Rajasthan High Court - Jodhpur
Tirupati Balaji Educational Trust vs Union Of India (2024:Rj-Jd:41178) on 8 October, 2024
Author: Dinesh Mehta
Bench: Dinesh Mehta
[2024:RJ-JD:41178]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 12053/2024
1. Tirupati Balaji Educational Trust, Bhilon Ka Bedla, Udaipur,
Rajasthan Through Its Authorized Representative Puneet
Makhija S/o Shri Mohan Makhija Aged About 38 Years R/o
Pacific Hills, Pratap Nagar, Airport Road Udaipur (Raj).
2. Pacific Medical College And Hospital, Bhilon Ka Bedla,
Udaipur, Rajasthan Through Its Deputy Registrar Puneet
Makhija S/o Shri Mohan Makhija Aged About 38 Years R/o
Pacific Hills, Pratap Nagar, Airport Road Udaipur (Raj).
----Petitioners
Versus
1. Union Of India, Through Its Secretary, Ministry Of Health
And Family Welfare, Nirman Bhavan, New Delhi.
2. National Medical Commission, Through Its Secretary
General, Pocket 14, Sector 18, Dwarka Phase-I, New
Delhi-110077.
3. Medical Assessment And Rating Board, Through Its
President, Pocket 14, Sector 18, Dwarka Phase-I, New
Delhi-110077.
4. Under Graduate Medical Education Board, Through Its
President, Pocket 14, Sector 18, Dwarka Phase-I, New
Delhi-110077.
5. Office Of The Chairman, Neet Ug Medical And Dental
Admission/ Counseling Board-2024 And Principal And
Controller Sms Medical College And Attached Hospitals,
Jaipur.
----Respondents
For Petitioner(s) : Mr. M.S. Singhvi, Sr. Advocate
assisted by Mr. Kartik Lodha
Mr. Vikas Balia, Sr. Advocate assisted
by Mr. Hemant Ballani
For Respondent(s) : Mr. Mukesh Rajpurohit, Dy. S.G.
assisted by Mr. Uttam Singh
Rajpurohit
Ms. Aditi Sharma
Mr. N.S. Rajpurohit
Ms. Ruchi Parihar
[2024:RJ-JD:41178] (2 of 16) [CW-12053/2024]
JUSTICE DINESH MEHTA
Judgment
08/10/2024
1. By way of present writ petition, the petitioners have
challenged the communication dated 29.06.2024, whereby
petitioners' request for enhancement of seats from 150 to 250 has
been turned down.
2. The petitioner No.1 is a trust, running a medical college in
the name and style as Pacific Medical College and Hospital at
Udaipur-Petitioner No.2.
3. The petitioner No.1 was granted permission to run MBBS
course with the intake capacity of 150 seats for the academic year
2014-15, whereafter in the year 2021, the petitioner started post
graduation course as well.
4. As per the assertions made by the petitioner, a huge amount
of Rs. 191,50,08,540/- was incurred on development and
infrastructure apart from purchase of equipment worth Rs. 50
crores. An assertion has also been made by the petitioner that it
has a fully functional hospital with 1040 beds.
5. On 18.08.2023, applications for establishment of new
medical colleges, increase/enhancement of intake capacity were
invited with the following timeline:-
S.No. Steps Timeline
1. Online application to NMC-Filling Applicationform, August - September
Fees, supporting documents
2. Evaluation of application by NMC- Rejected in case August - October
of incomplete of missing documents or approved in
case of complete application as per norms
[2024:RJ-JD:41178] (3 of 16) [CW-12053/2024]
3. Physical inspection of the facilities by team of September - December
assessors appointed by NMC
4. Evaluation of the assessment report submitted by October - January
Assessors
5. Grant of Permission - LOP February
6. Admission Process July - August
7. Renewal process 6 months before the new
academic year
6. The petitioners submitted an application for enhancement of
sitting capacity from 150 to 250 on 16.09.2023. After certain
correspondence, petitioners' application for enhancement of seats
came to be rejected by Medical Assessment and Rating Board
(hereinafter referred to as 'the MARB') constituted under Section
16 of the National Medical Commission Act, 2019 (hereinafter
referred to as 'the NMC') on 03.04.2024. Whereafter, for the
reasons best known to the respondents, the said order was
recalled by the MARB.
7. A show cause notice dated 17.05.2024 came to be issued
calling upon the petitioners to furnish self- assessment as per the
Guidelines for Under-Graduate Courses under Establishment of
New Medical Institutions, Starting of New Medical Courses,
Increase of Seats for Existing Courses and Assessment and Rating
Regulations, 2023 (hereinafter referred to as 'the Regulations of
2023').
