Rajasthan High Court - Jaipur
Indian Mission Of Medical Sciences ... vs Union Of India on 5 November, 2024
Author: Sameer Jain
Bench: Sameer Jain
[2024:RJ-JP:43781]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 15646/2024
1. Indian Mission Of Medical Sciences Society, Through Its
President Dr. Rajendra Kumar Agarwal Son Of Shri Lal
Agarwal, Having Registered Office At House No. 11-A,
Talwandi, Kota (Rajasthan)
2. Sudha Medical College, Through Its Principal And
Controller, Having Registered Office At 128, Gram
Umaidpura, Via Jagpura, Tehsil Ladpura, Jhalawar, Nh-52,
Kota-325003.
----Petitioners
Versus
1. Union Of India, Through Its Secretary, Ministry Of Health
And Family Welfare, Government Of India (Medical
Education-I), New Delhi.
2. National Medical Commission, Through Its General
Secretary, Having Registered Office At Aiwan-E-Galib
Market, Pocket-14, Sector-8, Dwarka, Phase-I, New Delhi.
3. Medical Assessment And Rating Board (Marb), Through
Its President Having Registered Office At Aiwan-E-Galib
Market, Pocket-14, Sector-8, Dwarka, Phase-I, New Delhi.
4. State Of Rajasthan, Through Principal Secretary, Medical
Education Department (Grade-I), Secretariat, Jaipur.
5. Rajasthan University Of Health Sciences, Through
Registrar, Having Registered Office At Sector-18, Kumbha
Marg, Pratap Nagar, Tonk Road, Jaipur-302035
----Respondents
For Petitioner(s) : Mr. Vikas Balia Senior Counsel with Mr. S.S. Shekhawat Mr. Devid Mehla Mr. Akshay Sharma For Respondent(s) : Mr. R.D. Rastogi Senior Counsel with Mr. Angad Mirdha Mr. Devesh Yadav Mr. Vigyan Shah, AAG with Mr. Yash Joshi Mr. Akshat Sharma for Mr. Sandeep Pathak (Downloaded on 05/11/2024 at 10:07:33 PM) [2024:RJ-JP:43781] (2 of 29) [CW-15646/2024] HON'BLE MR. JUSTICE SAMEER JAIN Order REPORTABLE RESERVED ON : 17/10/2024 PRONOUNCED ON : 05/11/2024 "To study the phenomena of disease without books is to sail an uncharted sea, while to study books without patients is not to go to sea at all"
The famous saying elucidates the necessity of having not just a decent Medical College, but also the unspecified/specified requisites that actually makes an institution imparting medical education a noble institute and an ideal health care unit/ hospital.
1. The instant petition is filed with the following prayers:
"It is therefore, most humbly prayed before this Hon'ble Court that the writ petition so preferred by the petitioners be kindly allowed and accepted by the Hon'ble Court wherein after the Hon'ble Court be pleased to pass appropriate writ, order or direction to the respondents in the nature of:-
I. To Quash and Set aside the order dated 04.07.2024, to the extent of reducing intake capacity from 150 to 100 seats of MBBS students.
II. To Quash and Set aside the order dated 06.08.2024 dismissing the 1st appeal and the order dated 13.09.2024 dismissing the second appeal.
III. To direct the respondents to allow the Petitioner to grant approval for Intake Capacity of 150 students for MBBS Course for the academic session 2024-25 onwards.
IV. Any other writ or direction that the court deems fit, just and proper may kindly be issued in favour of the petitioner.
V. Costs may kindly be also awarded in favor of the petitioner."(Downloaded on 05/11/2024 at 10:07:33 PM)
[2024:RJ-JP:43781] (3 of 29) [CW-15646/2024]
2. The instant petition is filed under the provisions of Article 226 of the Constitution and primarily in the matter of Graduate Medical Education Regulations, 2023 and the guidelines for undergraduate courses under Establishment of New Medical Institutes, starting of New Medical Courses, increase of seats for existing courses and assessment and rating Regulations, 2023.
3. At the outset, learned counsel representing the petitioner- society had submitted that the petitioner is a society registered under the Societies Registration Act, 1958 with an object of promoting medical science and development of medical education and medical wellbeing of writ large. The said society was registered on 10.03.2010 (Annexure-1) and is working ever-since then. It was further contended that the field of medical education was regulated by the Indian Medical Council Act, 1956 (hereinafter referred to as Act of 1956) wherein, the council was developed for imparting education and maintaining standards of medical education within the country.
4. Considering the same and as per the provisions enumerated in Section 10A of the Act of 1956, the petitioner attained sanction from the Central Government. Further, it was contended that that as per the Act of 1956, Medical Council of India was established however, subsequently the Central Government diluted the Medical Council of India and the Act of 1956 was repealed and incorporated the National Medical Commission Act, 2019 (hereinafter referred to as Act of 2019). From that day forward the field of medical education is governed and regulated by the Act of 2019. Consecutively, the petitioner in order to establish a (Downloaded on 05/11/2024 at 10:07:33 PM) [2024:RJ-JP:43781] (4 of 29) [CW-15646/2024] Medical College on the land belonging to it, applied before the Department of Medical Education for issuance of letter of permission (hereinafter referred to as LOP). The petitioner also appended the desired requirement for assessment and grant of LOP.
