NMC Act does not allow Appellate Authority to perform as MARB and reduce seats in a medical college: High Court

Such an observation was made by the division bench comprising of Justices Sujoy Paul and Dwarka Dhish Bansal while set aside the orders of the First Appellate Authority which had reduced the seats for MS Orthopedics from 07 to 05 in a medical college in Bhopal.

Observing that MARB was the competent authority for taking such decisions, the bench noted, "The Appellate Authority could have exercised its power under sub-section (5), if scheme was either disapproved or no decision was taken by MARB whereas in the present case MARB has already taken a decision to enhance the seats from 01 to 07."

The Bhopal based People's College of Medical Sciences and Research Center had applied for an enhancement of seats in M.S Orthopedics Course from 01 to 09. As per Section 26 of the NMC Act, the Statutory Authority i.e. MARB by communication dated 29.10.2021 (Annexure P/1) approved seats from 01 to 07 for academic year 2021-2022.

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Thus, petitioner got approval of seven seats against his prayer of nine seats. Aggrieved, petitioner preferred first appeal before the Appellate Authority, which decided to reduce the seats from 07 to 05. Therefore, the MARB issued orders on February 2 and 9 and reduced the seats from 07 to 05.

Challenging the decision, the college approached the High Court and filed the petition under Article 226 of the Constitution. Further, the plea had also questioned the orders passed by the Medical Assessment and Rating Board (MARB) of NMC in compliance of minutes dated 28.01.2022 to 02.02.2022 and 09.02.2022.

The counsel for the college assailed the decision mainly on two grounds. The college's counsel contended that the appellate power given in the NMC Act does not authorize the Appellate Authority to reduce the seats from 07 to 05. The Appellate Authority was obliged to examine the decision of MARB to the extent it was called in question by the petitioner and not beyond it.

Second, the counsel argued that MARB was the competent authority for taking a decision regarding the allotment of seats and approval of schemes. So, the Appellate Authority lacked authority, jurisdiction, and competence for taking such a decision regarding this aspect, it had been contended on the behalf of the petitioner college.

On the other hand, the counsel appearing for NMC supported the minutes and consequential orders as it contended that even though MARB was the competent authority according to Section 28 of the NMC Act, it cannot be forgotten that the Appellate Authority can exercise all such powers which an original authority can exercise.

After taking note of the contentions made by both the parties, the High Court bench perused the relevant statutory provisions of the NMC Act and noted, "A careful reading of Section 26 makes it clear that statute recognizes MARB as the competent statutory authority for the purpose of certain functions which are enumerated in different clauses of the section 26."

Referring to the fact that the power of Appellate Authority can be traced from sub-section (5) & (6) of Section 28, the bench noted, "A bare perusal of sub-section (5) makes it clear that it begins with the expression 'Where a scheme is disapproved' or 'where no decision is taken'. In the instant case, as noticed above, the scheme was approved to the extent extending the seats from 01 to 07. The Appellate Authority could have exercised its power under sub-section (5), if scheme was either disapproved or no decision was taken by MARB whereas in the present case MARB has already taken a decision to enhance the seats from 01 to 07."

"The Appellate Authority has adopted a unique procedure which is unknown to law whereby the scheme already approved and seats already enhanced were directed to be reduced unilaterally. This runs contrary to the scheme and object of the Act. Apart from this, no enabling provision was brought to our notice which permits the Appellate Authority to travel beyond the prayer of appeal memo," further observed the bench.

"Putting it differently, when appeal was confined for enhancement of two seats, nothing was pointed out which enables the Appellate Authority to take away the benefit of enhancement of seats already granted by MARB. For this reason also, we are unable to countenance the impugned minutes of first Appellate Authority," the HC bench also mentioned at this outset.

Referring to the top court judgment in the case of Monohar Lal (Dead) by L.Rs. vs. Ugrasen (Dead) by L.Rs. And others, and the HC judgment in the case of Vishal D. Remeteke vs. State of M.P. and others, the bench noted, "In this view of the matter, we are unable to persuade ourselves with the line of argument of Shri Anup Nair that Appellate Authority could have exercised all such powers which were exercisable by the original statutory authority namely MARB."

Further noting that the language of the statute is "clear and unambiguous" the bench opined that it should be given effect to "irrespective of consequences" and held that, "Looking from any angle, we are unable to give stamp of approval to the minutes dated 28/01/2022 and further orders based thereupon issued on 02/02/2022 and 09/02/2022."

Thus setting aside the orders reducing the seats from 07 to 05, the bench further noted, "Needless to emphasize that the decision of enhancing the seats from 01 to 07 dated 29/10/2021 (Annexure P/1) is restored. The petitioner shall be entitled to reap all consequential benefits."

To read the High Court's order, click on the link below.