Madras High Court
Vels Medical College & Hospital vs Union Of India on 3 October, 2023
Author: Anita Sumanth
Bench: Anita Sumanth
2023:MHC:5301
W.P.Nos.29146 & 29385 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 06.11.2023
Pronounced on: 07.12.2023
CORAM
THE HONOURABLE DR. JUSTICE ANITA SUMANTH
WP.Nos.29146 and 29385 of 2023
& WMP.Nos.28758 and 29015 of 2023
WP.No.29146 of 2023
VELS Medical College & Hospital,
Represented through its Dean
Dr.KumudhaLingaraj
Under Vels Institute of Science,
Technology & Advanced Studies
12/123, Velan Nagar, Manjankaranai Village,
Uthukottai Taluk, Tiruvallur Dist,
Tamil Nadu – 601 102 ... Petitioner
Vs.
1.Union of India,
Through its Joint Director (ME)
Ministry of Health and Family Welfare,
Nirman Bhawan,
New Delhi – 110 001
2.National Medical Commission,
Through its Chairman
Pocket-14, Sector-8,
Dwarka Phase-I
https://www.mhc.tn.gov.in/judis
1
W.P.Nos.29146 & 29385 of 2023
New Delhi – 110 077
3.Medical Assessment and Ratings Board,
Through its President,
Pocket-14, Sector-8,
Dwarka Phase-I
New Delhi – 110 077 ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
raying to issue a Writ of Certiorari to call for the records relating to the
impugned order passed by the 1st Respondent in No.V.11013/51/2023-ME-1
(FTS No.8241704) dated 03.10.2023 and quash the same.
AND
WP.No.29385 of 2023
VELS Medical College & Hospital,
Represented through its Dean
Dr.KumudhaLingaraj
Under Vels Institute of Science,
Technology & Advanced Studies
(VISTAS) Deemed to be University,
12/123, Velan Nagar, Manjankaranai Village,
Uthukottai Taluk, Tiruvallur Dist,
Tamil Nadu – 601 102 ... Petitioner
Vs.
1.Union of India,
Through its Secretary,
Ministry of Health and Family Welfare,
Nirman Bhawan,
New Delhi – 110 001
https://www.mhc.tn.gov.in/judis
2
W.P.Nos.29146 & 29385 of 2023
2.National Medical Commission,
Through its Chairman
Pocket-14, Sector-8,
Dwarka Phase-I
New Delhi – 110 077
3.Medical Assessment and Ratings Board,
Through its President,
Pocket-14, Sector-8,
Dwarka Phase-I
New Delhi – 110 077
4.Medical Counselling Committee (MCC)
Directorate of Health and Family Welfare,
Ministry of Health and Family Welfare,
Government of India
Nirman Bhawan, New Delhi – 110 001 ... Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India
raying to issue a Writ of Mandamus to direct the 4th Respondent to conduct
counselling for the remaining 50 MBBS seats for the academic year 2023-2024
in the Petitioner college.
For Petitioner : Mr.AL.Somayaji, Senior Counsel
(in WP.No.29146 of 2023) for Mr.R.Harikrishnan
for M/s.McGan Law Firm
For Petitioner : Mr.N.Muralikumaran, Senior Counsel
(in WP.No.29385 of 2023) for Ms.Ramya
For respondents : Mr.ARL.Sundaresan
(in both WPs) Additional Solicitor General
Assisted by
https://www.mhc.tn.gov.in/judis
3
W.P.Nos.29146 & 29385 of 2023
Mr.B.Rabu Manohar (R1)
Senior Central Government Standing Counsel
and
Assisted by
Ms.Shubaranjani Ananth (for R2 & R3)
COMMON ORDER
These Writ Petitions have been filed i) seeking a mandamus directing the Medical Counselling Committee (MCC)/R4 in W.P.No.29385 of 2023 to permit the conduct of counselling for 50 MBBS seats for Academic Year (AY) 2023- 24 in the college run by the petitioner and ii) challenging order dated 03.10.2023 passed by R1 Joint Director (ME), Ministry of Health and Family Welfare in W.P.No.29146 of 2023, wherein the second appeal of the petitioner college seeking increase of 50 MBBS seats for AY 2024 has been rejected.
2. On 18.10.2023, when the matter had come up for admission, the following order had been passed as an ad interim arrangement pending completion of pleadings:
Heard Mr.AL.Somayaji, learned Senior Counsel for M/s.McGan Law Firm for the petitioner in WP.No.29146 of 2023 and Mr.Muralikumaran, learned Senior Counsel for Ms.M.Ramya, learned counsel for the petitioner in WP.No.29385 of 2023, Mr.B.Rabu Manohar, learned Senior Central Government Standing Counsel for R1 and Ms.Shubaranjani Ananth, learned counsel for R2 and R3 in both writ petitions.
https://www.mhc.tn.gov.in/judis 4 W.P.Nos.29146 & 29385 of 2023
2.The following order is passed purely as an ad-interim arrangement pending completion of pleadings and listing for hearing of the matter.
3. The impugned order dated 03.10.2023 has rejected the request of the petitioner for enhancement of seats from 100 to 150.
4.Learned Senior Counsel would point out that the enhancement of seats was first sought and granted for academic year 2021-22 and thereafter cancelled, on account of certain deficiencies that were noticed. Those deficiencies are stated to have been subsequently rectified.
5.The last assessment of the college had thrown up some deficiencies that have come to be addressed appropriately by the college. Hence, he would submit that there is no justification in the rejection of enhancement of seats for the present academic year which is, 2023-24.
6.Per contra, learned counsel for the respondents would point out that the petitioner is an habitual litigant, that the deficiencies noted are so glaring and serious and that the rejection of seat enhancement for academic year 2021-22 is a subject matter of challenge in WP.No.22750 of 2022 which is pending as reserved for orders.
7.She would draw attention to three judgments of the Hon'ble Supreme Court in
(i) Medical Council of India v. Kalinga Institute of Medical Sciences (KIMS) and others [(2016) 11 SCC 530]
(ii) Medical Council of India Vs. JSS Medical College and another [(2012) 5 SCC 628]
(iii) Medical Council of India v. Rajiv Gandhi University of Health Sciences and Others [(2004) 6 SCC 76] https://www.mhc.tn.gov.in/judis 5 W.P.Nos.29146 & 29385 of 2023 for the proposition that Courts must be very circumspect in granting interim orders where the integrity of the Institution was suspect.