5. The Department of Medical Education after conducting preliminary verification issued permission vide letter dated 24.03.2023 (valid for a period of three academic years only) to the petitioner-society for establishing a Medical College with an intake capacity of 150 seats (Annexure-4). Resultantly, the petitioner after attaining requisite affiliation from the State authorities applied for affiliation and recognition from the Rajasthan University of Health Science (hereinafter referred to as RUHS). The said authority vide letter dated 09.04.2023 (Annexure-5) granted permission for establishment of a Medical College. Thereafter seeking requisite permissions (including the environmental and safety permissions) from the State authorities, the petitioner-society applied before the National Medical Commission for grant of permission for establishment of the said college (Annexure-6).
6. Consequentially, the National Medical Assessment and Rating Board (hereinafter referred to as MARB) issued a show cause notice dated 03.04.2024 to the petitioner pointing out certain inadequacies which shall restrain the petitioner-society from establishing the said Medical College (Annexure-7). Nevertheless, the petitioner-society replied to the said show cause notice vide its reply dated 10.4.2024 (Annexure-8).
(Downloaded on 05/11/2024 at 10:07:33 PM) [2024:RJ-JP:43781] (5 of 29) [CW-15646/2024]
7. Considering the nature of paucities the respondents conducted a surprise inspection, whereby certain deficiencies were pointed out along with shortage of teaching staff in the institution and parturition. Subsequently, due to the deficiencies descried by the respondents the intake capacity of the said Medical College was reduced from 150 seats to 100 seats vide letter dated 04.07.2024 (Annexure-9). Being aggrieved of the aforementioned reduction in intake of seats, the petitioner preferred an appeal on 10.07.2024 - Appeal no. 503, before the appropriate forum (Annexure-10). In the said appeal the petitioner had categorically stated the requisites which were mandatory to attain the said intake and its justification qua the same along with the necessary exhibits.
8. However, on 06.08.2024 the said appeal was dismissed after according due audience to the Principal/Dean of Sudha Medical College and Hospital, Kota (the said Medical College). As a result the decision passed by the MARB was upheld. Aggrieved of the said decision the petitioner-society preferred Second Appeal before the higher authorities i.e. before the Central Government (Annexure-12) along with the relevant exhibits.
9. At this juncture, whilst placing reliance upon the Second Appeal preferred by the petitioner-society, learned counsel appearing for the petitioner had averred that the said appeal was decided merely noting the contentions of the petitioner, without giving any findings (Annexure-13). Hence, it can be deduced that the same is passed sans due application of mind. Moreover, the said order cannot be termed as a speaking order hence gross (Downloaded on 05/11/2024 at 10:07:33 PM) [2024:RJ-JP:43781] (6 of 29) [CW-15646/2024] violation of the principles of natural justice and the fundamental rights as enshrined under Article 14 and 21 of the Constitution of India is committed by the respondents.
10. Contending further learned counsel had submitted that the respondents being an entity of the State have willfully resorted to sheer arbitrariness wherein, the appeals preferred by the petitioner were dismissed in a perfunctory manner, even without appreciating any material placed/exhibited therein. It was further averred that resultant to the said act of the respondents the petitioner-society has to bear gargantuan losses, as a mammoth investment was made in the infrastructure and in order to establish the said Medical College.
11. Further, learned counsel had placed reliance upon the provisions enshrined under the Act of 2019 more particularly upon Section 28(3) of the Act, and averred that as per the said provision the approval or dis-approval decision of the MARB, for establishment of new college ought be made and communicated within a period of six months, from the date of such receipts and before disapproval and opportunity to rectify the defect ought be given. Nevertheless, in the instant matter no decision was communicated within a period of six months from the submission of the said scheme. For the sake of brevity the relevant provision is reproduced herein below:
"28. Permission for establishment of new Medical College.--
(1) No person shall establish a new Medical College or start any postgraduate course or increase number (Downloaded on 05/11/2024 at 10:07:33 PM) [2024:RJ-JP:43781] (7 of 29) [CW-15646/2024] of seats without obtaining prior permission of the Medical Assessment and Rating Board.
(2) For the purposes of obtaining permission under sub-section (1), a person may submit a scheme to the Medical Assessment and Rating Board in such form, containing such particulars, accompanied by such fee, and in such manner, as may be specified by the regulations.
(3) The Medical Assessment and Rating Board shall, having due regard to the criteria specified in section 29, consider the scheme received under sub-section (2) and either approve or disapprove such scheme within a period of six months from the date of such receipt:
Provided that before disapproving such scheme, an opportunity to rectify the defects, if any, shall be given to the person concerned.
(4) Where a scheme is approved under sub-section (3), such approval shall be the permission under sub-section (1) to establish new Medical College.
(5) Where a scheme is disapproved under sub-
section (3), or where no decision is taken within six months of submitting a scheme under sub-section (1), the person concerned may prefer an appeal to the Commission for approval of the scheme within fifteen days of such disapproval or, as the case may be, lapse of six months, in such manner as may be specified by the regulations.
