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Judgment
Rekha Palli, J
W.P.(C) 1458/2022 & & CM APPL. 4221/2022 (Interim Relief)
The petitioner no.1, a medical institute, alongwith the its trustee petitioner no.2, has approached this Court assailing the communications dated
15.11.2021 and 30.11.2021 issued by the Medical Assessment and Rating Board (‘the Assessment Board’) of the respondent no.2/National
Medical Commission(‘NMC’), rejecting the petitioners’ application seeking permission to increase the intake of students in the MBBS
course for the academic session 2021-22 from 150 to 250. The petitioners also assail the decision dated 20.01.2022 of the respondent no.2’s First
Appellate Committee (‘the Appellate Committee’), whereby its appeal under the National Medical Commission Act, 2019 (‘the NMC
Act’) against the impugned letters, has been rejected.
The petitioner no.1 Institute is a constituent of Bharath Institute of Higher Education and Research, a deemed to be university under Section 3 of
the UGC. Based upon an Essentiality Certificate issued by the Government of Pondicherry, the petitioner no.1 was granted approval and
consequently, set up the institute which was being granted renewals from time to time.
The petitioner no.1 Institute made an application on 12.11.2020 before the respondents seeking to increase the intake of students in the MBBS
course from 150 to 250 students per year under section 26(1)(b) & 28(1)(2) of the NMC Act, 2019 for the academic year 2021-22. Upon receiving
the application, the Assessment Board of the respondent no.2 sought certain documents from the petitioner no. 1, which were duly submitted on
26.05.2021.
However, the Assessment Board of the respondent no.2/NMC failed to process the petitioners’ application and vide letter dated 27.08.2021
informed the petitioners that due to the constraints of sending the assessors to physically inspect the colleges in view of the Covid-19 pandemic, the
respondent No. 2 had taken a decision to carry forward the application for the next academic year i.e., 2022-2023. Aggrieved by the said decision, the
petitioners approached the Madras High Court by way of Writ Petition No. 19005 of 2021, which rejected the writ petition on 16.09.2021 as it did not
find any arbitrariness in the respondent no.2’s decision to not process any application for increasing the intake during the covid-19 pandemic.
However, soon thereafter the petitioner was informed by the respondent no.2 that the Institute will be inspected, and accordingly an inspection of
the faculty and infrastructure at the petitioner Institute was conducted on 08.10.2021 and 09.10.2021, wherein the inspection committee concluded that
the respondent no.1 Institute had adequate clinical material and infrastructure as per the NMC norms. Despite this assessment report, the respondent
no.2, issued the impugned letter dated 15.11.2021 by referring to the order passed by the Madras High Court in W.P.(MD) 17263/2020 on 30.07.2021.
Aggrieved by the same, the petitioner made a representation dated 22.11.2021 to the NMC, whereafter another inspection of the petitioner no.1
Institute was carried out on 26.11.2021 and 27.11.2021, wherein again no deficiency was found. However, despite the said inspection’s finding
that the petitioner was fulfilling all the applicable norms for increasing the strength of intake for students in the MBBS course from 150-250, the
Assessment Board of the respondent no.2 issued yet another letter of disapproval on 30.12.2021.
The petitioners challenged both the letters of disapprovals by way of an appeal under section 28(3) and 28(5) of the NMC Act, before the National
Medical Commission on 03.01.2022, which appeal was rejected vide letter dated 20.01.2022, primarily on the ground that since the ratio of college vis-
à -vis population of Puducherry was only 90,000 per medical college and therefore, no approval could be granted for increase of 100 seats in the
petitioner Institute as the same would be like adding another new medical college in the region, and would therefore be contradictory to the decision
dated 30.07.2021 of the Madras High Court in W.P.(MD) 17263/2020. It is apposite to refer to the minutes of the First Appellate Committee held on
20.01.2022, the relevant extract whereof read as under:
“6. It was further informed that the neighboring state of Tamil Nadu, where some districts are mentioned in the Hon'ble Madras High
Court order, has one medical college for an average of one million (ten lakhs) population. As against this, Puducherry has one medical
college for just 90,000 populations. This is a tenfold variation between Puducherry and Tamil Nadu. Therefore, the Committee considered
giving attention to the Hon'ble Madras High Court observations. The substance of this judgment is related to more medical colleges for
higher population. This issue speaks by itself and hence the Committee considered rejecting the increase of 100 seats in the Sri Lakshmi
Narayana Institute of Medical Sciences, Puducherry. also observed that additional 100 seats is almost like adding another new medical
college to the region.
