NMC Direction For Govt Fee In 50% Seats Won't Apply To Private Medical Colleges & Deemed Universities In Kerala : High Court

The Kerala High Court recently held that the direction issued by the National Medical Commission(NMC) that the fee in 50% of seats in Private Medical Colleges and Deemed Universities should be at par with the fees in Government medical colleges will not apply in the State of Kerala.

The Court held so taking note of the fact that there is no concept of "Government Quota" or "Management Quota" in private medical colleges in Kerala and that the fees of private medical colleges are fixed by a statutory body, Admission and Fee Regulatory Committee(AFRC).

The Court noted that, in Kerala, after the coming into force of the Kerala Medical Education Act 2017, there is no longer a 'Government Quota' and 'Management Quota', as far as students in the private Medical Colleges are concerned; and that all the students to such institutions are allotted by the Commissioner for Entrance Examinations of the Government of Kerala, through a common Entrance Examination and Counselling process.

The NMC's Office Memorandum, which has pan-India application, may be relevant for other States and or Union Territories where quotas for "Government" and the "Management" are still in vogue.

The bench of Justice Devan Ramachandran also noted that the implementation of the stipulation in the NMC Office Memorandum(OM) in Kerala could lead to a situation of cross-subsidisation of seats, burdening one set of students to benefit another students, which has been proscribed by the Supreme Court. Having regard to the special circumstances of Kerala, the Court held that the enforcement of the NMC OM will lead to arbitrary and iniquitous results.

The judgment observed as follows :

"If the "OM" is directed to be enforced in such manner, it will indubitably lead to a piquant predicament where the fees for the balance 50% seats in the said colleges will have to be escalated because, otherwise, the institutions cannot sustain, especially since, even as on today, the AFRC is fixing the minimum requisite fee for all students taking into account infrastructural investments, future prospects and such other criteria as are statutorily mandated, but ensuring that there is absolutely no leeway for profiteering in any manner.

Ironically, viewed from the correct perspective, the implementation of the afore mandate of the "OM" would be highly iniquitous in Kerala, because it expects the benefits of subsidisation to flow to the students in the "Government quota", presumably under the often presumed impression that such students are more meritorious; but on our State there is no such quota and every student allotted to a Private Institution or Deemed University is "on par" with those allotted to the Government Colleges and all such allotments are made by the Commissioner of Entrance Examinations alone. Hence it would also be an impossibility in our state to enforce the "OM" to the aforementioned extent since all students in the Colleges and Deemed Universities are identically placed, it being even if possible - being arbitrary and discriminatory".

The judgment was passed in a batch of writ petitions filed by Kerala Christian Professional College Management, Kerala Private Medical College Management Association challenging the NMC stipulation and also another writ petition field by a student named Fathima Thazkiya seeking implementation of the said OM.

The office memorandum issued by the NMC on February 3, 2022 mandates that mandating 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 ." Further,  it envisages that the benefit of such a fee structure would be first made available to those candidates who have availed Government quota seats but limited to the extent of 50% of total sanctioned strength of the respective medical college/deemed university

Private Medical Colleges in Kerala are governed by the Kerala Medical Education( Regulation and Control of Admission to Private Medical Education Institutions) Act, 2017. Under the mandate of the Act, an Admission and Fee Regulatory Committee (AFRC) has been constituted, statutorily vested with the power of fixing fees for medical education in the Private Sector, within the purlieus of various well-established imperatives, including averting profiteering and usurious charging. 

Senior Advocate Kurian George Kannanthanam, appearing for the college management associations, contended that the NMC appears to have proceeded on an incorrect assumption that, in Kerala, there are even now two streams for allotment of students, namely 'Government Ouota' and 'Management Quota'. The counsel also questioned the power of the NMC to issue such a mandate, contending that under Section 10(i) of the NMC Act it can only issue guidelines.

Advocate Titus Mani Vettom, the standing counsel of NMC, submitted that the OM has been issued with a laudable objective and contains the broad guidelines to be followed by the fee determining authorities. He maintained that the authority has the power to issue the mandate. He accepted that the OM can be modulated or modified by the fee fixation authorities taking note of the specific conditions of a State.

Advocate Mary Benjamin, for AFRC, submitted that the authority had been determining fees for all seats in private medical colleges in the state since 2017. She pointed out that the implementation of NCM mandate for 50% seats could lead to escalation of fee structure for the remaining seats.

PG Pramod, the Government Pleader, submitted that the State is ensuring that no profiteering takes place as fee is fixed by the AFRC. Advocate Ashik Mohamed Ali, appearing for the student, supported the stand of NMC.

NMC OM can't be applied in toto in Kerala : Court's observation

The Court observed that the difficulty is with respect to the singular stipulation in the office memorandum, that the fees of 50% of the seats in Private Medical Colleges and Deemed Universities "should be at par" with the fee in the Government Medical Colleges and the problem with this seemingly inflexible stipulation is that the fee for Government Medical Colleges is fixed by the State of Kerala through its functionaries, and not by the AFRC.

Therefore, the Court held that the office memorandum, to the extent to which it relates to Kerala, cannot be applied in its toto and will require to be modulated and read down to the extent necessary.

It further said that the NMC could have never intended that their office memorandum to be used to either cross-subsidise education or to burden one section of the students at the cost of the other.

The Court has the AFRC to implicitly abide by all the "guidelines" postulated by the NMC in their Office Memorandum while fixing the fees for all seats in all Private Medical Colleges and Deemed-to-be Universities in Kerala except the stipulation therein for fixing the fee of 50% of the seats in the Private Medical Colleges or Deemed Universities on par with the seats in the Government Medical Colleges.

"W.P.(C).No.5851 of 2022 and W.P.(C).No.24112 of 2022 are ordered, directing the AFRC to implicitly abide by all the "guidelines" postulated by the NMC in their Office Memorandum dated 03.02.2022, while fixing the fees for all seats in all Private Medical Colleges and Deemed-to-be Universities in Kerala except the stipulation therein for fixing the fee of 50% of the seats in the Private Medical Colleges or Deemed Universities on par with the seats in the Government Medical Colleges"

The Court further clarified that this only applies to the State of Kerala alone.

It further clarified that arguments relating to the powers of NMC are left open.

Case Title: Fathima Thazkiya O v. National Medical Commission and Connected Cases

Citation:2022 LiveLaw(Ker)460

Click Here To Read/Download The Order