(6) The Commission shall decide the appeal received under sub-section (5) within a period of forty-five days from the date of receipt of the appeal and in case the Commission approves the scheme, such approval shall be the permission under sub-section (Downloaded on 05/11/2024 at 10:07:33 PM) [2024:RJ-JP:43781] (8 of 29) [CW-15646/2024] (1) to establish a new Medical College and in case the Commission disapproves the scheme, or fails to give its decision within the specified period, the person concerned may prefer a second appeal to the Central Government within thirty days of communication of such disapproval or, as the case may be, lapse of specified period.
(7) The Medical Assessment and Rating Board may conduct evaluation and assessment of any medical institution at any time, either directly or through any other expert having integrity and experience of medical profession and without any prior notice and assess and evaluate the performance, standards and benchmarks of such medical institution.
Explanation.--For the purposes of this section, the term "person" includes a University, trust or any other association of persons or body of individuals, but does not include the Central Government."
12. Additionally, reliance was placed upon Annexure-14, 15, 16 and it was submitted that in identical circumstances the respondent department had granted benefit to the colleges therein, as in case of Government Medical College, Banswara (Rajasthan), Government Medical College, Nagpur and Government Medical College, Amrawati (Maharashtra) it was opined that the deficiencies can be cured by the next academic year. Nevertheless, even in case of private colleges like Nova Institute of Medical Science, in the Second Appeal the deficiencies pointed out, were allowed to be remedied by subsequent academic session. Hence, as per the doctrine of parity, the same ought to be tendered to the petitioner.
(Downloaded on 05/11/2024 at 10:07:33 PM) [2024:RJ-JP:43781] (9 of 29) [CW-15646/2024]
13. Further, reliance is placed upon the ratio enunciated in Tirupati Balaji Education Trust and anr. Vs. Union of India and ors. registered as S.B. Civil Writ Petition No. 12053/2024, and Medical Council of India Vs. Kalinga Institute reported in (2016) 11 SCC 522.
14. Lastly, learned counsel had averred that the respondents on 08.10.2024 (Annexure-19) have notified the provisional seat matrix after the second round of counseling and have also provided the schedule for the third round of counseling which is sought to be completed by 23.10.2024. However, the subsequent round of counseling would be notified at a later time thus, in the present case counseling is ongoing and is likely to take time as the third round for the same is yet to be notified.
15. As in antithesis, learned counsel representing the respondents had stoutly opposed the contentions made by the learned counsel for the petitioner and had averred that infrastructure is a key pillar supporting the fundamental aim of promoting improved standards of care and wellbeing for all patients, together with a good experience of the health care system. A comprehensive, approach for managing medical equipment, overseen by a responsible lead, ensures that appropriate medical equipment is available and fit-for-purpose, as required for the delivery of high quality clinical services. This requires scrutiny of every element of the life cycle of a device from specification of requirements, through evaluation of competing products, decontamination, procurement, introduction, maintenance and quality assurance to disposal and funded plans (Downloaded on 05/11/2024 at 10:07:33 PM) [2024:RJ-JP:43781] (10 of 29) [CW-15646/2024] for equipment replacement. In addition, the responsible lead should evaluate and introduce appropriate new technologies and ensure that requirements for medical equipment are factored into service development proposals.
16. It was further submitted that the approval for establishing a Medical College and award of seats is governed as per the provisions of the Act of 2019, more particularly Section 28 read with Section 57. It was further contended that vide regulation dated 02.06.2023 [issued as per Section 57(2) - powers to make regulations, of the Act of 2019] it was unambiguously noted that as per the Schedule II, 40 is the mandatory figure for Associate Professors, 55 for Assistant Professor and 19 for Professors which makes the total number of faculty staff to be 114 along with Demonstrators of 32 and Senior Residents of at-least 58 head count. Nevertheless, during the course of inspection that was conducted by MARB, certain deficiencies were descried by them. It is an undisputed fact that the said inspection was conducted by a team consisting of requisite members and experts in the said field, strictly in accordance with the provisions of the governing statute.
17. The said deficiencies were duly notified to the petitioner vide show cause notice dated 03.04.2024 considering the application (Application ID No. NMC/UG/2024-25/000025) for establishment of new Medical College for the academic year 2024-25 as per Section 28(3) proviso of the Act of 2019 (Annexure-7). In the said show cause notice requisite opportunity to tender reasonable justification or relevant documents was duly granted, along with a table depicting the factors considered by MARB and the (Downloaded on 05/11/2024 at 10:07:33 PM) [2024:RJ-JP:43781] (11 of 29) [CW-15646/2024] deficiencies specifically qua the manpower, engineering services and hospital services, building and infrastructural lack were stated.
18. In this backdrop, learned counsel representing the respondents had averred that the respondent had taken a decision to grant LOP for establishment with 100 MBBS seats instead of 150, as applied for by the petitioner, from the academic year 2024-25, in view of the severe deficiencies of Teaching faculty i.e. 20.18% and deficiencies of Tutor/Resident i.e. 18.97%, found in the petitioner-Medical College. Moreover, considering that the hospitals and medical health care units directly deal with the infected/person in need of medical assistance hence, in order to render best of their services such hospital ought to be entirely operational and able to adhere to its objective. Hence, Courts ought not to grant indulgence in the disputes of such nature.
