Dr. SachIn Deo Vs. Director of Medical Education, M.P. and ors. - Court Judgment

Excerpt:
- - 14. i should like to say that the day is done when 'irrationality' could be samsoned and suffered without demur. assurance of 'dignity' of the individual contained in the preamble to the constitutionof india carries with it obligation and compels hose entrusted with the power to be adherent of the principle 'like should be treated alike'.there ought to be no case or cause to part with reason. amalgamated engineering union (1971) 1 all fr 148 and supreme court stated in khudi ram's case(1975) 2 scr 832 :air 1975 sc 550, that in a government of laws 'there is nothing like unfettered discretion immune from judicial review ability'.fairness, founded on reason, is the essence of the guarantee epitomised in article 14. if the power has been exercised improperly or mistakenly so as to impinge unjustly on legitimate rights or interests of the subject, then courts must so declare. it is time to consider reshaping and restructuring of rule 3.2.10(iii) to provide and permit 'transfer' on exceptional circumstances. for example, at the end of this rule, it may be added -provided that it shall be lawful for the authorities to entertain request for transfer from one institution to another on proof of exceptional circumstances. such circumstances so as to operate as factors as well as fetters.ordera.r. tiwari, j. 1. this is a petition under arts. 226/227 of the constitution of india. 2. facts are few. the petitioner, resident of indore, secured admission in m.d. (medicine). first year in j.r. medical college, gwalior in counselling, despite his inbred indication about m.c.m. medical college, indore. in 1992, he did his m.b.b.s. at indore. on availability of seats at indore, due to abandonment of the same by dr. sudhir mungi, dr. sanjay ahirwar and due to allotment from assistant surgeon quota, the petitioner, troubled and tortured by his family circumstances (father is at bhopal, mother resides at indore with no one to look after. she is operated twice. petitioner to rush to indore at short notices), applied for his transfer from gwalior to indore but heard nothing. he then filed misc. petn. no. 1347 of 1994 which was disposed of on .1-9-1994 (annexure-'b') with direction to decide his pending representation. respondent no. 1 (director), however, rejected the same on 22-9-1994 (annexure-'a') saying that r. 3.2.10 (iii) did not provide for transfer. aggrieved by order (annexure-'a'), the petitioner is before this court in second inning of the lis. 3. factual position is not controverted4. i have heard shri m. g. upadhyaya, learned counsel for the petitioner and shri vinaya jhelawat, learned govt. advocate for the respondents. the prayer is oppugned on the linchpin of the rule quoted above. 5. rule 3.2.10(iii) contains as under :-- 'a candidate so admitted to a particular subject and assigned to a particular institution will not be entitled to seek any change of subject or institution. no request for a change of subject or institution would be entertained.'6. despite this rule, pressed into service as a protective umbrella in support of therejection of request, the division bench of this court in misc. petn. no. 1939 of 1993 (dr. ram inani v. state of m.p.) and connected petitions, decided on 14-12-1993 recorded the expectation as under:-- 'as there are no rules framed for transfer of post graduate students from one college to other college, we do not express any view on the subject of transfer. we, however, expect the state government to frame proper guidelines covering the subject so that charge of discrimination and arbitrariness in the matter of transfer is avoided.'7. earlier the division bench of this court in misc. petn. no. 1700 of 1993 (dr. kumari aparna singh v. state of m.p.), decided on 7-10-1993 (reported in air 1994 madh pra 42), had issued the writ as under:-- 'with the aforesaid observation, the petition of the petitioner is allowed. the state is directed to transfer the petitioner from j. r. medical college to m.c.m. college at indore in the same subject, i.e., obstetrics and gynaecology.'8. again in misc. petn. no, 85 of 1994 (dr. hemant malhptra v. state of m.p.), respondents were directed by the division bench of this court on 19-1-1994 to implement direction issued in misc. petn. no. 2057 of 1993 and misc. petn. no. 1700 of 1993. this meant that rule, as referred to, did not clog the discretion to consider requests for transfer. transfer is not the same point as change at will. 9. it is thus clear that the respondents nos. 1 and 2 did effect transfers on merits of particular case and did not question the orders of the court before superior forum. that being so, it is little to purpose and difficult to understand the rejection merely on the fulcrum of the rule quoted above. there is no rejection on facts as asserted to secure transfer. 10. what stands established then is --(i) ground of transfer is not negatived. (ii) availability of seats is not disputed. (iii) transfers were effected in the past. (iv) guidelines are not framed as none are, produced. (v) directions were issued by this court, 11. it is also significant that the state govt. accepted the request of transfer of one dr. (miss) niki mehta from jabalpur to bhopal under special circumstances by relaxing rules (not particularised) vide letter no. 2i79/3670/17/med.2/94 dated 17-10-1994 (available in misc. civil case no. 600 of 1994). this at once makes the letter annexure-'a' arbitrary and discriminatory and shows taint in exercise of discretion. if rule said 'no' and is construed as inflexible then how authorities could utter 'yes' in some cases? what is the message to a free people of free country? 12. discretion, lord mansfield stated in classic terms in john wilkes. case (1770) 4 burr 2528, meant sound one governed by law and guided by rule, not by humour. even about a jurist, justice cardozo spoke that--'he is to exercise a discretion informed bytradition, methodized by analogy, disciplinedby system and subordinated to the primordialnecessity of order in the social life.'13. the order under challenge manifestly brings no credit to the system and falls foul even of article 14 of the constitution of india directions of courts, whenever issued, granting discretion to the authorities and trusting them are intended to encourage doing of rational thing as part of their 'right' and responsibility and to discourage, the dependence only on writ court. critical problem is not solved by hypocritical attitude lord kaynes observed that -- 'man will do the rational thing but only after exploring all other alternatives. 14. i should like to say that the day is done when 'irrationality' could be samsoned and suffered without demur. the exercise of exploration of other alternatives is thus out of tune and needs to be shunned and spurned. assurance of 'dignity' of the individual contained in the preamble to the constitutionof india carries with it obligation and compels hose entrusted with the power to be adherent of the principle 'like should be treated alike'. there ought to be no case or cause to part with reason. 15. lord denning put it elegantly in breen v. amalgamated engineering union (1971) 1 all fr 148 and supreme court stated in khudi ram's case(1975) 2 scr 832 : air 1975 sc 550, that in a government of laws 'there is nothing like unfettered discretion immune from judicial review ability'. fairness, founded on reason, is the essence of the guarantee epitomised in article 14. if the power has been exercised improperly or mistakenly so as to impinge unjustly on legitimate rights or interests of the subject, then courts must so declare. the courts stand between the executive and the subject alert, alert to see that discretionary power is not exceeded or misused. lord atkin highlighted that aspect. liver sidge v. anderson (1942) ac 206 is instructive and indicator of the amplitude of the power available with the courts. 16. in the ultimate analysis, i find it fit to quash order (annexure-'a') and to direct the respondents nos. 1 and 2 to transfer the petitioner from gwalior to indore in the same subject i.e. m. d. (medicine) on the available seat as noted above with clarification about continuity within one month from today. 17. so much for today, yet some thing more needs to be stated for tomorrow. it is time to consider reshaping and restructuring of rule 3.2.10(iii) to provide and permit 'transfer' on exceptional circumstances. for example, at the end of this rule, it may be added --'provided that it shall be lawful for the authorities to entertain request for transfer from one institution to another on proof of exceptional circumstances.'and guidelines, as observed in dr. ram inani's case (supra), may be formulated to illustrate, even if not exhaustively. such circumstances so as to operate as factors as well as fetters. this will impart fairness andreasonableness in operation and cooperation. 18. the petition is thus allowed as aboveleaving the parties to bear their own costs asincurred.

