 1997 Regulations, no express provision of repeal has been made. It is well settled that a statute can be repealed either expressly or by necessary implication.
26. In the case of Municipal Council, Palai v. T.J. Joseph : [1964]2SCR87 , the apex Court laid down that Legislature can exercise power of repeal by implication. But, there is a presumption against an implied repeal. Upon the assumption that the Legislature enacts laws with a complete knowledge of all existing laws pertaining to the same subject the failure to add a repealing clause indicates that the intent was not to repeal existing legislation. This presumption will be rebutted if the provisions of the new Act are ;o inconsistent with the old ones that the two cannot stand together.
27. In the case of Deep Chand v. State of U.P. : AIR1959SC648 , it was laid down that to ascertain repugnancy between the two statutes, the three principles are to be applied, (i) whether there is a direct conflict between the two provisions, (ii) whether they occupy the same field and (iii) whether the Legislature intended to provide exhaustive law in respect of the subject-matter covered by existing laws. Though the apex Court in that case was considering the question of repugnancy under Article 246 of the Constitution, but it is well settled that same principle applies in deciding the question of implied repeal.
28. In the case of State of Orissa and Anr. v. M.A. Tullich & Co. : [1964]4SCR461 , it was laid down that the entire theory underlying implied repeals is that there is no need for the later enactment to State in express terms that an earlier enactment has been repealed by using any particular set of words or form of drafting but if the legislative intent to supersede the earlier law is manifested by the enactment of provisions as to affect such supersession, then there is in law a repeal notwithstanding the absence of the word repeal in the later statute. It was further laid down that there is no difference between an express provision and a provision which is necessarily implied.
29. From a bare perusal of 1977 Regulations and 1997 Regulations, it would appear that the provisions contained therein are contradictory and conflicting. In 1977 Regulations, power of migration/transfer was vested in the University whereas under 1997 Regulations, the same is vested in the Council and neither the University nor the State Government has any power of migration/transfer without approval of the Council. The provisions in both the Regulations relating to migration/transfer cannot stand together as one is in conflict with the other. Thus, I have no difficulty in holding that the provision in relation to migration/transfer in 1977 Regulations stands impliedly repealed after framing of 1997 Regulations in relation to the same matter.
30. So far as the question of prosecuting their study is concerned, it may be stated that the case of the appellants shall be governed by 1977 Regulations, but so far migration/transfer is concerned, I have no difficulty in holding that the provision relating thereto in 1977 Regulation stands impliedly repealed by framing of 1997 Regulations and after coming into force of the same, migration/transfer is required to be made in accordance with the provision of 1997 Regulations, even with regard to. those students who are prosecuting their studies from before coming into force of 1997 Regulations. In view of the foregoing discussions, I have no difficulty in holding that in the case in hand, the State Government had absolutely no power to pass order of migration/transfer of 26 students by its notification dated 11-7-1998 specially when approval of the Council was never taken.
31. Alternatively, it may be stated that even if it is assumed that 1977 Regulations W.P.S applicable in the case of migration/transfer of 26 students, referred to above, the same has not been made in accordance with the said Regulation as, according to the same, number of students to be migrated from one medical college to another should not exceed 5 per cent of its intake subject to maximum number of 5 students in any one medical college in one year. In the present case, 22 students have been transferred from Gaya College, sanctioned strength of which is 50, to other medical colleges within the State of Bihar. Apart from this, it may be stated that no information, was given to the Council in relation to migration/transfer as required under 1977 Regulations.
32. Learned Counsel for the appellants further submitted that only Medical Council could have given such a direction as was given to the State Government for cancellation of the order of migration/transfer of 26 students. It may be stated that as a matter of fact, Secretary of the Council has not given any direction but he has simply requested the State Government to cancel the order of migration/transfer which was contrary to 1997 Regulations and the State Government, on being pointed out by the Secretary of the Council, having realised its mistake and taking into consideration the illegalities committed by it in effecting the order of migration/transfer, has cancelled the same. This being the position, I do not find any substance in this submission as well.
33. Learned Counsel for the appellants then contended that the order passed by the State Government cancelling its earlier order of migration/transfer of 26 students having been passed in breach of principles of natural justice is fit to be set aside as, undisputedly, no opportunity of hearing was given to any of the appellants of these cases. It is well settled that audi alteram partem is one of the principles of natural justice which means fairness. It demands that no order should be passed against a person without hearing him. Reliance in this connection has been placed by learned Counsel upon a decision of the Supreme Court in the case of H.L. Trehan and Ors. v. Union of India and Ors. : AIR1989SC568 , in which case the Management of Caltex Oil Refinery (India) Ltd. to which management of the Undertaking of Caltex (India) Ltd. had been transferred altered the conditions of service of the staff of Caltex (India) Ltd. to their disadvantage without giving them an opportunity of being heard. The order altering service conditions was quashed by Delhi High Court and its decision was upheld by the apex Court on the ground that there can be no deprivation or curtailment of any existing right, advantage or benefit enjoyed by a Government servant without complying with the rules of natural justice by giving the Government servant concerned an opportunity of being heard.
