Ct. 238 vs The Union Of India & Ors
2023 Latest Caselaw 6358 Cal

40   21-09-2023                     WPA 19581 of 2023
                     Shri Ramkrishna Institute of Medical Sciences & Sanaka
      AKG                               Hospital & Anr.
     Ct. 238                                 Vs.
                                  The Union of India & Ors.


                           Mr. Srijib Chakraborty,
                           Mr. Rittick Chowdhury,
                           Mr. Sanjoy Sarkar
                                                        ...For the Petitioners

                          Mr. Indranil Roy,
                          Mr. Sunit Kr. Roy

...For National Medical Commission

Mr. Indrajit Dasgupta, Ms. Tanusree Ghosh ...for Union of India Mr. D. N. Maiti, ...for WBUHS Mr. Somnath Ganguli, Ms. Priyamvada Singh ...for the State

Petitioner no.1 is a Private Medical College. By

filing this writ petition, the writ petitioners sought to

introduce reservation for the "Economically Weaker

Sections" in the college for the MBBS Course by the

increase in a number of seats and to participate in the

NEET-UG -2023 counselling conducted by the State.

The college applied for the same on December 21,

2022, before the National Medical Commission.

Following such application, an inspection was carried

out by the National Medical Commission on May 3,

2023. The summary assessment of the said inspection

as appearing at page 83 of the writ petition suggests

that the college was otherwise found fit for the increase

of seats. Subsequently, however, the National Medical

Council by the impugned order dated May 24, 2023,

declined to increase the students' strength on the

following grounds:

"Further, the request for issue of "Recognition" letter for award of medical degree by the college is considered only after the grant of 5th batch (4th Renewal). In your case, the College has been granted permission for 5th Batch (4th Renewal) during AY 2023-24 and hence in the first instance, college may apply for issue of "Recognition" letter to "Under-Graduate Medical Education Board" of the National Medical Commission after completing the necessary formalities.

In so far as sanctioning of EWS seats to your college is concerned, the Government of India vide letter No. V. 11025/10/2019-MEP dated 29.10.2022 (copy enclosed) has clarified that "....... Apart from Government medical colleges, EWS reservation may be implemented in Government funded Municipal Bodies College and Colleges run by PPP mode.....". Hence, your request for sanctioning of 50 MBBS seats under EWS quota cannot be acceded to."

Though the State as well as the West Bengal

University of Health Science has supported the case of

the petitioner, Mr. Indranil Roy, learned advocate

appearing on behalf of the National Medical

Commission has vehemently opposed such prayer.

Mr. Roy has submitted that the decision taken

by the Medical Assessment and Rating Board is an

appealable order in terms of Section 28 (5) of the

National Medical Commission Act, 2019. The writ

petitioners ought to have availed the alternative

remedies as provided under the statute before

approaching this Court.

It has been further argued by Mr. Roy that as a

matter of policy, the reservation for the "Economically

Weaker Sections" has not been introduced in any self-

financed or private medical college.

In support of his submission, Mr. Roy has relied

on the decision reported at (2019) SCC Online Del

9479. Mr. Roy has submitted that various notifications

mentioned in the said judgment make it absolutely

clear that there is no government

order/notification/scheme in place to facilitate

"Economically Weaker Sections" quota in a private

medical college. He submits that it is not within the

domain of the National Medical Commission to

introduce any reservation quota. The National Medical

Commission is authorised only to consider the prayer

for increase in number of seats within the statutory

parameters. He has also added that it is open for the

State to introduce the said quota within the existing

students' strength of a college.

It has been forcefully argued by Mr. Roy that

there cannot be any increase in number of seats

without relevant medical college being recognized

under Section 35 of the National Medical Commission

Act, 2019, and unless, the first batch of students of

the college passes out, recognition under Section 35 of

the National Medical Commission Act, 2019 cannot be

granted.