Judgment:
ORDER

A.R. Tiwari, J.

1. This is a petition under Arts. 226/227 of the Constitution of India.

2. Facts are few. The petitioner, resident of Indore, secured admission in M.D. (Medicine). First year in J.R. Medical College, Gwalior in counselling, despite his inbred indication about M.C.M. Medical College, Indore. In 1992, he did his M.B.B.S. at Indore. On availability of seats at Indore, due to abandonment of the same by Dr. Sudhir Mungi, Dr. Sanjay Ahirwar and due to allotment from Assistant Surgeon quota, the petitioner, troubled and tortured by his family circumstances (father is at Bhopal, mother resides at Indore with no one to look after. She is operated twice. Petitioner to rush to Indore at short notices), applied for his transfer from Gwalior to Indore but heard nothing. He then filed Misc. Petn. No. 1347 of 1994 which was disposed of on .1-9-1994 (Annexure-'B') with direction to decide his pending representation. Respondent No. 1 (Director), however, rejected the same on 22-9-1994 (Annexure-'A') saying that R. 3.2.10 (iii) did not provide for transfer. Aggrieved by order (Annexure-'A'), the petitioner is before this Court in second inning of the lis.

3. Factual position is not controverted

4. I have heard Shri M. G. Upadhyaya, learned counsel for the petitioner and Shri Vinaya Jhelawat, learned Govt. Advocate for the respondents. The prayer is oppugned on the linchpin of the rule quoted above.

5. Rule 3.2.10(iii) contains as under :--

'A candidate so admitted to a particular subject and assigned to a particular institution will not be entitled to seek any change of subject or institution. No request for a change of subject or institution would be entertained.'

6. Despite this rule, pressed into service as a protective umbrella in support of therejection of request, the Division Bench of this Court in Misc. Petn. No. 1939 of 1993 (Dr. Ram Inani v. State of M.P.) and connected petitions, decided on 14-12-1993 recorded the expectation as under:--

'As there are no rules framed for transfer of Post Graduate students from one college to other college, we do not express any View on the subject of transfer. We, however, expect the State Government to frame proper guidelines covering the subject so that charge of discrimination and arbitrariness in the matter of transfer is avoided.'

