The distinction between the establishment of new medical colleges and the enhancement of student intake in existing colleges is critical; prior judicial rulings must not impede justified applications to increase capacity.

JUDGMENT

Rekha Palli, J. (ORAL)

W.P.(C) 1458/2022 & & CM APPL. 4221/2022 (Interim Relief)

1. The petitioner no.1, a medical institute, along with the its trustee petitioner no.2, has approached this Court assailing the communications dated 15.11.2021 and 30.11.2021 issued by the Medical Assessment and Rating Board (`the Assessment Board') of the respondent no.2/National Medical Commission(`NMC'), rejecting the petitioners' application seeking permission to increase the intake of students in the MBBS course for the academic session 2021-22 from 150 to 250. The petitioners also assail the decision dated 20.01.2022 of the respondent no.2's First Appellate Committee (`the Appellate Committee'), whereby its appeal under the National Medical Commission Act, 2019 (`the NMC Act') against the impugned letters, has been rejected.

2. The petitioner no.1 Institute is a constituent of Bharath Institute of Higher Education and Research, a deemed to be university under Section 3 of the UGC. Based upon an Essentiality Certificate issued by the Government of Pondicherry, the petitioner no.1 was granted approval and consequently, set up the institute which was being granted renewals from time to time.

3. The petitioner no.1 Institute made an application on 12.11.2020 before the respondents seeking to increase the intake of students in the MBBS course from 150 to 250 students per year under section 26(1)(b) & 28(1)(2) of the NMC Act, 2019 for the academic year 2021-22. Upon receiving the application, the Assessment Board of the respondent no.2 sought certain documents from the petitioner no. 1, which were duly submitted on 26.05.2021.

4. However, the Assessment Board of the respondent no.2/NMC failed to process the petitioners' application and vide letter dated 27.08.2021 informed the petitioners that due to the constraints of sending the assessors to physically inspect the colleges in view of the Covid-19 pandemic, the respondent No. 2 had taken a decision to carry forward the application for the next academic year i.e., 2022-2023. Aggrieved by the said decision, the petitioners approached the Madras High Court by way of Writ Petition No. 19005 of 2021, which rejected the writ petition on 16.09.2021 as it did not find any arbitrariness in the respondent no.2's decision to not process any application for increasing the intake during the covid-19 pandemic.

5. However, soon thereafter the petitioner was informed by the respondent no.2 that the Institute will be inspected, and accordingly an inspection of the faculty and infrastructure at the petitioner Institute was conducted on 08.10.2021 and 09.10.2021, wherein the inspection committee concluded that the respondent no.1 Institute had adequate clinical material and infrastructure as per the NMC norms. Despite this assessment report, the respondent no.2, issued the impugned letter dated 15.11.2021 by referring to the order passed by the Madras High Court in W.P.(MD) 17263/2020 on 30.07.2021. Aggrieved by the same, the petitioner made a representation dated 22.11.2021 to the NMC, whereafter another inspection of the petitioner no.1 Institute was carried out on 26.11.2021 and 27.11.2021, wherein again no deficiency was found. However, despite the said inspection's finding that the petitioner was fulfilling all the applicable norms for increasing the strength of intake for students in the MBBS course from 150-250, the Assessment Board of the respondent no.2 issued yet another letter of disapproval on 30.12.2021.

6. The petitioners challenged both the letters