Kerala High Court
The Principal vs Union Of India on 14 March, 2025
Author: N.Nagaresh
Bench: N.Nagaresh
2025:KER:21677
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY, THE 14TH DAY OF MARCH 2025 / 23RD PHALGUNA, 1946
WP(C) NO. 4626 OF 2025
PETITIONER:
THE PRINCIPAL
AL-AZHAR MEDICAL COLLEGE & SUPER SPECIALTY
HOSPITAL, EZHALLOOR.P.O. THODUPUZHA.,
PIN - 685605
BY ADVS.
P.M.SANEER
TONY GEORGE KANNANTHANAM
BIBIN B. THOMAS
GISON ALIYAS
RESPONDENTS:
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY,
DEPARTMENT OF HEALTH & FAMILY
WELFARE,NIRMANBHAVAN, NEW DELHI.,
PIN - 110001
2 THE NATIONAL MEDICAL COMMISSION
REPRESENTED BY ITS SECRETARY,
POCKET 14, SECTOR 8, DWARAKA,
NEW DELHI., PIN - 110075
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WP(C) No.4626 of 2025
2
3 THE MEDICAL ASSESSMENT & RATING BOARD
REPRESENTED BY ITS PRESIDENT,
THE NATIONAL MEDICAL COMMISSION,
POCKET 14, SECTOR 8, DWARAKA,
NEW DELHI., PIN - 110075
BY ADVS.
SRI. KRISHNA T C, DSGI
SRI. PRENJITH KUMAR, STANDING COUNSEL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 14.03.2025, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
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WP(C) No.4626 of 2025
3
JUDGMENT
Dated this the 14th day of March, 2025
The petitioner, who is Principal of a Self Financing
Medical College, is before this Court seeking to quash
Ext.P23 order of disapproval issued by the 1 st respondent to
start M.D. (Dermatology, Venereology and Leprosy) for the
Academic Year 2024-2025 in the petitioner's College and to
issue approval to start course in this Academic Year.
2. The petitioner states that the Medical
College was established in the year 2014-2015. It is a
"minority institution". The College was started with the Letter
of Permission (LoP) of the Central Government. The LoP was
recommended by the Medical Council of India. The College
has been affiliated with the University. The College was
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granted recognition by including the name of the College in
the First Schedule of the Indian Medical Council Act, 1956.
3. For the year 2024-2025, the petitioner
applied for permission to start PG Courses, including M.D.
(Dermatology). The National Medical Commission (NMC)
issued Ext.P2 public notice directing the applicant-Colleges to
produce bank guarantees for the courses applied for. The
College provided Bank guarantee for an amount of ₹85 lakhs,
as evidenced by Ext.P3. Thereafter, the NMC issued Ext.P5
Show-cause Notice directing the College to rectify the
remarks noted by the NMC. The College submitted Ext.P6
explanation.
4. In Ext.P5, the NMC had noted that the
Essentiality Certificate was inadequate. No other serious
deficiency was noted by the NMC. The College submitted new
Essentiality Certificate. To the surprise of the petitioner,
without considering the facts, the NMC issued Ext.P7 letter of
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disapproval. The deficiency noted in Ext.P7 is that as per
AEBAS, the attendance of a Professor is less than 75% and
that there is deficiency in faculty.
5. The petitioner states that the objection as to
deficiency of faculty is unsustainable because rule specifically
permits that if there is any excess qualified faculty in any
higher category, that can be counted to make up the
deficiency, if any, in the lower category. The disapproval is,
therefore, unsustainable.
6. The NMC considered the First Appeal filed
by the College. The College attended the hearing and relevant
facts were apprised to the Appellate Authority. However,
without considering any of the contentions, the appeal was
rejected as per Ext.P15. In Ext.P15, the reasons advanced
for rejection was that there is no Associate Professor and the
attendance of one Professor is less than 75% as per AEBAS.
Against the rejection of the First Appeal, the petitioner filed
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Ext.P16 Second Appeal under Section 28(6) of the National
Medical Commission Act, 2019. The College submitted their
explanation along with details. Later, Ext.P19 order was
issued by the NMC declining approval to start M.D.
(Dermatology). In Ext.P19, the only reason advanced by the
1st respondent for rejection was that there is non-availability of
sufficient faculty in the Department and that attendance of one
Professor was found to be short.