8.Having heard the submissions, the following order is passed to balance the interest of the parties. The issue relating to seat enhancement commenced from academic year 2021-22 and the rejection of the seat enhancement for that year is the subject matter of challenge in WP.No.22750 of 2022, in which orders have been reserved by my predecessor.
9. For academic year 2022-23 the National Medical Commission has revealed its hand by not taking any action as against the petitioner college, which went ahead and admitted students for all 150 seats. This by itself would throw a doubt on the nature of the proceedings that have been initiated for the earlier, and subsequent year i.e. for academic year 2021-22 and the present year 2023-24, in light of the acquiescence to the petitioner's eligibility for the academic year in between.
10. Not wanting to hinge this order on the above point alone, this Court has gone through the list of deficiencies that have been set out in order dated 30.05.2022 which are admittedly copious and glaring. However, there have been subsequent inspections that have been conducted, the latest being on 08.09.2022 by assessors drawn from the list of assessors empanelled with the National Medical Commission.
11. The summary of assessment is set out below and the deficiencies have been restricted only to those at point (5) below:-
'Summary of Assessment (Extracted at paragraph 20 of this order and for the sake brevity, not repeated)'
12.When compared with the list of deficiencies noted under order dated 30.05.2022, it is evident that the deficiencies have https://www.mhc.tn.gov.in/judis 6 W.P.Nos.29146 & 29385 of 2023 been whittled down substantially only to one point. While not stating for a moment that an educational institution is entitled to have any deficiencies at all, reference may be had to show cause notice dated 12.10.2022 that followed the inspection on 08.09.2022, which itself refers only to two deficiencies at paragraphs 2 and 3 as follows:
'....
2. The Medical Assessment and Rating Board (MARB) has conducted an assessment of the college on 7th& 8th September, 2022. As per the assessor's report, there has been deficiency on account of Teaching faculty (1.01%), Bed occupancy was (67.75%) with no deliveries (both Normal as well as LSCS) reported on the day of assessment.
3. The matter was reviewed by the Review Committee and decided to withhold the permission for renewal for the academic year 2022-23 till the receipt of point-wise compliance report with documentary proof from the college.'
13.The reply of the petitioner on 13.10.2022 addresses both points, prima facie satisfactorily, in the following terms:
Sl. Nature of Submission of Point-wise
deficiency compliance report
No
.
1. Teaching Faculty We have a total strength of 77
1.01% Teaching faculty against the
requirement of 78. However, in
the Dept. of Forensic Medicine on
Associate Prof was deficient on
the day of assessment. Now, we
have recruited/appointed a
https://www.mhc.tn.gov.in/judis
7
W.P.Nos.29146 & 29385 of 2023
Sl. Nature of Submission of Point-wise
deficiency compliance report
No
.
faculty named
Dr.M.N.RajamaniBheem Rao
MBBS, MD Associate Professor in
the Department of Forensic
Medicine with effect from
07.10.2022 and her conclusive
proof of documents placed as
annexure to this letter and the
same may please be considered.
After considering this faculty,
there is no deficiency. Annexure
-1
2. Bed Occupancy We are witnessing an average of
67.75% with no 65% bed occupancy, reported
deliveries 67.75% on the day of assessment
and is satisfying the desired
(LSCS and NVD) norms. Last 3 months bed
on the day of occupancy statistics and our
assessment present IPD also being witnessed
70% and relevant details
attached herewith. Despite the
existence of Government scheme
such as Dr.Muthulakshmi Reddy
Maternity Benefit Scheme
(MRMBS) wherein the patient
foot fall is expected less, we are
having ante-natal mothers'
booked in our hospital. List of
ante-natal mothers' with expected
date of delivery whose
registration done in our hospital
https://www.mhc.tn.gov.in/judis
8
W.P.Nos.29146 & 29385 of 2023
Sl. Nature of Submission of Point-wise
deficiency compliance report
No
.
is attached herewith. Annexure -2
.
14.One of the decisions cited by the learned counsel for the Medical Council of India in the case of Kalinga itself would stand testimony to the quality of assessment carried out by the empanelled assessors and thus assessment dated 08.09.2022 is a reliable one. That apart, the decisions in the other two cases cited have been rendered in facts and circumstances inapplicable to the present case.
15.There is a direction to R4 to permit counselling to be conducted for the remaining 50 seats as the petitioner has already filled 100 seats of the 150 seats allotted to it. The following safeguards/measures are put in place solely to address the interest of the students.
(i) The petitioner will display on its website a clear banner in large and bold font indicating that the remaining 50 seats for which counselling has been permitted under this order are the subject matter of litigation in this writ petition and the fate of those seats are yet to be decided.
(ii)The National Medical Council will likewise, also display a banner on its website as aforesaid.
(iii) The fees collected from the students to be admitted will be deposited to the credit of these writ petitions so that in the event that the writ petitions are decided adverse to the writ petitioner, the same will be available for immediate disbursal to the students.
https://www.mhc.tn.gov.in/judis 9 W.P.Nos.29146 & 29385 of 2023
(iv) It is made clear that admission and all other benefits extended under this order to all parties, that is, the petitioner, the respondents and the prospective candidates would be subject to the result of these writ petitions.
16.List on 30.11.2023.
3. As against the aforesaid order, the National Medical Commission (NMC) and Medical Assessment and Ratings Board (MARB) filed appeals in W.A.Nos.3064 and 3065 of 2023. As noted in the interim order dated 18.10.2023, Writ Petition relating to AY 2021-22 has been heard in full and reserved for orders by my learned colleague and this position continues till date.
4. I was thus of the view that since the larger issue in relation to whether the reduction of intake to 100 students as against the original sanction for 150 students holds merit, is pending, one should await those orders.
5. However, the following order has been passed by the First Bench and in light of the directions therein, the matters were listed for hearing, heard and disposed by way of the present order.
The matter was mentioned in the morning and was taken up at1.00 p.m.
2. We have heard Mr.AR.L.Sundaresan, learned Additional Solicitor General for the appellants, Mr.A.L.Somayaji, learned Senior Advocate for the first respondent in W.A.No.3064 of 2023,Mr.N.Muralikumaran, learned Senior Advocate for the first respondent in W.A.No.3065 of 2023 and Mr.K.Ramanamoorthy, learned https://www.mhc.tn.gov.in/judis 10 W.P.Nos.29146 & 29385 of 2023 Central Government Standing Counsel for the second respondent in both appeals and third respondent in W.A.No.3064 of 2023.
