NMC Should be Free from Prejudice, not expected to assess different institutions on different yardsticks: Delhi HC
New Delhi: Slamming the National Medical Commission (NMC), the Delhi High Court bench recently observed that an apex body like NMC is not expected to assess different institutions on different yardsticks, based on grounds that seem wholly arbitrary.
The HC bench comprising Justice Purushaindra Kumar Kaurav clarified that the action of NMC must necessarily be readable and free from any prejudice and further observed, "The NMC is entrusted with the functions and duties conferred under the provisions of the NMC Act, 2019. The NMC and all autonomous Boards constituted under the NMC Act, 2019 discharge public function. The action of statutory bodies must conform to the norms and standards stipulated therein and are to be uniformly made applicable to all the institutions. Their action must necessarily be reasonable and free from any prejudice."
These observations were made by the High Court bench while considering the plea by Nova Educational Society. Desirous of setting up a new medical college, the petitioner had applied to the Medical Assessment and Rating Board (MARB) of NMC for a new medical college with 150 seats for the Academic Year 2023-2024.
Consequently, on 27.03.2023, MARB inspected the institute and based on the assessors' report, certain deficiencies were noted. Therefore, the petitioner was served with the provisional disapproval letter dated 11.04.2023.
The petitioner was called to furnish the desired information with respect to the deficiencies mentioned in the report within a period of seven days from the date of receiving the provisional disapproval letter.
It was claimed by the petitioner that a response was submitted in terms of communicated dated 22.04.2023 as the provisional disapproval letter was only received on 17.04.2023. Further, the petitioner claimed to have sent the reply on the email ID of MARB.
However, the Commission issued the final disapproval letter dated 01.05.2023 and rejected the application of the petitioner on the ground that certain deficiencies were noted which remained unanswered and clarified that in absence of any reply from the petitioner, the approval for setting up the medical college with 150 MBBS seats for the Academic Year 2023-2024 could not be granted.
On May 2, 2023, the petitioner sent an application to the MARB and submitted that the clarification to the provisional disapproval letter dated 11.04.2023 was sent within seven days and therefore, arrangement for re-visitation of the assessors to the college campus was sought for.
Since the petitioner did not receive any response, the petitioner made the first appeal before NMC on June 14, 2023. However, NMC rejected the first appeal on the ground that the appeal should have been filed within 15 days from the date of order of disapproval. Following this, the second appeal was filed and it was also rejected on July 21, 2023. After this, the petitioner approached the HC bench and filed the plea.
On the other hand, the authorities submitted that the response to the provisional disapproval letter dated 11.04.2023 was not received by them. They further submitted that in accordance with Regulation 8 of the Establishment of Medical College Regulations, 1999, as amended and published in the Official Gazette dated 18.03.2016, if it is observed during the inspection/assessment of the institute that the deficiency of teaching faculty and/or Residents is more than 30% and/or bed occupancy is less than 50% (45% in North East, Hilly terrain etc.), compliance of rectification of deficiencies from such an institute will not be considered for issue of Letter of Permission/renewal of permission in that Academic Year.
Therefore, NMC took a categorical stand that it was too late to direct for an inspection of the petitioner because the petitioner did not give any response to the provisional disapproval letter within the stipulated time and in view of the provisions laid down under Regulation 8 of the Regulations, 1999.
The counsel for the petitioner opposed these submissions and referred to examples of cases where despite deficiencies, other institutes were granted approvals. It was further submitted that the MARB, which is a statutory authority under the NMC Act, 2019 cannot be allowed to act arbitrarily, unreasonably and to the disadvantage of genuine institutions.
While considering the matter, the HC bench referred to the stand taken by NMC as "shocking" and mentioned,
"Once the NMC in its counter affidavit takes a categorical stand that in view of the position laid down in the extant Regulations, the institutions which are deficient to a certain level are not entitled to be re-inspected, the same principles have to be applied uniformly to all institutions. If, for any reason, there was departure from the application of the Regulations, 1999, it must have been fairly pointed out."
"An apex body like NMC is not expected to assess different institutions on different yardsticks, based on grounds that seem wholly arbitrary. In the instant case, when NMC had taken a stand in its counter affidavit that in view of the Regulation position as referred to hereinabove, the notice for rectification of deficiency was not required, NMC was expected to have placed on record, the information with respect to the notices which have been issued to the other institutions having the same or higher level of deficiency," it further observed.
Further, the court observed that the fact that it was misled due to the lack of disclosure of information by NMC shows that the NMC is completely lacking in its bonafide in taking a stand before the court.
Therefore, the HC bench deferred the action against the NMC officials for the time being subject to further hearing and passed an interim order directing examination of the rectification/clarification submitted by the petitioner by conducting an inspection of the petitioner institute.
"Therefore, subject to the outcome of this petition, at this stage, it is necessary to direct for examination of the rectification/clarification submitted by the petitioner by conducting an inspection of the petitioner-institution, physically or otherwise, within seven working days from today. The infrastructure as on 22.06.2023 i.e. the last date for consideration of rectifications; will have to be examined as per the extant Regulations; meaning thereby, that any facility or infrastructure created after 22.06.2023 shall not be taken into consideration," ordered the court.
Further, the HC bench clarified that "The MARB on the basis of the inspection is at liberty to take appropriate steps in accordance with law, either to grant the permission or to reject the same."
The matter has been listed for further hearing on September 20, 2023.
To view the HC order, click on the link below:
https://medicaldialogues.in/pdf_upload/delhi-hc-order-217365.pdf
