NMC Fee Order for 50 percent Private Medical College Seats not Applicable in Kerala: High Court

Published On 2022-09-02 06:06 GMT   |   Update On 2022-09-02 06:06 GMT

Ernakulam: Amid the ongoing litigations and court proceedings over the National Medical Commission (NMC) Fee Order, the Kerala High Court has recently held that the order directing the private institutes charging fees at par with the government medical colleges for the 50% of the total seats would not be applicable in Kerala. The High Court bench comprising of Justice Devan...

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Ernakulam: Amid the ongoing litigations and court proceedings over the National Medical Commission (NMC) Fee Order, the Kerala High Court has recently held that the order directing the private institutes charging fees at par with the government medical colleges for the 50% of the total seats would not be applicable in Kerala. 

The High Court bench comprising of Justice Devan Ramachandran expressed such an opinion as it took note of the fact that after the implementation of Kerala Medical Education (Regulation and Control of Admission to Private Medical Educational Institutions) Act, 2017 there is no longer 'Government Quota' and 'Management Quota' seats in the Private medical institutes.

Apart from this, the bench observed that after the 2017 Act, an Admission and Fee Regulatory Committee (AFRC) fixes the fees in the private medical institutes of the State and as far as students in the private Medical Colleges are concerned; all the students to such institutions are allotted by the Commissioner for Entrance Examinations of the Government of Kerala, through a common Entrance Examination and Counselling process.

Therefore, the bench opined that the NMC Fee Order that was intended for a Pan-India operation, may be valid for States or Union Territories where quotas for "Government" and the "Management" are still in vogue

The High Court bench also expressed its concern over the cross-subsidisation of seats and burdening one section of students at the cost of another and opined that implementing the NMC fee order in Kerala would be highly iniquitous.

Referring to the concerned Official Memorandum of NMC, the bench observed, "If the "OM" is directed to be enforced in such manner, it will indubitably lead to a piquant predicament where the fees for the balance 50% seats in the said colleges will have to be escalated because, otherwise, the institutions cannot sustain, especially since, even as on today, the AFRC is fixing the minimum requisite fee for all students taking into account infrastructural investments, future prospects and such other criteria as are statutorily mandated, but ensuring that there is absolutely no leeway for profiteering in any manner."

"Ironically, viewed from the correct perspective, the implementation of the afore mandate of the "OM" would be highly iniquitous in Kerala, because it expects the benefits of subsidisation to flow to the students in the "Government quota", presumably under the often presumed impression that such students are more meritorious; but on our State there is no such quota and every student allotted to a Private Institution or Deemed University is "on par" with those allotted to the Government Colleges and all such allotments are made by the Commissioner of Entrance Examinations alone. Hence it would also be an impossibility in our state to enforce the "OM" to the aforementioned extent since all students in the Colleges and Deemed Universities are identically placed, it being even if possible - being arbitrary and discriminatory," it further added.

The High Court was considering a batch of writ petitions Associations/Federations of Managements of Self Financing Private Medical Colleges in Kerala challenging the NMC Memorandum mentioning the fee order. Another petition was filed by a student who sought the implementation of the concerned order.

Medical Dialogues had earlier reported that complaining about the NMC Fee order for the 50% seats in the private medical colleges, the institutes and deemed to be universities had approached the Madras High Court.

In the concerned Fee order issues back in February 2022, NMC the Apex Medical Body had clarified that the fees of 50 per cent seats in the private medical colleges would be at par with government medical colleges of that particular State/UT.

"After extensive consultations, it has been decided that the fee of the 50 per cent seats in the private medical colleges and deemed universities should be at par with the fee in the government medical colleges of that particular State and UT. The benefit of this fee structure would be first made available to those candidates who have availed government quota seats, but are limited to the extent of 50 per cent of the total sanctioned strength of the respective medical college/deemed university," NMC had mentioned in the notification.

"However, if the government quota seats are less than 50 per cent of total sanctioned seats, the remaining candidates would avail the benefit of a fee equivalent to the government medical college fees, based purely on the merit," NMC had added.

While the proposal sounds promising to the medical aspirants, who choose to leave India and move abroad for cheaper medical education, such a rule fails to take into consideration the plights if the private medical college managements who pay lakhs and crores of money to set up the infrastructure.

Therefore, upset with the NMC order, the management of private medical college had urged the Union Health Ministry to direct NMC for withdrawing the diktat. The Apex medical body, however, did not withdraw its decision and consequently, the private medical colleges and deemed to be universities approached High Courts seeking relief. In this regard a case is still pending before the Madras High Court.

Also Read: Private Medical Colleges take NMC to court over order calling for MBBS fee on par with GMCs for 50 percent seats

In case of Kerala the fees in the Private Medical Colleges is governed by the Kerala Medical Education Act, 2017. Under the mandate of this Act, an Admission and Fee Regulatory Committee (AFRC) has been constituted, statutorily vested with the power of fixing fees for medical education in the Private Sector, within the purlieus of various well established imperatives, including averting of profiteering and usurious charging.

The AFRC fixes the fees after assessment of their individual educational facilities and such other requirements as are stipulated therein; and the amount so fixed is common for every institution – though perhaps different from each other – it being edificed on the differences in infrastructural and other facilities offered.