3. Under the interim order dated 18.10.2023, the learned Single Judge has permitted counselling in the colleges of the respondents/original writ petitioners for the remaining 50 seats subject to certain conditions.
4. The appellants have permitted the writ petitioners' institutions intake capacity of 100 students for the academic year 2023-24.
5. If under an interim order the students are admitted and eventually the writ petitions are dismissed, then the career of the students would be at stake. It is submitted that for the last academic year also, the petitioners' institutions were sanctioned intake capacity of 100 students only. The writ petitions with regard to admission of 50students in excess of 100 is pending consideration and the protection has been granted to the admission of 50 students. The learned Single Judge has fixed the next hearing on 30.11.2023. All the parties are represented before the learned Single Judge as submitted by the learned counsel for the respondents. The last date for admission in the stray round is 07.11.2023.
6. Considering the exigency and the peculiar facts and circumstances of the case, it would be appropriate if the writ petitions are decided finally.
7. We may request the learned Single Judge to endeavour to decide the writ petitions finally.
8. The Registry may place the writ petitions before the learned Single Judge on 06.11.2023. We earnestly request the learned Single Judge to consider taking up the writ petitions for hearing and till the petitions are decided, the admission of the 50 students in excess of100 shall not be made. Of course, the parties would be governed by the final orders that would be passed by the learned Single Judge in the writ petitions.
9. In the event the writ petitioners succeed before the last date of stray round, then the allotment of 50 students in https://www.mhc.tn.gov.in/judis 11 W.P.Nos.29146 & 29385 of 2023 excess of 100 may not be denied only on the ground that choice-filling is over.
The Writ Appeals are, accordingly, disposed of. There will be no order as to costs. Consequently, connected miscellaneous petitions are closed.
6. The sequence of dates and events as relevant to decide these matters, are as follows:
(i) On 13.10.2021, a Letter of Permission (LoP) was issued to the petitioner granting permission for starting of a new medical college with 150 MBBS seats.
(ii) The LoP reads as follows:
Phone:25367033, 25367035, 35367036 Pocket-14, Sector-8, Dwarka Fax:0091-11-25367024 Phase -1, New Delhi – 77 E-Mail:[email protected], [email protected] National Medical Commission Medical Assessment & Rating Board (MARB) UNDERGRADUATE SECTION No.: NMC/UG/2020/000070/025968 Date:13.10.2021 LETTER OF PERMISSION The Dean/Principal, VELS Medical College & Hospital, 12/123, Velannagar, Manjankaranai Village, Tiruvallur, Chennai, Tamil Nadu- 601102 https://www.mhc.tn.gov.in/judis 12 W.P.Nos.29146 & 29385 of 2023 Email: [email protected] Sir/Madam, Sub: Starting of MBBS course with 150seats at VELS Medical College & Hospital, Tiruvallar under the VELS Institute of Science, Technology & Advanced Studies (VISTAS) (Deemed to be University) u/s 26(1)(a)(b) and 28(1)(2) of the NMC Act, 2019--Permission of Medical Assessment and Rating Board of NMC-for the academic year 2021-2022-Regarding-legarding In continuation to this office Letter dated 22.09.2021 seeking information and your acceptance of the conditions mentioned therein vide letter date: 30.09.2021. We convey that your application for starting of new medical college with 150 MBBS seats was approved for the academic year 2021-2022 Permitted for 150 MBBS seats.
(u/s 26(1)(a)(b) and 28(1)(2) of the NMC Act, 2019) This Permission for starting of above mentioned MBBS course and admission of students will be for such time the first batch of students admitted against the above course appears for the final examination in the subject. The college authorities may take up the matter for recognition of the qualification under section 35(2) of the IMC Act at the time of first batch admitted against the sanctioned intake appears for final examination with National Medical Commission.
We are further directed to inform that you and your institution is fully responsible to fulfil and maintain norms including the infrastructure both physical and human resource, teaching faculty and clinical material, etc. throughout the academic year, as stipulated in Regulation of National Medical Commission (NMC). In case false/wrong declaration or https://www.mhc.tn.gov.in/judis 13 W.P.Nos.29146 & 29385 of 2023 fabricated documents have been used for procuring permission of the MARB and the said misconduct is brought to the notice of National Medical Commission (NMC) or found during surprise assessment at any stage during the current academic year. Your institution is liable, not to be considered for recognition of the degree. This letter of permission will be revoked for the current academic year in such exigency arise. Besides, National Medical Commission (NMC) is entitled to take all such measure against you and your college/institution as permissible under the law.
It is mandatory to develop a website on the medical college/institution and display all theinformation of the college, courses offered, faculty available and their experience of the last 5 years, students joined, and affiliating university. To display the hospital services, facilities available and the equipment in each specialty, also showing OP and IP census including births and deaths as per the municipal/Govt records.
Kindly acknowledge the receipt of this letter.
Yours faithfully, Sd/-
Member/President Medical Assessment and Rating Board (MARB) National Medical Commission
(iii) The LoP specifically states that in the event of any false/wrong declaration or fabricated documents having been supplied, the institution would be liable for non-consideration of recommendation and the LoP would be revoked for the current AY (where) such exigency arises.
https://www.mhc.tn.gov.in/judis 14 W.P.Nos.29146 & 29385 of 2023
(iv) There had been a surprise inspection in the premises of the petitioner institution on 30.03.2022 and various deficiencies had been found.