To substantiate his argument, Mr. Roy has

referred to the regulations namely, "The Opening of a

New or Higher Course of Study or Training (including

Post-graduate Course of Study or Training) and

Increase of Admission Capacity in any Course of Study

or Training (including a postgraduate Course of Study

or Training) Regulations, 2000." He refers to the

"Qualifying Criteria" under Part-II of the said

Regulations. The relevant part of the said Regulations

read:

"A Medical College/Medical Institution shall be entitled to make an application to increase the admission capacity for MBBS/PG Diploma/PG Degree/Higher Specialty Courses, once the concerned qualification against the sanctioned intake has been granted recognition under section 11 (2) of the Act and included in the First Schedule of the Act."

Mr. Roy has also placed reliance upon the

Regulations namely, Establishment of Medical College

Regulations, 1999. He has referred to the following

part of the Regulations.

"This process of renewal of permission will continue till such time the establishment of the medical college and expansion of the hospital facilities are complete and a formal recognition of the medical college is granted. Further admissions shall not be made at any stage unless the requirements of the Council are fulfilled. The Central Government may at any stage convey the deficiencies to the applicant and provide him an opportunity and time to rectify the deficiencies."

To refute the argument of the petitioners, Mr.

Roy submits that the college namely, Jagannath Gupta

Institute of Medical Science was allowed to increase

the student intake since the said college was granted

recognition under Section 35 of the National Medical

Commission Act, 2019 after its first batch of students

had completed their MBBS Course.

By referring to the letter No. V. 11025/10/2019-

MEP dated 29.10.2022 as mentioned in the impugned

order, Mr. Roy has submitted that there is no existing

scheme or policy to introduce the "Economically

Weaker Sections" quota in a private medical college.

I am of the view that the impugned order dated

May 24, 2023, cannot be sustained since a medical

college like petitioner no.1 does not require any

recognition under Section 35 of the said Act of 2019.

In order to establish a new medical college or for

increase of number of seats, permission is required

under Section 28 of the National Medical Commission

Act, 2019. It is true that unless an institute or a

university is recognized under Section 35 of the

National Medical Commission Act, 2019, no prayer for

an increase of seats can be considered, but an

affiliated medical college is never granted recognition

under the said section.

A recognition under Section 35 of the National

Medical Commission Act, 2019 is granted with regard

to medical qualifications granted by universities or

medical institutions of India. The medical institutes or

the universities so recognized are listed under

Schedule-I of the National Medical Commission Act,

2019.

On the other hand, a medical college, affiliated

with these universities or institutes requires

permission under the Establishment of Medical College

Regulations, 1999 to run a medical college.

The recognition under Section 35 of the National

Medical Commission Act, 2019 to a medical institute

or a university is separate and distinct from the

permission granted to a medical college under the

Establishment of Medical College Regulations, 1999.

The name of West Bengal University of Health Science

has been listed under Schedule-I of the said Act, but

no medical colleges affiliated with the said university

are listed under Schedule-I.

Given the aforesaid facts, the National Medical

Council was not justified in rejecting the prayer of

petitioner no.1 for want of its recognition under

Section 35 of the said Act of 2019 ignoring the fact

that it possesses permission under the Establishment

of Medical College Regulations, 1999 to run the college.

The said permission is renewable from time to time

unless the final-year students of the college complete

their course.

To deal with the second issue with regard to the

applicability of the reservation policy in a private

medical college, it is necessary to take note of the

Constitution (One Hundred and Third Amendment)

Act, 2019. The relevant part of the said Act is quoted

below:

"(a) any special provision for the advancement of any economically weaker sections of citizens other than the classes mentioned in clauses (4) and (5);

                 and
                       (b)    any special provision for
                 the      advancement       of      any

economically weaker sections of citizens other than the classes mentioned in clauses(4) and (5) in so far as such special provisions relate to their admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in clause(1) of article 30, which in the case of reservation would be in addition to the existing reservations and subject to a maximum of ten per cent, of the total seats in each category.

