Med students can seek course transfer in case of permanent disability: Bombay HC
The Nagpur bench of the Bombay high court recently upheld a rule laid down by the Directorate of Medical Education and Research (DMER) that allows medical students seek mid-course transfer from one college to another only if they acquires permanent disability of 40℅ or above.
The division bench of justice Sunil Shukre and justice Avinash Gharote was hearing petition filed by Manali Barde, a medical student pursuing MBBS course at Government Medical College at Akola who had sought transfer claiming that she suffered from allergic bronchitis with chronic bronchial asthma, of a moderate persistent nature, frequently leading to breathlessness, and was this highly susceptible to Covid-19.
She moved HC after her application for transfer to a medical college in Nagpur was rejected by the DMER on August 20, 2020, primarily on the ground that in terms of clause 13(a)(ii) of the DMER brochure, transfer of medical students from one college to another was permitted only if the student acquires permanent disability of 40% or above.
Barde then challenged validity of the clause. Her counsel, Dr. Uday Warunjikar, submitted that clause 13(a)(ii) was ultra vires the power of DMER or state, and was therefore required to be quashed and set aside.
Dr. Warunjikar pointed out that the clause was completely contrary to Medical Council of India (MCI) Regulations of December 2018, which allow mid-course transfer of medical students on “genuine grounds.” He asserted that it was impermissible for DMER to lay down the guidelines and specify specific conditions for migration of medical students.
“There cannot be any two views that the regulations framed by the MCI, being framed by virtue of the Statutory power under Section 33 of the Medical Council of India Act, 1956, have primacy, over any guidelines, which may be framed by the DMER and the State,” said the bench.
The bench, however, said under the MCI Regulations, state governments, universities and institutions have been authorised to frame guidelines for grant of no-objection certificate for migration, and the MCI regulations do not define or clarify what “genuine ground” would mean.
The court said in absence of defining the expression “genuine ground” by the MCI in its regulations, it would be open and permissible, for the DMER or the state to lay down guidelines, defining the parameters of the expression “genuine ground.”
The bench also ratified the DMER brochure, saying “the requirement of 40℅ or above permanent disability, so as to be considered as a genuine ground is based upon Section 2(Zc) of the Rights of Persons with Disabilities Act, 2016 and the schedule as appended thereunder, and thus has a statutory backing to it.”
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