Case BriefsHigh Courts

Meghalaya High Court: H. S. Thangkhiew, J. allowed a petition in which he had to consider whether this Court can direct the respondents to consider the petitioner for filling up the vacant seat for the MBBS Course.

The petitioner an aspirant for admission into the MBBS Course at the North Eastern Indira Gandhi Regional Institute of Health and Medical Science (NEIGRIHMS), after qualifying in the National Eligibility Cum Entrance Test (NEET) Examination, had been invited for the second e-counselling for admission into MBBS Course for the Session 2021-2022. The petitioner was further informed that the counselling would be on a virtual platform to be held on 07-03-2022 to fill up 4(four) vacant seats.

She was aggrieved by the fact that the link details for joining the Video Conference which had been communicated by the respondents landed in her spam mail, and the petitioner was not aware that she had received the link for the e-counselling, as the same did not appear either on her registered email id or mobile number, and as such she could not be present on the date and time, when the said e-counselling was held.

On 09-03-2022, this Court had directed that the case be kept on hold to await the final acceptance of the seats, for which the candidates would have to comply by 11-03-2022. On 14-03-2022 when the matter was taken up again, the petitioner had filed an affidavit stating one candidate did not report as he had already secured admission at RIIMS Imphal, as such the fourth seat was still vacant.

Respondents had averred that the petitioner was absent on the date fixed for counselling the contention that the intimation had gone to her spam mail cannot be relied upon, and as per rule, the vacant seat should be given to the first candidate in the waiting list.

The Court was of the view that in this age of technology and in the prevalent COVID situation, a lot of such lapses have occurred especially when it concerns matters like these which involves communication through digital platforms. It is undisputed that the petitioner as per the merit list for the second counselling was placed at No. 4, and as such was assured of a seat for the MBBS Course, had she attended the counselling as scheduled, but however, due to the situation that had prevented her from appearing for the e-counselling, she is at risk of being deprived of a seat to pursue the MBBS Course.

The Court allowed the petition considering that in the normal circumstances, nothing would have prevented the writ petitioner from tendering her candidature for the said seat, the instant matter being peculiarly situated deserves consideration on a different footing. The Court directed the respondents to facilitate counselling for the petitioner via physical mode or otherwise within 1(one) week from today, with prior notice to the petitioner and decide accordingly on the merits of the petitioner.[Bisakha Geonka v. North Eastern Indira Gandhi Regional Institute of Health & Medical Sciences, 2022 SCC OnLine Megh 58, decided on 15-03-2022]


For the Petitioner(s) : Mr H.L. Shangreiso, Sr. Adv. with Ms P. Biswakarma

For the Respondent(s) : Dr. N. Mozika, Sr. Adv. with Ms S. Rumthao


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench of Sujoy Paul and Arun Kumar Sharma, JJ., quashed the National Medical Commission’s decision rejecting L.N. Medical College & Research Centre’s application for increase of MBBS seats. Opening the decision to be beyond the jurisdiction of the NMC, the Bench stated,

“…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 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.”

Factual Backdrop

The instant petition challenged the order of National Medical Commission (NMC) dated 10-01-2022 whereby, the request of the petitioner institution for increase of MBBS seats for the MBBS -UG Course from 150 to 250 for the current academic year 2021-22 was turned down.

By placing reliance on the relevant portions of Section 28 & 29 of the NMC Act the petitioner submitted 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 petitioner argued that on the one hand, increase of seats for the petitioner’s institution was declined on the basis of CBI’s letter dated 22-07-2021 and on the other hand, other colleges who were similarly situated were given the benefit of increase of seats institution. The petitioner submitted, even otherwise, pendency of CBI enquiry/investigation could not be a ground to deny approval to petitioner institution as there was no expressed substantive provision empowering the authorities to do so.

The petitioner submitted that even during inspection the shortage of teaching faculty was found to the tune of only 1.25% (2 out of 159) which was negligible in a case of sudden inspection. While the infrastructure facility, clinical material, library, laboratory and teaching faculties were found to be adequate.