(v) The discrepancies were manifold and serious and in light of the same, an order had come to be passed on 30.05.20222 reducing the intake from 150 to 100 and restricting permission for counselling in respect of 50 MBBS seats for AY 2021-22. The order reads thus:
National Medical Commission Medical Assessment & Rating Board (MARB) UNDERGRADUATE SECTION No.: NMC/UG/2020/000070/019674-83 Date:30.05.2022 WITHDRAWAL OF LETTER OF PERMISSION FOR 50 MBBS SEATS AND CANCELLATION OF ADMISSIONS FOR 50 MBBS SEATS IN THE ACADEMIC YEAR 2021-22 To, The Dean/Principal, VELS Medical College & Hospital, 12/123, Velannagar, ManjankaranaiVillage,Tiruvallur, Tamil Nadu- 601102 Email: [email protected] Subject: A Surprise assessment conducted on 30th March, 2022 and found major deficiencies in VELS https://www.mhc.tn.gov.in/judis 15 W.P.Nos.29146 & 29385 of 2023 Medical College & Hospital, Thiruvallur, Tamil Nadu under the VELS Institute of Science, Technology & Advanced Studies (VISTAS) (Deemed to be University) in Infrastructure and faculty along with clinical material for the undergraduate MBBS students u/s 26, 28 and 29 of the NMC Act, 2019 for the academic year 2021-22 request for re-allocation of colleges for the admitted students from the above medical college - Immediate action and report to NMC-Show Cause Notice dated 13.04.2022- Explanation by college dated 29.04.2022-Rejection- Resolution of the Board Meeting dated 30.05.2022- Withdrawal of LOP and cancellation of admissions for 50 MBBS seats-regarding.
***** …………..
Faculty deficiency found to be 31.48%. 02 Assistant Professors in Anatomy, 01 Assistant Professor in Physiology, 01 Assistant Professor in Biochemistry, 02 Associate Professors, 02 Assistant Professors in General Medicine, 01 Assistant Professor in Respiratory Medicine, 02 Assistant Professors in General Surgery, 01 Assistant Professor in Eye, 01 Assistant Professor in Obstetrics, 01 Assistant Professor in Anaesthesia, 01 Associate Professor in Radio-Diagnosis, 01 Assistant Professor in Dentistry and 01 Assistant Professor in Emergency Medicine. It is noteworthy that 30% of faculty was deficient in the pre-clinical subject too; 04 out of 14 faculty were not available in these departments in which the students are taught in their 1st year.
Resident deficiency found to be 53.48% - 01 Resident/Tutor in Anatomy, 01 Resident/Tutor in Physiology, -1 Resident/Tutor in in Forensic Medicine, 02 Resident/Tutor in General Medicine, 02 Resident/Tutor in Psychiatry, 03 Resident/Tutor in General Surgery, 02 Resident/Tutor in Obstetrics, 02 Resident/Tutor in Anesthesiology, 02 Resident/Tutor in Radiology, 01 https://www.mhc.tn.gov.in/judis 16 W.P.Nos.29146 & 29385 of 2023 Resident/Tutor in Dentistry and 06 Resident/Tutor in Emergency Medicine.
Laboratory facilities in anatomy, physiology and bio- chemistry are not available. Laboratories and lecture theatres are not satisfactory. In Forensic Medicine, there is no Autopsy Block, departmental library and cold storage. The laboratory facilities in anatomy including dissection hall and museum, physiology and bio-chemistry laboratories are not available and don't have furniture, micro scopes and audio visual aids. Equipment, furniture audio-visual are not available. Hostels for students, residents, nurses are not available. Hospital has 290 beds against the requirement of 330 to start a medical college. The beds are not distributed to the different departments as per the requirements of a medical college. Number of 17 beds are occupies in medicine and allied branches against requirement of 110. Surgery and allied share common ward were 06 out of 90. Obstetrics and Gynecology wards are under construction. Out-patients were registered 767 on the day of assessment. Bed occupancy was
7.93% as per requirement of 60%, which is grossly inadequate for teaching PG students. Beds are grossly deficient in ICU, ICCU, NICU, PICU and SICU. All beds are vacant. Number of 01 major, 00 minor, 00 normal delivery and 00 Caesarean sections being performed on the day of assessment. No delivery being made since August, 2021. Clinical investigation are not recorded in Pathology, Histopathology and Cytopathology on the day of assessment.
Major and minor operation theatres were inadequate. Operation theatre are ill equipped with one Boyl's machine for the entire operation theatre complex and not having emergency and lifesaving equipment. In Radiology, 01 Mobile X-ray machine is deficient. Lecture theatres having small screen and there is no speakers in lecture theatre.
All the above deficiencies are major and grossly inadequate with respect to the mandatory requirements of any medical college https://www.mhc.tn.gov.in/judis 17 W.P.Nos.29146 & 29385 of 2023 to permit the admissions. A show cause notice was issued on 13.04.2022 and the college has submitted compliance report dated 29.04.2022.
………….
The report of the assessors’ and the explanation from the college has been discussed in the Medical Assessment and Rating Board to take appropriate action against the college. After deliberations by the Members of MARB, it was decided to reduce the Letter of Permission by 50 seats making it from 150 to 100 MBBS admissions for the academic year 2021-22 and thereafter per annum subject to the annual verification as well as Renewal of Permission till the recognition is granted for 100 seats.
Kindly acknowledge the receipt of this letter.
Sd/-
Member/President Medical Assessment and Rating Board (MARB) National Medical Commission
(vi) As against the above order, a first appeal had been filed to NMC, which vide order dated 05.08.2022, 17.06.2022, dismissed the same. A second appeal had been filed before the Government which, by order dated 30.05.2022 confirmed the reduction in the number of seats by 50 for AY 2021-22.
7. The respondents would attempt to argue that the LoP had been amended once and for all and thus for all years subsequent to AY 2021-22, it is https://www.mhc.tn.gov.in/judis 18 W.P.Nos.29146 & 29385 of 2023 only the reduced number of 100 students that should be taken to be the sanctioned intake.
8. Much has made of the language in which the reduction order was couched. The direction reads ‘After deliberations by the Members of MARB, it was decided to reduce the Letter of Permission by 50 seats making it from 150 to 100 MBBS admissions for the academic year 2021-22 and thereafter per annum subject to the annual verification as well as Renewal of Permission till the recognition is granted for 100 seats. The reduction of 150 to 100 MBBS seats is thus specific to AY 2021-22 only.
9. The direction is to the effect that the intake for the subsequent years is to be arrived at on a year on year basis based on the annual inspection and the results thereof. For the next AY, i.e., 2022-23, the petitioner has been permitted to admit 150 students as per the original LoP and admittedly, there is no change in this position till date. For the present academic year, there has been no inspection conducted and the main reason set forth for restricting the intake is the order passed on 30.05.2022 which is specific to AY 2021-22 only.