7. The petitioner states that the shortage of
attendance was alleged taking into consideration the
attendance of the faculty concerned only for two months,
which was unjustified. The petitioner, therefore, filed W.P.(C)
No.43746/2024. This Court by Ext.P20 judgment held that the
attendance requirement should be based on the whole
Academic Year and cutting out two months out of the
Academic Year and alleging shortage of attendance cannot
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be sustained. Accordingly, the order was set aside with a
direction to reconsider the matter.
8. The petitioner states that the 1 st respondent,
without considering any of the points highlighted in Ext.P20
judgment, rejected the appeal on another ground as per
Ext.P23. In Ext.P23, it has been stated that the petitioner
failed to make available Form-16 and Salary Slips of all
faculties working in the Department. The petitioner would urge
that the said allegation is incorrect. The communication
requiring production of Form-16 was not received in the office
of the College before the hearing date. The hearing was
conducted on 08.01.2025. The E-mail sent by the
1st respondent was received in the office subsequently on
13.01.2025. The petitioner would urge that the impugned
order rejecting the approval will not stand the scrutiny of law
for many reasons. The petitioner submitted that the petitioner
has paid ₹85 lakhs along with the application. The petitioner
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will have to remit application fee afresh unless the sanction is
granted to start M.D. (Dermatology) in this Academic Year.
9. Deputy Solicitor General of India-in-Charge
entered appearance and resisted the writ petition. On behalf
of the 1st respondent, it is submitted that the College was
requested to make available Form-16 and Salary Slips of all
faculty members, appointment letters of all the faculty
members and AEBAS data of all the faculty members on the
day of hearing. This is evident from Ext.R1(a). However, the
College representatives could not produce the documents.
The representatives sought for time to produce Form-16 and
Salary Slips. However, the same was not produced.
10. Therefore, the committee decided the matter
on the basis of available materials and documents, according
to which the College does not have adequate faculty for
starting of M.D. (DVL) Course for the Academic Year 2024-
2025 as per the documents and submissions made by the
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petitioner. The request for starting of M.D. (DVL) with two
seats for the Academic Year 2024-2025 was hence rejected.
11. The Deputy Solicitor General of India-in-
Charge further submitted that the College was given sufficient
time for submitting Form-16 and Salary Slips of the faculty
members in DVL Department. However, in spite of granting
sufficient time, the petitioner's College failed to produce the
same. It is the duty of the petitioner to produce the required
documents before the Appellate Authority. It is the subjective
satisfaction of the Appellate Authority that matters.
12. The Deputy Solicitor General of India-in-
Charge further submitted that a medical student requires
gruelling study and that can be given only if proper facilities
are available in a Medical College and Hospital attached to it.
The Medical College and Hospital should be well equipped
and Teaching Faculty and Doctors have to be competent
enough that when a medical student comes out, he is perfect
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in the science of treatment of human beings and is not found
wanting in any way. For the said purpose, the NMC has a
duty to ensure that there are sufficient number of faculties and
the rules applicable to appointment and service of faculties
are strictly adhered to by the Colleges.
13. The application submitted by the petitioner
for starting PG Course M.D. (DVL) was first rejected by the
NMC as per Ext.P7 letter of disapproval dated 06.05.2024. In
Ext.P7, it was stated that there is inadequate attendance in
respect of one Professor. The faculty was also found to be
inadequate because there is only one Professor and one
Assistant Professor available and no Associate Professor was
engaged by the petitioner. It was also stated that clinical
materials data of the Department was not provided in
Standard Assessment Form (SAF).
14. Pursuant to Ext.P7, the petitioner filed
appeal before the Government. Explanation was given. It was
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stated that as the College has additional superior faculty, the
absence of an Associate Professor cannot be a reason for
rejection of the application. The petitioner preferred an appeal
against Ext.P7 order which was rejected as per Ext.P15 order.
In Ext.P15, it was again alleged that no Associate Professor is
registered and attendance of one Professor is less as per
AEBAS attendance from 01.01.2024 to 29.02.2024. The
petitioner filed Second Appeal before the Government of
India. The Government considered the matter and passed
Ext.P19 order. In Ext.P19 order, the Government of India has
reiterated that there is deficiency of faculty since as per
AEBAS attendance from 01.01.2024 to 29.02.2024, no
Associate Professor was available in the Department.
