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Saturday 16 January 2021

Bombay HC suggests NMC frame guidelines explaining genuine grounds for MBBS Migration

Nagpur: The Nagpur bench of Bombay High court has recently held that medical students can seek transfer from one college to another only on ' Genuine ground' or in cases of serious disability. With this, the court has stated that as the MCI did not clarify the grounds, each state government, university, or institution should be entitled to frame guidelines for grant of NOC or migration.

The court has further suggested the erstwhile Medical Council of India, MCI (now National Medical Commission NMC) to frame guidelines explaining the 'genuine grounds' under which transfer could be granted to the medicos. 

This came after a medical student seeking a mid-course transfer of college due to chronic bronchial asthma condition approached the high court as DMER (Director of Medical Education And Research) rejected her request of migration stating that only students with a permanent disability of 40℅ or above will be entitled to seek a mid-course transfer. 

The petitioner is a student of MBBS course and is presently pursuing her studies in Government Medical College, Akola and she migration, from the Government Medical College (GMC), Akola to either of the Government Medical Colleges at Nagpur. The petitioner submitted that she is suffering from allergic bronchitis with chronic bronchial asthma, of a moderate persistent nature, frequently leading to breathlessness; she obtained medical certificates in that regard and stated that the illness was genuine. It was further stated that due to the Covid-19 pandemic, considering her high co-morbidity, she was highly susceptible, which was the reason, the transfer was sought.
But the request was turned down by the /DMER and it was stated that as per the MCI guidelines, DMER was unable to consider her application as the process was already complete and mid-course transfer can only be granted to students with 40% disability. Moreover, the student was also in her second year of the MBBS course and transfer is not permissible.
The basic grounds for contention by Dr. Uday Warunjikar, learned Counsel for the petitioner were that the brochure issued by the DMER was contrary to the MCI Regulations; there was no source of power to the State/DMER to frame regulations and the transfer, was to be considered on "genuine grounds" and the ground raised by the petitioner was a genuine ground.
The counsel for the petitioner submitted 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, the Regulations did not specify or require any such certification of permanent disability of 40% or above. He, therefore, submits that clause 13 (a) (ii) of the brochure issued by the DMER/State to that extent was ultra vires the power of the DMER/State, and was therefore required to be quashed and set aside.
Moreover, the petitioner added, there cannot be any two views that the Regulations framed by the MCI, being framed by the virtue of the Statutory power under Section 33 of the Medical Council of India Act, 1956, have primacy, over any guidelines, which maybe framed by the DMER and the State by use of the power and authority as conferred upon it by Note-1, Regulation 6 of MCI.
After considering the submissions, the court noticed that Regulation 6 of MCI relating to migration/transfer of the students stated, the transfer will be granted "on any genuine ground"," Migration during clinical course of study shall not be allowed on any ground ", "candidate shall first obtain 'No Objection Certificate' from the college where he is studying,", "The State Governments /Universities /Institutions may frame appropriate guidelines for grant of No Objection Certificate or migration"," to the students subject to provisions of these regulations.Illness of candidate causing permanent disability shall be considered as genuine ground. To be eligible under this ground, the candidate should submit illness/medical certificate stating that the illness has caused Permanent Disability of 40% or above."
The court observed that
in the absence of defining the expression "genuine ground", by the MCI, in its Regulations, it would become open and permissible, for the DMER/State to frame and lay down guidelines, defining the parameters of the expression "genuine ground".
The court took note of the following factors: The window within which the application for migration/transfer was to be submitted, as published was between 22/1/2020 to 7/2/2020, which came to be extended till 9/2/2020 and the petitioner did not apply within the above period which would make it ineligible for consideration, that too when the entire process of migration. That apart, the four 'No objection Certificates', as were required by Regulation 6(4) of MCI, which were to be obtained from the Special Medical Referral Board, authorised for issuing the disability certificate, but it was also not obtained nor were available with the petitioner. The Medical certificates as filed on record by the petitioner were issued by Private Medical Practitioners and not by the Special Medical Referral Board, authorized for issuing the disability certificate. 
Clarifying that the pandemic situation can not be considered as a ground for granting mid-course transfer, the court further added,
that neither the Regulations as framed by MCI nor the guidelines framed by the DMER/State, as indicated in the brochure, grant any authority or power to the respondents to make any exception to what is stated in clause (4) of Regulation 6 of the MCI and therefore, no exception can be made out for the petitioner.
Moreover, the court also mentioned that MCI Regulation 6, expressly mandates that migration during clinical course of study, transfer shall not be allowed on any ground but petitioner admittedly has completed her First MBBS in May 2019 and has since thereafter embarked upon her Second MBBS, which includes clinical study. The court stated,
"the reason given by the petitioner, seeking migration, falls within the expression "genuine grounds" or not, is clearly rendered otiose. The writ petition therefore is clearly without any merits and is dismissed accordingly."
Suggesting that MCI (now NMC) should frame guidelines for grant of NOC or migration, subject to the provisions of the Regulations, the court further added,
each State Government/University/Institution, would be entitled to frame guidelines for grant of NOC or migration, subject to the provisions of the Regulations. This would automatically lead to different guidelines, being framed by different State Governments/Universities/Institutions, thereby leading to lack of uniformity in the policy of migration. It would thus be proper, if the MCI defines and sets the parameters or criteria of the expression "genuine grounds" as occurring in MCI Regulation 6 (1), so as to have a uniformity for its application throughout the country, which would not only avoid contrary meanings, but would also save the students from the vagaries of litigation and the time spent, due to pursuing them, which could be beneficially spent in the pursuit of the profession for which they are preparing themselves. We hope that appropriate steps would be taken in this regard by the MCI as soon as possible.

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