19. At this juncture, learned counsel had placed reliance upon Annexure 11 i.e. the decision of Appeal Committee of NMC (I Appeal) wherein it is categorically noted that the Dean/Principal of Sudha Medical College and Hospital, Kota has affirmed the decision of MARB for starting the course of MBBS with intake of 100 students only. Moreover, no rebuttals qua the said report of MARB were made during the course of adjudication of the said appeal by the petitioner. Hence, the petitioners are bound by the doctrine of esttopel. Further, it was contended that subsequently, exercising the powers conferred under Section 57 of the Act of 2019, respondents had framed the Minimum Requirements for Annual MBBS Admissions Regulations, 2020 published in the (Downloaded on 05/11/2024 at 10:07:33 PM) [2024:RJ-JP:43781] (12 of 29) [CW-15646/2024] Official Gazatte on 29.10.2020 (Annexure-R-2/1). The said Regulations are applicable from the academic year 2021-22 onwards, and provide for the minimum standard requirements for Medical Colleges seeking 50/100/150/200/250 MBBS seats for grant of permissions, as well as annual renewals.
20. Qua the contention made by the counsel representing the petitioner for being aggrieved of the order passed under section 28(3) of the Act of 2019 i.e. the same was not made within the stipulated time period of six months, learned counsel appearing for the respondent had averred that the same should be assailed under the provisions of section 28(5) after the lapse of six months. Further, it was contended that Annexure 15, 16 and 17 of which the petitioners have placed reliance are of distinguishable factual matrix as therein, the colleges were already in existence and were not seeking permission for establishment of a new Medical College, as in the matter in hand.
21. Moreover, the arguments made qua the Regulations of 2023 are not tenable as therein it is categorically spelled out that certain deficiencies including the deficit manpower cannot be cured at a subsequent stage. Moreover, the Regulations of 2023 have a statutory applicability and no change in the same can be made under judicial review, as the same is entwined with the objective and aims of the Act of 2019.
22. Consecutively, learned counsel had placed reliance upon the circulars dated 01.08.2022 and 25.01.2023 (Annexure- R-2 and R- 3 respectively) and submitted that respondent-NMC had downright stated and circulated its directions qua all private and government (Downloaded on 05/11/2024 at 10:07:33 PM) [2024:RJ-JP:43781] (13 of 29) [CW-15646/2024] Medical Colleges (PAN India) qua requisites which shall result in disqualification and termination of license (if already granted) and specific condition that the increase in UG or PG seats intake shall only in awarded considering the data provided upon/by Adhaar Enabled Biometric Attendance System (AEBAS) and Hospital Management System (HMS). It was further submitted that in terms of the Establishment of New Medical Institutions, Starting of New Medical Courses, Increase of seats for Existing Courses & Assessment and Rating Regulations, 2023, the MARB had issued its guidelines for AY 2024-2025. Moreover, as per in guideline 2(a) of the said guidelines, it is elucidated that prior to the last date of submitting applications, only colleges with faculty count of more than 75% attendance for the last three months, from the last date of application (i.e. 19.09.2023) on AEBAS platform shall be considered eligible for establishment of Medical College and/or renewal of the sanctioned intake capacity.
23. It was further contended that the judgment - Tirupati Balaji Education Trust and anr. (Supra) relied upon by the counsel representing the petitioner, is open to appeal and is not yet affirmed/ upheld by the highest judicial authority. Nevertheless, the said ratio has Achilles heel, as certain legal grounds are not considered therein. Moreover, the same is passed sans considering the basic provisions of the Act of 2019 and Regulations of 2023.
24. In support of the contentions made insofar learned counsel had placed reliance upon the dictum enunciated in Medical Council of India vs. JSS Medical College & Anr. reported in (Downloaded on 05/11/2024 at 10:07:33 PM) [2024:RJ-JP:43781] (14 of 29) [CW-15646/2024] (2012) 5 SCC 628; Medical Council of India vs. Kalinga Institute of Medical Science (KIMS) & Ors. reported in (2016) 11 SCC 530; Faiza Choudhary vs. State of Jammu and Kashmir & Anr. reported in (2012) 10 SCC 149; S. Krishna Sradha vs. State of Andhra Pradesh & Ors. reported in (2020) 17 SCC 465, Fuljit Kaur vs. State of Punjab and Ors. reported in (2010) 11 SCC 455, Veterinary Council of India Vs. Indian Council for Agricultural Research reported in (2000) 1 SCC 750, State of M.P. Vs. Gopal D. Tirthani reported in (2003) 7 SCC 83, Harish Verma Vs. Ajay Srivastava reported in (2003) 8 SCC 69, Bharati Vidyapeeth Vs. State of Maharashtra reported in (2004) 11 SCC 755, Prof. Yashpal Vs. State of Chattisgarh reported in (2005) 5 SCC 420, MCI Vs. Rama Medical College Hospital and Research Centre reported in (2012) 8 SCC 80 and State of U.P. & Ors. vs. Sandeep Kumar Balmiki & Ors. reported in (2009) 17 SCC 555, and it was further submitted that in the matter in hand the orders dated 06.08.2024 and 13.09.2024 are passed after due consideration of the vital aspects of the instant dispute and strictly in accordance with the governing statute, specially taking note of the indispensable after-effects of the said deficiencies.