8. In response to the said show cause notice, the petitioners
submitted it self-assessment report on 27.05.2024.
9. A show cause notice dated 30.05.2024 was again issued by
the Under-Graduate Medical Education Board (UGMEB)/National
Medical Commission asking the petitioners as to why the existing
[2024:RJ-JD:41178] (4 of 16) [CW-12053/2024]
number of seats from 150 be not reduced. The petitioners were
called for personal hearing on 03.06.2024.
10. Instead of reducing the seats the respondents passed an
order dated 05.06.2024 and imposed a fine of Rs.6 lakh upon the
petitioners.
11. On 24.06.2024, another notice in relation to petitioners'
request for enhancement of seats came to be issued and
petitioners were invited for personal hearing on 25.06.2024.
12. According to the petitioners, the MARB gave less than two
minutes' time for making submissions and the petitioners'
application for enhancement of seats came to be rejected cursorily
by order dated 29.06.2024.
13. The petitioners preferred a first appeal under section 28 of
the provisions of NMC Act on 06.07.2024.
14. But as the petitioners' first appeal was not being taken up for
hearing, the petitioners approached this Court by way of present
writ petition, which was filed on 20.07.2024.
15. The matter was taken up on various occasions, during which
an objection of pendency of first appeal was raised by Mr. Mukesh
Rajpurohit, learned Dy. Solicitor General.
16. On 30.07.2024, the first appeal of the petitioners came to be
heard, but before that on various dates of hearing, the matter got
adjourned at the request of learned Dy. Solicitor General awaiting
hearing/decision of the first appeal though learned counsel for the
petitioners has been showing urgency in wake of the fact that the
counseling was scheduled in second week of August, 2024.
17. The petitioners' first appeal was ultimately rejected on
05.08.2024. Said order passed by the First Appellate Authority has
[2024:RJ-JD:41178] (5 of 16) [CW-12053/2024]
also been challenged by the petitioners by way of moving
additional affidavit, as requisite prayer had already been made in
the main writ petition.
18. Mr. Singhvi, learned Senior Counsel made the Court aware
about the relevant provisions and backdrop facts by asserting that
during the period from 01.04.2024 till 14.08.2024, the petitioners
had already engaged/employed 67 additional faculties which led
total number of faculties to 206 faculties. He submitted that while
rejecting petitioners' application for enhancement of seats the
UGMEB has found that there was a deficiency in 11 departments
and residents deficiency in 10 departments while also observing
that petitioner were fined for failure to meet requisite norms, in
relation to the running course with intake capacity of 150 seats.
19. Learned Senior Counsel argued that both the reasons given
by the UGMEB in its impugned order are unsustainable - the fact
that the petitioners were penalized cannot be taken into account
for considering the petitioners' application for enhancement of
seats and its entitlement for enhancement should be considered
on the basis of infrastructure and other facilities available at
petitioner's college.
20. In relation to faculty deficiency in 11 departments and
residents deficiency in 10 departments, learned senior counsel
argued that such reason is factually incorrect, as the UGMEB had
wrongly taken into account the faculty position as of
January/February 2024. He submitted that UGMEB could not take
figures of faculties and residents for period of January-February
2024, because the petitioner's rights and entitlement for giving
admission on enhanced seat were required to be decided on the
[2024:RJ-JD:41178] (6 of 16) [CW-12053/2024]
basis of infrastructure and faculties as on the date of counseling to
be held in August, 2024.
21. He argued that after submitting application for enhancement
of seats, the petitioners has engaged/deployed additional 66
faculties and therefore, faculty position should be seen as
prevailing immediately prior to the date of counseling, which was
206 as against the requisite number of 166.
22. Learned Senior Counsel argued that NMC had provided only
two minutes of hearing and in such a short time, though the
representative of the petitioners made their best endevour to
satisfy but the UGMEB did not consider the facts and data
submitted by the petitioners and cursorily turned down petitioners'
request for enhancement of seats.
23. While calling in question the order of first appellate authority,
Mr. Singhvi argued that first appellate authority has also rejected
petitioners' appeal on wrong facts/basis. Having read the order of
the first appellate authority, learned Senior Counsel submitted that
the appellate authority has taken into account the attendance of
the faculties from 20 May, 2024 to 20 June, 2024 and has
considered only those faculties who had more than 75% of
attendance. It was argued that the approach adopted by the first
appellate authority is not inconformity with law or regulation and
the order impugned is liable to be quashed being based on
unsustainable criteria.
