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5. Mr. T. Singhdev, counsel for NMC and MARB, at the outset, states that there is grave inadequacy in the data provided by the Petitioner-College. He states that column 8 of the Standard Assessment Form, which is filled by the assessors in their reports on the date of inspection, requires data for past three calendar years, whereas, Petitioner-College has provided data for only one and a half years. No data has been provided for the so-called Covid period, i.e., from 21st March 2020 to 31st August 2021, citing the Petitioner- College's declaration as a 'Covid-19 Hospital' by the Government of Uttar Pradesh. The data provided for first 3 months of 2020, and last three months of 2021, is unreliable at best, and suspicious at worst, and is wholly insufficient to draw a conclusion that seat augmentation requested by Petitioner-College is warranted. He further states that the Standard Assessment Forms for the three disciplines have been filled on the date of the inspection i.e., 20th August 2022, 26th August 2022 & 29th August 2022, whereafter the same were transmitted to MARB. It is the Petitioner-College that is solely responsible for insufficient data provided to MARB. In response to the allegation of lack of hearing provided to the Petitioner- College, Mr. Singhdev states that no opportunity is required under the Act, and this has also been recognized by the Supreme Court. 6 Reliance placed on: Manohar Lal Sharma v. Medical Council of India, 2013 10 SCC 60, at paragraph no. 19, which reads as under:

10. Mr. Singhdev also points out that the Petitioner-College was granted a hearing by MARB on 14th September 2022, whereafter a 'final Letter of Disapproval' was issued by MARB on 14th September 2022.

B. MS (Ophthalmology)

11. MARB, vide 'Letter of Disapproval' dated 02nd September 2022, did not allow any increase in seats in MS (Ophthalmology), citing the following reasons: '(i) Specialty clinics have less cases (surgery), EB registration still pending. Specialty work specially surgery need to increase. (ii) No surgical facilities. (iii) OPD attendance overall has not yet increased to original values since 2019. (iv) Diagnostic tests in Microbiology are inadequate. (v) Eye bank is not established, nor corneal surgery and specialty work is very less.' With respect to this discipline, assessor's report dated 26th August 2022, categorically remarks that "There are adequate machine and equipment but the various special clinics run with few surgical cases. Eye bank is registered with EVAI, registration with state govt is pending and still under commissioning."

18. Keeping the above in mind, it can be noticed that insofar as the discipline of MD (Respiratory Medicine) is concerned, the decision of MARB is not sustainable. The only two cogent reasons discernible from the impugned communication are ex-facie contradicted by the assessor's report dated 20th August 2022, wherein no deficiency was found.

19. Further, the Court is unconvinced by the reasoning put forth to justify the restricted increase in intake capacity. Mr. Singhdev has argued that a certain faculty member - Dr. Mahendran - has been working as an Assistant Professor but was downgraded to a Senior Resident just 4 days before the inspection. This was labelled as suspicious by Mr. Singhdev, on the ground that it casts a doubt on the adequacy of faculty members and accuracy of data obtained. However, the assessor has observed in no unequivocal terms that the faculty is adequate. Contrary to the decision of MARB, the annexure to the assessor's report shows that the requirement of senior resident is adequately fulfilled, as Dr. Mahendran, at the fifth row of said table, meets the criterion. There is merit in Petitioners' argument that, notwithstanding whether his current position is of an Assistant Professor or a Senior Resident, it is an undisputed fact that since former position is senior to the latter position, it cannot be said that a senior resident is lacking, and thus the norms for adequacy of faculty are satisfied.

E. On inadequacy of data for the past 3 years

23. That said, Mr. Singhdev has laid considerable stress that the truncated data for three months (01st January 2020 to 20th March 2022) for Year 2, and four months (01st September 2021 to 31st December 2021) for Year 3, does not fulfil the requirement of the Standard Assessment Form. He attributes this lacuna/deficiency to the Petitioner-College, arguing that the Standard Assessment form makes no distinction between Covid and non-Covid times. In the opinion of the Court, this objection is not merited. Though ultimate responsibility of the data would obviously be of the College, but the assessors are aware of the requirements of the form and the Act, as well as the criteria for determining the application for increase in intake. The assessors could have asked for the complete data, including for the period when the Petitioner was a 'Covid-19 Hospital', at the time of conducting inspection, if indeed such data was so germane. No objection or non- cooperation on the part of Petitioners has been recorded in the reports to this effect. Requisite data could also have been easily requisitioned for by MARB, if the data provided to the assessors did not fulfil its requirement for making an assessment. Further this deficiency could also have been rectified at a stage if/when the Petitioner was given a hearing. Mr. Singhdev has tried to explain this breach by arguing that there was practically no time available for granting an opportunity to rectify deficiencies to the medical colleges in the country, as the NEET PG-2022 had already taken place on 21st May 2022; result was declared on 02nd June 2022 and the counselling for admission to postgraduate courses was to commence shortly thereafter. He relies upon Notice dated 29th August 2022 issued by the Directorate General of Health Services, Ministry of Health & Family Welfare, Government of India, informing that that the counselling for admission to postgraduate courses which was to commence from 01st September 2022, had been postponed since the MARB was in the process of issuing letters of permission for start/increase in intake in postgraduate courses, which were to be concluded by 15th September 2022. Mr. Singhdev also argues that processing of all applications seeking increase in seats in postgraduate courses had been concluded by MARB till 15th September 2022 and as such, no fresh process can be undertaken at this stage, which shall stall and prolong the ongoing counselling process.