25. Lastly, learned counsel had averred that principle of parity cannot be granted in the instant matter, considering the afore- relied (by the counsel representing the petitioner) judgments as the same are passed under distinguishable factual narrative and are subject to appeal moreover, are passed without paying due (Downloaded on 05/11/2024 at 10:07:34 PM) [2024:RJ-JP:43781] (15 of 29) [CW-15646/2024] attention to the provisions of the Act of 2019 and Regulations of 2023.
26. Upon an assiduous scanning of the record, considering the aforementioned facts and circumstances of the case, considering the judgments cited at the Bar and taking note of the arguments averred by the learned counsel for the parties, this Court at this juncture, deems it appropriate to jot down indubitable facts:-
26.1. That the petitioner is a society registered under the Societies Registration Act, 1958 with an object of promoting medical science and development of medical education and medical wellbeing of writ large.
26.2. That the petitioner-society after attaining requisite sanctions from the State, RUHS and the environmental and safety permissions from various governmental authorities had applied before the NMC for grant of permission for establishment of new Medical College, with intake capacity of 150 seats.
26.3. That the respondents conducted a surprise survey/inspection in the said premises of the petitioner and had found certain deficiencies pertaining to manpower shortage, building plans and infrastructural lack, and faculty head-count.
26.4. That the same were duly notified to the petitioner by way of a show cause notice dated 03.04.2024 wherein, specific entries (deficiencies) are tabulated.
26.5. That the petitioner had preferred two appeals before appropriate authorities. Nevertheless, during the adjudication of the I Appeal the Dean/Principle of Sudha Medical College and Hospital, Kota had marked appearance via V.C. and was duly heard. The said authority had fairly conceded with the contentions (Downloaded on 05/11/2024 at 10:07:34 PM) [2024:RJ-JP:43781] (16 of 29) [CW-15646/2024] made by NMC/MARB qua the deficiencies and had even affirmed to establish the said Medical College (MBBS course) with intake of 100 students.
27. Ergo, considering the aforementioned facts of the instant matter, juxtaposing the averments raised by the learned counsel for both the sides, this Court deems it appropriate to dismiss the instant petition for the following reasons:
27.1. As per the provisions of Section 28 and 57 of the Act of 2019 the sole authority to make regulations for the said subject matter is with NMC and its instrumentalities. Whilst exercising the powers under the said sections categorical directions were spelled out by respondents qua the infrastructural and basic requirement for attaining the said sanction under a specific category (seat intake). The total mandatory strength of various human resources as tabulated in notification dated 02.06.2023 is reproduced herein below:
Total Strength PROF ASSOC. ASST. TOTAL TUT/DEMO SR PROF PROF 50 SEATS 14 20 25 59 15 23 100 SEATS 17 27 41 85 25 40 150 SEATS 19 40 55 114 32 58 200 SEATS 20 51 70 142 40 73 250 SEATS 20 62 86 168 43 80 27.2. Moreover, from a bare perusal of the said table it can be clearly deduced that the contents of the show cause notice and contentions qua deficiencies spotted by the respondent department whilst conducting the said surprise inspection were (Downloaded on 05/11/2024 at 10:07:34 PM) [2024:RJ-JP:43781] (17 of 29) [CW-15646/2024] true. It prima facie appears that the contentions made by the learned counsel appearing for the respondents qua the fact of the serious deficiencies of Teaching faculty i.e. 20.18% and deficiencies of Tutor/Resident i.e. 18.97%, found in the petitioner Medical College are veracious.
27.3. The respondent department after due consideration of the resources available with the petitioner Medical College had allotted LOP dated 04.07.2024 (Annexure-9) qua utmost 100 seats intake for MBBS course, which seems correct considering the immediate connection of the facilities to be tendered and issue of life and safety of public at large.
27.4. That the petitioner is bound by the doctrine of estoppel as the Dean/Principal of Sudha Medical College and Hospital, Kota had fairly conceded with the conceded with the contentions made by NMC/MARB qua the deficiencies and had even affirmed to establish the said Medical College (MBBS course) with intake of 100 students. For the sake of convenience the relevant extract from the said decision (I Appeal) dated 06.08.2024 is reproduced herein below:
"Appeal committee heard the college authority and re-verified the observation of MARB along with documents and records.
Available only 90 (required 114 for 150 seats). College also agreed to continue with the decision of the MARB for starting of MBBS course with 100 MBBS seats.
Committee upholds the decision of the MARB." 27.5. Withal, the impugned order dated 13.09.2024 (decision of the II Appeal preferred by the petitioner) is a speaking order (Downloaded on 05/11/2024 at 10:07:34 PM) [2024:RJ-JP:43781] (18 of 29) [CW-15646/2024] which is passed after due consideration of vital aspects of the instant dispute and the contentions made by both the parties. It is pertinent to note that instead of the mandatory 114 faculty and 90 additional staff (Tutors and Senior Residents) a miniscule no. of manpower was present, along with other infrastructural lacks. For the sake of convenience the significant extract from the said order is reproduced herein below:
"8. Combined meeting of the TEG and COO was held on 21.08.2024. Based on the documents presented, following was observed.
