In a very significant judgment titled LN Medical College & Research Centre v. Union of India and others in Writ Petition No. 1324 of 2022 delivered just recently on February 3, 2022, the Madhya Pradesh High Court has minced just no words to hold unequivocally that the National Medical Commission (NMC) cannot withhold the approval of any medical college on the ground that CBI probe on the admissions effected in the said medical college is pending against the Management and Trustees of the said Medical College. The Bench of Justice Sujoy Paul and Justice Arun Sharma was hearing a plea filed by petitioner institution LN Medical College & Research Centre, whose request for an increase of MBBS seats from 150 to 250 was turned down by the NMC on the specious ground that a CBI probe was pending against the Management and Trustees of the institution. The Bench gave ample and adequate reasons for its findings which we shall discuss later.

To start with, this judgment authored by Justice Sujoy Paul for a Bench of Jabalpur High Court comprising of himself and Justice Arun Kumar Sharma first and foremost puts forth in para 1 that:
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.

As we see, the Bench then observes in para 2 that:
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.

Be it noted, the Bench observes in para 14 that:
Relevant portion of Section 28 and Section 29 read as under :-

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).

Most significantly, the Bench then holds in para 15 that:
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 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.

Quite forthrightly, the Bench then hastens to add in para 16 that:
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.

Quite aptly, the Bench then also points out in para 17 that:
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).

It is worth noting that the Bench clearly maintains in para 19 that:
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.

Notably, the Bench then rightly reasons in para 20 that:
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 cannot sustain judicial scrutiny. The impugned order also hits Wednesbury principles. Resultantly, the said order deserves to be jettisoned.

It also cannot be glossed over that the Bench then notes in para 21 that:
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.

What's more, the Bench then stipulates in para 22 that:
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 reinspection 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.

Most remarkably, the Bench then enunciates in para 23 that:
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.

Furthermore, the Bench then adds in para 24 that:
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.

As a corollary, the Bench then holds in para 25 that:
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.

In a nutshell, the two Judge Bench of Madhya Pradesh High Court comprising of Justice Sujoy Paul and Justice Arun Kumar Sharma have made it quite ostensible that NMC can't withhold approval of a medical college on ground of pendency of CBI probe against it. It has recorded appropriate reasons also as discussed herein aforesaid. It merits no reiteration that the NMC must adhere strictly to what the Court has laid down so unequivocally in this leading case.

Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001, Uttar Pradesh