24. It was argued that firstly the faculty position as on the date
preceding the date of counseling should be taken into account or
else the faculty position as on the date of decision of the appeal
ought to have taken into account. He argued that when all the
[2024:RJ-JD:41178] (7 of 16) [CW-12053/2024]
figures were placed before the first appellate authority, it was
incumbent upon it to have decided the appeal on the basis of
present faculty position.
25. He invited Court's attention towards additional affidavit that
has been filed by the petitioners, in which various assertions have
been made while enclosing copies of the orders relating to Nova
Institute of Medical Sciences and Research Center, Rangareddy,
Telangana; Government Medical College, Amravati, Maharashtra;
Government Medical College, Banswara and Nagaur, Rajasthan.
Learned Senior Counsel highlighted that in spite of the fact that
various discrepancies were found by the UGMEB as well as NMC,
the approval for establishment of college has been granted by the
Respondent-Union of India.
26. It was argued that when the respondents can ignore the
norms and accommodate the above referred colleges/institutes
and inspite of the fact that major deficiencies in infrastructure
were observed, the permission to establish medical college has
been granted, then the respondents cannot justifiably turn down
petitioners' request, which is possessing requisite infrastructure
and requisite number of faculties.
27. Learned senior counsel submitted that as per the Regulations
of 2023, all faculties are governed by these Regulations and each
faculty is required to be enrolled with 'Aadhar Enabled Biometric
Attendance System' (hereinafter referred to as 'AEBAS') data. He
submitted that AEBAS data of almost all the faculties was available
before the UGMEB so also before the first appellate authority but
the appellate authority has not considered such data and has
taken arbitrary stand of considering only those faculties who have
[2024:RJ-JD:41178] (8 of 16) [CW-12053/2024]
more than 75% attendance between the period May to June,
2024.
28. Mr. Singhvi, learned Senior Counsel submitted that as per
sub-section (3) of Section 28 of NMC Act, every institution is
entitled to make up the deficiency pointed out by the UGMEB and
since the petitioners had cured the deficiencies (if any) by
employing more faculties, the petitioners' application ought to
have been considered in the light of the faculties existing on the
date of decision.
29. He submitted that first appellate authority while deciding the
petitioners' appeal ought to have taken figures/number of faculties
as available with the petitioner on the date of decision
(05.08.2024).
30. Mr. Mukesh Rajpurohit, learned Deputy Solicitor General at
the outset raised an objection regarding maintainability of the writ
petition by contending that the petitioners have directly
approached this Court, without waiting for the decision of the
appeal which they had filed. He added that even the order of the
first appellate authority has been challenged without availing
remedy of second appeal in terms of section 28 of the NMC Act.
31. He argued that the decision of the writ petition involves
determination of factual aspect, which this Court cannot go into
while exercising its writ jurisdiction.
32. Mr. Rajpurohit, learned Deputy Solicitor General then argued
that the first appellate authority has rightly taken into account
only those faculties who had more than 75 % of attendance during
the period between 20th May to 20th June, 2024 and no fault can
be found in such approach of the first appellate authority.
[2024:RJ-JD:41178] (9 of 16) [CW-12053/2024]
33. Learned Deputy Solicitor General submitted that if the
AEBAS data of all the faculties are taken into account, faculty
position as on 01.07.2024 was 166. He submitted that such
figures have been calculated by the respondents pursuant to the
interim direction given by this Court on 26.09.2024. He submitted
that such exercise was done, without prejudice to his contention
that the appellate authority has rightly taken figures and no
interference is warranted. He argued that the figures of
21.09.2024 cannot be taken into account.
34. He however, pointed out that even if AEBAS data of
01.07.2024 is taken into account then also there is deficiency of
two faculties.
35. So far as the facts pleaded by the petitioners that despite
having found deficiencies in infrastructure and faculties, approval
for establishment of colleges has been granted, Mr. Rajpurohit
submitted that he does not have any instructions or material
about the permission granted to such colleges/institutions which
are situated in Telangana, Maharashtra, Rajasthan. He however
argued that simply because some of the colleges have been
granted approval, petitioners cannot claim any parity so long as
petitioners are unable to satisfy that it has requisite number of
faculties.