Findings and Opinion

Section 28 of the NMC Act makes it clear that the Medical Assessment and Rating 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. Therefore, oping that CBI’s self contained note by no stretch of imagination could be a reason for approving or disapproving the scheme, the Bench held that NMC declining increase of seats was based on a reason beyond the scope of Section 28 and 29 of the NMC Act.

Appreciating the petitioner’s submission that the penalty imposed in the impugned order was without authority of law as the Establishment of Medical College Regulations, 1999 do not permit the NMC to impose such a punishment. Hence, in the absence of any enabling provision in the governing statute, the Bench held that the punishment imposed could not sustain judicial scrutiny.

On the issue of there being available alternate remedies, the Bench observed that the since the impugned order was outside the scope and ambit of the NMC Act, the petitioner could not be relegated to avail the remedy of appeal under Sub Section 5 of Section 28 of the Act. Moreover, the  impugned order contained singular reason based on CBI’s self contained note and despite the fact that said note contained the name of petitioner college and other five colleges, the respondents had granted benefit to People’s College and Index Medical College which was also in that list. Hence, the decision was discriminatory also and violative of Article 14 of the Constitution.

Relying on Whirlpool Corporation vs. Registrar of Trade Marks, (1998) 8 SCC 1, the Bench stated that the statutory remedy is not a bar for exercising of jurisdiction under Article 226 of the Constitution if order is passed without following principles of natural justice, it hits any fundamental right, passed by an incompetent authority or constitutionality of a provision is called in question, in such cases, despite availability of alternative remedy, writ petition can be entertained.

Conclusion

In the light of the above, the Bench held that since the CBI’s self contained note could not form basis for ‘letter of disapproval’, there was no justification in sending the matter for consideration to the appellate authority. Further, since very short time was left for the next counselling, the Bench concluded that the petitioner could not be relegated to avail the alternative remedy of appeal.

Hence, applying wednesbury principles, the Bench quashed the impugned order. The NMC was directed to take a fresh decision on the application of petitioner for increase of MBBS seats from 150 to 250 strictly within the four corners of Section 28, 29 and other provisions of NMC Act before 08-02-2022. [L.N. Medical College & Research Centre v. Union of India, 2022 SCC OnLine MP 204, decided on 03-02-2021]


Kamini Sharma, Editorial Assistant ha reported this brief.


Appearance by:

For the Petitioner: Siddharth Radhe Lal Gupta, Advocate

For Union of India: J.K. Jain, Assistant Solicitor General

For National Medical Commission:  Anoop Nair, Advocate

For State of Madhya Pradesh: Akshay Pawar, Advocate

Case BriefsSupreme Court

Supreme Court: The Division Bench of L. Nageswara Rao and B. R. Gavai, JJ., directed the Madhya Pradesh High Court to immediately decided the validity of 100% reservation in more than 600 Post Graduate medical seats in the State of Madhya Pradesh.

The Bench was addressing the Special Leave Petition (SLP) preferred by the Association of Private Medical Colleges whereby the validity of 100% reservation of their seats for domicile candidates of M.P. or those candidates who had completed their M.B.B.S. from any Medical college (Govt. or Pvt.) was challenged. The contention raised through the SLP was with regard to the adjournment order passed by the High Court, whereby the Court had deferred final hearing on the matter stating that the issue of reservation for domicile candidates in PG Medical Courses is already pending before the Larger Bench of the Supreme Court in Tanvi Behl v. Shrey Goel, (2020) 13 SCC 675.

Background

The State of M.P. had incorporated mandatory Eligibility conditions of being a domicile of the State of M.P. for admission to PG Medical/Dental Courses in its admission rules for admission to Private Medical and Dental Colleges. Noticeably, around 650 seats constitute the pool of admission to PG Courses in the State of Madhya Pradesh for both Clinical as well as Non-clinical branches. As per the Admission Rules of 2018, the first priority is to be given to the candidates possessing domicile of the State of Madhya Pradesh or those having an MBBS degree from any medical college of the State of Madhya Pradesh.