The College applied for establishment of new Medical College with 150 MBBS seats for the academic year 2024-2025.
MARB issued letter of permission dated 04/07/2024 for starting the college with 100 MBBS seats for the academic year 2024-2025 observing that:-
Delivery only 01 on the day of assessment is adequate for 100 seats Deficiency - Faculty 20.18% and Senior Residents/Tutors- 18.97% for 150 MBBS seats. Faculty deficiency was accepted for 150 seats. Rest of the clinical material is adequate and infrastructure is complete. Hence, granted 100 seats only.
College filed 1st appeal on 10.07.2024 against the order of MARB before NMC. In 1st appeal, NMC vide order dated 06/08/2024 upheld the decision of MARB. Thereafter, the college has filed second appeal dated 07/08/2024 against the order dated 06/08/2024 passed by the National Medical Commission in first appeal requesting for permission to start the College with 150 MBBS seats for the Academic Year 2024-25.(Downloaded on 05/11/2024 at 10:07:34 PM)
[2024:RJ-JP:43781] (19 of 29) [CW-15646/2024] The College in its second appeal informed that 115 faculty were present on the day of inspection. Out of which 97 registered on AEBAS and remaining 18 faculties were not able to registered on AEBAS due to Aadhar card updation. They further added that they have 58 Srs but assessors counted only 30 Srs. Remaining 28 Srs were counted as Tutor. The College submitted that they have 610 beds and 1240 OPD which are adequate for 150 MBBS as per NMC norms. They also added that the number of deliveries per day is 4-5. Due to heavy rains on the day before inspection number of deliveries were less. The Committee observed that there is deficiency of 20.18% in faculty and 18.97% in Tutors/Residents as per assessment report. MARB and NMC has also observed deficiency in teaching faculty for 150 MBBS seats. Hence, they have granted permission for 100 MBBS seats.
The Committee also observed that there were only two deliveries on the day assessment.
Therefore, clinical material is also deficiency for 150 MBBS seats."
27.6. From the observation made insofar it is evident that the petitioner Medical College was/is unable to fulfill the requisite minimum criteria for attaining the LOP for intake of 150 seats. The said criteria are categorically mentioned under the provisions of Section 29 of the Act of 2019. The afore-relied upon provision is reiterated herein below:
"29. Criteria for approving or disapproving scheme.--While approving or disapproving a scheme under section 28, the Medical Assessment and Rating Board, or the Commission, as the case may be, shall take into consideration the following criteria, namely:--(Downloaded on 05/11/2024 at 10:07:34 PM)
[2024:RJ-JP:43781] (20 of 29) [CW-15646/2024]
(a) adequacy of financial resources;
(b) whether adequate academic faculty and other necessary facilities have been provided to ensure proper functioning of Medical College or would be provided within the time-limit specified in the scheme;
(c) whether adequate hospital facilities have been provided or would be provided within the time-limit specified in the scheme;
(d) such other factors as may be prescribed:
Provided that, subject to the previous approval of the Central Government, the criteria may be relaxed for the Medical Colleges which are set up in such areas as may be specified by the regulations."
27.7. Further, reliance can be placed upon the ratio encapsulated in Medical Council of India vs. Kalinga Institute of Medical Science (KIMS) & Ors. reported in 2016 (11) SCC 530, wherein it is precisely noted that in the matters where statutory provisions exists and the expertise authorities are conducting/ have conducted the due requisites, judicial authorities cannot interfere until there is a substantial violation of law. The relevant portion from the afore-cited ratio is reproduced herein below:
"21. A perusal of the decision of the High Court clearly indicates that in considered the latest report of the Inspection Team as if it was hearing an appeal against the report. In doing so, the High Court went into the great details on issues relating to the number of teaching beds in the hospital, the limitations in the OPD Department, the number of units available in the subjects of General Medicine, Pediatrics, etc., bed occupancy, number of caesarean sections, discrepancy in data of major and minor operations, (Downloaded on 05/11/2024 at 10:07:34 PM) [2024:RJ-JP:43781] (21 of 29) [CW-15646/2024] computerisation in the institution, number of patients in the ICU, number of static x-ray machines, deficiency of examination halls, lecture theatres, library, students hostel, interns hostel, playground, etc. etc. Surely, this was not within the domain of the High Court in exercise of its jurisdiction under Article 226 of the Constitution.
22. The High Court did not appreciate that the inspection was carried out by eminent professors from reputed medical institutions who were experts in the field and the best persons to give an unbiased report on the faculties in KIMS. The High Court under Article 226 of the Constitution was certainly not tasked to minutely examine the contents of the inspection report and weigh them against the objections of KIMS in respect of each of its 18 items. In our opinion, the High Court plainly exceeded its jurisdiction in this regard in venturing into seriously disputed factual issues.
