L.N. Medical College And Research ... vs Union Of India
2022 Latest Caselaw 1534 MP

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                                                       W.P. No.1324 of 2022



IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR
                      BEFORE
              SHRI JUSTICE SUJOY PAUL
                          &
         SHRI JUSTICE ARUN KUMAR SHARMA
              ON THE 3rd FEBRUARY, 2022

              WRIT PETITION No. 1324 of 2022

 Between :-

 L.N. Medical College & Research Centre,
 Through its Authorized Signatory,
 Mr. Siddharth Rai, S/o Shri R.K. Rai,
 Aged about 33 years,
 R/o Savadham, C-Sector, Kolar Road,
 J.K. Town, Bhopal, (M.P.).
                                            ........Petitioner

 (By Shri Siddharth Radhe Lal Gupta, Advocate)

 AND

 1. Union of India
 Through Secretary,
 Ministry of Health & Family Welfare,
 Nirmaan Bhawan, New Delhi-110001

 2. National Medical Commission
 Through its Chairman,
 Pocket 14, Sector 8, Dwarka Phase-I,
 New Delhi- 110077

 3. State of Madhya Pradesh,
 Through its Commissioner/Counselling Authority,
 Directorate of Medical Education,
 6th Floor, Satpura Bhavan, Bhopal (M.P.)

 4. State of Madhya Pradesh
 Through its Principal Secretary,
 Department of Medical Education, 4th Floor,
 Vallabh Bhavan, Bhopal (M.P.)
                                            ......Respondents
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                                                             W.P. No.1324 of 2022




    (By Shri J.K. Jain, Assistant Solicitor General for respondent No.1-
    Union of India,
    Shri Anoop Nair, Advocate for respondent No.2.
    Shri Akshay Pawar, Panel Lawyer for respondents No.3 & 4-State)

                (Heard through Video Conferencing)


Whether approved Yes.
for reporting
Law Laid down :-    1. The National Medical Commission Act, 2019 -
                    The application of petitioner-College seeking
                    increase of MBBS seats from 150 to 250 is turned
                    down based on a complaint from CBI. The question
                    was whether this complaint/CBI note can be a reason
                    for rejecting the prayer for increase of MBBS seats.
                    2. Section 28 & 29 of NMC Act - The Medical
                    Assessment and Rating Board on the basis of criteria
                    specified in Section 29 can take a decision of either
                    approving or disapproving the scheme for
                    establishing or increase of seats in a college. Any
                    decision of the Board/NMC, which is beyond the
                    scope of Section 28 and 29, is bad in law.
                    3. Section 28(5) of the NMC Act - Remedy of
                    appeal - petitioner cannot be relegated to avail the
                    alternative remedy of appeal because -
                    (i) The rejection order is not based on relevant
                    parameters based on Section 28(3) r/w Section 29 of
                    the Act.
                    (ii) Since, impugned order is based on extraneous
                    reason, it was without jurisdiction and hence it was
                    not proper to relegate the petitioner to avail the
                    appellate remedy.
                    (iii) In view of time constraint, the remedy of appeal
                    which provides 45 days to the appellate authority
                    to take a decision, cannot be treated to    be      an
                    efficacious remedy.
                    4. The Establishment of Medical College
                    Regulations 1999 - Penalty - The punishment
                    cannot be imposed in absence of any enabling
                    statutory provision. Since, no enabling provision
                    was brought to the notice of the Court, the impugned
                    order was set aside.

                   5. Article 226 of the Constitution : Writ of
                   Mandamus : In appropriate cases the writ Court
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                                                                  W.P. No.1324 of 2022



                      itself can issue direction in place of respondent.
                      However, in the factual backdrop of this case
                      direction is issued to take a fresh decision.


                                 ORDER

Sujoy Paul, J.:-

This petition filed under Article 226 of the Constitution takes

exception to the order of National Medical Commission (in short 'NMC')

dated 10.01.2022 whereby, the request of the petitioner institution for

increase of MBBS seats from 150 to 250 is turned down. It is prayed that

this Court may issue appropriate writ/direction to the respondent- NMC to

issue a formal approval letter of increase in intake of their seats for the

MBBS -UG Course from 150 to 250 for the current academic year 2021-22

by accepting the application filed by the petitioner as complete and meeting

the requirements.

2. Draped in brevity, the relevant facts for adjudication of this matter are

that the petitioner Medical College and Hospital preferred an application

seeking permission to increase the MBBS seats from 150 to 250. The NMC

obtained an inspection report and thereafter, by 'letter of disapproval' dated

10.01.2022, rejected the prayer of increase of seats in MBBS course.

