Delhi HC slams NMC, allows Gujarat medical college to participate in NEET PG counselling round for 9 PG courses
New Delhi: Slamming the National Medical Commission (NMC) body, Medical Assessment & Rating Board (MARB) for issuing disapproval letters to Dr. M.K. Shah Medical College and Research Centre for PG seats in 11 Disciplines, the single judge bench of Delhi High Court opined that MARB should be able to justify its decisions of rejecting applications.
In fact, the bench comprising of Justice Rekha Palli opined in its judgment that MARB cannot overrule the assessor's inspection reports merely on suspicion.
Slamming MARB, the bench noted, "While the MARB is undeniably competent to take such a decision as per the Regulations, and there is no requirement for the MARB to set out all the reasons in the impugned orders, however, in my considered view, being an authority entrusted with an important task of regulating medical education in India, it is expected to at least prima facie show some justification for its decisions, when the impugned orders are assailed before the Court."
The High Court bench was considering a plea by Dr. M.K. Shah Medical College and Research Centre, which got nod from Centre for MBBS course in 2017. However, back in 2020, when the institute submitted applications before the Union Government to admit students in 13 PG disciplines, the Medical Assessment & Rating Board of the National Medical Commission (NMC) carried out inspections for only two of the disciplines i.e. MD Pathology and MD Microbiology.
Consequently, the institute was issued letter of disapproval for the rest of the 11 disciplines. The grounds for disapproval included lack of valid essentiality certificate, and the fact that the existing PG courses in the institute were yet to be recognized.
Being aggrieved by this, the institute approached the MARB seeking a review of the disapproval letters. Following this, the college reached the High Court.
It should be noted in this context that as per the erstwhile Medical Council of India regulations, an institution having permission for running MBBS course does not require formal permission for commencing a Post Graduate course.
The HC bench found merit in the petitioner's plea that both the grounds of rejection i.e. requirement of Essentiality Certificate and non-recognition of PG disciplines were erroneous.
The counsel for the institute submitted before the bench that the institute fulfilled all infrastructural, clinical and faculty requirements in terms of the criteria laid down by the Regulations and therefore it was entitled to be granted permission for commencing all the PG disciplines, and for increasing the number of seats, as sought in their applications.
He argued that once the assessors had found no deficiency at the time of carrying out inspection of the petitioner institute for grant of permission to them to commence the PG disciplines as per their applications, the Government and NMC could not ignore these findings in the inspection reports and invent reasons to reject the petitioner‟s applications. When all the assessors were satisfied with the infrastructure and faculty of the petitioner, the NMC could neither issue the disapproval letters nor could it, on its own, reduce the number of seats while granting recognition for some of the PG disciplines, and that too without assigning any cogent reasons.
Apart from this, the counsel for the institute also pointed out the fact that due to being declared a COVID dedicated hospital in 2020, the institute was forced to reserve a majority of its beds and resources for COVID patients which resulted in a sizeable decrease of patients in its other departments. However, the petitioner institute still managed to fulfil all the requirements, as can be noted by the assessor's reports, submitted its counsel.
On the other hand, the counsel for MARB opposed the maintainability of the plea as the institute did not avail the statutory remedy of appeal under Section 28(5), and Section 28(6) of the NMC Act, 2019.
He also argued that as per the regulations, MARB, upon receiving the assessor's reports, has to assess all the relevant factors and then come to a final decision to grant/reject permission. It was also submitted by him that MARB alone has the power to take decisions regarding the permissions which are to be granted to the colleges in a particular academic year and it is not as if the assessor's report is the final word on the subject.
At an earlier stage of the hearing, the MARB had informed the court that the reason for issuing the disapproval letters was the fact that there was lack of essentiality certificate on the part of the institute. However, later, the counsel for the MARB claimed that the decision taken by MARB issuing the disapproval letters for all the nine PG disciplines were necessitated on account of noticeable inconsistencies recorded in the assessor's report in the data.
Taking note of all the submissions by both the parties, the High Court bench addressed the issue of maintainability of the plea and noted, "Even though the petitioner undoubtedly has a statutory remedy of filing both a first appeal and a second appeal under Section 28(5) and 28 (6) of the NMC Act, but the question is whether the same can be said to be an efficacious one at this stage, when the Central counselling for admission to these courses is almost about to end."
