Holding

The High Court order was not a judgment in rem; the State must consider transfer applications in accordance with Section 28(5) of the U.P. Universities Act and Section 10(A) of the Dentist Act, applying the 13‑April‑1993 notification.

Summary

A group of B.D.S. students studying outside Uttar Pradesh filed writ petitions in the Allahabad High Court seeking transfer to the Dental Faculty of King George Medical College, Lucknow. The High Court Single Judge allowed the petitions and directed that all pending transfer applications be considered. The State Government later rejected some applications, leading to interim orders and multiple appeals. The State argued that the High Court order was a judgment in rem, that no right to transfer existed, and that the 13‑April‑1993 notification was prospective. The Supreme Court held that the High Court order was not a judgment in rem, that the State has authority under Section 28(5) of the U.P. Universities Act to regulate admissions, and that Section 10(A) of the Dentist Act (introduced by the 1993 Amendment Ordinance) imposes an embargo on increasing capacity without Central Government permission. Consequently, the transfer applications must be decided in light of the statutory provisions and the 13‑April‑1993 notification, and the Court directed the State to pass reasoned orders by 30 September 1994.

Issues considered

Whether the High Court judgment of 1 March 1993 constituted a judgment in rem binding on all pending transfer applications.
Whether students have a statutory right to transfer from one medical/dental college to another.
Whether the notification dated 13 April 1993 and the related rules are prospective or retrospective.
Whether Section 28(5) of the U.P. Universities Act empowers the State to regulate admissions, potentially with retrospective effect.
Effect of Section 10(A) of the Dentist Act (Amendment Ordinance 1993) on the admissibility of transfer applications.

Legislation cited

Dentist Act, 1948s. 10(A)
U.P. Universities Act, 1973s. 28(5)

Subjects

transfer of studentsadmission regulationjudgment in remretrospective notificationdental educationU.P. Universities ActDentist ActSupreme Court

Judgment

A STATE OF U.P; AND ANR.
v.
PRAVEEN KUMAR SHARMA AND ORS.

SEPTEMBER 9, 1994

B [M.N. VENKATACHALIAH, CT., AND S. MOHAN, J.J

U.P. Universities Act, 1973-S. 28 (5}-Dentist Act, 1948-Dentist
Amendment Ordinance 1993-Section 10 (A}-Rules contained in the Or-
dinance promulgated on 13.4.93-Rejection of Transfer applications-
C Directed to be considered in the light of the statutory provision read with the
Notification dated 13.4.93.

The Respondents were students of B.D.S. Course pursuing their
study outside the State of U.P. They filed writ petitions in the High Court
seeking-transfer to the Dental College at Lucknow. The Single Judge by
·a» his order dt. 1.3.93 allowed these writ petitions and directed the transfer
of the respondents and for considering the applications for transfer which
were pending at that time.

Though his application for fourth year of B.D.S. was not pending,
E yet one of the respondents applied for transfer for the fourth year of the
study. Therefore his request for transfer to fourth year B.D.S. at Lucknow
was rejected by the State Government.

Aggrieved by the same, he filed writ petition and an interim order
was passed by the High Court permitting him to pursue his study in
.· F Lucknow. The State preferred a writ appeal against the order of Single
Judge. Meanwhile writ petitions were dismissed. Against this order ap-
peals were filed by the students and the Division Bench directed that the
student who was permitted to pursue his studies at Lucknow could con-
tinue as a bonafide student. As far as other students were concerned, it
G was held that they will be given admission after their cases were considered
by the State Government. Against this order S.L.P. has been filed by the
State. The other appeal is against order of Single Judge directing the State
to admit the appellant to the Third year course of BDS at Lucknow.