Arguments of the petitioner :

3. Shri Siddharth Radhe Lal Gupta, learned counsel for the petitioner, by

placing reliance on the relevant portions of Section 28 & 29 of the NMC Act

submits that the NMC was obliged to take a decision regarding approval or

disapproval for increase of seats by taking into account the criteria

mentioned in Section 29 of the said Act. The impugned order is not based on

W.P. No.1324 of 2022

relevant criteria and is based on an extraneous reason and consideration and

therefore, the impugned order is passed without jurisdiction. Thus, the

remedy of statutory appeal is not a bar. Reliance is placed on Ram and

Shyam Company v. State of Haryana and Ors. [AIR 1985 SC 1147], U.P.

State Spinning Co. Ltd. v. R.S. Pandey & Ors. [(2005) 8 SCC 264], Cipla

Ltd. and Ors. v. Union of India (UOI) and Ors. [MANU/UP/2482/2004],

Manpowergroup Services India Pvt. Ltd. v. Commissioner of Income Tax

[2020 SCC OnLine Del 1844] & Radha Krishan Industries v. State of H.P.

[(2021) 6 SCC 771].

4. The remedy of appeal is not efficacious is the second limb of

argument of Shri Gupta. To bolster this, it is submitted that the counselling

and admission process has already commenced and next round of

counselling is scheduled in the second week of February, 2022. Thus,

relegating the petitioner to alternative remedy of appeal will cause injustice

because no time is now left to avail such remedy. Reliance in this regard is

placed on Royal Medical Trust and Ors. v. Union of India (UOI) and Ors.

[(2015) 10 SCC 19], Priyadarshini Dental College and Hospital v. Union

of India and Ors. [(2011) 4 SCC 623] & Parshavanath Charitable Trust

and Ors. v. All India Council for Tech. Edu. and Ors. [(2013) 3 SCC 385].

5. The appellate remedy is illusory is the next contention of the

petitioner based on the finding of the impugned order. It is submitted that a

decision is taken at the apex level by the NMC when Chairman and

President of four autonomous Boards were present. In this backdrop,

sending the petitioner to avail the said remedy before the said authorities

will be a futile exercise.

W.P. No.1324 of 2022

6. Pendency of CBI enquiry/investigation cannot be a ground to deny

approval to petitioner institution is the next contention of the counsel for the

petitioner. No penalty can be imposed on the institution in absence of any

express substantive provision empowering the authorities to do so. In

support of this contention, Shri Gupta relied upon State of Bihar and others

v. Industrial Corporation (P) Ltd. and Ors. [(2003) 11 SCC 465], Bijaya

Kumar Agarwal v. State of Orissa [(1996) 5 SCC 1], Shree Bhagwati Steel

Rolling Mills v. Commissioner of Central Excise and Anr. [(2016) 3 SCC

643], Principal, R.R. Educational Trust's College of Education and

Research B.Ed. College, Mumbai v. Registrar, University of Mumbai and

Anr. [2014 (4) Mh. L.J.], Balaji Society v. All India Council for Technical

Education [2011 SCC OnLine Bom 1604], Kollengode Educational and

Charitable Trust v. All India Council for Technical Education [2012 SCC

OnLine Ker 12107], R.V. Northland Institute v. State of U.P. and Others

[2012 SCC OnLine All 4122] & Index Medical College Hospital &

Research Centre v. Union of India and Ors. [MANU/MP/1561/2013].

Criticizing the impugned letter of disapproval, Shri Gupta submits that the

penalty imposed in the impugned order is without authority of law. Even

The Establishment of Medical College Regulations, 1999 (in short

'Regulations') do not permit the NMC to impose such a punishment. The

punishment could have been imposed when institution employed teachers

with fake/forged documents which is not the case of the respondents.

7. Shri Gupta further submits that on the one hand, increase of seats for

the petitioner's institution is declined on the basis of CBI's letter dated

22.07.2021 (Annexure-P/11) addressed to the State Government and on the

other hand, other colleges who were similarly situated were given the benefit

W.P. No.1324 of 2022

of increase of seats. Example of People's College of Medical Science and

Research Centre, Bhopal and Index Medical College Hospital and Research

Centre, Indore is cited. It was also pointed out that same letter of CBI dated

22.07.2021 in which the name of the petitioner institution and other

institutions were mentioned did not become the impediment for increase of

seats for other institutions. The petitioner was given a discriminatory

treatment.

8. During the course of hearing, Shri Gupta, learned counsel for the

petitioner placed heavy reliance on the inspection report of NMC and the

'summery of assessment' of petitioner's institution. It is urged that the

shortage of teaching faculty was found to the tune of only 1.25% (2 out of

159) which is negligible in a case of sudden inspection. The infrastructure

facility, clinical material, library, laboratory and teaching faculties were

found to be appropriate/adequate. In this backdrop, the petitioner's

application may be allowed by this Court itself and it may not be relegated

to respondents for taking a fresh decision. Reliance is placed on Secretary,

Cannanore District Muslim Educational Association, Karimbam vs. State

of Kerala & others, 2010 (6) SCC 373, Hari Krishna Mandir Trust vs.