36. In rejoinder, Mr. Singhvi, learned Senior Counsel submitted
that the objection of availing alternative remedy of second appeal
raised by Mr. Rajpurohit is not sustainable, particularly when
Central Government had preferred an SLP against the interim
order/direction issued by this Court on 21.08.2024, and various
grounds including the ground of alternative remedy was taken by
[2024:RJ-JD:41178] (10 of 16) [CW-12053/2024]
the Central Government in its SLP and Hon'ble the Supreme Court
while disposing of the SLP vide order dated 24.09.2024 did not
interfere and rather directed the Central Government to produce
the AEBAS data before this Court.
37. Learned Senior Counsel submitted that a period of more than
two and a half month has since passed and two rounds of
counseling has already taken place and third round of counseling
is scheduled tomorrow and urged that if the petitioners are
relegated to avail remedy of second appeal, their right would be
totally negated because by the time the petitioners would file
second appeal and it is taken up for hearing, the admission
process for academic year 2024-2025 would be over.
38. He asserted that no factual determination as claimed by Mr.
Rajpurohit is required and even if the figures produced and
accepted by the respondents are taken into account, the
deficiency is of only two faculties, which is less than 5%.
39. He submitted that as per the communication dated
07.07.2017 as has been noted by the Delhi High Court in the case
of IQ City Medical College Vs. National Medical Council and Ors.
[W.P.(C) 12906/2024 & CM APPL. 53760/2024] decided on
19.09.2024, 5% relaxation is required to be given in total number
of faculties. While maintaining that petitioners have 206 faculties,
he argued that even if the figures of faculties as on 21.09.2024
given by the respondents (166) are taken into account, it is well
within permissible limit, if 5% relaxation on requisite number of
faculties (168) is given.
40. Heard learned counsel for the parties and perused the
record.
[2024:RJ-JD:41178] (11 of 16) [CW-12053/2024]
41. Dealing with the objection of maintainability of the writ
petition raised by Mr. Rajpurohit, learned Deputy Solicitor General
suffice it to observe that the petitioners had approached this Court
on 20.07.2024 with the grievance that inspite of the fact that an
appeal has been filed on 06.07.2024, the same has not been
taken up for hearing and counseling schedule has been notified.
42. It is to be noted that during the pendency of the present writ
petition (perhaps under the instructions of Mr. Rajpurohit), the
first appeal was heard on 30.07.2024 and the order was
pronounced on 05.08.2024. Said order has also been assailed in
this writ petition.
43. According to this Court relegating the petitioners to file
second appeal at this point of time would be an exercise in futility,
as the third last round of counseling would be over. Considering
that second round of counseling has already taken place and third
and last counseling is scheduled tomorrow, this Court is of the
view that this writ petition deserves decision on merit - on the
basis of facts available on record. More particularly when the
appellate authority has no power to grant interim relief.
44. A perusal of the order impugned passed by MARB on
29.06.2024 shows that the Board has rejected petitioners'
application for enhancement of seats on unsustainable grounds.
So far as the first reason given by the Board that the College was
fined for deficiency in UGMEB for 150 seats is concerned, this
Court is of the view that imposition of fine per-se cannot be a
reason for refusal of enhancement of seat. Though the petitioners
have preferred an appeal against the imposition of fine but even if
the order dated 29.06.2024 is affirmed, the application for
[2024:RJ-JD:41178] (12 of 16) [CW-12053/2024]
enhancement of seat cannot be rejected. The entitlement of
enhancement of capacity is to be dealt with and decided on the
basis of infrastructure and requirement of faculties and residents
as per the current status vis-a-vis the norms. For the deficiencies
which were found, the petitioners have already been
penalized/punished by way of imposition of fine of Rs.6,00,000/-.
The deficiency which were found during the inspection cannot be a
reason to deny seat enhancement unless the deficiencies were so
shocking or substantial so as to disentitle the petitioners' college
from claiming enhancement of seats.
45. So far as second reason given by the MARB is concerned, the
same is factually incorrect inasmuch as the Board has taken
faculty position and position of residents during the period of
January, 2024 by which time even the petitioners had simply
applied for enhancement of seat and had not increased its
faculties as per the requirement, maybe because it was not
commercially viable and practical to engage the faculties and
make payment of their salary, when the application was not even
processed.
46. One cannot lose sight of the fact that
engagement/employment of faculty not only creates financial
burden on institution but also leads to engagement of faculty
which is a valuable human resource. There may be a number of
colleges desirous of engaging faculties. Such faculties cannot be
kept ideal for a period of 5 to 6 months. Ideally the faculty
position should be seen as on the date of consideration of
application and if the number of faculties is lesser than the
[2024:RJ-JD:41178] (13 of 16) [CW-12053/2024]
requisite number a notice should be given to cover up the
deficiency.