10. However, let me test the above argument of the respondent, that, as they say, the reduced students strength should be applicable for all the academic years going forward. Regulations 29, 30 and 31 of the Establishment https://www.mhc.tn.gov.in/judis 19 W.P.Nos.29146 & 29385 of 2023 of Medical Institution, starting of new medical courses (undergraduate and/or post graduate) (in short, Establishment of Medical Institutions,Assessment and Rating Regulations, 2023) (further shortened in this order to ‘2023 Regulations’) detail the modes and methodologies amounting to non-compliance and penalties for such non-compliance and read as follows:
29. Non-compliance defined - following acts or omissions of a medical institute shall amount to non-compliance – a. Non-compliance with any of the regulations, and no-
tifications of the National Medical commission issued from time to time.
b. The medical institution has conducted in a manner which is not in accordance with the objectives of the medical institution and practices like ragging, ex- ploiting students on fees etc. c. Deficiency in infrastructure, teaching staff, clinical material and others as prescribed by way of MSR or otherwise by UGMEB and/or PGMEB.
d. Any act of misbehavior, non-cooperation, forbidding the inspection process etc., with the assessors repre- senting the MARB or such other designated agency by the MARB in this regard.
e. Physical misbehavior by teaching staff with the stu- dents, harassment of faculty and/or students by the management etc. f. False information declared for obtaining permission for any of the schemes including the establishment of a medical institution.
g. Falsifying information or fabricating evidence at the time of inspection by the MARB or constituent au- tonomous boards or NMC- appointed third parties. https://www.mhc.tn.gov.in/judis 20 W.P.Nos.29146 & 29385 of 2023 h. Any attempt to bribe or pressurize or threaten asses- sors or official of NMC.
i. Any such act or omission as notified by the NMC in this regard.
30. Penalties – for any of the non-compliance or intentional attempt of non-compliance act or omission by the medical institution, the MARB shall either penalize the medical college or medical institution as per sub-section (f) of Section 26 of the Act and/or act, and wherever needed provide an opportunity to rectify the same.
31. Without prejudice to anything stated in Section 30 above the imposition of the penalty may include one/more/all of the following – a. Issuance of warning with accommodation of reasonable time for compliance or rectification as the case may be by the medical institution.
b. Monetary penalty not exceeding INR one crore per every non-compliance committed by the medical institution. c. Withholding processing of application for any new scheme/s for that academic year or for a such number of years.
d. Reducing the number of students in the next or subsequent academic years to be admitted by the medical institution. e. Stoppage of admission to one or more of the courses in the next or subsequent academic years.
f. Recommending to NMC for withdrawal of recognition. g. Withholding and withdrawal of rating of the medical institution for a period up to five academic years. h. Any attempt to pressurize MARB or NMC through individuals or agency will lead to immediate halt of the processing the application/request by the medical Institution.
https://www.mhc.tn.gov.in/judis 21 W.P.Nos.29146 & 29385 of 2023 Provided that the medical institution, may be granted a reasonable opportunity to rectify the deficiencies and any further action shall be taken if it fails to meet the requisite norms. Provided further that, the MARB or the Commission may also initiate criminal proceedings for furnishing false information, or fabrication of false documents as per the criminal law in force at that time.
11. It is relevant to note that clause 31 (d) provides for the reduction in the number of students to be admitted by the medical institution in the next or subsequent academic years. Such continuance of the reduction is to be based upon an annual inspection and the findings therein. In the present case, the order of reduction in intake specifically refers to AY 2021-22.
12. This finds support by the very counters filed by the respondents, both in the present matter as well as in W.P.No.22750 of 2022, a copy of which has been supplied to me now, where they state, at paragraphs 5 and 38, as follows:
Short Reply affidavit filed in W.P.No.22750 of 2022 by NMC and MARB.
5.It is most humbly submitted that the Respondent no.3, MARB, vide decision dated 30.05.2022, in view of gross deficiencies found in the Petitioner medical college decided to reduce the intake capacity of the Petitioner medical college from 150 MBBS seats sanctioned vide Letter of Permission dated 13.10.2021 to 100 seats in MBBS course for the academic year 2021-22. The above decision of MARB, was challenged by the Petitioner before Respondent no 2 – NMC, by way of an Appeal u/s 10(g) and 22(3) of the NMC Act, 2019, and Respondent https://www.mhc.tn.gov.in/judis 22 W.P.Nos.29146 & 29385 of 2023 no. 2 – NMC, vide order dated 27.06.2022, rejected the appeal of the Petitioner.
....................
38. The case of the Petitioner medical college was considered by the MARB, including the explanation furnished by the college, whereupon the after due considerations, the MARB, vide a reasoned and detailed order dated 30.05.2022, copy whereof is annexed as ANNEXURE R2/6____, decided to reduce the intake of 150 MBBS seats sanction vide Letter of permission dated 13.10.2021 to 100 MBBS seats for academic year 2021- 22. (Emphasis, in bold, mine)
13. Even in the counter filed in W.P.29146 of 2023, R1 has again confirmed and reiterated that the reduction in intake from 150 to 100 seats relates to AY 2021-2022. (See para 5 of the counter)
14. Since the petitioner has commenced courses in AY 2021-22, the specific Regulations that govern is the Minimum Requirements for Annual M.B.B.S Admissions Regulations, 2020 (in short ‘2020 Regulations’). These Regulations have been made applicable for medical colleges established from 2021-22 onwards. Regulations 2 and 4, relating to applicability and objective of these Regulations, read thus:
2(i) Applicability: These Regulations shall be applicable for Medical Colleges being established from the academic session 2021-22 onwards.
https://www.mhc.tn.gov.in/judis 23 W.P.Nos.29146 & 29385 of 2023
(ii) The relevant Minimum Standard Requirements for the Medical College for 50/100/150/200/250 Regulations and the Requirements to be fulfilled by the Applicant Colleges for obtaining Letter of Intent and Letter of Permission for Establishment of the new Medical Colleges and Yearly Renewals under Section 10-A of the Indian Medical Council Act, 1956 read with section 61(2) of the NMC Act,2019 shall be the governing Regulations for Medical Colleges established prior to last date of grant of letter of permission for establishing new Medical College/renewal of permission/increase of intake capacity for the Academic Session 2020-21.
4. Objective: The objective of these regulations is to prescribe for a medical college and Medical Institution approved for admissions of MBBs students annually, the minimum requirements of accommodation in the college and its associated teaching hospitals, staff (teaching and technical) and equipment in the college departments and hospitals.