Accordingly, Chairman NMC expressed the decision of the First Appeal Committee that it would not be possible to grant permission of
enhancement of seats from 150 to 250. He also informed that the college, if they may so prefer, can approach Ministry of Health and
Family Welfare (MoHFW) to challenge the decision of First Appeal Committee within 30 days of issue of this decision by NMC as per
Section 28(6) of the NMC Act, 2019. Accordingly, the first appeal stands disposed of.â€
It is in these circumstances that the petitioners have approached this Court assailing the aforesaid impugned letters dated 15.11.2021 and
30.12.2021, as also the appellate order dated 20.01.2022.
Mr. Maninder Singh, learned senior counsel for the petitioner, at the outset, submits that it is an admitted case of the respondent that as per the two
successive inspections conducted at the petitioner Institute on 08.10.2021, 09.10.2021, as also on 26.11.2021 and 27.11.2021, its infrastructure and
faculty was found to be meeting the laid down criteria. He therefore contends that, the petitioners’ request for permission to increase the intake of
students in the MBBS course could not have been rejected merely on the basis of an order passed by the Madras High Court in a PIL where, the
Court was dealing with the issue of opening of new medical colleges. However, the petitioners’ case is not of opening a new medical college, but
only a case for increase of intake of students in the MBBS course from 150 to 250. He further contends that the respondent has, as recently as on
15.01.2022, granted permission to another medical institute being Sri Sathya Sai Medical College and Research Institute, to increase the intake of
students in MBBS from 150-250, and therefore, evidently, is acting in a discriminatory manner.
Mr. Maninder Singh further submits that the Appellate Committee of the respondent no.2 has not only brushed aside the petitioners’ plea about
it being fully compliant with the applicable norms and regulations and already having the necessary infrastructure to admit more students, but has also
failed to appreciate that the petitioner no.1, a recognised college for MBBSÂ course, is a part of a deemed university under the UGC Act, wherein
seat allocation is done exclusively by the Central government/respondent no.1 on an All India basis. He therefore submits that, no such embargo could
have been placed on the petitioner no.1 Institute, that too in the light of the Central Government’s own stand in the Parliament regarding its intent
of implementing measures to increase the medical infrastructure in the country, and the efforts being made by it to not only establish new medical
colleges in the under-served districts of the country, but to also enhance the capacity for intake of students in MBBS courses in Central and State
Government Medical Colleges from 150 to 250.
Mr. Maninder Singh further submits that the petitioners have been compelled to approach this Court as the five-member Appellate Committee
which passed the order dated 20.01.2022, included the president of Assessment Board itself, who had issued the impugned disapproval letters dated
15.11.2021 and 30.12.2021. He submits that in these circumstances relegating the petitioner to a second appeal is not only going to be a futile exercise
causing unnecessary delay, but even otherwise in the light of the admitted position that the petitioner Institute meets all the criteria required for
enhancement of seats from 150 to 250, no useful purpose will be served in relegating the petitioners to the said remedy.
Issue notice.
Mr. Ahluwalia and Mr. Singhdev accept notice on behalf of respondent nos. 1 & 2 respectively. While praying for time to file counter affidavit,
Mr. Singhdev vehemently urges that the present writ petition is not maintainable as the petitioner had already chosen to approach the Madras High
Court by assailing the respondent no.2/NMC’s order dated 27.08.2021, whereby it had decided to defer the petitioner’s request for
enhancement of seats from 150 to 250, which request was made on 12.11.2020. He therefore contends that once the Madras High Court had, in view
of the ongoing Covid-19 pandemic opined that, no direction for inspection of the purportedly enhanced infrastructure of the petitioner was warranted at
the time of issuing the order, the petitioner could not have subsequently approached this Court in respect of its request dated 12.11.2020. He further
submits that even otherwise, once the impugned orders are based on the decision dated 30.07.2021 of the Madras High Court in W.P.(MD) No.