The State contended that the judgment of Single Judge was a judg-
H ment in rem and writ petitions were not filed in representative capacity;
346
STATE v. P.K. SHARMA 347

that there was no right to seek transfer from one Medical College to A
another. The finding of High Court that the Rules promulgated on 13.4.93
were prospective in nature was also challenged. The Respondents con-
tended that the order of the High Court directing consideration of the
claims for transfer, that order having.become final, the transfer ought to
have been considered, a,nd that right cannot be defeated.
B
Disposing of the Appeals, this Court

HELD : 1.1 It s totally unnecessary to go into the question whether
the Notification dated 13.4.93 is retrospective in its operation. Regulations
made in this regard have effect more so in the absence of any Regulation C
made by the Dental Council. The State Government has the power under
Section 28 (5) of the U.P. Universities Act to regulate admission in
medical institutions by issue of orders. The judgment dated 1.3.93 directed
consideration of applications for transfer in not only the cases of writ
petitioners before the Court but also other pending applications. Undoub- D
tedly, this was not a judgment in rem. The writ petitions were not filed in
any representative capacity. There were also orders by the High Court
directing consideration of applications for transfer in the light of .the
statutory provisions, especially Section lO(A) which came to be introduced
in the Dentist Act, 1948 under Dentist Amendment Ordinance 1993. That
section imposes a complete embargo that no institution could increase itS E
capacity in any course of study and training except with the previous
permission of the Central Government. [352-E-G]

1.2 The representation of candidates seeking transfer came to be
rejected on 15.4.93. By that time, the Notification dated 13.4.93 had come F
into force. Another representation came to be decided on 3.5.93. By then
the Dentist (Amendment) Ordinance, 1993 had come into force introduc-
ing Section lO(A). Therefore, the application for transfer will have to be
considered in the light of the Statutory provisions read with the Notifica-
tion dt. 13.4.93. [352-H, 353-A]
G
CIVIL APPELLA,TE JURISDICTION : Civil Appeal No. 6078 of
1994.

From the Judgment and Order dated 13.4.94 of the Allahabad High
Court in W.P. No. 780(M/S)/94. H
348 SUPREME COURT REPORTS (1994) SUPP. 3 S.C.R.

A With

Civil Appeal Nos. 6079-80 of 1994.

From the Judgment and Order dated 10.1.94 of the Allahabad High
Court in S.A. No. 22/93, 27 and 30 of 1993.
B
Gaurav Banerjee and R.B. Sharma for the Appellants.

Sushil Kumar and R.P. Wadhwani for the Respondents.

The Judgment of the Court was delivered by
c MOHAN, J. Leave granted..

The first appellant is the State Uttar Pradesh. It issued an Order No.
2683/Section-14/Five-4/84 dated 13.4.1993 in exercise of the power under
Sub-section (5) of Section 28 of the U.P. Universities Act, 1973 (hereinclfter
D referred to as 'the Act'). By this order, the Government laid down the
policy and procedure to be followed in cases of migration or transfer of
students studying in Bachelor of Dental Surgery Course (B.D.S. in short)
to and from Dental Faculty of the King George Medical College, Lucknow.
The same is as follows : -
E "{1) Migration or transfer shall be allowed only within three
months of passing the first professional examination.

(2) During any one year a maximum, of five percent students
of the intake capacity of the Dental Faculty of the King George's
Medical College, Lucknow may be allowed to migrate or transfer
F to and from an authority or institution subject to a maximum of
five students in such year: ·""

Provided that no seat shall be created in the Dental Faculty of
the King George's Medical College, Lucknow as a result of migra-
G tion or transfer.

{3) Migration or transfer under paragraph {2) shall be allowed in
the following order:

(a) Students selected through All India. entrance examinations
H for admission to under-graduate medical/dental course conducted
STATE v. P.KSHARMA[MOHAN,J.] 349

by Central Board of Secondary Education and studying in any A
authority or institution outside the State of Uttar Pradesh.

(b) Student selected through competitive examination and

.... studying in any university or institution outside the State of Uttar
Pradesh.
B
(c) B.D.S. students other than those specified in sub-para-
graphs (a) and (b) studying in any authority or institution outside
the State of Uttar Pradesh.

· (4) Application for migration or transfer shall be made in
writing addressed to the Director, Medical Education and training, C
Uttar Pradesh, Lucknow through the principal of the concerned
authority or Institution.

J (5) Subject to the policy and guidelines laid down in paragraphs
(1), (2) and (b), the Director, Medical Education and Training, D
Uttar Pradesh, Lucknow shall decide the applications for migra-
tion or transfer strictly on merit to be determined on the basis of
marks obtained in the first professional examination. The decision
of the director, shall be final and binding.