The said conditions stands relaxed in the event of availability of a candidate who has completed his M.B.B.S. from any Medical college of the State. The seats get unlocked for admission to the students from other States and All India Merit List only after completion of first round of counseling from the second round onwards, that too when the first two categories are exhausted.

Grounds for Challenge

The Association of Private Medical Colleges had challenged these clauses as ultra vires Article 19(1)(g) as also the Parent Act of M.P. Niji Vyavsayik Shikshan Sanstha (Pravesh Ka Viniyaman Avam Shulk Ka Nirdharan) Adhiniyam, 2007 on the following grounds:

  1. The impugned conditions were in excess of the delegation of powers to the rule making authority by the parent Act.
  2. The reservation on the ground of domicile are unpalatable and incompatible with Medical Colleges’ ‘Fundamental Right to admit students of their choice’, when they are forced to provide admission to the important branches of the PG Medical Course (Clinicals) to the State domicile candidates, thus being precluded from giving admissions to far more meritorious candidates from the All India Merit List.

Stand taken by the Association of Private Medical Colleges

The Association had approached the Supreme Court on being aggrieved by the High Court’s rejection to stay the counseling in the year 2019. Finding the questions of law to be of vital importance, the Supreme Court had opined that their resolution could not brook any delay and had directed the High Court to decide the matter as expeditiously as possible.

The Association pleaded that the High Court had failed to adhere to the direction made by the Supreme Court of expeditious disposal and kept deferring its Final Adjudication on one pretext or the other. The Association contended that repeated adjournments and deferral of the hearings had brought them close onto the heels of counseling process for PG Medical Courses for the year 2021-22 and it was extremely necessary that the High Court must be asked to take up the petition and decide at the earliest. It also pleaded that mere reference to Larger Bench could not be resorted as an excuse by the High Court to defer the final disposal of the petition ad infinitum.

Directions by the Supreme Court

Observing that the matter pertained to the reservations in Post Graduate Medical Courses and the Court had already directed the High Court to dispose of the matter expeditiously by an order dated 15-07-2019, the Bench directed the High Court to dispose of the matter on 25-08-2021.[Association of Private Universities, Madhya Pradesh v. State of M.P., 2021 SCC OnLine SC 638, decided on 16-08-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For Petitioner(s) Mr. Siddharth R. Gupta, Adv.

Mr. Mrigank Prabhakar, AOR

Mr. Yash Mittal, Adv.

Case BriefsHigh Courts

Karnataka High Court: R. Devdas, J., while allowing the present Writ Petition, directed the Medical Council to issue the No Objection Certificate to the Petitioner pending departmental enquiry.

 Brief Facts

  1. That the petitioner, after completing MBBS graduation registered with respondent 5; Karnataka Medical Council and was thereby selected to the post of General Duty Medical Officer by the Karnataka Public Services Commission.
  2. That the petitioner was consequently appointed to the post of General Duty Doctor at Primary Health Centre, Alur Village, Chamarajanagar Taluk and District by way of notification dated 16-12-2015.
  3. That the petitioner thereafter appeared for the entrance examination for pursuing Post Graduation Diploma in Otolaryngology conducted by the Karnataka Examination Authority and secured admission with the Mysore Medical College for the same.
  4. That due permission was taken by the petitioner from respondent 4 with respect to the said enrolment, via communication letter dated, 26-05-2016 and before completing the admission process, charge of his position was handed over to the rightful authority.
  5. That after completion of the course, the petitioner moved a request dated 27-10-2018, for appointment at any government hospital or Primary health Centre to which, an order dated 15-12-2018 was passed recruiting the petitioner at Munduru, K.R. Nagar.
  6. That the petitioner made a representation to the Medical Council, dated 07-09-2019, so to practice as a private doctor, requesting for a NO OBJECTION CERTIFICATE (NOC).
  7. That the aforementioned representation was made contending that the petitioner has discharged his duties in rural area for more than one year as stipulated under the Medical Registration Rules.
  8. That the petitioner also made a parallel application to the Registrar of the Karnataka Medical Council for the registration of Additional Qualification as a Postgraduate diploma holder.
  9. That it is imperative to secure a NOC for the petitioner in order to apply against the recent vacancy for ENT as advertised by the Special Recruitment Committee and Chief Administrative officer, Health & Family Welfare.
  10. That the present petition is filed seeking a writ of mandamus against the respondent authorities to consider the representations made and include the PG Diploma of the Petitioner under the register of the R-5 Council.

