MOHAMMAD IRFAN KADAR Vs. GOA UNIVERSITY

JUDGEMENT

(1.) THE challenge in this petition is to the communication dated 7th April, 1993 (Exh. G) whereby the respondent No. 1 Goa University, has conveyed to the petitioner its refusal to grant him eligibility certificate to join the second M. B. B. S. Course of the University. The case of the petitioner is that in pursuance of the General Cultural Scholarship Scheme 1985-86 the Government of India admitted the petitioner to the First M. B. B. S. Course at the Kottayam Medical College, Kerala. The petitioner got his admission in Kottayam Medical College from 4th November, 1985. However, for several reasons due to change in habitat and climate the petitioner fell ill and on 12th May, 1991 the petitioners father who was residing at Transvaal, South Africa, expired due to stomach cancer, other financial constrains the petitioner found a lot of difficulty in passing the First M. B. B. S. Examination which he ultimately answered successfully only in February, 1992. The petitioner has a brother also who has got admission in M. B. B. S. Course in the Goa Medical College and in view of the fact that he was not keeping good health in Kerala and wanted to be in the company of his brother he applied to respondent No. 2 by his application dated 20th May, 1992 for permission to migrate to Goa Medical College, Bambolim. For that purpose the petitioner obtained No Objection Certificates from the Vice Principal, Kottayam Medical College, Kerala, Mahatma Gandhi University, Kottayam, Kerala, The Dean, Goa Medical College and also from the State Government who have also agreed to the petitioners admission in the Goa Medical College. The Medical Council of India also by its communication dated 30th September, 1992 informed the Dean, Goa Medical College, that issue of migration of the petitioner had been duly considered and the council had no objection for permitting the said migration. However, insofar as the issue of eligibility certificate from Goa Medical College, the respondent No. 1 refused to issue the same. The petitioner states that the said communication dated 17th February, 1993 refers to some rules which were however not disclosed by respondent No. 1 in the impugned communication. Consequent upon the refusal of respondent No. 1 to grant the eligibility certificate the petitioner made a representation to the Medical Council of India, respondent No. 4 and by letter dated 16th March, 1993 the respondent No. 4 communicated to the respondent No. 1 that the Executive Committee of the Medical Council had approved the decision taken by the Migration Sub-Committee concerning the migration of the petitioner. Thereupon, the respondent No. 1 addressed communication to respondent No. 4 dated 7th April, 1993 giving reason for the refusal of respondent No. 1s grant of eligibility certificate. It was stated in the communication that in terms of the Goa University Regulations approved by the Academic Council on the basis of the recommendations of the Medical Council of India students who have failed to pass the First M. B. B. S. Examination in four chances within a period of three years were held to be eligible to pursue further M. B. B. S. Course of the University. It was also stated in that communication as per the Association of the Indian University (A. I. U.), New Delhi, examinations of one University can be recognized by another University on reciprocal basis provided entrance qualifications, duration of the Course and standard of attainment were similar. It was sought to be said in the communication that the entrance qualification for IInd, M. B. B. S. Course of Mahatma Gandhi University was not similar to that of Goa University. Therefore, the First M. B. B. S. Examination of the Mahatma Gandhi University could not be recognized by this University on reciprocal basis. Therefore, the petitioner could not be held eligible to join the IInd, M. B. B. S. Course at the Goa Medical College affiliated to the Goa University. After the receipt of the refusal letter from respondent No. 1 the petitioner addressed several representations to the Vice Chancellor and to the Visitor of the University but also without success. It was further stated that the impugned communication dated 7th April, 1993 refers to certain Rules and Regulations of which the petitioner is not aware and therefore, the petitioner by his letter dated 12th August, 1993 addressed to respondent No. 1 requested the Goa University to divulge details regarding such Rules and Regulations. It was further the case of the petitioner that prior to the establishment of the Goa University the students of the Goa Medical College were affiliated to the Bombay University and that the respondent No. 1 has adopted a Resolution according to which the Rules and Regulations framed by Bombay University would continue to be followed until competent Rules and Regulations were framed by the Goa University. The petitioner stated that to the best of his knowledge the Goa University has not framed any Rules and Regulations to the effect that students who had failed to pass the First M. B. B. S. Examination in four attempts during the period of three years have become ineligible to continue further M. B. B. S. Course. The petitioner also stated that his younger brother Mohammed Imran Kader who is also a student of the Goa Medical College had a similar problem and the Goa University permitted him to pursue further studies on the ground that the existing ordinance of the Bombay University which was being followed permitted the continuation of its students in the Goa Medical College. According to the petitioner another reason cited by respondent No. 1 to refuse the non-eligibility certificate is that as per the Association of Indian University (A. I. U.) examination of one University can be recognized by other Universities on reciprocal basis provided entrance qualification, duration of the course and standards of attainment are similar. The petitioner stated that the reason was untenable more so when in Writ Petition No. 478/93 which is pending before this Court and which concerned the recognition of degrees awarded by Annamalai University respondent No. 1 has specifically acknowledged that the degrees offered by Mahatma Gandhi University, Kerala, were recognized by the Goa University. It was further stated that the degrees awarded by the said Mahatma Gandhi University Kerala are also recognized by the University Grants Commission and the medical qualifications awarded by the Kottayam Medical College, which is affiliated to the Mahatma Gandhi University, are also recognized by the Medical Council of India. It was stated that since any degree issued by the Mahatma Gandhi University is recognized by the respondent No. 1 the said respondent cannot sort out the issue of recognition on case-to-case basis, but instead they have to do it on University-to-University basis. Therefore once the qualification issued by one University is recognized by the Goa University, it is impermissible for the Goa University to go into the question of individual circumstances in which the degree might have been obtained. The petitioner therefore prayed that under Article 226 of the Constitution this Court should issue a writ of certiorari and quash and set aside the Communication dated 7th April, 1992. A further prayer was sought by another writ of mandamus directing respondent No. 1 to issue eligibility certificate to the petitioner and permit his migration from Kottayam Medical College, Kerala to Goa Medical College, Bambolim.