15. Regulation 7 refers to the intake capacity and reads as follows:
7.Intake Capacity: Medical Colleges shall be established with an annual intake capacity of 100/150 MBBS Admissions annually and thereafter can be increased to 150/200/250 MBBS Admissions annually. The phase-wise Requirements to be fulfilled by the applicant colleges for obtaining Letter of Intent and Letter of Permission for Establishment of New Medical College or Increase in Annual intake & Yearly Renewals for 100/150/200/250 M.B.B.S. admissions annually shall be in accordance with Annexure I, II, III, and IV of these Regulations.
https://www.mhc.tn.gov.in/judis 24 W.P.Nos.29146 & 29385 of 2023
16. The above Regulations and the annexures provide for the various compliances to be effected by the colleges and the manner in which those compliance shall be verified by the respondents.
17. By virtue of the Establishment of Medical College Regulations, (Amendment), 2020, clause (1)(A) has been added under clause 8(3) under the head ‘GRANT OF PERMISSION’ and the new clause reads thus:
8(3)(1A) for Medical Colleges being established from Academic Session 2021-22: The permission to establish a Medical College and admit students may be granted initially for a period of one year and may be renewed on yearly basis subject to achievements of annual targets. Physical Verification of infrastructure, human resources and other facilities shall be carried out for first renewal, third renewal and until recognition of the MBBS qualification awarded by the Medical College is granted. It shall be the responsibility of the person to apply to the Medical Assessment and Rating Board of the National Medical Commission for the purpose of renewal in accordance with the prescribed time schedule. Further admissions shall not be made at any stage unless the requirements laid down in relevant Minimum Standard Requirement Regulations for Annual MBBS Admissions and Phasewise Requirements for grant of Permission under section 10A are fulfilled. Further, the proviso to Regulation 8(3)(1) shall remain applicable to all Medial Colleges being established from academic session 2021- 22 onwards.
18. The above Regulation requires an inspection to be mandatorily conducted in the odd years comprised in the first five years, ie., in the 1 st, 3rd and 5th years, though surprise inspections may be conducted at any time in the https://www.mhc.tn.gov.in/judis 25 W.P.Nos.29146 & 29385 of 2023 interim years. One of the penalties imposed for deficiencies/lacunae noted at the time of inspection/assessment is by the mode of reduction of students to be admitted by the medical institution in the next or subsequent academic years .
19. For 2022-23, the petitioner had applied for permission to admit 150 students. On 08.09.2022, a surprise inspection was conducted, which threw up no major defects. Two negative observations had been made that had been duly responded to and satisfactorily explained by the petitioner. I have had occasion to refer to this aspect of the matter in order dated 18.10.2023 and at paragraph 12 and 13 have referred to the specific deficiencies for the academic year when the inspection was conducted.
20. It is relevant to note that the second inspection/annual assessment was specific to AY 2022-23 only and the heading in the form of assessment is specific to this year. Moreover, Summary also testifies to the year as well as the fact that the intake was accepted at 150 for that year, by the authorities.
'Summary of Assessment
1. VELS MEDICAL COLLEGE & HOSPITAL, Under Vels Institute of Science, Technology & Advanced Studies (VISTAS) Deemed to be University (College Name), is run by Government/Trust/Society/Company.
2. The college has got permission from GOI/MCI with intake of 150 seats for the last academic year.
https://www.mhc.tn.gov.in/judis 26 W.P.Nos.29146 & 29385 of 2023
3. Type of assessment: Random UG surprise assessment for academic year 2022-23. No. of seats:150
4. PG courses: Yes/No
5. Deficiency of teaching staff if any: 01 associate professor in the department of Forensic Medicine Shortage of teaching faculty is 1.01%
6. Deficiency of resident doctors if any: Nil Shortage of resident doctors is NIL %
7. Deficiency of infrastructure of college and hospital If any: Pl. Mention category wise; Nil
8. Deficiency of clinical material if any: Pl mention category wise; Nil
9. Any other Remarks:-----
21. Show cause notices were issued that were responded to, despite which MARB issued a LoP on 23.11.2022 for only 100 seats. A representation had been filed by the petitioner on 24.11.2022 seeking intake of 150 as per the original LoP. Though no direct response was received from MARB, an official Notification was put up on the website of NMC that permission had been granted for admission of 150 students. MCC thus conducted counselling for 150 students as well.
22. The screenshots of the aforesaid details are available on the website of NMC and display the following details:
https://www.mhc.tn.gov.in/judis 27 W.P.Nos.29146 & 29385 of 2023 LIST OF COLLEGES TEACHING MBBS Sl.N Course State Name and University Managem Year of Annua Status of MCI Date of LOP o. Name Address of Name ent of inspect l Recognition Medical College ion of intake College/Me college (seats) dical Institution 1 MBBS Tamil VELS Vels Trust 2021 150 Permitted for 150 13.10.2021 Nadu Medical Institute of seats u/s 26 College & Science, (1)(a)(b) & 28(1)(2) Hospital Technology of the NMC Act, & 2019 for 2021-22.
Advanced Cancellation of
Studies admission for 50
(VISTAS) M.B.B.S. seats for
(Deemed to academic year
be 2021-22. Permitted
University) AY u/s 10 (A) for
2020 -21. Permitted
for renewal of 150
seats for the AY
2022-23.
23. Impugned order dated 03.10.2023 contains some discussion inter se the parties on their understanding of the aforesaid sequence of events. The sum and substance of the same is that the authorities agree that the Notifications on the official websites had undoubtedly been put up by the authorities themselves and counselling for all 150 seats had been conducted by MCC through the official channels of counselling only.
24. The order contains reference to a letter issued by MARB on 14.07.2023 for stoppage of admission for 100 seats originally (in appeal, the petitioner was permitted to admit 100 students and reduction and the reduction https://www.mhc.tn.gov.in/judis 28 W.P.Nos.29146 & 29385 of 2023 was limited to 50 seats only out of 150 seats). There is also reference to the letter of NMC dated 01.09.2023 to the effect that the intake had been reduced to 100 and the acquiescence by the Dean of the petitioner Institution that there had been some misunderstanding on the part of the college in that regard. A request was made for resolving the mistake.