15. The petitioner, thereafter, filed W.P.(C)
No.43746 of 2024. In the said writ petition, this Court came to
a conclusion that the objection relating to shortage of
attendance in respect of one of the Professors is
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unsustainable. The NMC has taken into consideration only a
short period of two months for ascertaining the attendance
requirement. The attendance requirement should be based on
the whole Academic Year. Cutting out two months out of the
Academic Year and alleging shortage of attendance cannot
be sustained. This Court also noted with approval that as per
the Minimum Standard Requirements prescribed by the NMC
for Teaching Faculty, any excess Teaching Faculty in the
higher cadre can compensate for the deficiency of lower cadre
of the same Department.
16. Pursuant to Ext.P20, the 1st respondent
passed Ext.P23 order again rejecting the application of the
petitioner, on an altogether different reason. In Ext.P23, it
was stated that the College was required to make available
Form-16 and Salary Slips of all the faculties of the Department
on the day of hearing. However, the college representatives
could not submit the required documents in respect of the
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faculty in the Department and requested for a day to submit
Form-16 and Salary Slips of the faculties. However, these
documents were not produced. It was also observed that the
documents submitted by the College are non conclusive and
do not prove the fact that they have adequate faculty in the
Department. The Committee noted that the decision was
taken on the basis of available documents and facts,
according to which the College does not have adequate
faculty for starting M.D.(DVL) Course for the Academic Year
2024-2025.
17. I have heard the learned counsel for the
petitioner and the learned Deputy Solicitor General of India
representing the 1st respondent and the learned Standing
Counsel representing respondents 2 and 3.
18. The application of the petitioner for M.D.
(DVL) Course was considered by the 1 st respondent and
initially, Ext.P7 letter of disapproval was passed. In Ext.P7
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disapproval the reasons advanced for rejection was the
inadequate attendance of a faculty and lack of Associate
Professor to teach the subjects. In fact, the allegation of
inadequate attendance was found to be unsustainable by this
Court in Ext.P20 judgment.
19. Furthermore, as the petitioner had two
Professors, the lack of an Associate Professor would not be
termed as inadequate faculty in view of the Regulations of the
NMC themselves. The petitioner's appeal against Ext.P7 was
still rejected as per Ext.P15. In Ext.P15, it was again alleged
that no Associate Professor is registered and attendance of
one Professor is less as per AEBAS attendance. The
petitioner preferred further appeal against Ext.P15, which was
rejected as per Ext.P19. In Ext.P19, the 1 st respondent again
alleged that there is deficiency of faculty and attendance.
20. Thereupon, the petitioner approached this
Court filing W.P.(C) No.43746/2024. This Court categorically
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found that the respondents were not justified in calculating the
attendance only for a period of two months, to come to a
conclusion that there is deficiency of attendance. This Court
held that the attendance requirement should be based on the
whole Academic Year.
21. This Court further noted that as per the
Minimum Standard Requirements prescribed by the National
Medical Commission for Teaching Faculty, any excess
Teaching Faculty in the higher cadre can compensate for the
deficiency of lower cadre of the same Department. The
College has excess Teaching Faculty in the higher cadre.
Therefore, it cannot be contended that there is deficiency of
faculty in the petitioner's College. Pursuant to Ext.P20, the 1 st
respondent passed Ext.P23 order. By Ext.P23 order, the
application of the petitioner was again rejected, this time for
the reason that the petitioner failed to produce Form-16 and
Salary Slips of all the faculties of the Department on the day
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of hearing.
22. I find that the petitioner has been prosecuting
the applications for MD in Dermatology, Venereology and
Leprosy since March, 2024. The applications were rejected
for one reason or another. The petitioner approached this
Court filing W.P.(C) No.43746/2024. This Court found that the
rejection on the grounds of deficiency of facilities and
deficiency of attendance of a faculty member cannot stand the
scrutiny of law. The 1st respondent was directed to reconsider
the matter. Now, the application stands rejected for the
reason that the petitioner failed to make available Form-16
and Salary Slips of all faculties of the Department. It is to be
noted that the intimation regarding the requirement of
production of Form-16 and Salary Slips was sent by the 1 st
respondent just a day before the scheduled day of hearing.