Explanation - In this order the expression "or Institution" means E
an authority or Institution in India, the dental qualifications
granted by which are included in Part I of the Schedule to the
Dentists Act, 1948.

By Order,
F
Atul Chaturvedi,
Secretary, Medical Education."

The respondents are students of B.D.S. Course pursuing their study
outside the State of U .P. Praveen Kumar Sharma is a student of Budha
Institute of Dental Science and Hospital, Gandhi Nagar, Kauberbagh, G
Patna. That College is recognised by the Dental Council of India. The other
respondents Manoj Kumar Srivastava, Ajay Gupta, Rachana Batra, Sat-
vinder Singh Kalra and Rajat Mehrotra are students of Budha Institute of
Dental Science and Hospital, Patna which is also a recognised college.
Vijay Pandey is a student of Ramarao Adik Educational Societies, Dental H
350 SUPREME COURT REPORTS [1994) SUPP. 3 S.C.R.

A ·Narul, New Bombay. Sharat Chandra Pandey is a student of College of
Dental Surgery Manipal. Sharat Chandra Pandey applied for transfer from
the Dental college Manipal to Dental Faculty of King George Medical
College, Lucknow, in the third year course of the B.D.S. on November 12,
1993. That transfer was not order. As a result, Sharad Chandra Pandey
B continued his study at Manipal, completed his third year and went to the .....
fourth year of study.

The other resi)ondents barring Sharad Chandra Pandey filed six writ
petitions in the High Court at Lucknow Bench seeking transfer to the
Dental College at Lucknow. The learned Single Judge by his order dated
. C 1.3.1993 allowed those writ petitions directed the transfer of the petitioners
as also those whose application for transfer which were pending at that
time, they were directed to be considered for transfer to the Dental Faculty
of King George MediCal College, Lucknow.

D. Sharad Chandradin~andey thoughli dhi~ applica!ion forthfo~ththyear classf
of B.D.S. was not pen g, yet app e 1or trans1er to e 1our year o
study. In April, 1993, the results of third year B.D.S. at Lucknow was
declared. The next sessions for the fourth year B.D.S. commenced in May,
1993. Therefore, the request of Sharad Chandra Pandey for transfer to
fourth year B.D.S. at Lucknow was rejected by the State Government.
E Aggrieved by the same, he filed W.P. 970 (M/S.) 93. It was contended by
reason of judgment of the High Court dated 1.3.1993, the claims of the
students for transfer were bound to be considered and failure to do so
was bad. An interim order was passed in W.P. 970/93 permitting Sharad
Chandra Pandey for pursuing his study in Lucknow.
F
In the meanwhile, the State preferred a writ appeal against the order
dated 1.3.1993. The writ petition filed by Sharad Chandra Pandey and other
students praying for consideration of claims for transfer in the light of
judgment dated 1.3.1993 was dismissed ·by a learned Single Judge on
5.10.93. Against this order, appeals were preferred by Sharad Chandra
G Pandey and other students. By an order dated 10.1.1994, it was directed
...._ · that Sharad Chandra Pandey should continue his study as bonafide student.
As far as other students were concerned, it was held that they will be given
admission after their c~ses were considered by the State Government. This
was in Special Appeal No. 22/93, 27/93 and 30/93. Against this order dated
H 10.1.1994, present S.L.P. (C) No ....../94 (CC No. I
25475) has been filed.
STATE v. P.K.SHARMA[MOHAN,J.J 351

Respondent Parveen Kumar Sharma filed a separate writ petition A
No. 780(M/S) of 1994 in the High Court. By order dated 13.4.1994, learned
Single Judge of High Court directed the appellant to admit the respondent
Parveen Kumar Sharma to the third year course of Bachelor of Dental
Surgery in' the faculty of Dental Sciences, King George's Medical College,
Lucknow within a period of two days from the date of service of a certified B
copy of the said judgment. .It was further directed that he shall pay Rs.
1000 to the respondent. S.L.P. (C) No. '9239;94 has been filed against the
order dated 13.4.1994.