25. Much has made of this statement to say that the petitioner was well aware of the reduction and hence the present Writ Petitions itself must not be entertained or must be dismissed. All in all, the submission of the respondents is that going forward, i.e., for A.Ys., 2023-24, 2024-25 and 2025-26, the petitioner will be permitted to admit only 100 students. This submission falls foul of the 2023 Regulations, especially Regulations 29 to 31 that stipulate that reduction in intake shall be specific to the year when adverse findngs were made in an annual inspection and for subsequent academic years, the intake shall be based on the findings in the annual inspection relating to that year.
26. On this understanding, I am not inclined to accept the submission of the respondents that this Court confirm the impugned orders confirming intake of only 100 students for AY 2023-24. Though there has been detailed arguments on various aspects of the matter, the singular issue that requires https://www.mhc.tn.gov.in/judis 29 W.P.Nos.29146 & 29385 of 2023 adjudication is as to whether the order dated 30.05.2022 reducing intake to 100 from 150 applies only to that year only or subsequent years as well.
27. The impugned orders that have been passed rejecting the first and second appeals of the petitioner for permission to admit 150 students do not consider the applicable Regulations, being the 2023 and 2020 Regulations, and this, in my view, is a fatal flaw.
28. The respondents have circulated a copy of the Assessor’s Guide as well as cited decisions, all to the effect that the process of assessment is to be taken very seriously and the Assessors appointed for such purpose, ie., for inspection and assessment of a medical facility, are experts whose opinion should not be made the subject matter of debate.
29. I make it clear that I have no intention of doubting the assessment made by the experts. It is for this very reason that I would go by the assessment made on 08.09.2022 relating to AY 2022-23. That inspection is a comprehensive one and none of the deficiencies noted in the previous inspection survive. Thus, I cannot help but express surprise and some amount of trepidation in the fact that as far as AY 2023-24 is concerned, no inspection/assessment has been made till date.
https://www.mhc.tn.gov.in/judis 30 W.P.Nos.29146 & 29385 of 2023
30. True, while inspections as far as the 3rd and 5th years are concerned are mandatory as per the Regulations, surprise inspections may be conducted at any point in time to ensure maintenance of standards and for the respondents to satisfy themselves that the institutions are being managed in a proper manner.
31. Public Notice has been issued on 07.03.2023 permitting colleges to file an affidavit to the effect that there are no defects in their functioning and the petitioner has done so. Of course this does not preclude the conduct of a surprise inspection at any point in time. Bearing in mind the importance of medical education, the requirement of pristine and cutting edge facilities and the immaculate adherence to high standards, one would expect that inspections must be conducted on an annual basis, particularly in cases where deficiencies have been noted in the previous years.
32. The second appeal has been rejected on the following four grounds:
(a) There has been fraudulent admission of 50 students for AY 2022-23 ‘in pretext’ that the website revealed 150 seats as against the name of the college. According to the respondents, this is a mere clerical mistake. This is gross over signification and an apex body of the https://www.mhc.tn.gov.in/judis 31 W.P.Nos.29146 & 29385 of 2023 stature of the NMC/MARB does not have the luxury of such negligence.
(b) There has been a mis-declaration by the college in regard to the admissions for AY 2023-24.
(c) No inspection was conducted for AY 2023-24.
(d) There have been false declarations by the petitioner Institution on the MCC portal.
33. As regards the last point, there is nothing to substantiate that the petitioner has made any false declaration on the portal. It has merely gone on the basis of the number of students reported on the MCC portal.As far as the inspection is concerned, nothing prevented the respondents from conducting one and the fact that they have not undertaken any inspection cannot be to the detriment of the petitioner.
34. While this Court is cognizant of the fact that facilities and infrastructure available in a medical college must be optimum, I am guided by the fact that the inspection report for AY 2022-23, which, again, is specific to that year, reveals hardly any defects/deficiencies. The few that have been noticed have also been remedied/explained. https://www.mhc.tn.gov.in/judis 32 W.P.Nos.29146 & 29385 of 2023
35. There is nothing whatsoever to indicate in the inspection report for AY 2022-23 that the defects noted or any portion thereof noticed for AY 2021- 22 continue.
36. There is thus nothing on record to indicate that for the subsequent year, AY 2023-24, there are deficiencies and in any event, it is for the respondents to undertake an inspection to ensure that the facilities are in top order. They cannot assume deficiencies or defects, and on the basis of such presumptions/assumptions, deny permission for the sanctioned intake, specifically in light of the 2023 Regulations.
37. All the inspection reports that have been issued are specific to the year in which the inspection was conducted and there is no merit in the contention that once a sanctioned intake is reduced, such reduction will apply for all and anon.
38. Needless to say, if the inspection for the second year had revealed the continuance of gross defects/deficiencies, the respondents undoubtedly must continue the reduction or even consider more stringent measures. However, the facts indicate otherwise.
39. The Hon’ble Supreme Court in the case of Priyadarshini Dental College and Hospital v. Union of India and Others [(2011) 4 SCC 623] was https://www.mhc.tn.gov.in/judis 33 W.P.Nos.29146 & 29385 of 2023 called upon to consider the implications of the Schedule annexed to the Regulations in the Dental Council of India. Those Regulations/Schedule prescribe certain time frames within which applications were to be made for renewal and orders be passed by the authorities.
40. Inspection of various colleges had been conducted and deficiencies found in respect of infrastructural facilities and faculty. Though the colleges had submitted that the deficiencies had been rectified, there was no subsequent visit to re-confirm such rectification, leading the colleges to approach the Courts for redressal.
41. The Court noted that the infrastructure and facilities to be deployed would not be full and complete in the first year and there would be an incremental increase every year on account of the increased intake in every academic year. At paragraph 25 of that judgment, they state as follows:
25.The need for renewal of permission emanates from the fact that a newly established college is not required to have in place, full complement of the teaching faculty and complete infrastructure in the first year itself. This is because, during the first year, the college will be catering only to a limited number of first year students. During the second, third and fourth and fifth years, the student strength will increase. If the permitted intake is 100, usually there will be 100 students in the first year, 200 students in the second year, 300 students in the third year, 400 students in the fourth year and 500 students in the fifth year. Thereafter, the https://www.mhc.tn.gov.in/judis 34 W.P.Nos.29146 & 29385 of 2023 strength may remain constant. As the strength increases gradually every year, correspondingly the infrastructure and faculty will have to be increased.
