Delhi High Court
Sri Lakshmi Narayana Institute Of ... vs Union Of India & Anr. on 25 January, 2022
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision:- 25.01.2022
+ W.P.(C) 1458/2022 & CM APPL. 4222/2022 (Application for
permission to file synopsis and lengthy list of dates)
SRI LAKSHMI NARAYANA INSTITUTE OF MEDICAL
SCIENCES & ANR. . ..... Petitioners
Through: Mr. Maninder Singh, Sr. Adv. with
Mr. Shiv Mangal Sharma, Mr.
Shashank Khurana, Ms. Paruni Sharma
and Ms. Shalini Singh, Advs.
versus
UNION OF INDIA & ANR. ..... Respondents
Through: Mr. Anurag Ahluwalia and Mr. Danish
Faraz Khan, Advs. for R-1
Mr. T. Singhdev, Ms. Michelle
Biakthansangi Das, Mr. Abhijit
Chakraborty and Mr. Bhanu Gulati,
Advs. for R-2.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J (ORAL)
W.P.(C) 1458/2022 & & CM APPL. 4221/2022 (Interim Relief)
1. The petitioner no.1, a medical institute, alongwith the its trustee
petitioner no.2, has approached this Court assailing the
communications dated 15.11.2021 and 30.11.2021 issued by the
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Signed By:GARIMA MADAN
Signing Date:26.01.2022
10:46:12
Medical Assessment and Rating Board ('the Assessment Board') of the
respondent no.2/National Medical Commission('NMC'), rejecting the
petitioners' application seeking permission to increase the intake of
students in the MBBS course for the academic session 2021-22 from
150 to 250. The petitioners also assail the decision dated 20.01.2022 of
the respondent no.2's First Appellate Committee ('the Appellate
Committee'), whereby its appeal under the National Medical
Commission Act, 2019 ('the NMC Act') against the impugned letters,
has been rejected.
2. The petitioner no.1 Institute is a constituent of Bharath Institute of
Higher Education and Research, a deemed to be university under
Section 3 of the UGC. Based upon an Essentiality Certificate issued by
the Government of Pondicherry, the petitioner no.1 was granted
approval and consequently, set up the institute which was being
granted renewals from time to time.
3. The petitioner no.1 Institute made an application on 12.11.2020 before
the respondents seeking to increase the intake of students in the MBBS
course from 150 to 250 students per year under section 26(1)(b) &
28(1)(2) of the NMC Act, 2019 for the academic year 2021-22. Upon
receiving the application, the Assessment Board of the respondent no.2
sought certain documents from the petitioner no. 1, which were duly
submitted on 26.05.2021.
4. However, the Assessment Board of the respondent no.2/NMC failed to
process the petitioners' application and vide letter dated 27.08.2021
informed the petitioners that due to the constraints of sending the
assessors to physically inspect the colleges in view of the Covid-19
pandemic, the respondent No. 2 had taken a decision to carry forward
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Signed By:GARIMA MADAN
Signing Date:26.01.2022
10:46:12
the application for the next academic year i.e., 2022-2023. Aggrieved
by the said decision, the petitioners approached the Madras High Court
by way of Writ Petition No. 19005 of 2021, which rejected the writ
petition on 16.09.2021 as it did not find any arbitrariness in the
respondent no.2's decision to not process any application for
increasing the intake during the covid-19 pandemic.
5. However, soon thereafter the petitioner was informed by the
respondent no.2 that the Institute will be inspected, and accordingly an
inspection of the faculty and infrastructure at the petitioner Institute
was conducted on 08.10.2021 and 09.10.2021, wherein the inspection
committee concluded that the respondent no.1 Institute had adequate
clinical material and infrastructure as per the NMC norms. Despite this
assessment report, the respondent no.2, issued the impugned letter
dated 15.11.2021 by referring to the order passed by the Madras High
Court in W.P.(MD) 17263/2020 on 30.07.2021. Aggrieved by the
same, the petitioner made a representation dated 22.11.2021 to the
NMC, whereafter another inspection of the petitioner no.1 Institute was
carried out on 26.11.2021 and 27.11.2021, wherein again no deficiency
was found. However, despite the said inspection's finding that the
petitioner was fulfilling all the applicable norms for increasing the
strength of intake for students in the MBBS course from 150-250, the
Assessment Board of the respondent no.2 issued yet another letter of
disapproval on 30.12.2021.
6. The petitioners challenged both the letters of disapprovals by way of an
appeal under section 28(3) and 28(5) of the NMC Act, before the
National Medical Commission on 03.01.2022, which appeal was
rejected vide letter dated 20.01.2022, primarily on the ground that
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Signed By:GARIMA MADAN
Signing Date:26.01.2022
10:46:12
since the ratio of college vis-à-vis population of Puducherry was only
90,000 per medical college and therefore, no approval could be granted
for increase of 100 seats in the petitioner Institute as the same would be
like adding another new medical college in the region, and would
therefore be contradictory to the decision dated 30.07.2021 of the
Madras High Court in W.P.(MD) 17263/2020. It is apposite to refer to
the minutes of the First Appellate Committee held on 20.01.2022, the
relevant extract whereof read as under:
"6. It was further informed that the neighboring state of
Tamil Nadu, where some districts are mentioned in the
Hon'ble Madras High Court order, has one medical
college for an average of one million (ten lakhs)
population. As against this, Puducherry has one medical
college for just 90,000 populations. This is a tenfold
variation between Puducherry and Tamil Nadu.
