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Wednesday, January 10, 2024

Medical Education : Supreme Court Transfers To Itself Petitions In HCs Challenging NMC Mandate For Govt Fee In 50% Pvt Medical Seats

9 Jan 2024 7:53 PM

In another legal update, the Supreme Court is set to examine the validity of an Office Memorandum issued by the National Medical Commission (on February 3, 2022) stipulating that 50% of the seats in Private Medical Colleges “should be at par with the fee in the Government Medical Colleges of a particular State.”

The AHSI Association of Health Sciences Institutes has filed a writ petition in the Supreme Court challenging the NMC's decision. However, several High Courts were also seized with a similar matter. Considering the same, the Supreme Court (on January 05) has allowed the transfer petitions filed by the NMC seeking the transfer of all similar matters to the SC.

Accordingly, the Bench of Justices Abhay S. Oka and Ujjal Bhuyan ordered:

“Considering the issue involved in Writ Petition (Civil) No.682 of 2022 which is the pending in this Court and the issues involved in the writ petitions which are subject matter of transfer, we allow the Transfer Petitions. The Registry to issue orders to the Registrar General of all the concerned High Courts to immediately transmit the record of the transferred writ petitions.”

The impugned OM has been stayed by three High Courts, namely, Kerala High Court, Madhya Pradesh High Court and Madras High Court.

AHSI is an Association of unaided private medical colleges and nursing institutes operating in the State of West Bengal.

In its petition, AHSI has assailed the impugned OM, stating the same is not only ultra-vires the National Medical Commission Act, 2019, but it is also without jurisdiction, unconstitutional, and an attempt to overrule the judgments of the Top Court.

Elaborating, it said that the Apex Court, by its several rulings, has clearly formulated the method for fixation of fees, considering various guidelines such as facilities available in the college, infrastructure, age of investment made, plans for expansion, etc. The petitioner went on to state that the sole authority vested with powers to fix the fees of medical colleges fees is the Fee Fixation Committee in each state. The same is presided over by a retired High Court judge, a Chartered Accountant of repute, a representative of the Medical Council of India, and the Secretary of State for Medical / Technical Education.

“Each college is required to place before the Committee its fee proposal along with relevant books of accounts. The committee has been conferred with the power to either approve or alter the fee structure proposed by the college and such fee shall be applicable for 3 years.,” the petition elucidated.

Among other cases, the petitioner cited a landmark judgment of T.M.A. Pai Foundation & Ors. Vs. State of Karnataka & Ors. It contended that in T.M.A Pai, the 11-Judge Bench of the Court has held such a stipulation for 50% of seats in private medical colleges to be treated as Government seats for Fee fixation as “unconstitutional”.

Referring to Section 10(1)(i) of the NMC Act, it has been argued that the same does not extend any such jurisdiction of fee fixation in the NMC. It only seeks to provide certain factors to be considered about the fixation of fees, which is being fixed by the Fee Committee, as mentioned above, from time to time.

Pertinently, the referred Section 10(1)(i) of the NMC Act, inter alia, stipulates that the NMC shall frame guidelines for fees and other charges concerning 50% seats in private medical institutions.

Accordingly, it is being submitted that the impugned OM is ultra-vires to Section 10 and ultra-vires to the Constitution of India.

“It is without jurisdiction, unconstitutional, and an attempt to overrule the judgments of this Hon'ble Court by an executive action – in a manner not known and impermissible in law.,” the petition stated.

In view of this, the petitioner has asserted that NMC is not empowered to fix the fee and not allow the unaided private institutions to recover the fee fixed by Fee Committees from all the students in a uniform manner to recover its expenditure and also a reasonable profit/surplus for its expansion.

Case Title: NATIONAL MEDICAL COMMISSION vs. HIMALAYAN INSTITUTE OF MEDICAL SCIENCES., Diary No.- 32618 – 2022