42. In Royal Medical Trust (Registered) and another v. Union of India and another [(2015) 10 SCC 19], three Judges of the Hon’ble Supreme Court state as follows:
29.As regards cases of renewal, it was laid down in Priyadarshini Dental College and Hospital v. Union of India, (2011) 4 SCC 623 that the process of decision-making for grant of fresh or initial permission for establishment of a new college is exhaustive and elaborate when compared to such decision-making in regard to grant of renewal of permission for the four subsequent years. It was further stated that before grant of initial permission the aspects whether the institution would be in a position to offer the minimum standards of education in conformity with the Act and the Regulations and whether the institution has adequate resources and whether the institution has provided or will be able to provide within the time-limit specified in the scheme all the required facilities and faculty are required to be considered and scrutinised very closely. On the other hand, for the purposes of grant of renewal what is required to be considered is whether the prescribed faculty and infrastructure is available. Considering renewal cases on a parameter distinct and different from that relating to establishment of a new college for the first time, it was observed that the entire process of verification and inspection relating to renewal ought to be done well in time so that the existing colleges have adequate and reasonable time to set right the deficiencies or offer explanation to the deficiencies.
https://www.mhc.tn.gov.in/judis 35 W.P.Nos.29146 & 29385 of 2023
43. The sum and substance of the above judgements is that every medical institution, in every year of its existence would have to be assessed and inspected scrupulously with independent application of mind by the Assessors to decide on the continuance, modification or other change required to be made in the mode and manner of functioning of the college.
44. The parameters to be adopted at the time when the college is set up, vis-a-vis those that would be adopted for renewal of application are different. So too in the present case. While the infrastructure that was found deficient for the first year necessitated the reduction of the sanctioned strength from 150 to 100 (which order is sub-judice) a subsequent inspection has found minimal deficiencies and those too have been rectified.
45. In support of the test of proportionality, the petitioner relies upon a decision of the Kerala High Court in Lisie College of Nursing V. The State of Kerala and Ors.(Manu/KE/3379/32021). That Nursing College had not provided for a swimming pool and the authorities had reduced the intake from 70 to 40. In that context, the Court has this to say:
49. Moreover, the learned counsel appearing for the Indian Nursing Council submitted that the basic requirement of the Indian Nursing Council is in respect of the adequacies of the teaching block as well as hostel building, as is extracted above, and it was not insisting throughout the years for a larger playground even though in the regulation it is specified so. It is https://www.mhc.tn.gov.in/judis 36 W.P.Nos.29146 & 29385 of 2023 also pointed out by the learned counsel for Indian Nursing Council that the Indian Nursing Council has not denied approval to any institution for not providing a larger area for the playground. We are also convinced that Exhibit P26 regulations and Exhibit P24 guidelines of the Indian Nursing Council have given thrust and significance to the adequacies of a teaching block and a hostel block, and other educational and academic requirements and pursuits, though it speaks of a playground for outdoor games as is specified above.
Indisputably, the appellant is having sufficient building space in accordance with the specifications of the Indian Nursing Council, and this we say especially due to the fact that any of such defects are seen reflected in the impugned orders. ...........
50. Anyhow, analysing the situation in the above backdrop and the sum and substance of Exhibit P19 impugned order, issued without assigning any reason for reducing the intake of 70 seats and the contents of Exhibit P20 order noting deficiency, we are of the considered opinion that interference is required to the judgment of the learned Single Judge. Therefore, we set aside the judgment of the learned Single Judge and hold that Exhibit P19 order reducing the number of seats from 70 to 40 on the basis of Exhibit R3(c) surprise inspection report cannot be sustained under law. Accordingly, Exhibit P19 order is set aside to the extent of reducing approval of the seat to 40 from 70 for the academic year 2020-2021 as sought for by the appellant.
46. If this case was to be compared with the above, the result would be a reduction of intake from 150 to 100 for the following 2 deficiencies:
(i) Deficiency of teaching staff if any: 01 associate professor in the department of Forensic Medicine Shortage of teaching faculty is 1.01%
(ii)Bed Occupancy 67.75% with no deliveries https://www.mhc.tn.gov.in/judis 37 W.P.Nos.29146 & 29385 of 2023 (LSCS and NVD) on the day of assessment
47. The penalty is hardly commensurate to the crime. The list of deficiencies for AY 2021-22 was far higher and more serious in their import. The result was a penalty of reduction of seats from 150 to 100. In light of the far less serious and reduced number of violations in the next year (AY 2022-23) and NIL penalties for the present year (AY 2023-24), no inspection has been conducted thus far, the original penalty cannot sustain beyond the first year. Even on this ground, the argument of the respondents does not appeal.
48. Taking support from the aforesaid judgments and in light of the discussion in the preceding paragraphs, these Writ Petitions are allowed. Impugned order dated 03.10.2023 is set aside to the extent to which the authorities confirm reduction of seats from 150 to 100 and mandamus is issued permitting counselling for the remaining 50 seats. No costs. Connected Miscellaneous Petitions are closed.
07.12.2023 Index : Yes Speaking Order Neutral citation:Yes Sl To
1.Union of India, https://www.mhc.tn.gov.in/judis 38 W.P.Nos.29146 & 29385 of 2023 Through its Joint Director (ME) Ministry of Health and Family Welfare, Nirman Bhawan, New Delhi – 110 001
2.Union of India, Through its Secretary, Ministry of Health and Family Welfare, Nirman Bhawan, New Delhi – 110 001
3.National Medical Commission, Through its Chairman Pocket-14, Sector-8, Dwarka Phase-I New Delhi – 110 077
4.Medical Assessment and Ratings Board, Through its President, Pocket-14, Sector-8, Dwarka Phase-I New Delhi – 110 077
5.Medical Counselling Committee (MCC) Directorate of Health and Family Welfare, Ministry of Health and Family Welfare, Government of India Nirman Bhawan, New Delhi – 110 001.
https://www.mhc.tn.gov.in/judis 39 W.P.Nos.29146 & 29385 of 2023 DR.ANITA SUMANTH,J.
sl Pre-delivery order in WP.Nos.29146 and 29385 of 2023 & WMP.Nos.28758 and 29015 of 2023 07.12.2023 https://www.mhc.tn.gov.in/judis 40