State of Maharashtra & Ors., 2020(9) SCC 356 and Rajiv Memorial

Academic Welfare Society & Anr. vs. Union of India & Anr., 2016 (11)

SCC 522.

Arguments of respondents :

9. Shri J.K.Jain, learned Assistant Solicitor General supported the

impugned order and contended that in view of CBI's letter mentioned in the

W.P. No.1324 of 2022

said order, petitioner is not entitled for any relief. The State Government is a

formal party.

10. Shri Anoop Nair, learned counsel for respondent No.2 submits that

petitioner has a statutory remedy of appeal. It is incorrect to say that said

remedy is illusory. In a similar matter - W.P. No.1107/2022 (People's

College of Medical Science vs. Union of India) the directions sought for

was to take a decision on the pending appeal. The impugned order therein

was containing same reason based on CBI's self contained note in CBI Case

No. RC2172015A0108. This Court vide order dated 13/01/2022 directed the

appellate authority to decide the appeal within statutory time limit and in

turn, the appellate authority allowed the appeal and increased the seats to

some extent. Thus, petitioner can very well avail the said remedy.

11. In rejoinder submissions, Shri Gupta urged that in People's College

case other than CBI note, there were other deficiencies and therefore their

matter was different. In People's College case, the appellate authority has

not increased the seats to the extent it was prayed for by the said institution.

If petitioner is relegated either to avail the remedy of appeal or for passing a

fresh order by NMC, they will not permit increase of 250 seats. Thus, this

Court itself can issue directions/mandamus for increase of seats.

12. Parties confined their arguments to the extent indicated above.

13. We have bestowed our anxious consideration on rival contentions and

perused the record.

FINDINGS -

14. Relevant portion of Section 28 and Section 29 read as under :-

W.P. No.1324 of 2022

"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 of seats without obtaining prior permission of the Medical Assessment and Rating Board.

(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 month from the date of such receipt:

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:-

(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."

(Emphasis Supplied)

15. Section 28 of the NMC Act makes it clear that the Medical

Assessment and Rating Board (in short 'Board') was required to take a

decision to approve or disapprove the scheme of establishing any course or

increase of numbers of seats based on the criteria mentioned in Clause (a)

to (d) of Section 29 of the said Act. Thus, language of statute is plain and

clear that the decision of the Board must be based on the touch-stone of

yardsticks mentioned in Section 29. A bare perusal of said criteria leaves no

W.P. No.1324 of 2022

room for any doubt that CBI's self contained note by no stretch of

imagination can be a reason for approving or disapproving the scheme or to

disallow an application. Thus, we find substance in the argument of Shri

Siddharth Gupta, learned counsel for the petitioner that decision taken by

NMC declining increase of seats is based on a reason which is beyond the

scope of Section 28 and 29 of the NMC Act. Thus, the impugned order is

clearly based on extraneous consideration/reason, which is outside the scope

and ambit of the NMC Act. In that event, the petitioner cannot be relegated

to avail the remedy of appeal under Sub Section 5 of Section 28 of the Act.

Putting it differently, the impugned decision of disapproval is not taken

within the four corners of Section 28(3) read with Section 29 of the Act.

Hence, in a case of this nature, the petitioner cannot be compelled to avail

the alternative remedy.

16. The impugned order contains singular reason based on CBI's self

contained note. Despite the fact that said note dated 22.7.2021, (Ann. P-11)

contains the name of petitioner college and other five colleges, the

respondents have granted benefit to People's College and Index Medical

College. The decision is discriminatory and hits Article 14 of the

Constitution.

17. This is trite that the statutory remedy is not a bar for exercising of

jurisdiction under Article 226 of the Constitution of India. If order is passed

without following principles of natural justice, it hits any fundamental right,

it is passed by an incompetent authority or constitutionality of a provision is

called in question, despite availability of alternative remedy, writ petition

can be entertained, (See Whirlpool Corporation vs. Registrar of Trade

Marks, Mumbai and others 1998 (8) SCC 1).

W.P. No.1324 of 2022

18. We are not inclined to relegate the petitioner to avail the alternative

remedy for yet another reason that there is no disputed question of fact is

involved so far impugned order is concerned. The relevant portion of

impugned order dated 10.01.2022 reads as under :-

"The Medical Assessment and Rating Board (MARB) of NMC pleased to inform you that there was a complaint from CBI self-contained note in CBI case RC2172015A0108. The matter has been discussed in NMC by the Chairman with the Presidents of four autonomous boards and resolved to impose penalties for allowing irregular admissions. Due to the above circumstances further increase of seats cannot be considered and hence this disapproval.