24. Medical education must be taken very seriously and when an expert body certifies that the faculties in a Medical College are inadequate, the courts are not equipped to take a different view in the matter except for very cogent jurisdictional reasons such as mala fides of the Inspection Team, ex facie perversity in the inspection report, jurisdictional error on the part of MCI, etc. Under no circumstance should the High Court examine the report as an appellate body - this is simply not the function of the High Court. In the present case there was no ground made out it low for setting aside the report of the Inspection Team."(Downloaded on 05/11/2024 at 10:07:34 PM)
[2024:RJ-JP:43781] (22 of 29) [CW-15646/2024] 27.8. In Faiza Choudhary vs. State of Jammu and Kashmir and Anr. reported in 2010 (10) SCC 149 it was opined as follows:
"11. Shri Amit Kumar, learned counsel appearing for the Medical Council of India, submitted that it would not be possible to reserve an MBBS seat for the appellant for the year 2012 at the expense of other meritorious candidates. Even otherwise, the learned counsel submitted that this Court in several judgments held that this Court cannot be generous or liberal in issuing directions to Medical Council of India to enhance seats for the MBBS course.
12. We have heard the learned counsel on either side. We are of the view, on law as well as on facts, that the appellant has no right to make any claim for the vacant MBBS seat of the year 2010 in the year 2011 or subsequent years. The Board should have allotted that seat to another female candidate, that is, Nusrat Rashid who had secured 121 marks. Since litigation was on she could not have waited indefinitely for that seat and hence she had accepted the BDS seat. Next two candidates in line of merit were Mehrul -Nisa and Farah Chowan, who had secured 18 marks each, however got admission to the MBBS course. Another candidate Abida Parveen ranked above the appellant had to satisfy herself with a BDS seat because of the then ongoing litigation, lest, she might lose that seat as well."
27.9. Moreover, this Court acknowledges the fact that for streams like medical science, special bodies are established which are (Downloaded on 05/11/2024 at 10:07:34 PM) [2024:RJ-JP:43781] (23 of 29) [CW-15646/2024] governed by special statues. Hence, the Courts ought not to grant any indulgence in the same. Additionally, considering the contentions made by the learned counsel for the petitioner qua the fact that auto-locking of the choice of seats shall be ceased on 23.10.2024, cannot be considered at this tardy stage, as considering the same shall open a pandora box for endless litigation, moreover, the same shall effect the rights of the meritorious students.
28. Withal, the contentions made qua parity to be maintained cannot be made admissible as the instant matter has distinguishable factual matrix with those cited by the learned counsel representing the petitioner. Nevertheless, in terms of the Establishment of New Medical Institutions, Starting of New Medical Courses, Increase of seats for Existing Courses & Assessment and Rating Regulations, 2023, the MARB had issued its guidelines for AY 2024-2025. Moreover, as per in guideline 2(a) of the said guidelines, it is elucidated that prior to the last date of submitting applications, only colleges with faculty count of more than 75% attendance for the last three months, from the last date of application (i.e. 19.09.2023) on AEBAS platform shall be considered eligible for establishment of Medical College and/or renewal of the sanctioned intake capacity. Howsoever, the said condition is not fulfilled by the petitioner Medical College. 28.1. Further, the judgment of Tirupati Balaji Education Trust and anr. (Supra) relied upon by the learned counsel for the petitioner is open to appeal. Moreover, it is claimed that the said dictum is passed sans considering the primary provisions of the (Downloaded on 05/11/2024 at 10:07:34 PM) [2024:RJ-JP:43781] (24 of 29) [CW-15646/2024] Act of 2019 and allied statutes. Hence, this Court would prefer to err on the side of caution and shall not rely upon the said ratio. 28.2. It is also pertinent to note that the petitioner has not exercised the efficacious mode of preferring an appeal qua its grievances i.e. appeal application under Section 28(5) of the Act of 2019, qua its contentions for non-consideration of the instant dispute by the respondents, within a span of six months. 28.3. Further, reliance can also be placed upon the ratio enunciated in Krishna Priya Ganguly & ors. Vs. University of Lucknow & ors. reported in (1984) 1 SCC 307 wherein it was held that the Rules and Regulations of academic bodies are not permitted to be relaxed by any High Court while exercising its jurisdiction under the provisions of Article 226 of the Constitution of India. The relevant extract from the afore-cited ratio is reproduced herein below:
"26. The High Court could not devise its own criterion for admission. Since the academic body has made the marks obtained in MBBS examination the criterion, admission had to be made by such a criterion. The High Court could not have introduced its own notions in such an academic matter. The High Court was not competent to do so and had no jurisdiction to import its own ideology."
28.4. Withal, reliance can be placed upon the judgment passed by Hon'ble Apex Court in Christian Medical College & ors. Vs. Medical Council of India reported in (2014) 2 SCC 305:
"180. Hence, I am of the view that the MCI and the DCI are entitled to regulate the (Downloaded on 05/11/2024 at 10:07:34 PM) [2024:RJ-JP:43781] (25 of 29) [CW-15646/2024] admission procedure by virtue of the provisions of their respective Acts, which enable them to regulate and supervise the overall professional standards.