Appearing on the behalf of Private medical colleges associations, Senior Advocate Kurian George Kannanthanam pointed out that even under the NMC Act, the Commission could not have fixed a fee for any percentile of the seats, because it wrongly assumed that in Kerala there are even now two streams for allotment of students, namely 'Government Quota' and 'Management Quota'. He further contended that NMC lacked authority for issuing such an order.

Sri.Titus Mani Vettom, the counsel for NMC argued that issuing the Memorandum was solely for the benefit of the students and to make available affordable medical education, which is sine qua non for a healthy nation.

He further explained that the recommendations made by NMC in the "OM" was based on an Expert Committee Report, which had meticulously evaluated the intricacies of Medical Education and its unexpendable requisites in India. He also submitted that the order adopts a Pan-India approach, rather than a parochial one.

Besides, the NMC counsel informed the court that even though the "OM" contains general criteria and guidelines - which are to be followed in the case of all Private Medical Colleges and Deemed Universities in India – it certainly can be modified or modulated by the respective Statutory Fee Determination Authorities, taking note of the specific social and educational fabric of the individual States and Union Territories.

Meanwhile, the counsel for AFRC, Smt.Mary Benjamin argued that if the first limb of the "OM" of the "NMC" is now implemented in 50% of the seats in the Private Medical Colleges and Deemed Universities, axiomatically, the additional requirement of resources will have to be found from the balance 50% seats, leading to an escalation of the fee structure qua it, and burdening such students.

At this outset, the Government Pleader, Sri.P.G.Pramod submitted that the State has already ensured, through the "Kerala Medical Education Act", that the AFRC is vested with sufficient powers to fix and modulate the fee structure in the Private Medical education sector, ensuring that there is no profit making and other deleterious tendencies. Therefore, his contention was that even in the absence of such a fee order by NMC, every guideline/principle stipulated therein has already been followed and is being implicitly implemented by the AFRC.

Perusing the concerned "OM", the HC bench observed that its contents are intended only as guidelines, and also noted that "its learned Standing Counsel - Sri.Titus Mani Vettom, affirms that it is upto the respective statutory fee determining Authorities of the States and Union Territories to adopt and implement it, while completing their exercise as statutorily required."

However, as per the bench, the difficulty is with respect to the singular stipulation in the "OM", that the fees of 50% of the seats in Private Medical Colleges and Deemed Universities "should be at par" with the fee in the Government Medical Colleges.

"The problem with this seemingly inflexible stipulation is that the fee for Government Medical Colleges is fixed by the State of Kerala through its functionaries, and not by the AFRC," the bench noted.
"That apart, as has been already pointed out, the "OM" then says that the benefit of the subsidised tuition fee be offered to those students allotted under the "Government Quota". Of course, the OM cannot be found fault with this sole account because, as indited earlier, it is intended for a Pan-India operation and not specifically for Kerala alone. Therefore, there may be States or Union Territories where quotas for "Government" and the "Management" are still in vogue; but, as far as our State is concerned, admittedly from the year 2017, there are no such quotas and every student to all Private Medical Colleges and Deemed Universities is allotted only by the Commissioner for Entrance Examinations, through a common entrance test and counselling Program," further observed the bench.
"Ineluctably, therefore, the "OM", to the extent to which it relates to Kerala, cannot be applied in its toto and will require to be modulated and read down to the extent necessary," it added.

Opining that the NMC fee order should be treated as a guiding principle for the AFRC, the bench observed,

"...the "OM" is certainly not specifically designed for Kerala alone. When the State of Kerala no longer has different quotas and when the AFRC fixes fees in every seat in Private Medical Colleges or Deemed Universities, ensuring that the indispensable and vital principles of non-profiteering and other nocuous and malignant tendencies are arrested, surely, the twenty five guidelines or parameters issued in the "OM" should be the guiding principles for the said committee; and I record that this has been affirmed by Smt.Mary Benjamin, their learned Standing Counsel."
"I am certain that the "NMC" never intended that their "OM" should be used to either cross-subsidise education -- which is expressly proscribed by the Hon'ble Supreme Court; or to burden one section of students at the cost of the other, though they are all similarly, if not identically, situated and placed in Kerala, after the year 2017, when the "Kerala Medical Education Act" came into being," the bench added.

Therefore holding that the NMC Fee order for the 50% private medical college seats will not be applicable in Kerala, the bench issued the following directions:

"(a) W.P.(C).No.5851 of 2022 and W.P.(C).No.24112 of 2022 are ordered, directing the AFRC to implicitly abide by all the "guidelines" postulated by the NMC in their Office Memorandum dated 03.02.2022, while fixing the fees for all seats in all Private Medical Colleges and Deemed-to-be Universities in Kerala except the stipulation therein for fixing the fee of 50% of the seats in the Private Medical Colleges or Deemed Universities on par with the seats in the Government Medical Colleges.

(b) Consequential to the declarations above, which I reiteratingly clarify are in the context of the State of Kerala alone, W.P(C).No.5503 of 2022 will also stand ordered, but to the afore extent. 

(c) It is reiteratingly clarified that this Court has not struck down Section 10(1)(i) of the "NMC Act"; and therefore, that all contentions with respect to the same are left open to be impelled by any person or entity, including the petitioners herein, if it becomes so warranted in future."

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