Medical Education : Supreme Court Issues Notice In Plea Challenging NMC Direction For Govt Fee In 50% Private Colleges & Deemed Universities Seats

The office memorandum (OM) issued by the NMC on February 3, 2022 mandates 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."

A Bench of Justices DY Chandrachud and Hima Kohli granted two weeks' time to the NMC for filing a counter affidavit in the matter.

"You are seeking to challenge only the office memorandum?", the bench asked, when the matter came up today.

The position has already been held in the case of TMA Pai and various other judgements, the counsel for the petitioners argued.

"Also, the Kerala High Court has already stayed the culprit part of the memorandum, but it's only limited to the territory of Kerala", he argued.

Last week, the Kerala High Court held that NMC's decision that 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. 

"Why didn't you move the Calcutta High Court", the Bench asked and the advocate replied that the operation of the NMC direction is pan India.

Seeking a shorter date, the counsel argued that the admission process is round the corner.

"Admissions will not be completed. You know how long the process will take", the Bench was quick to add.

The petition moved by AHSI Association Of Health Sciences Institutes stated that the Supreme Court, in various judgements, had repeatedly stated that the method for fixation of fees, will be subject to considering various guidelines such as facilities available in the college, infrastructure, age of investment made, plans for expansion, etc.

"BECAUSE the Impugned OM is entirely arbitrary, ultra-vires and unconstitutional. It has no existence in the eyes of law. It is contrary to the declarations made by this Hon'ble Court prohibiting any such stipulations which have been sought to be imposed by the Respondent on the fundamental rights guaranteed to the private unaided educational institutions such as the Petitioner, under Part III of the Constitution of India", the petition highlighted.

The guidelines prescribed in the Impugned OM are being beyond the powers conferred upon the NMC and has no validity in the eyes of law. In fact, the only authority vested with powers to fix the fees of medical colleges fees, according to the petition, is the Fee Fixation Committee in each state presided by a retired High Court judge.

"….provisions of NMC Act, including Section 10(1)(i) thereof, NMC has not been empowered to fix the fee or fix any such stipulation having the mandatory effect of reintroducing the features of the Unni Krishnan Scheme [where 50% of the students are to be charged only the Government fee, which was held to be unconstitutional] and to not to allow the unaided private institutions to recover the fee fixed by Fee Committees from all the students in a uniform manner so as to recover its expenditure and also a reasonable profit / surplus for its expansion."

It is the petitioner's case that private unaided institutions can fix the fee to be charged annually from the students. This fixation is subject to the monitoring of the Fee Committee for ensuring that there is no profiteering and the fee charged – enables the private unaided institutions to recoup their expenditure along with reasonable profit / surplus for its expansions.

"BECAUSE this Hon'ble Court having held the right of each private unaided institution to recover all its expenditure and reasonable surplus / profit in imparting the higher education from the students, 49 there is no permissibility to the State or any of its agency to venture into imposing any restriction and / or prohibition of any manner in this behalf……Each institution is entitled to recover annual fee on that basis from each of the students admitted in the college [other than the NRI seats]. The State cannot interfere in any manner whatsoever in this behalf."

On these grounds, the NMC's decision was challenged.

Case Title: AHSI Association Of Health Sciences Institutes vs Union of India | W.P.(C) No. 682/2022 X