34. In the case of Smt. Maneka Gandhi v. Union of India and Anr. : [1978]2SCR621 , a bench of seven Judges of the apex Court was considering an order whereby passport of a citizen was impounded. It was held that power to impound a passport seriously interferes with the constitutional right of the holder of passport to go abroad and entails adverse civil consequences. But in that case, the apex Court did not interfere with the order and in view of the stand taken by Government, it was directed that the petitioner before the apex Court may make a representation in respect of impounding of his passport, which was required to be considered by the Government, There, the apex Court observed that the audi alteram partem rule is intended to inject justice ii :o law and it cannot be applied to defeat the ends of justice or to make the law lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation. Further, the Court observed that this rule would be excluded if importing the right to be heard has the effect of penalysing the administrative process or the need for promptitude or the urgency of the situation so demands.
35. In the case of Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors. : AIR1986SC180 , which case is commonly known as pavement-dwellers' case, it was laid down that right to life includes the right to livelihood, which was claimed in that case, as guaranteed by Article 21 of the Constitution. It was laid down that giving an opportunity of hearing is a normal rule, but according to the provision of the relevant statute, Municipal Commissioner can dispense with previous notice in special circumstances. The Court ultimately though observed that it would have directed the Municipal Commissioner to show cause why the encroachment should not be removed, but did not interfere with the order as an opportunity was granted by apex Court itself in an ample measure, both sides having made their contentions elaborately on facts as well as on law. The Court instead of remanding the matter itself considered all pros and cons of the matter and having found no illegality in the order directing removal of encroachment did not interfere with the same. Ultimately, direction was given that the petitioners should not be evicted from the pavements, footpaths or accessory roads until one month after conclusion of the current monsoon and in the meantime, steps were required to be taken to offer alternative pitches to the pavement, dwellers, though the same was not made a condition precedent for removal of the encroachment committed by the petitioners.
36. In the case of K.I. Shephard and Ors. v. Union of India and Ors. : (1988)ILLJ162SC , action was initiated under Section 45 of the Banking Regulation Act, 1949, for amalgamation of three private banks, namely, State Bank and two Schedule banks in terms of separate scheme drawn under the provisions of the said Act. Pursuant to the scheme, certain employees of the bank were excluded from employment and their services were not taken over by transferee-bank. Some such employees filed writ petitions before Kerala High Court and learned Single Judge granted partial relief but on appeal to the Division Bench, the writ petitions were dismissed. Thereafter, several appeals were preferred before apex Court upon grant of special leave to appeal. Other employees, who did not move the High Court although were similarly situated, moved the Supreme Court directly by filing writ application under Article 32 of the Constitution. It was observed that action to exclude their names deprived them of their livelihood and brought adverse civil consequences, as the action amounted to interfering with the right to livelihood, which is included in right to life, which is a constitutional right. The apex Court quashed the action on the ground that there was breach of principles of natural justice and directed that services of the aforesaid employees of the private banks, who were excluded shall be taken over and they would be entitled to the benefit of continuity of service for all purposes including salary and perks throughout the period. The Court, however, left it open to the banks concerned to take such action against writ petitioners and appellants before it, as they consider proper in accordance with law.
37. In the case of Management of M.S. Nally Bharat Engineering Co. Ltd. v. State of Bihar and Ors. : (1990)IILLJ211SC , the reference made under Section 10 of the Industrial Disputes Act, which was pending before Labour Court, Dhanbad for adjudication was transferred to Labour Court, Patna at the instance of the workmen without intimation to the management and the same was challenged unsuccessfully before this Court. When the matter was taken in appeal to the apex Court, the order of transfer was quashed on the ground that there was non-observance of rule of natural justice.
38. In the case of Charon Lal Sahu v. Union of India : AIR1990SC1480 , which is commonly known as Bhopal Gas Tragedy case, the Court observed that all civilised countries accepted right to be heard as part of the due process of law where questions affecting their rights, privileges or claims are considered or adjudicated.
