Medical Education : Supreme Court To Hear Plea Challenging NMC Direction For Govt Fee In 50% Private Colleges On Oct 21

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."

Senior Advocate, Mr. Maninder Singh, appearing on behalf of the petitioner, appraised a Bench comprising Justices D.Y. Chandrachud and Hima Kohli that impugned OM of the NMC is 'so questionable' that three High Courts, namely, Kerala High Court, Madhya Pradesh High Court and Madras High Court have stayed it. In fact, the Madras High Court has found the impugned notification to be 'bad in law' and remanded it back to the regulator. Mr. Singh, informed the Bench that since the High Courts have stayed the operation of the notification in their respective States the petitioners were constrained to approach the High Court seeking relief for medical institutes across the country.

At first blush, Justice Chandrachud, doubted the validity of the impugned OM of the NMC.

"How can you say fee in 50% of the seats in private medical colleges will be at par with Govt. medical colleges?"

Justice Chandrachud suggested Advocate Gaurav Sharma appearing on behalf of the NMC to file a transfer petition so that the Apex Court can transfer all the matters in this regard to itself or consolidate them and send it to the Delhi High Court or any other High Court for disposal.

Mr. Singh argued that the impugned OM of the NMC is contrary to three Constitution Bench judgments which have laid down the law in this regard. He submitted that the decision of the courts cannot be undone by any law. In view of the same he urged the Apex Court to hear the pleas before it, without transferring them.  

Background

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.

"...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.

"...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.

On 05.09.2022, the Apex Court had issued notice in the petition.

[Case Title: AHSI Association Of Health Sciences Institutes v. Union of India W.P.(C) No. 682/2022]

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