181. I have now to see whether the legal provisions which permit the aforestated apex bodies to conduct the NEET, so as to regulate admission of the students to medical institutes, are in accordance with legal and Constitutional provisions. The aforestated question has been rightly answered by this Court in the case of Dr. Preeti Srivastava and Anr. v. State of M.P. and Ors (1999) 7 SCC 120 to the effect that norms of admission will have a direct impact on the standards of education. This Court has observed that the standards of education in any institution or college would depend upon several factors and the caliber of the students to be admitted to the institutions would also be one of the relevant factors. Moreover, in view of entry 25 of List III of the Seventh Schedule to the Constitution, Union as well as the States have power to legislate on the subject of medical education, subject to the provisions of entry 66 of List I of the Seventh Schedule, which deals with determination of standards in institutions for higher education. In the circumstances, a State has the right to control education, including medical education, so long as the field is unoccupied by any Union legislation. By virtue of entry 66 in List I to the Seventh Schedule, the Union can make laws with respect to determination of standards in institutions for higher education. Similarly, (Downloaded on 05/11/2024 at 10:07:34 PM) [2024:RJ-JP:43781] (26 of 29) [CW-15646/2024] subject to enactments, laws made with respect to the determination of standards in institutions for higher education under power given to the Union in entry 66 of List I of the Seventh Schedule, the State can also make laws relating to education, including technical education and medical education. In view of the above position clarified in the case of Dr. Preeti Srivastava (supra), the NEET can be conducted under the supervision of the MCI as per the Regulations framed under the Act. As stated hereinabove, Section 33 of the Act enables the MCI to make Regulations to carry out the purposes of the Act and therefore, conducting the NEET is perfectly legal."
28.5. Reliance can also be placed upon the ratio encapsulated in Dr. Preeti Srivastava Vs. State of M.P. reported in (1999) 7 SCC 120 wherein it was opined as follows:
"37. It would not be correct to say that the norms for admission have no connection with the standard of education, or that the rules for admission are covered only by Entry 25 of List-III. Norms of admission can have a direct impact on the standards of education. Of course, there can be rules for admission which are consistent with or do not affect adversely the standards of education prescribed by the Union in exercise of powers under Entry 66 of List-I. For example, a State may, for admission to the post-graduate medical courses, lay down qualifications in addition to those prescribed under Entry 66 of List-I. This would be consistent with promoting higher standards for admission to the higher educational courses. But any lowering of the (Downloaded on 05/11/2024 at 10:07:34 PM) [2024:RJ-JP:43781] (27 of 29) [CW-15646/2024] norms laid down can, and do have an adverse effect on the standards of education in the institutes of higher education.
Standards of education in an institution or college depend on various factors. Some of these are :
(1) The calibre of the teaching staff; (2) A proper syllabus designed to achieve a high level of education in the given span of time;
(3) The student-teacher ratio;
(4) The ratio between the students and
the hospital beds available to each
student;
(5) The calibre of the students admitted to the institution;
(6) Equipment and laboratory facilities, or hospital facilities for training in the case of Medical Colleges;
(7) Adequate accommodation for the college and the attached hospital; and (8) The standard of examinations held including the manner in which the papers are set and examined and the clinical performance is judged.
38. While considering the standards of education in any college or institution, the calibre of students who are admitted to that institution or college cannot be ignored. If the students are of a high calibre, training programmes can be suitably moulded so that they can receive the maximum benefit out of a high level of teaching. If the calibre of the students is poor or they are unable to follow the instructions being imparted, the standard of (Downloaded on 05/11/2024 at 10:07:34 PM) [2024:RJ-JP:43781] (28 of 29) [CW-15646/2024] teaching necessarily has to be lowered to make them understand the course which they have undertaken; and it may not be possible to reach the levels of education and training which can be attained with a bright group. Education involves a continuous interaction between the teachers and the students. The pace of teaching, the level to which teaching can rise and the benefit which the students ultimately receive, depend as much on the calibre of the students as on the calibre of the teachers and the availability of adequate infrastructural facilities. That is why a lower student-teacher ratio has been considered essential at the levels of higher university education, particularly when the training to be imparted is highly professional training requiring individual attention and on-hand training to the pupils who are already doctors and who are expected to treat patients in the course of doing their post-graduate courses."
29. In summation of the aforementioned it can be noted that taking specific note of the ratio spelled out in Krishna Priya Ganguly & ors. (Supra) and Christian Medical College & ors. (Supra) this Court would prefer to err on the side of caution and not interfere in the matters pertaining to such academic/ specialized field knowledge; that as per the dictum enunciated in Dr. Preeti Srivastava (Supra) the respondent-NMC is the appropriate authority to formulate the Rules and Regulations for intake of seats in MBBS courses; that the impugned orders dated (Downloaded on 05/11/2024 at 10:07:34 PM) [2024:RJ-JP:43781] (29 of 29) [CW-15646/2024] 06.08.2024 and 13.09.2024 are passed after due evaluation of the experts report formulated by the MARB inspection team and the other relevant factors, hence, is sans any palpable error, illegality or arbitrariness; that the petitioner did not prefer the appeal as per the relevant provisions of the governing statue; that the petitioner is barred by the principle of estoppel, as the Dean/Principal of the petitioner-Medical College has fairly conceded with the contentions made by the opposite party during the adjudication of I Appeal and has affirmed establishment of college with intake of 100 seats only.
30. In light of the aforementioned facts, circumstances and observations noted, the instant petition being devoid of any merit stands dismissed. No orders as to cost. Pending applications, if any, shall stand disposed of.
(SAMEER JAIN),J ANIL SHARMA /19 (Downloaded on 05/11/2024 at 10:07:34 PM) Powered by TCPDF (www.tcpdf.org)