In view of the above, the Medical Assessment and Rating Board (MARB) has further deliberations on the available information and constrained not to grant any increase of MBBS seats for the academic year 2021-22. If you have any difference of opinion / information on the decisions by the MARB of NMC, you are suggested to follow the Sec. 28(5) (6) and (7) of the NMC Act 2019.

Kindly acknowledge receipt of this letter."

(Emphasis Supplied)

19. Once, it is held by us that CBI's self contained note cannot form basis

for 'letter of disapproval', there is no justification in sending the matter for

consideration to the appellate authority. During the course of hearing, Shri

Nair also fairly admitted that very short time is left for the competent

authority/appellate authority to take a decision because next counselling is

starting shortly. For these cumulative reasons, in our view, the petitioner

cannot be relegated to avail the alternative remedy of appeal.

20. The impugned order dated 10.01.2022 is founded upon CIB's self

contained note, mentioned hereinabove. The said note, as noticed above

cannot be a reason to approve or disapprove the scheme or prayer for

increase of seats. Thus, the impugned order based on an extraneous reason

W.P. No.1324 of 2022

cannot sustain judicial scrutiny. The impugned order also hits Wednesbury

principles. Resultantly, the said order deserves to be jettisoned.

21. We also find substance in the argument of learned counsel for the

petitioner that penalty can be imposed by a statutory authority provided there

exists an enabling provision in the governing statute. In absence thereof, the

punishment cannot sustain judicial scrutiny. The impugned order is liable to

be interfered with for this reason also.

22. The ancillary question is whether this Court in the present case itself

should pass order directing increase of MBBS seats from 150 to 250 ? The

principles laid down by the Apex Court and High Courts in Royal Medical

Trust and Ors. vs. Union of India (UOI) and Ors. [(2015) 10 SCC 19],

Priyadarshini Dental College and Hospital vs. Union of India and Ors.

[(2011) 4 SCC 623] & Parshavanath Charitable Trust and Ors. vs. All

India Council for Tech. Edu. and Ors. [(2013) 3 SCC 385] cannot be

doubted. Common string based on these judgments shows that writ of

mandamus can be issued in appropriate cases where there exits

circumstances for issuance of such writ. The judgment of Rajeev Memorial

Academic Welfare Society (supra) was heavily relied upon by Shri Gupta.

A plain reading of this judgment shows that the High Court directed re-

inspection by the MCI, whereas there was no need to do the same in the

said case. Since inspection in the present case has already taken place, we

are not inclined to issue any direction for re-inspection. In the peculiar facts

of this case, in our opinion, while setting aside the impugned order, proper

course would be to issue a direction to the NMC to take a fresh decision

forthwith on the application of petitioner strictly within the four corners of

Section 28, 29 and other provisions of NMC Act.

W.P. No.1324 of 2022

23. So far argument of Shri Siddharth Gupta, Advocate that if the matter

is remitted back for re-consideration regarding increase of seats, the NMC

will not increase the seats upto 250 as prayed for by the petitioner is

concerned, we do not see any reason for such assumption. NMC being the

statutory authority in our view, is best suited to take an appropriate decision

in this regard. Since we have disapproved the impugned order based on

CBI's note, the only course available to the NMC is to take into account, the

existing inspection report and consider the application for increase of MBBS

seats from 150 to 250 on the touch stone of Section 28 and 29 of the NMC

Act.

24. Considering the time constraint, this Court can very well fix a time

limit within which the NMC can be directed to take a decision. Pertinently,

in the case of People's College & Medical Science (supra), the direction

of this Court to decide the appeal within statutory time limit was followed

by NMC and therefore, we find no reason to issue a mandamus for increase

of seats.

25. In view of foregoing analysis, the impugned order dated 10.01.2022 is

set aside. The NMC is directed to take a decision on the application of

petitioner for increase of MBBS seats from 150 to 250 in accordance with

law before 8th February, 2022. The outcome of such consideration shall be

communicated to the petitioner.

26. The petition is allowed to the extent indicated above.

                                        (SUJOY PAUL)                          (ARUN KUMAR SHARMA)
                                           JUDGE                                     JUDGE

   PK
          Digitally signed by PARITOSH KUMAR
          DN: c=IN, o=HIGH COURT OF MADHYA


PARITOS
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          postalCode=482001, st=Madhya Pradesh,
          2.5.4.20=43c946b45c8a66c03b68676e7888
          02a41cc03b5b9567caf9c2c3b981b8cb6596,



H KUMAR
          pseudonym=5FDD657FF77E3DB41E52E72D
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          Date: 2022.02.03 13:22:45 +05'30'