39. In the case of Shrawan Kumar Jha and Ors. v. State of Bihar and Ors. : AIR1991SC309 , the apex Court quashed the order on the ground that there was non-observance of rules of natural justice and, therefore, without deciding any question of law, in the facts and circumstances of that case, the order was quashed and the matter was remanded.
40. In the case of Ruplal Rajak v. The State of Bihar and Ors. 1991 Bihar Revenue and Labour Journal, 165, a Division Bench of this Court, to which one of us (B.N. Agrawal, J.) was a member, quashed the order of demotion on the sole ground that the same was in breach of the principles of natural justice. The Court did not law down any law but proceeded on the assumption that such an order was impermissible.
41. Learned Counsel heavily relied upon a recent decision of the apex Court in the case of Basudeo Tiwary v. Sido Kanhu University and Ors. 1999 (1) Patna Law Journal Reports, 30 (SC), which was a case from Bihar. There, an order terminating services of a person by Vice-Chancellor of Sido Kanhu University, on the ground that the appointment was in infraction of the provisions of Section 35 of the Bihar State Universities Act, 1976, Statutes and Rules inasmuch as the same having neither been made against a sanctioned post nor approved by the State Government, was challenged. When the appointment was challenged before this Court, the writ application was dismissed on the ground that in terms of Section 35(3) of the said Act, if appointment is made contrary to the provisions of the Act, Statutes, Rules and Regulation or in any irregular or unauthorised manner, the same shall be liable to be terminated at any time without any notice. The question was whether appointment was made in conflict with the provision of Section 35 of the said Act as the same was neither made against a sanctioned post nor approved by the State Government. It may be stated that this question is a mixed question of law and fact. In various Universities in the State of Bihar, such appointments used to be made since time immemorial and when the matter was referred to Full Bench of this Court in the case of Braj Kishore Singh and Ors. v. The State of Bihar and Ors. 1997 (1) Patna Law Journal Reports, 509, it was laid down by the bench presided over by the then Chief Justice of Patna High Court, Shri D.P. Wadhwa (now a Judge of the Supreme Court) that even if there was any infraction of the provision of Section 35 of the Act, a via media was taken and direction was given to the University concerned for examining the question as to whether appointments were made within the staffing pattern steady approved by the State Government and for adjudicating this question, a fact-finding inquiry was also necessary. The Supreme Court laid down in this background that such an inquiry is implicit in the statute which requires investigation of questions of facts and law both. Therefore, the apex Court allowed the appeal, set aside the judgment of this Court and quashed the notification in relation to termination. It appears that in the said case, the apex Court has not laid down any general law that even if statute excludes applicability of principles of natural justice, notice was a must. But, what their Lordships meant was that mixed questions of fact and law should be first adjudicated and once such adjudication is made, the Court clearly observed that later part of Section 35 that an order of termination can be issued without notice shall be attracted and for that, in the opinion of the Court, no further notice was necessary. Therefore, in my view, the aforesaid decision can be of no avail to the appellants.
42. In the case of A.K. Kraipak and Ors. v. Union of India and Ors. : [1970]1SCR457 , a Constitution Bench of the apex Court observed that the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. It was laid down that where a complaint is made before a Court that some principles of natural justice had been contravened, the Court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case which would obviously mean, if by a particular order a right has accrued in favour of a person and if the rule of natural justice is not observed before taking away such a right, the person concerned may be prejudiced leading to miscarriage of justice.
43. In the case of Union of India v. W.N. Chadha : 1993CriLJ859 , it has been laid down by the apex Court that 'the rule of audi alterampartem is a rule of justice and its application is excluded where the rule will itself lead to injustice. There is exclusion of the application of audi alteram partem rule to cases where nothing unfair can be inferred by not affording an opportunity to present and meet a case. This rule cannot be applied to defeat the ends of justice.'
44. In the case of Ravi S. Naik v. Union of India : [1994]1SCR754 , it has been observed that principles of natural justice are not immutable but flexible and they are not cast in a rigid mould and cannot be put in a legal strait-jacket. The Court further observed that the question whether the requirements of natural justice have been complied with or not has to be considered in the context of the facts and circumstances of a particular case. In the said decision approach of English Courts as enumerated in some of the treatises by different authors mentioned hereunder has been adopted after quoting the same.
H.W. P. Wade in his book 'Administrative Law', 6th Edition, page 530 has summed up:
There must also have been some real prejudice to the complainant. There is no such thing as a merely technical infringement of natural justice.