47. Had the decision been taken within time subject of course to
petitioners' right to fulfill the deficiencies in terms of sub-section
(3) of section 28, the requisite deficiency would have been
removed. The provisions of sub-section (3) of section 28 should be
given its full effect and the appellate authority ought to have
considered faculty position as on the date of deciding the appeal
(06.08.2024). When the petitioners had furnished details/data of
faculty, the appellate authority was not justified in rejecting
petitioners' appeal based on the criteria that only those facilities
would be taken into account who had more than 75% of
attendance during the period of May to June, 2024. If the faculties
working in May/June 2024 can be considered, why faculties
engaged on 29.06.2024 (the date of decision by the UGMEB)
cannot be considered, is a question to be asked to the
respondents - there is no rationale for reckoning the faculties on
May/June, 2024.
48. According to this Court, When the appellate authority has
taken figures of May to June, 2024, it ought to have taken AEBAS
data without insisting upon 75% of attendance. According to this
Court, deciding application on the basis of 75% of attendance is
arbitrary and not in accordance with law. When AEBAS data of all
the faculties are available and a faculty attached with one college
cannot engage itself in another college because of Regulation of
2023, it does not stand to logic to exclude those faculties who
have less than 75% attendance.
[2024:RJ-JD:41178] (14 of 16) [CW-12053/2024]
49. Admittedly, during the period of May to June, 2024, the
petitioners' college was functioning with a seating capacity of 150
seats. The additional faculties which though have been
deployed/engaged and were being paid may or may not have
attended on all the working days or have taken leave with due
sanction, but simply because they failed to achieve 75%
attendance, their names cannot be excluded from the number of
faculties available with the petitioners.
50. According to this Court, 75% attendance of the faculties on
roll can be insisted upon when a surprise inspection amidst a
session takes place but such condition of 75% cannot be insisted
upon when for the first time application for approval of scheme of
admission or enhancement of seat is being considered.
Compelling to have 75% attendance at the time of approving the
scheme or considering request for seat enhancement would be like
asking impossible act to be done.
51. The fact asserted by the petitioners that as of today, they
have got 206 faculties has not been disputed by the respondents.
The only reason for rejecting petitioners' application is that out of
those faculties, only 166 have 75% attendance. According to this
Court, unless the very fact of engagement/employment of the
faculties is disputed, simply because their attendance is not more
than 75%, they cannot be excluded.
52. As demonstrated in the writ petition, the faculties who were
found absent on 01.07.2024 were as a matter of fact absent on
account of personal reasons or had taken leave with due approval
of management and otherwise their attendance is more than 75%.
[2024:RJ-JD:41178] (15 of 16) [CW-12053/2024]
53. That apart, the list (Annexure-49) shows that some of them
have joined after 01.07.2024. According to this Court, the
faculties who have to obtained duly sanctioned leave(s) are
required to be added and if these faculties are added, then the
number of faculties with the petitioners' institution is way above
the requisite norms of 168 faculties.
54. While passing the order instant, this Court cannot leave the
matter here only, more particularly, when the orders have been
passed by the Central Government in favour of four institutions,
namely Nova Institute of Medical Sciences and Research Center,
Rangareddy, Telangana; Government Medical College, Amravati,
Maharashtra; Government Medical College, Banswara and Nagaur
Rajasthan.
55. Without commenting much upon the manner in which these
institutions have been granted permission, this Court would simply
like to express its concern about the manner in which the
permissions have been granted to the above named institutions.
These permissions unravels rampant arbitrariness and favoritism,
may be towards Government institutions. Such orders adversely
effect credibility of the statutory bodies and it is for them to keep
their house in order or for the Central Government to ensure
transparency.
56. The writ petition is allowed; the communication dated
29.06.2024 issued by MARB as well as the order dated 06.08.2024
passed by the appellate authority are hereby quashed and set
aside.
[2024:RJ-JD:41178] (16 of 16) [CW-12053/2024]
57. The respondent No.5 is directed to reflect 250 seats (instead
of 150 seats) in seats matrix qua the petitioners' college for the
3rd counseling which is scheduled tomorrow.
58. Needless to observe that in case, the respondents find that
the number of faculties or other infrastructure is lacking in any
manner, they shall be free to take appropriate proceedings in
accordance with law.
59. The stay application also stands disposed of, accordingly.
(DINESH MEHTA),J
459-Arun/PS,
Arvind/-
Raksha (finally)/-
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