It is submitted on behalf of the State that :
c
(i) the High Court erred in considering as though the judgment dated
1.3.1993 passed by the learned Single Judge was a judgment in rem. The
writ petitions were not filed in representative capacity.

(ii) There is no right to seek transfer from one Medical College to
another. Merely because Sharad Chandra Pandey and other students ap- D
plied for transfer, they were not entitled to traru:fer to B.D.S. Cour8e.
There was no equity in favour of the students because admittedly they
failed to secure admission in B.D.S. Course at Lucknow through the
competition.
E
(iii) The finding of the High Court that the Rules promulgated
13.4.1993 were prospective in nature and did not govern the case of Sharad
Chandra Pandey and others is wrong, Though Judgments of this Court
were cited to hold against this proposition, they were not properly con-
sidered by the High Court. The High Court failed to note that the Regula-
tions made by the Medical Council of India were not made after ci>nsulting F
the State Government and as such they were not enforceable.

(iv) In the case of Sharad Chandra Pandey, the grant of interim order
was not warranted. It ran counter to the ruling of this Co'urt.

The learned counsel for the respondent would urged that the State G
has been consistently and continuously disobeying the orders of the High
Court. lnspite of the clear direction to consider the cases of transfer on
merits. Some technical objections or other were raised so as deny the just
claims of the respondents. Once, there is an order of the High Court on
1.3.1993 directing consideration of the claims for transfer, that order having H
•
352 SUPREMECOURTREPORTS [1994)SUPP.3S.C.R.

A become final, the transfers ought to have been considered. That order
vested the respondents with right; that right cannot be defeated; thus no
exception could be taken to the impugned judgment.

On a careful consideration of the above arguments and impugned
judgment, we are clearly of the view that it is totally unnecessary to go into
B the question whether the Notification dated 13.4.1993 is retrospecti:ve in its
operation. Section 28(5) of the Act reads as follows:

"Notwithstanding contained in any other provision of this Act,
admission to medical and engineering college and to course of
c instruction for degrees in education or Ayurvedic and Unani
System of Medicine (including the number of students to be
admitted), shall be regulated by such order (which if necessary
may be with retrospective effect, but not effective prior to January
1, 1979) as the State Government may be notification, make in that
behalf:
D
Provided that no order regulating admission under this sub-
section shall be inconsistent with the rights of minorities in the ,
matter of establishing and administering educational institutions of
their choice."

E Therefore, any regulation made in this regard could have effect more
so in the absence of any Regulation made by the Dental Council. The State
Government has the power under Section 28(5) of the Act to regulate
admission in medical institutions by issue of orders. The Judgment dated
1.3.1993 directed consideration of applications for transfer in not only the
F cases of writ petitioners before the Court but also other pending applica-
tions. Undoubtedly, this was not a judgment in rem. The writ petitions were
not filed in any representative capacity. There were also orders by the High
Court directing consideration of applications for transfer in the light of the
statutory provisions. The statutory provision which is relevant at this stage
G is Section lO(A) which came to be introduced in the Dentist Act, 1948
under Dentist Amendment Ordinance 1993. That Section imposes a com-
plete embargo that no institution could increase its capacity in any course
of study and training except with the previous ·permission of the Central
Government. The representation of candidate seeking transfer came to be
rejected on 15.4.1993. By that time, "the Notification dated 13.4.1993 had
·H come into force.· Another representation came to be decided on 3.5.1993.
STATE v. P.K.SHARMA[MOHAN,J.) 353

By then the Dentist (Amendment) Ordinance, 1993 had come into force A
introducing Section 10-A, noted above. Therefore, the applications for
transfer will have to be considered in the light of this statutory provision
read with the Notification dated 13.4.1993. In this view, we are unable to
•
uphold that judgment of the Division Bench.

. Accordingly, a direction be issued that the cases of respondents for B

-
transfer shall be considered in the light of the Notification dated 13.4.1993
on or before 30.9.1994 by passing reasoned orders. The Civil Appeal is
ordered in the above terms. However, there shall be no order as to costs.

G.N. Appeals disposed of.