 Issue

  • Whether the petitioner has fulfilled the statutory requirement for the issuance of No Objection Certificate by the Medical Council?

 Observation & Decision

While allowing the present Writ Petition, the Court observed,

“(…) As per the Karnataka Compulsory Service Training by Candidate (Counseling, Allotment and Certification) Rules, 2015, a person who has completed MBBS Degree or Post Graduate Degree and Diploma is required to undergo one year compulsory service training in Government Hospital or Medical College Institutions in rural areas. It is also a fact that on completion of the PG Diploma Course, when the petitioner reported back to duty, the authorities have issued a movement order asking the petitioner to take charge as a Duty Doctor, at PHC, Munduru, K.R. Nagar, which is also a rural area. The movement order was issued on 19-12-2018 and till date the petitioner has been serving at the said place. Therefore, the petitioner has completed more than one year in the rural area. The discrepancy pointed out by the respondent is required to be dealt with in the disciplinary proceedings initiated by the respondent authority.”

[Dr Anand Kumar v. State of Karnataka, 2020 SCC OnLine Kar 1632, decided on 09-10-2020]


Sakshi Shukla, Editorial Assistant has put this story together

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., while addressing the present petition issued directions with regard to the counselling process at the time of admission into Medical Postgraduate.

Petitioner a qualified doctor filed the present petition praying to preserve his admission at the Maulana Azad Medical college for MD (Pathology).

Petitioner belongs to the Economically Weaker Section and holds an EWS certificate from the State of Kerala. Petitioner had appeared for NEET Examination on 5-01-2020.

After the results, as a procedural step, the petitioner had to register himself for counselling for various quotas wherein he applied for the All India Quota, Central Inst. Quota and the Delhi University Quota.

Petitioner had obtained a seat for MD (Pathology) in MAMC and after the process for admission was completed in the evening he was informed by the college staff that he had been wrongfully allotted a seat under the Delhi University Quota and thus his admission could not be confirmed.

He did not get any clarity from the authorities on the said decision and hence filed the present petition.

Decision and Analysis

Delhi University Quota

Bench on perusal of the averments and facts of the present matter observed that there was no doubt about the fact that the petitioner ought to have been conscious of the fact that he would not have been eligible under the Delhi University Quota.

Prior to the registration for counseling, the eligibility criteria for each of the institutional quotas are already set.

Court observed that in order to avail of a PG seat in Delhi University Quota, the candidate must have passed his/her final MBBS from Delhi University.

Petitioner is clearly not qualified from the Delhi University Quotaand he was at best entitled to a seat in the All India Quota or in the State Quota for Kerala depending upon his rank.

Hence in view of the above-stated position, Court opines that the petitioner does not satisfy the eligibility for being considered in DU Quota and therefore the relief sought is not tenable.

Further, the Court added that the said confusion could have been avoided if there were proper checks at different levels of counselling.

The Court while being empathetic with the position in which the Petitioner currently finds himself, however, cannot direct confirmation of his admission in MAMC under the Delhi University Quota.

Bench directed the State of Kerala to allot any unfilled seat to the petitioner in a post-graduate medical course to enable him to take admission on or before 31-08-2020.

To avoid situations as arose in the present case, the Court passed the following directions:

  • At the time of registration for counselling there shall be a specific field in which candidates would be required to fill up with details of the college and the University from where they have completed their M.B.B.S. course.
  • Upon the said field being incorporated, the system should be designed in such a manner that only those quotas for which the candidates are eligible would be made available to the candidates.
  • After registration, prior to the allotment of seats, the data submitted by candidates shall be cross-verified with the data available with MCC so that wrong allotment is not made.