Similarly Clive (sic)wis in 'Judicial Remedies in Public Law' (1992) Page 290 stated:
The fact that the applicant has suffered no prejudice as a result of the error complained of may be a reason for refusing him relief. It is necessary to keep in mind- the purpose of the public law principle that has technically been violated, and ask whether, that underlying purpose has in any event been achieved in the circumstances of the case. If so, the Courts may decide that the breach has caused no injustice or prejudice and there is no need to grant relief. The Courts may, for example, refuse relief if there has been a breach of natural justice but where the breach has, in fact, not prevented the individual from having a fair hearing.
45. In the case of Malloch v. Aberdeen Corporation (1971) 2 All England Report 1278, the House of Lords observed thus:
A breach of procedure, whether called a failure of natural justice, or an essential administrative fault, cannot give him a remedy in the Courts, unless behind it, there is some thing of substance which has been lost by the failure. The Court does not act in vain.
46. In the case of Sameen Banu Makrani v. State of Gujarat and Anr. AIR 1982 NOC 114 (Gujarat), which was a judgment rendered by a Division Bench of Gujarat High Court, it was laid down that an order cancelling earlier order, which was void ab initio without giving opportunity of hearing to persons benefited under those orders cannot be assailed on ground of it being violative of principles of natural justice. This case does not support the appellant rather the ratio decided therein runs counter to the submissions made on behalf of the appellant,
47. In the case of Governing Body of the Sanjay Gandhi Smarak Manila Mahavidyalaya, Sheikhpura and Ors. v. State of Bihar and Ors. 1999 (1) P.L.J.R. 174, a learned Single Judge of this Court following Supreme Court decisions clarified that the question as to whether the principles of natural justice is applicable in a particular case or not depends upon the facts and circumstances of the case. Natural justice cannot be put in a strait-jacket in the sense that it is applicable in all the cases wherein adverse orders are passed against the citizen or a body, its applicability can be excluded expressly or by necessary implication. In case where application of the principles of natural justice does not advance the cause of justice, on the other hand, results in miscarriage of justice, the Court will not apply the principle in such case. The principles of natural justice cannot be expanded in such a manner as would result in miscarriage of justice, However, in the facts of that case, the Court interfered with the order on the ground of infraction of doctrine of audi alterampartem.
48. From a conspectus of the aforesaid decisions, it becomes clear that if a person acquires any legal right when an order is passed in his favour and he would be prejudicially affected by its cancellation, the principle of audi alteram partem is attracted unless its application has been excluded by a statute. The question arises in which case a person can be said to have acquired a right when an order is passed in his favour. In my opinion, if an order is void ab initio and without jurisdiction, then a person cannot be said to have acquired any right merely because the same has been passed in his favour. If there has to be adjudication on facts before deciding the question of law that the order was void ab initio and without jurisdiction, the principles of natural justice is at once attracted, as mixed question of facts and law cannot be decided without any adjudication. If the illegality in the order, which is void ab initio and without jurisdiction is such for which there is no necessity of any adjudication on facts and the only requirement is to examine legal provisions, it can be safely said that the authority is required to consider whether by passing a particular order, it has committed glaring error on the question of law and jurisdiction and if it comes to the conclusion that there was such an error, it will be justified in recalling/cancelling such an order whereby no right has accrued to any person in view of the fact that error of law or jurisdiction in the order sought to be recalled is an error apparent on the face of the record. For example, if there is infraction of the provisions of Articles 14 and/or 16 of the Constitution or any law for the time being in force for which investigation of facts is not at all necessary, rules of natural justice would not be attracted. It appears that requirement of natural justice is flexible and can be moulded in such a way so as to advance the cause of justice. Its unnatural expansion will result in miscarriage of justice. Justice means justice between both the parties and the principles of natural justice are meant to achieve the ends of justice. It cannot be used to achieve the opposite one. It cannot be used to help wrong doers.
49. In the case in hand when the State Government was not at all empowered to pass the order of migration/transfer from one medical college to another, the same was a nullity. In the eye of law whereby no right accrued to the students who were transferred. On being pointed out by the Council, the State Government was quite justified in cancelling such an illegal order. Further in the present case, the appellants cannot be said to have been prejudicially affected by the order of cancellation as no person can claim as a matter of right that he should be imparted education in any particular institution. As courses of studies in all the recognised medical colleges in Bihar are same, one cannot be said to have been prejudiced merely because he has been sent back to the college where he was originally admitted. Another ground of prejudice which was pleaded before the learned Single Judge was that when those persons would be sent back to their original colleges where they were initially admitted, second professional examination beings already over, they will be put to harassment. It appears that the learned Single Judge has already given protection to such students by giving a direction that in case second professional examination has been already conducted, special examination in relation to them shall be conducted. Observance of the principles of natural justice was thus not at all required. This being the position, I do not find any substance in this submission as well.