Therefore, the Committee considered giving attention to
the Hon'ble Madras High Court observations. The
substance of this judgment is related to more medical
colleges for higher population. This issue speaks by itself
and hence the Committee considered rejecting the
increase of 100 seats in the Sri Lakshmi Narayana
Institute of Medical Sciences, Puducherry. also observed
that additional 100 seats is almost like adding another
new medical college to the region.
7. Accordingly, Chairman NMC expressed the decision of
the First Appeal Committee that it would not be possible
to grant permission of enhancement of seats from 150 to
250. He also informed that the college, if they may so
prefer, can approach Ministry of Health and Family
Welfare (MoHFW) to challenge the decision of First
Appeal Committee within 30 days of issue of this decision
by NMC as per Section 28(6) of the NMC Act, 2019.
Accordingly, the first appeal stands disposed of."
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Signed By:GARIMA MADAN
Signing Date:26.01.2022
10:46:12
7. It is in these circumstances that the petitioners have approached this
Court assailing the aforesaid impugned letters dated 15.11.2021 and
30.12.2021, as also the appellate order dated 20.01.2022.
8. Mr. Maninder Singh, learned senior counsel for the petitioner, at the
outset, submits that it is an admitted case of the respondent that as per
the two successive inspections conducted at the petitioner Institute on
08.10.2021, 09.10.2021, as also on 26.11.2021 and 27.11.2021, its
infrastructure and faculty was found to be meeting the laid down
criteria. He therefore contends that, the petitioners' request for
permission to increase the intake of students in the MBBS course could
not have been rejected merely on the basis of an order passed by the
Madras High Court in a PIL where, the Court was dealing with the
issue of opening of new medical colleges. However, the petitioners'
case is not of opening a new medical college, but only a case for
increase of intake of students in the MBBS course from 150 to 250. He
further contends that the respondent has, as recently as on 15.01.2022,
granted permission to another medical institute being Sri Sathya Sai
Medical College and Research Institute, to increase the intake of
students in MBBS from 150-250, and therefore, evidently, is acting in
a discriminatory manner.
9. Mr. Maninder Singh further submits that the Appellate Committee of
the respondent no.2 has not only brushed aside the petitioners' plea
about it being fully compliant with the applicable norms and
regulations and already having the necessary infrastructure to admit
more students, but has also failed to appreciate that the petitioner no.1,
a recognised college for MBBS course, is a part of a deemed
university under the UGC Act, wherein seat allocation is done
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Signed By:GARIMA MADAN
Signing Date:26.01.2022
10:46:12
exclusively by the Central government/respondent no.1 on an All India
basis. He therefore submits that, no such embargo could have been
placed on the petitioner no.1 Institute, that too in the light of the
Central Government's own stand in the Parliament regarding its intent
of implementing measures to increase the medical infrastructure in the
country, and the efforts being made by it to not only establish new
medical colleges in the under-served districts of the country, but to also
enhance the capacity for intake of students in MBBS courses in Central
and State Government Medical Colleges from 150 to 250.
10.Mr. Maninder Singh further submits that the petitioners have been
compelled to approach this Court as the five-member Appellate
Committee which passed the order dated 20.01.2022, included the
president of Assessment Board itself, who had issued the impugned
disapproval letters dated 15.11.2021 and 30.12.2021. He submits that
in these circumstances relegating the petitioner to a second appeal is
not only going to be a futile exercise causing unnecessary delay, but
even otherwise in the light of the admitted position that the petitioner
Institute meets all the criteria required for enhancement of seats from
150 to 250, no useful purpose will be served in relegating the
petitioners to the said remedy.
11.Issue notice.
12.Mr. Ahluwalia and Mr. Singhdev accept notice on behalf of respondent
nos. 1 & 2 respectively. While praying for time to file counter
affidavit, Mr. Singhdev vehemently urges that the present writ petition
is not maintainable as the petitioner had already chosen to approach the
Madras High Court by assailing the respondent no.2/NMC's order
dated 27.08.2021, whereby it had decided to defer the petitioner's
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Signed By:GARIMA MADAN
Signing Date:26.01.2022
10:46:12
request for enhancement of seats from 150 to 250, which request was
made on 12.11.2020. He therefore contends that once the Madras High
Court had, in view of the ongoing Covid-19 pandemic opined that, no
direction for inspection of the purportedly enhanced infrastructure of
the petitioner was warranted at the time of issuing the order, the
petitioner could not have subsequently approached this Court in respect
of its request dated 12.11.2020. He further submits that even otherwise,
once the impugned orders are based on the decision dated 30.07.2021
of the Madras High Court in W.P.(MD) No. 17263/2020, the petitioner
ought to have approached the same Court. In its aforesaid decision, the
Madras High Court had observed that the State government as well as
the National Medical Commission should refrain from granting
approval to any medical college in and around Chennai, or any other
city/union territory like Puducherry, which had already got enough
medical colleges to serve its population. He thus, contends that, the
respondent no.2/NMC was justified in rejecting the petitioners' request
for enhancing the seats for intake of students in the MBBS course, as
the same would amount to opening a new medical college for 100
students.