In view of the above, the present petition was disposed of. [Dr Machat Balakrishnan Menon v. Medical Council of India, 2020 SCC OnLine Del 1086, decided on 25-08-2020]

Case BriefsHigh Courts

Orissa High Court: A Division Bench of Mohammad Rafiq, CJ and Debabrata Dash, J. rejected the prayer of the petitioner on account of concealment of material facts.

The facts of the case are that the petitioner after completing her MBBS got herself registered under the Odisha Council of Medical Registration, Bhubaneshwar and joined as a tutor on contract basis at PHC (N) Biridi from 2014-2015 and joined as a tutor on contract basis in SLNMCH, Koraput from 2017- 2019 and later she joined in regular service in 2019 at Gumma Gajpati where she got transferred again to SLNMCH, Koraput. Thereafter the petitioner availed leave for September 2019 to January 2020 and resumed duty on 21-01-2020.

Counsel P. R Singh , L.N Rayatsingh, A.K Rout and S. K Dwivedy on behalf of the petitioners submitted that the petitioner applied for NEET PG 2020 as an in service candidate and was declared successful and as she is an in service candidate she deserves to get all the benefits with regards to extra weightage, percentage increase benefit etc. It was further submitted that as she verified her documents on time but was not able to present her service certificate on time due to lockdown she could not avail the benefits. It was prayed that she be allowed to appear for second round of counseling as an in service candidate only.

Counsel M.S Sahoo and R.C. Mohanty on behalf of the respondents stated that the petitioner applied for the course as a direct candidate and not as an in service candidate. He also submitted that the petitioner has concealed material facts in order to gain in service benefits which are bad in the eyes of law.

Court on hearing both the parties held that as the petitioner appeared for counseling in the first phase as a direct candidate the prayer to allow her to appear as an in service candidate for second round of counseling stands unjustified. It was further held that as the petitioner has not approached the court with clean hands which is the underlying principle for fair adjudication; the petitioner is not entitled to avail any kind of in service candidate benefits.

In view of the above the petition stands disposed off.[Dr Shams Jahan v State of Odisha, 2020 SCC OnLine Ori 543 , decided on 24-07-2020]

Case BriefsSupreme Court

Supreme Court: In the case where the Government of India order, by which the colleges/institutions have been directed not to admit students in the MBBS Course in the academic years 2017-18 and 2018-19, the 3-judge bench of Dipak Misra, Amitava Roy and A.M. Khanwilkar, JJ said that a reasonable opportunity of hearing contained in the proviso to Section 10A(4) of Medical Council Act, 1956 is an indispensable pre-condition for disapproval by the Central Government of any scheme for establishment of a medical college and hence the Central Government should consider afresh the materials on record pertaining to the issue of confirmation or otherwise of the letter of permission granted to the petitioner colleges/institutions.

The Court further said that the Supreme Court Mandated Oversight Committee is empowered to oversee all statutory functions under the Act, and further all policy decisions of the MCI would require its approval and that its recommendations, to state the least, on the issue of establishment of a medical college, can by no means be disregarded or left out of consideration. The Court clarified that the Oversight Committee is also empowered the Oversight Committee to issue appropriate remedial directions.

The order that was challenged was the order dated 31.05.2017 of the Government of India, Ministry of Health and Family Welfare (Department of Health and Family Welfare) whereby the conditional permission for the establishment of the medical colleges for the academic year 2016-17, granted on the basis of the approval of the Supreme Court Mandated Oversight Committee had been cancelled and the colleges have been debarred from admitting students in the next two academic years i.e. 2017-18 and 2018-19.

Asking the Central Government to re-evaluate the recommendations/views of the MCI, Hearing Committee, DGHS and the Oversight Committee, as available on records, the Court directed that the process of hearing and final reasoned decision should be completed within 10 days. The matter will next be taken up on 24.08.2017. [Glocal Medical College and Super Speciality Hospital & Research Centre v. UOI, 2017 SCC OnLine SC 846, order dated 01.08.2017]