17263/2020, the petitioner ought to have approached the same Court. In its aforesaid decision, the Madras High Court had observed that the State
government as well as the National Medical Commission should refrain from granting approval to any medical college in and around Chennai, or any
other city/union territory like Puducherry, which had already got enough medical colleges to serve its population. He thus, contends that, the
respondent no.2/NMC was justified in rejecting the petitioners’ request for enhancing the seats for intake of students in the MBBS course, as the
same would amount to opening a new medical college for 100 students.
Having considered the submissions of the learned counsel for the parties, I find absolutely no merit in the respondent no.2’s plea that the
present petition before this Court is not maintainable. Once it is the respondent no.2’s own case that after the rejection of the petitioner’s writ
petition by the Madras High Court, the said respondent proceeded to carry out inspection of the petitioner no.1’s enhanced infrastructure on more
than one occasion, and gave positive reports to the effect that the petitioner was meeting all the applicable criteria which made it eligible to increase its
intake capacity for MBBS course, the petitioner is totally justified in approaching this Court against the rejection of its request for increasing the seat
intake.
I have also perused the decision of the Madras High Court in W.P. (MD) 17263/2020 dated 30.07.2021, which is admittedly the only basis for the
respondent no.2’s action of rejecting the petitioners’ request, and I am inclined to agree with the petitioners that the observations made in the
said order pertained to opening of new medical colleges. The said order does not in any manner deal with the question of enhancement of seats in an
already established medical college, having the requisite infrastructure and faculty. In fact, it appears that the Division Bench of the Madras High
Court, being conscious of the difference between opening of a new college and that of increasing the number of seats from 150 to 250 in an existing
college, as envisaged under section 28 of the NMC Act, did not even make any observations in this regard.
I also find merit in the petitioner’s plea that the respondent no.2 is conscious of the said difference between opening of a new college and
increasing of the intake, as is evident from the order passed in the case of Sri Sathya Sai Medical College and Research Institute, Tamil Nadu, which
has been granted permission on 15.01.2022 to increase its seats from 150-250. It may be apposite to refer to the order dated 15.01.2022:
“I am ducted to inform you that the Appeal against the orders of MARB, NMC disapproving, for increase of MARS seats from 150 to 250
at Shri Satya Sai Medical College & Research Institue, Nellikappam, Tamil Nadu was heard at the Appeal Committee Meeting in NMC held
on 10.01.2022 wherein, you participated via online link. The Appeal Committee discussed on the issue and at was decided that NMC will
permit for enhancement of MBBS scats from 150 to 250 for the Academic Year 2021-22. In this regard, the MARB will issue the letter
shortly: Accordingly, the appeal stands disposed off. A copy of the approved minutes of the First Appeal Committee meeting is enclosed here
for information please
Encl: As above.
Yours Sincerely.
(Ashish Kumar Panda)
Under Secretary to the Govt ci Indiaâ€
In these circumstances, I am of the considered view that it is evident that the respondent no.2 has no other objection whatsoever to the
enhancement of the seats by the petitioner, except for the reliance placed on the order passed by the Madras High Court in W.P. (MD)17263/2020 on
30.07.2021, which order I find does not at all deal with the enhancement of seats in an existing medical college. I cannot lose sight of the fact that
India is a country short of doctors and it is the Central Government’s own stand that the capacity of medical college, wherever possible, ought to
be suitably increased. The world has been dealing with a severe shortage of healthcare providers while dealing with the covid-19 pandemic for the last
two years, and therefore grave and irreparable prejudice would be caused not only to the petitioners, but also to the general public and students, if the
petitioners are not permitted to increase the intake from 150-250 despite availability of infrastructure and faculty.
I am therefore of the view that at this interim stage itself where I find that the impugned orders are prima facie unsustainable, interest of justice
demands that the respondent no.2/National Medical Commission should reconsider the petitioners’ request. The application is, accordingly,
disposed of by directing the First Appellate Committee of respondent no.2 to reconsider the matter in the light of the observations made hereinabove,
and pass a fresh order within four days from today. In case appropriate orders are not passed by the respondent no.2 within the time so granted, the
respondent no.1 will then take it upon itself to pass an appropriate order so that these additional 100 seats can be included in the next round of
counselling, which is likely to commence in the first week of February itself.
W.P.(C) 1458/2022
Counter affidavit to the writ petition be filed in four weeks. Rejoinder thereto, if any, be filed within two weeks thereafter.
List on 30.03.2022.