13.Having considered the submissions of the learned counsel for the
parties, I find absolutely no merit in the respondent no.2's plea that the
present petition before this Court is not maintainable. Once it is the
respondent no.2's own case that after the rejection of the petitioner's
writ petition by the Madras High Court, the said respondent proceeded
to carry out inspection of the petitioner no.1's enhanced infrastructure
on more than one occasion, and gave positive reports to the effect that
the petitioner was meeting all the applicable criteria which made it
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Signed By:GARIMA MADAN
Signing Date:26.01.2022
10:46:12
eligible to increase its intake capacity for MBBS course, the petitioner
is totally justified in approaching this Court against the rejection of its
request for increasing the seat intake.
14.I have also perused the decision of the Madras High Court in W.P.
(MD) 17263/2020 dated 30.07.2021, which is admittedly the only basis
for the respondent no.2's action of rejecting the petitioners' request,
and I am inclined to agree with the petitioners that the observations
made in the said order pertained to opening of new medical colleges.
The said order does not in any manner deal with the question of
enhancement of seats in an already established medical college, having
the requisite infrastructure and faculty. In fact, it appears that the
Division Bench of the Madras High Court, being conscious of the
difference between opening of a new college and that of increasing the
number of seats from 150 to 250 in an existing college, as envisaged
under section 28 of the NMC Act, did not even make any observations
in this regard.
15.I also find merit in the petitioner's plea that the respondent no.2 is
conscious of the said difference between opening of a new college and
increasing of the intake, as is evident from the order passed in the case
of Sri Sathya Sai Medical College and Research Institute, Tamil Nadu,
which has been granted permission on 15.01.2022 to increase its seats
from 150-250. It may be apposite to refer to the order dated
15.01.2022:
"I am ducted to inform you that the Appeal against the
orders of MARB, NMC disapproving, for increase of
MARS seats from 150 to 250 at Shri Satya Sai Medical
College & Research Institue, Nellikappam, Tamil Nadu
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Signed By:GARIMA MADAN
Signing Date:26.01.2022
10:46:12
was heard at the Appeal Committee Meeting in NMC held
on 10.01.2022 wherein, you participated via online link.
The Appeal Committee discussed on the issue and at was
decided that NMC will permit for enhancement of MBBS
scats from 150 to 250 for the Academic Year 2021-22. In
this regard, the MARB will issue the letter shortly:
Accordingly, the appeal stands disposed off. A copy of the
approved minutes of the First Appeal Committee meeting
is enclosed here for information please
Encl: As above.
Yours Sincerely.
(Ashish Kumar Panda)
Under Secretary to the Govt ci India"
16.In these circumstances, I am of the considered view that it is evident
that the respondent no.2 has no other objection whatsoever to the
enhancement of the seats by the petitioner, except for the reliance
placed on the order passed by the Madras High Court in W.P.
(MD)17263/2020 on 30.07.2021, which order I find does not at all deal
with the enhancement of seats in an existing medical college. I cannot
lose sight of the fact that India is a country short of doctors and it is the
Central Government's own stand that the capacity of medical college,
wherever possible, ought to be suitably increased. The world has been
dealing with a severe shortage of healthcare providers while dealing
with the covid-19 pandemic for the last two years, and therefore grave
and irreparable prejudice would be caused not only to the petitioners,
but also to the general public and students, if the petitioners are not
permitted to increase the intake from 150-250 despite availability of
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infrastructure and faculty.
Signed By:GARIMA MADAN
Signing Date:26.01.2022
10:46:12
17.I am therefore of the view that at this interim stage itself where I find
that the impugned orders are prima facie unsustainable, interest of
justice demands that the respondent no.2/National Medical
Commission should reconsider the petitioners' request. The application
is, accordingly, disposed of by directing the First Appellate Committee
of respondent no.2 to reconsider the matter in the light of the
observations made hereinabove, and pass a fresh order within four days
from today. In case appropriate orders are not passed by the respondent
no.2 within the time so granted, the respondent no.1 will then take it
upon itself to pass an appropriate order so that these additional 100
seats can be included in the next round of counselling, which is likely
to commence in the first week of February itself.
W.P.(C) 1458/2022
18.Counter affidavit to the writ petition be filed in four weeks. Rejoinder
thereto, if any, be filed within two weeks thereafter.
19.List on 30.03.2022.
REKHA PALLI, J
JANUARY 25, 2022
ms
Signature Not Verified
Signed By:GARIMA MADAN
Signing Date:26.01.2022
10:46:12