(2.) ON behalf of the respondent No. 1 an affidavit was filed by the Assistant Registrar of respondent No. 1, Mr. U. V. K. Shankwalkar, wherein it was stated that the Medical Council has decided that no students shall be permitted to joint Phase II of the M. B. B. S. Course unless he had cleared Phase I that is to say the First M. B. B. S. Course within three years and with not more than four chances. The said decision was adopted by the Goa University and therefore the petitioner is not eligible to join the IInd M. B. B. S. Course with the Goa University. It was also disputed that the First M. B. B. S. Examination passed by the petitioner was not equivalent to the First M. B. B. S. Course in Goa University. On the question of the petitioners brothers admission it was stated that the admission was regularised on the basis of the rules formulated by the University of Bombay which were governing prior to the establishment of the Goa University. It was stated that the petitioners brother Mohammed got admission to the Goa Medical College in the year 1985 prior to the establishment of the University and his examinations were conducted as per the Rules of University of Bombay. It was also stated that the Goa University did not grant recognition of the First Year M. B. B. S. degree examination conducted by the Mahatma Gandhi University in respect of students who had passed after more than four attempts beyond three years. It was stated that the Rule referred to was applied to all the students and those who did not satisfy the requirements were not allowed admission in the IInd M. B. B. S. Course.

(3.) MR. Sonak, learned Counsel for the petitioner, has made a grievance to the effect that the refusal on the part of respondent No. 1 to grant eligibility certificate is unreasonable, unjustified and arbitrary. It was firstly submitted by the learned Counsel that the medical qualifications granted by a University duly established by a statute in India which has been recognized by the Indian Medical Council, should be regarded and accepted as valid throughout the country once the said University was included in Schedule of the Medical Council Act. It was also urged that there was no rule or regulation framed by the Goa University requiring a student to pass his First M. B. B. S. examination in a maximum of four attempts within 3 years. But assuming however that any resolution to that effect exists the same could not be applied unless the resolution was incorporated in a rule or regulation or ordinance in the statute. Further such resolution could not be given effect to unless it was published. It was contended by the learned Counsel that respondent No. 1 inspite of petitioners request has not been able to disclose the existence of rule or regulation in this respect. According to the learned Counsel, respondent No. 1 has expressly recognised the degrees awarded by the Mahatma Gandhi University to which the Medical College of Kottayam is affiliated. It must be assumed that this recognition was based on the fact that the entrance qualification and standards of students in that University were similar to the ones prescribed and recognised by the Goa University. The learned Counsel further submitted that the petitioner has complied with all the recommendations prescribed by the Medical Council of India concerning examinations from one College to another and in this respect the necessary no objection certificates had been secured from the competent authorities. Thus, the action of respondent No. 1 in refusing to grant eligibility certificate to the petitioner was arbitrary and cannot be sustained. Besides, the medical degree issued by the Kottayam Medical College was recognized by the Indian Medical Council. It was also submitted that the recognition always concerns to degree awarded by the University and once this has been done it was not permissible for respondent No. 1 to raise the issue on the manner in which the said degree was obtained.