7. Earlier the Division Bench of this Court in Misc. Petn. No. 1700 of 1993 (Dr. Kumari Aparna Singh v. State of M.P.), decided on 7-10-1993 (reported in AIR 1994 Madh Pra 42), had issued the writ as under:--

'With the aforesaid observation, the petition of the petitioner is allowed. The State is directed to transfer the petitioner from J. R. Medical College to M.C.M. College at Indore in the same subject, i.e., Obstetrics and Gynaecology.'

8. Again in Misc. Petn. No, 85 of 1994 (Dr. Hemant Malhptra v. State of M.P.), respondents were directed by the Division Bench of this Court on 19-1-1994 to implement direction issued in Misc. Petn. No. 2057 of 1993 and Misc. Petn. No. 1700 of 1993. This meant that rule, as referred to, did not clog the discretion to consider requests for transfer. Transfer is not the same point as change at will.

9. It is thus clear that the respondents Nos. 1 and 2 did effect transfers on merits of particular case and did not question the orders of the Court before superior forum. That being so, it is little to purpose and difficult to understand the rejection merely on the fulcrum of the rule quoted above. There is no rejection on facts as asserted to secure transfer.

10. What stands established then is --

(i) Ground of transfer is not negatived.

(ii) Availability of seats is not disputed.

(iii) Transfers were effected in the past.

(iv) Guidelines are not framed as none are, produced.

(v) Directions were issued by this Court,

11. It is also significant that the State Govt. accepted the request of transfer of one Dr. (Miss) Niki Mehta from Jabalpur to Bhopal under special circumstances by relaxing rules (not particularised) vide Letter No. 2I79/3670/17/Med.2/94 dated 17-10-1994 (available in Misc. Civil Case No. 600 of 1994). This at once makes the letter Annexure-'A' arbitrary and discriminatory and shows taint in exercise of discretion. If rule said 'no' and is construed as inflexible then how authorities could utter 'yes' in some cases? What is the message to a free people of free country?

12. Discretion, Lord Mansfield stated in classic terms in John Wilkes. case (1770) 4 Burr 2528, meant sound one governed by law and guided by rule, not by humour. Even about a Jurist, Justice Cardozo spoke that--

'He is to exercise a discretion informed bytradition, methodized by analogy, disciplinedby system and subordinated to the primordialnecessity of order in the social life.'

13. The order under challenge manifestly brings no credit to the system and falls foul even of Article 14 of the Constitution of India Directions of Courts, whenever issued, granting discretion to the authorities and trusting them are intended to encourage doing of rational thing as part of their 'right' and responsibility and to discourage, the dependence only on writ Court. Critical problem is not solved by hypocritical attitude Lord Kaynes observed that -- 'Man will do the rational thing but only after exploring all other alternatives.

14. I should like to say that the day is done when 'irrationality' could be samsoned and suffered without demur. The exercise of exploration of other alternatives is thus out of tune and needs to be shunned and spurned. Assurance of 'dignity' of the individual contained in the preamble to the Constitutionof India carries with it obligation and compels hose entrusted with the power to be adherent of the principle 'like should be treated alike'. There ought to be no case or cause to part with reason.

15. Lord Denning put it elegantly in Breen v. Amalgamated Engineering Union (1971) 1 All FR 148 and Supreme Court stated in Khudi Ram's case(1975) 2 SCR 832 : AIR 1975 SC 550, that in a Government of laws 'there is nothing like unfettered discretion immune from judicial review ability'. Fairness, founded on reason, is the essence of the guarantee epitomised in Article 14. If the power has been exercised improperly or mistakenly so as to impinge unjustly on legitimate rights or interests of the subject, then Courts must so declare. The Courts stand between the executive and the subject alert, alert to see that discretionary power is not exceeded or misused. Lord Atkin highlighted that aspect. Liver Sidge v. Anderson (1942) AC 206 is instructive and indicator of the amplitude of the power available with the Courts.

16. In the ultimate analysis, I find it fit to quash order (Annexure-'A') and to direct the respondents Nos. 1 and 2 to transfer the petitioner from Gwalior to Indore in the same subject i.e. M. D. (Medicine) on the available seat as noted above with clarification about continuity within one month from today.

17. So much for today, yet some thing more needs to be stated for tomorrow. It is time to consider reshaping and restructuring of Rule 3.2.10(iii) to provide and permit 'transfer' on exceptional circumstances. For example, at the end of this rule, it may be added --

'Provided that it shall be lawful for the authorities to entertain request for transfer from one institution to another on proof of exceptional circumstances.'

And guidelines, as observed in Dr. Ram Inani's case (supra), may be formulated to illustrate, even if not exhaustively. Such circumstances so as to operate as factors as well as fetters. This will impart fairness andreasonableness in operation and cooperation.

18. The petition is thus allowed as aboveleaving the parties to bear their own costs asincurred.