50. Learned Counsel for the appellants lastly submitted that by virtue of the interim order passed by this Court, the appellants were allowed to attend their classes at the transferee-colleges and if at this stage, they will be allowed to be sent back to the transferor-college, where the second professional examination is already over, they will be put to harassment. I have already observed that the prayer for grant of stay was first rejected by this Court, but, later on, an interim relief was obtained not only upon concession of the State but with their connivance by allowing the students to attend their classes in the college in question in which they were attending by virtue of the order of transfer. As it has been already found that the order of migration/transfer was wholly without jurisdiction and the State Government had connived in passing the interim order by this Court, in such a situation, if sympathy is shown, then that will amount to giving impetus and encouragement to the perpetrators and wrong-doers. It may be stated that staying order of transfer has been deprecated by the apex Court. Reference in this connection was made to the order dated 18-9-1994 passed by apex Court in the case of Secretary, Medical Health and Education and Ors. v. Anju Ram Sharma etc., which was a civil appeal arising out of S.L.P. (C) No. 2318/94 and analogous cases. It appears that large number of students either from the recognised or unrecognised medical colleges obtained migration/transfer and admitted in different medical colleges in the State of Uttar Pradesh. When the Council took action against them, they filed writ application wherein the High Court passed an interlocutory order allowing them to continue the study. The apex Court held that though it cannot be said that the High Court had no jurisdiction to grant interlocutory injunction in a mandatory term, the injunctions are almost always, negative in form to restrain the defendant from doing some acts. In exceptional cases, it may be mandatory compelling a positive act to be done. It was further held that undue liberal judicial attitude will raise unjustified expectations in similar cases. Interlocutory orders passed by the High Court were found to lack visible legal support.
51. In my view, the learned Single Judge was quite justified when he referred to the observation of the apex Court in the case of Haryana Urban Development Authority and Anr. v. Roochira Cresmics and Anr. : (1996)6SCC584 , wherein it was held that power under Article 226 of the Constitution is the power of judicial review. There is no room for any benevolence under Article 226 of the Constitution. If the Court departs from law and enters into the arena of benevolence, the perils and pitfalls are too many to recount. There will be no objective standards of judging. Justice becomes personalised. It would vary from Judge to Judge. The apex Court further observed that the High Court had no jurisdiction to interfere in the matter. The extraordinary jurisdiction under Article 226 of the Constitution is to be exercised to advance the cause of justice and to prevent perpetration of legal fraud. It cannot be exercised in favour of a defaulting party.
52. In the case of Guru Nanak Dev University v. Parminder Kr. Bansal and Anr. : AIR1993SC2412 , the interim order passed by Punjab and Haryana High Court directing admission to educational institution without regard to the eligibility of the candidates was challenged before the Supreme Court and while setting aside the same, it was observed that this kind of administration of interlocutory remedies, more guided by sympathy quite often wholly misplaced, does not service to any one. It was further observed that from series of orders that keep coming before the Supreme Court in academic matters, it was found by the Court that loose, ill-conceived sympathy masquerades as interlocutory justice exposing judicial discretion to the criticism of degenerating into private benevolence which is subversive of academic discipline or whatever is left of it, leading to serious impasse in academic life. The apex Court cautioned the High Courts not to embarrass academic authorities by itself taking over their functions.
53. Apart from the aforesaid position in law that no sympathy can be shown in favour of the appellants, I am of the view that if the appellants are sent back to their original colleges, in view of the fact that the order of migration/transfer was wholly without jurisdiction, the appellants would not suffer in any manner as courses of studies are one and same in all these colleges. So far apprehension of the appellants that if they are sent back to their original college where second professional examination may be over, they would suffer is concerned, it may be stated that the learned Single Judge has given adequate protection to them by giving direction in the judgment under appeal that they should join their previous colleges within two weeks from the date of the said Judgment and the period during which they attended the college should be counted as period of study by them on filing a certificate granted by the authority concerned in support of the fact that they pursued the study there. It was further directed that in case the second professional examination has already been conducted in the medical colleges concerned, which fall within the Magadh University, as asserted by them, special examination of second year is to be held with regard to those appellants, but, in case examination has not been held, the said direction will not be given effect to. In view of these facts, in my view, the appellants will not suffer in any manner if pursuant to the order of cancellation they are sent back to their original colleges.
54. In view of the foregoing discussions, I do not find any merit in these appeals, which are accordingly dismissed. But in the facts and circumstances of the case, I direct that parties shall bear their own costs.
Shiva Kirti Singh, J.
55. I agree.