The bench also observed, "The respondent has offered almost no explanation as to why, despite the petitioner having submitted applications seeking permission for the 13 PG disciplines way back in August, 2020, the respondent chose to pass orders on the same for the first time only on 29/30.11. 2021, thereby rejecting the applications after more than 15 months. Not only this, what emerges is that all these rejection orders were based on wholly non-existent grounds. While the rejection order dated 29.11.2021 was premised on the petitioner not fulfilling the requirement of „essentiality certificate‟; the orders dated 30.11.2021 were passed on the ground of the petitioner not possessing any recognition of PG courses...However, on 01.02.2022, the respondents again took a somersault and admitted before this Court that this ground of rejection on account of non-availability of essentiality certificate was contrary to the regulations."
Slamming MARB, the bench mentioned in the order, "In my view, when every institute is entitled to an opportunity to explain the deficiency found in an inspection report, there is no reason as to why a similar opportunity ought not to have been given to the petitioner to explain the so-called suspicious circumstances noted by the MARB from the inspection reports which were otherwise in order. Moreover, there is also no explanation given by the respondent as to why, if suspicious circumstances were indeed found to exist in the information provided by the petitioner, was permission granted for even those three seats in the Obstetrics department. The seats cannot be granted, without offering any justification as to how the MARB arrived at these specific number of seats especially when the numbers are neither in compliance with the assessor's reports nor with its own communications dated 15.02.2022."
Observing that it is expected of MARB to show some justifications for its decisions, the bench noted, "Once the assessors have found that the petitioner meets the requisite criteria prescribed in the Regulations, the MARB could not, on its ipse dixit, claim that it will still grant permission for lesser seats even though the petitioner institute had the adequate infrastructure as per the criteria laid down by the assessors‟ guide and regulations, for the number of seats for which permission was sought."
Referring to the Supreme Court order in the case of Ramana Dayaram Shetty v. International Airport Authority of India the bench ordered, "In the light of the aforesaid, I am of the considered opinion that the decision of the respondents to grant lesser number of seats than prayed for by the petitioner, in all the aforesaid six disciplines are unsustainable and are liable to be quashed."
"The actions of the respondent no.2 thus, clearly show that they are acting as per their whims and fancies and are simply ignoring the information which has been already verified by the assessors, and that too without granting any opportunity to the petitioner institute to explain its stand. The three disapproval letters are also therefore, not sustainable and are liable to be quashed," the bench also mentioned.
Taking note of the fact that none of the impugned orders are sustainable, the bench noted, "...in the present case, it evidently emerges that it is not as if the experts who had inspected the petitioner institute had found any deficiency with the petitioner institute, but it is the MARB which has chosen to ignore those reports and form its own arbitrary conclusions, without giving any opportunity to the petitioner to explain the so-called deficiency or suspicious information. In these circumstances, when the action of the respondent appear to be wholly arbitrary and not in consonance with the regulations, in light of the fact that the petitioner institute has all the requisite infrastructure and clinical material, as also the fact that it has worked as a Covid dedicated hospital for a long period, I am of the view that remanding the matter back to the respondent for reconsideration at this stage, when the only hope of the petitioner is to participate in the remaining rounds of counselling in the NEET 2021-2022 including the mop up counselling round and the stray counselling round, would be highly unfair not only to the petitioner but also to the prospective students, especially in a country like ours which is already struggling to provide the number of medical professionals required for meeting the growing needs of the general public."
At this outset, the bench referred to the top court judgment in the case of Rajiv Memorial Academic Welfare Society (Supra) wherein it was held that the Court can, in certain cases, grant permission to a medical institute, without directing re-inspection of the same.
Referring to this, the bench pronounced, "Keeping in view that as per the inspection reports, no deficiency was found either in the infrastructure or the clinical material of the petitioner institute, this Court, instead of remanding the matter back to the respondents for issuance of a fresh order, is inclined to direct the respondents to forthwith issue the letters of permission to the petitioner institute to commence the courses in MD (Respiratory Medicine), MD (Dermatology, Venereology and Leprosy) and MS (Orthopaedics) and to increase the seats in MD (General Medicine), MS (General Surgery), MS (Obstetrics & Gynaecology), MD (Paediatrics), MD (Psychiatry) and MD (Radio-Diagnosis) as per the petitioner's applications."
"However in the peculiar facts of this case, when the petitioner institute has already missed the first two rounds of counselling of the NEET 2021-2022, and any further delay at this stage would prevent it from participating even in the remaining rounds of counselling, the petitioner is granted permission to participate in the remaining rounds of counselling for the seats, as prayed for by them, in all the nine PG disciplines," further read the order.
To read the court order, click on the link below.
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