Explanation. - For the purposes of this article and article 16, "economically weaker sections" shall be such as may be notified by the State from time to time on the basis of family income and other indicators of economic disadvantage."

A bare reading of the aforesaid provision makes

it absolutely clear that the said reservation policy has

been extended to unaided or private educational

institutes as well.

In fact, a notification dated June 25, 2019,

issued by the National Medical Commission explicitly

states its intention to extend the reservation policy for

the self-finance Medical Colleges. The relevant part of

the said letter dated June 25, 2019 reads:

"Sub: Extension of last date for receiving application for Increases of MBBS seats to implement EWS quota - reg.

Madam/ Sir,

This is with reference to Ministry's letter No. U.12012/350/2019-ME-I, dated24.06.2019 granting approval of the proposal of BoG, MCI to extend the benefit of additional seats under EWS quota to the colleges which are being run by Government controlled Societies, Municipal Bodies, Public Private Partnership and under Self-

Financing mode, and these institutions (a) provide reservation of seats for SC/ST/OBC, implement reservation guidelines of State, (b) charge fee fixed by the State Government and (c) also contribute 15% of seats to All India Quota(AIQ).

2. In view of above, it has been decided to extend the date of receiving application for increase of MBBS seats to implement EWS quota to the colleges which are being run by Government controlled societies, municipal bodies, public private partnership and under self financing mode which also follow reservation of seats for SC/ ST / OBC, charge fee fixed by the State Govt. concerned, and also contribute 15% of seats to AIQ, as specified above."

(emphasis added)

It is irrelevant whether there is any scheme of

the Union to implement the said reservation policy. In

my view, the State retains its authority to implement a

constitutional mandate for a reservation policy even in

the absence of a scheme or notification of the Union.

The stand of the State before this Court is

unequivocally in favour of the petitioner. In fact, the

State itself forwarded the name of petitioner no.1 for

the introduction of the "Economically Weaker Sections"

quota.

Therefore, I am of the view, that the judgment

referred by Mr. Roy reported at (2019) SCC Online Del

9479 is not applicable in the facts of this case.

I also accept the contention of Mr. Srijib

Chakraborty, learned advocate appearing on behalf of

the petitioners that the memo dated October 29, 2022,

as mentioned in the impugned order does not deal with

the issue of introduction of the said quota in a private

medical college. The said notification only clarifies that

reservation for the "Economically Weaker Sections"

may be introduced in Government funded Municipal

Bodies and Colleges run by PPP Mode without

imposing the condition of contribution of seats in the

All India Quota and Fee Regulations.

I am also of the view that since petitioner no.1

has already been deemed suitable for increasing the

number of seats by the National Medical Commission,

there cannot be any justification to deny such right on

the grounds mentioned in the impugned order.

Admittedly, the said quota has already been

introduced in a private medical college of the State

namely, Jagannath Gupta Institute of Medical Sciences

& Hospital by the National Medical Commission.

Petitioner no.1 cannot be discriminated against as a

Private Medical College.

In view of the urgency involved, I have

entertained this writ petition notwithstanding the

alternative remedies available to the petitioners.

Accordingly, this writ petition is allowed with the

following directions:

a) The impugned order dated May 24, 2023

appearing at page 83 is set aside.

b) The National Medical Commission shall

increase the seats of petitioner no.1 following the

application on December 21, 2022, and communicate

the same to respondent no. 3 within a period of three

days from the date of communication of this order.

c) Respondent no.3 shall immediately

thereafter include the name of petitioner no.1 in the

seat matrix for ongoing NEET-UG Counselling-2023

conducted by the State.

Accordingly, WPA 19581 of 2023 is disposed of.

Urgent Photostat certified copy of this order, if

applied for, be supplied to the parties upon compliance

with all the necessary formalities.

(Kausik Chanda, J.)

LATER

After delivering the judgment, Mr. Roy prays for

stay of operation of the order, such prayer is

considered and rejected.

(Kausik Chanda, J.)