The Deputy Solicitor General of India-in-Charge would submit
that even thereafter, the petitioner was given opportunity to
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produce Form-16 and Salary Slips.
23. I find from Ext.P19 that the Committee has
noted that there is availability of faculty in the Department.
The only allegation in Ext.P19 was that a Professor has
shortage of attendance and there was deficiency of one
Associate Professor. Both these reasons were held to be
unsustainable by this Court in Ext.P20 judgment. Therefore,
as things stand now, the applications submitted by the
petitioner stands rejected for the only reason that the
petitioner has failed to produce Form-16 and Salary Slips of
all faculties of the Department.
24. I find that Form-16 is a form prescribed
under Section 203 of the Income Tax Act, 1961 and the Rules
made thereunder. Form-16 is a proof of remittance of TDS.
When the NMC / Government of India has sufficient materials
to ascertain the number of faculties and even the attendance
particulars of the Professors, the NMC could have very well
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come to a conclusion that the faculties are continuing in the
College and attending their duties. As regards the requirement
for submission of Form-16 and Salary Slips, this Court fails to
understand the insistence for production of Form-16 and
Salary Slips by the Government of India in an appeal
preferred against the decision of the NMC.
25. The Deputy Solicitor General of India-in-
Charge would submit that Form-16 and Salary Slips are
directed to be produced to ensure that the faculty members
are attending classes are being paid wages. The quantum of
wages is not an issue in this matter. If Form-16 and Salary
Slips are produced for the purpose of ensuring that the
faculties are attending the classes, the application of the
petitioner can be considered. The Deputy Solicitor General of
India-in-Charge further submitted that the last date for giving
options for special stray vacancy round is over by 13.03.2025
and the petitioner may not get students to start the M.D. (DVL)
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Course in this Academic Year.
26. It is to be noted that the petitioner has
remitted ₹85 lakhs as fees for grant of approval of the course
and if the application is not considered this year, the petitioner
will have to apply afresh paying an enhanced fee of ₹2.5
Crores next year and the petitioner will be able to start the
course only after two years. On the other hand, if the
petitioner's application is considered and approval is granted
this year, then the petitioner can seek for renewal of approval
for the next year.
27. Taking into consideration the afore facts, I
am of the view that the writ petition can be disposed of with
appropriate directions.
28. The petitioner is directed to make available
Form-16 and Salary Slips in respect of the faculty relating to
M.D. (DVL) to the 1st respondent within a period of two weeks.
If the said documents required as per Ext.P23 order are
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produced, the 1st respondent shall reconsider the matter
taking note of the documents thus produced and Ext.P28
(print out from the Dashboard of NMC in proof of attendance
of faculty) and pass orders afresh within a further period of
four weeks. In order to enable the 1st respondent to pass
orders afresh on the basis of these documents, Ext.P23 is set
aside.
The writ petition is disposed of as above.
Sd/-
N.NAGARESH
JUDGE
bpr/spk
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APPENDIX OF WP(C) 4626/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE APPLICATION SO
SUBMITTED BEFORE THE NATIONAL MEDICAL
COMMISSION (NMC) DATED 13/09/2023.
Exhibit P2 A TRUE COPY OF THE PUBLIC NOTICE F.
NO.M-19011/11/2022/MARB/NMC DATED
12/10/2023.
Exhibit P3 A TRUE COPY OF THE COVERING LETTER
PRODUCING THE BANK GUARANTEE AS NO.
AMC/PG/BG/2023-02 DATED 16/10/2023.
Exhibit P4 A TRUE COPY OF THE PUBLIC NOTICE NO.
N-19011/10/2023-ASSESSMENTCELL/NMC(PAR
T 1)(8268878) DATED 06/03/2024 ISSUED
BY THE NMC.
Exhibit P5 A TRUE COPY OF THE SHOW CAUSE NOTICE
BEARING NO. NMC/PG/2024-25/000234
DATED NIL.
Exhibit P6 A TRUE COPY OF THE COMPLIANCE REPORT
DATED 28/03/2024.
Exhibit P7 A TRUE COPY OF THE LETTER OF
DISAPPROVAL ID NO. NMC/PG/2024-
25/000234 DATED 06/05/2024 ISSUED BY
THE NMC.
