Pending CBI Probe cannot be ground for denying increase of MBBS seats by NMC: HC

Thus, setting aside the NMC order containing the "letter of disapproval" the High Court division bench comprising of Justice Sujoy Paul and Justice Arun Sharma noted, "The impugned order dated 10.01.2022 is founded upon CIB's self contained note, mentioned hereinabove. The said note, as noticed above cannot be a reason to approve or disapprove the scheme or prayer for increase of seats. Thus, the impugned order based on an extraneous reason cannot sustain judicial scrutiny. The impugned order also hits Wednesbury principles. Resultantly, the said order deserves to be jettisoned."

Disapproving the NMC's order the bench directed the apex medical body to take into account the existing inspection report and reconsider the application for increase of MBBS seats.

The issue concerned the application preferred by the petitioner medical college, who sought to increase its MBBS seats from 150 to 250. However, after obtaining an inspection report, the National Medical Commission (NMC) issued a "letter of disapproval" on 10.01.2022 and rejected the prayer of increase of seats in the MBBS course.

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Aggrieved, the petitioner college filed the appeal under Article 226 of the Constitution and requested before the High Court for issuing appropriate direction to NMC, the apex medical body in India, so that it accepts the application of the college for increasing MBBS seats.

The counsel for the college placed reliance on the relevant portions of the Section 28 & 29 of the NMC Act and submitted that NMC was obliged to take a decision regarding approval or disapproval for increasing the seats by taking into account the criteria mentioned in Section 29 of the said Act.

He further submitted before the court that the order is not based on relevant criteria but on an extraneous reason and consideration and therefore, the order was passed without jurisdiction. Thus, the remedy of statutory appeal is not a bar.

The counsel further submitted that the counselling and admission process has already commenced and next round of counselling is scheduled in the second week of February, 2022. Thus, relegating the petitioner to alternative remedy of appeal will cause injustice because no time is now left to avail such remedy.

It was further argued on the behalf of the college that pendency of CBI inquiry investigation cannot be a ground to deny approval to the institute and no penalty can be imposed on the institute in absence of any express substantive provision empowering the authorities to do so.

So, it was pointed out by the counsel for the college that the penalty imposed in the impugned order was without any authority of law. Even the Establishment of Medical College Regulations, 1999 do not permit the NMC to impose such a punishment. The punishment could have been imposed when institution employed teachers with fake/forged documents.

The counsel pointed out that on the one hand, the increase of seats for the petitioner's institute is declined on the basis of CBI's letter dated 22.07.2021 addressed to the State Government and on the other hand, the colleges who were similarly situated given the benefit of increase of seats. So, in that way, the petitioner college was given a discriminatory treatment.

At this outset, the counsel for the college referred to the inspection report by NMC along with the 'summary of assessment' of the college. Referring to this, the counsel urged that the shortage of teaching faculty was found to the tune of only 1.25% (2 out of 159) which is negligible in a case of sudden inspection. The infrastructure facility, clinical material, library, laboratory and teaching faculties were found to be appropriate/adequate. In this backdrop, the petitioner's application may be allowed by this Court itself, argued the college's counsel.

On the other hand, the Additional Solicitor General supported the order and contended that in the view of CBI's letter mentioned in the said order, petitioner was not entitled for any relief.

The counsel for NMC submitted that the petitioner college had a statutory remedy of appeal and it would be incorrect to say that the said remedy was illusory. Referring to a similar matter in the case of People's College of Medical Science Vs. Union of India, the counsel pointed out that in the said matter, the directions sought for was to take a decision on the pending appeal. The order therein was containing the same reason based on CBI's self contained note. So, the petitioner college could avail the remedy, argued NMC's counsel.

Responding to this, the counsel for the petitioner college pointed out that in the case of People's College, there were other deficiencies and so their matter was different. Further he mentioned that if the college is relegated either to avail the remedy of appeal or for passing a fresh order by NMC, they will not permit increase of 250 seats. Thus, the High Court itself can issue directions/mandamus for increase of seats.

After considering the submission by all the parties, the Relevant portion of Section 28 and Section 29 of NMC Act and noted that as per the Act, the Medical Assessment and Rating Board (MARB) was required to take a decision to approve or disapprove the scheme of establishing any course or increase of numbers of seats based on the criteria mentioned in Clause (a) to (d) of Section 29 of the said Act.

At this outset, the bench noted, "Thus, language of statute is plain and clear that the decision of the Board must be based on the touch-stone of yardsticks mentioned in Section 29. A bare perusal of said criteria leaves no room for any doubt that CBI's self contained note by no stretch of imagination can be a reason for approving or disapproving the scheme or to disallow an application."

"Thus, we find substance in the argument of Shri Siddharth Gupta, learned counsel for the petitioner that decision taken by NMC declining increase of seats is based on a reason which is beyond the scope of Section 28 and 29 of the NMC Act. Thus, the impugned order is clearly based on extraneous consideration/reason, which is outside the scope and ambit of the NMC Act. In that event, the petitioner cannot be relegated to avail the remedy of appeal under Sub Section 5 of Section 28 of the Act. Putting it differently, the impugned decision of disapproval is not taken within the four corners of Section 28(3) read with Section 29 of the Act. Hence, in a case of this nature, the petitioner cannot be compelled to avail the alternative remedy," further noted the court.

Referring to the fact that the impugned order contained the singular reason based on the CBI's self contained note, the bench noted, "The impugned order dated 10.01.2022 is founded upon CIB's self contained note, mentioned hereinabove. The said note, as noticed above cannot be a reason to approve or disapprove the scheme or prayer for increase of seats. Thus, the impugned order based on an extraneous reason cannot sustain judicial scrutiny. The impugned order also hits Wednesbury principles. Resultantly, the said order deserves to be jettisoned."

The HC bench also noted, "So far argument of Shri Siddharth Gupta, Advocate that if the matter is remitted back for re-consideration regarding increase of seats, the NMC will not increase the seats upto 250 as prayed for by the petitioner is concerned, we do not see any reason for such assumption. NMC being the statutory authority in our view, is best suited to take an appropriate decision in this regard. Since we have disapproved the impugned order based on CBI's note, the only course available to the NMC is to take into account, the existing inspection report and consider the application for increase of MBBS seats from 150 to 250 on the touch stone of Section 28 and 29 of the NMC Act."

Considering the time constraint, this Court clarified that it can very well fix a time limit within which the NMC can be directed to take a decision and observed, "Pertinently, in the case of People's College & Medical Science (supra), the direction of this Court to decide the appeal within statutory time limit was followed by NMC and therefore, we find no reason to issue a mandamus for increase of seats."

"In view of foregoing analysis, the impugned order dated 10.01.2022 is set aside. The NMC is directed to take a decision on the application of petitioner for increase of MBBS seats from 150 to 250 in accordance with law before 8th February, 2022. The outcome of such consideration shall be communicated to the petitioner," further read the judgment.

To read the court order, click on the link below.