Exhibit P8 A TRUE COPY OF THE APPOINTMENT ORDER
OF DR. N K SAMEENA, DATED 06/01/2020.
Exhibit P9 A TRUE COPY OF THE JOINING REPORT OF
DR. N K SAMEENA, DATED 06/01/2020.
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Exhibit P10 A TRUE COPY OF THE PROMOTION ORDER NO.
AAMC/HR/PO/23/01 DATED 01/12/2022
ISSUED BY THE PRINCIPAL.
Exhibit P11 THE MANUAL ATTENDANCE DETAILS OF DR. N
K SAMEENA WORKING AS ASSOCIATE
PROFESSOR IN THE DEPARTMENT OF
DERMATOLOGY.
Exhibit P12 A TRUE COPY OF THE APPEAL NO.
AAMC/ADM/PG/2024(000234-DVN) DATED
11/05/2024 SUBMITTED BY THE
PETITIONER.
Exhibit P13 A TRUE COPY OF THE PUBLIC NOTICE DATED
21/05/2024 ISSUED BY THE NMC.
Exhibit P14 A TRUE COPY OF THE E-MAIL
COMMUNICATION DATED 06/07/2024.
Exhibit P15 A TRUE COPY OF THE E-MAIL
COMMUNICATION GIVEN BY THE NMC ON
05/08/2024 REJECTING THE APPEAL.
Exhibit P16 A TRUE COPY OF THE SECOND APPEAL NO.
AAMC/ADM/PG/2024(SECOND APPEAL) DATED
21/08/2024.
Exhibit P17 A TRUE COPY OF THE E-MAIL
COMMUNICATION DATED 09/10/2024 ISSUE
FROM THE OFFICE OF THE 1ST RESPONDENT
ADDRESSED TO THE PRINCIPAL OF THE
COLLEGE.
Exhibit P18 A TRUE COPY OF THE E-MAIL DATED
08/10/2024 AND THE DETAILS OF LIST OF
FACULTY MEMBERS WORKING IN THE
DEPARTMENT OF DERMATOLOGY.
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Exhibit P19 A TRUE COPY OF THE ORDER NO.
V11013/196/2024-ME-1 DATED 26/11/2024
ISSUED BY THE FIRST RESPONDENT.
Exhibit P20 A TRUE COPY OF THE JUDGMENT DATED
16/12/2024 IN WP(C) NO. 43746/24 OF
THIS HONORABLE COURT.
Exhibit P21 A TRUE COPY OF THE COMMUNICATION NO.
V1103/14/2019-ME-1(FTS8290596) ISSUED
BY THE MINISTRY OF HEALTH AND FAMILY
WELFARE DATED 07/01/25 AND ITS TYPED
COPY.
Exhibit P22 TRUE COPY OF THE INFORMATION PRODUCED
BY THE COLLEGE IN FORMAT.
Exhibit P23 A TRUE COPY OF THE ORDER/COMMUNICATION
NO. V11013/196/2024-ME-1 DATED
24/01/25 ISSUED BY THE MINISTRY OF
HEALTH AND FAMILY WELFARE.
Exhibit P24 A TRUE COPY OF THE MAIL ISSUED BY THE
OFFICE OF THE 1ST RESPONDENT DATED
13/01/25.
Exhibit P25 A COPY OF THE RELEVANT PAGES OF THE PG
MSR-2024 DATED 23/08/2024 ISSUED BY
THE NMC.
Exhibit P26 A TRUE COPY OF THE RELEVANT PAGES OF
NMC REGULATIONS MSR 2020 DATED
28/10/2020.
Exhibit P27 THE RELEVANT PAGES OF THE REGULATIONS
DATED 16/08/2023 ISSUED BY THE
NATIONAL MEDICAL COMMISSION.
Exhibit P28 TRUE COPY OF THE ATTENDANCE DETAILS
DOWNLOADED FROM THE NMC ATTENDANCE
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DASHBOARD IN THE PETITIONERS COLLEGE
IN THE DEPARTMENT OF DERMATOLOGY.
RESPONDENT ANNEXURES
Annexure R1(a) A TRUE COPY OF EMAIL COMMUNICATION
GIVEN FROM THE MEDICAL EDUCATION
SECTION OF THE 1ST RESPONDENT
