JUDGMENT : Dinesh Mehta, J. 1. By way of present writ petition, the petitioners have challenged the communication dated 29.06.2024, whereby petitioners’ request for enhancement of seats from 150 to 250 has been turned down. 2. The petitioner No.1 is a trust, running a medical college in the name and style as Pacific Medical College and Hospital at Udaipur-Petitioner No.2. 3. The petitioner No.1 was granted permission to run MBBS course with the intake capacity of 150 seats for the academic year 2014-15, whereafter in the year 2021, the petitioner started post graduation course as well. 4. As per the assertions made by the petitioner, a huge amount of Rs. 191,50,08,540/- was incurred on development and infrastructure apart from purchase of equipment worth Rs. 50 crores. An assertion has also been made by the petitioner that it has a fully functional hospital with 1040 beds. 5. On 18.08.2023, applications for establishment of new medical colleges, increase/enhancement of intake capacity were invited with the following timeline:- S.No. Steps Timeline 1. Online application to NMC-Filling Application form, Fees, supporting documents August – September 2. Evaluation of application by NMC- Rejected in case of incomplete of missing documents or approved in case of complete application as per norms August – October 3. Physical inspection of the facilities by team of assessors appointed by NMC September – December 4. Evaluation of the assessment report submitted by Assessors October – January 5. Grant of Permission – LOP February 6. Admission Process July – August 7. Renewal process 6 months before the new academic year 6. The petitioners submitted an application for enhancement of sitting capacity from 150 to 250 on 16.09.2023. After certain correspondence, petitioners’ application for enhancement of seats came to be rejected by Medical Assessment and Rating Board (hereinafter referred to as ‘the MARB’) constituted under Section 16 of the National Medical Commission Act, 2019 (hereinafter referred to as ‘the NMC’) on 03.04.2024. Whereafter, for the reasons best known to the respondents, the said order was recalled by the MARB. 7. A show cause notice dated 17.05.2024 came to be issued calling upon the petitioners to furnish self- assessment as per the Guidelines for Under-Graduate Courses under Establishment of New Medical Institutions, Starting of New Medical Courses, Increase of Seats for Existing Courses and Assessment and Rating Regulations, 2023 (hereinafter referred to as ‘the Regulations of 2023’). 8. 7. A show cause notice dated 17.05.2024 came to be issued calling upon the petitioners to furnish self- assessment as per the Guidelines for Under-Graduate Courses under Establishment of New Medical Institutions, Starting of New Medical Courses, Increase of Seats for Existing Courses and Assessment and Rating Regulations, 2023 (hereinafter referred to as ‘the Regulations of 2023’). 8. In response to the said show cause notice, the petitioners submitted it self-assessment report on 27.05.2024. 9. A show cause notice dated 30.05.2024 was again issued by the Under-Graduate Medical Education Board (UGMEB)/National Medical Commission asking the petitioners as to why the existing number of seats from 150 be not reduced. The petitioners were called for personal hearing on 03.06.2024. 10. Instead of reducing the seats the respondents passed an order dated 05.06.2024 and imposed a fine of Rs.6 lakh upon the petitioners. 11. On 24.06.2024, another notice in relation to petitioners’ request for enhancement of seats came to be issued and petitioners were invited for personal hearing on 25.06.2024. 12. According to the petitioners, the MARB gave less than two minutes’ time for making submissions and the petitioners’ application for enhancement of seats came to be rejected cursorily by order dated 29.06.2024. 13. The petitioners preferred a first appeal under section 28 of the provisions of NMC Act on 06.07.2024. 14. But as the petitioners’ first appeal was not being taken up for hearing, the petitioners approached this Court by way of present writ petition, which was filed on 20.07.2024. 15. The matter was taken up on various occasions, during which an objection of pendency of first appeal was raised by Mr. Mukesh Rajpurohit, learned Dy. Solicitor General. 16. On 30.07.2024, the first appeal of the petitioners came to be heard, but before that on various dates of hearing, the matter got adjourned at the request of learned Dy. Solicitor General awaiting hearing/decision of the first appeal though learned counsel for the petitioners has been showing urgency in wake of the fact that the counseling was scheduled in second week of August, 2024. 17. The petitioners’ first appeal was ultimately rejected on 05.08.2024. Said order passed by the First Appellate Authority has also been challenged by the petitioners by way of moving additional affidavit, as requisite prayer had already been made in the main writ petition. 18. Mr. 17. The petitioners’ first appeal was ultimately rejected on 05.08.2024. Said order passed by the First Appellate Authority has also been challenged by the petitioners by way of moving additional affidavit, as requisite prayer had already been made in the main writ petition. 18. Mr. Singhvi, learned Senior Counsel made the Court aware about the relevant provisions and backdrop facts by asserting that during the period from 01.04.2024 till 14.08.2024, the petitioners had already engaged/employed 67 additional faculties which led total number of faculties to 206 faculties. He submitted that while rejecting petitioners’ application for enhancement of seats the UGMEB has found that there was a deficiency in 11 departments and residents deficiency in 10 departments while also observing that petitioner were fined for failure to meet requisite norms, in relation to the running course with intake capacity of 150 seats. 19. Learned Senior Counsel argued that both the reasons given by the UGMEB in its impugned order are unsustainable - the fact that the petitioners were penalized cannot be taken into account for considering the petitioners’ application for enhancement of seats and its entitlement for enhancement should be considered on the basis of infrastructure and other facilities available at petitioner’s college. 20. In relation to faculty deficiency in 11 departments and residents deficiency in 10 departments, learned senior counsel argued that such reason is factually incorrect, as the UGMEB had wrongly taken into account the faculty position as of January/February 2024. He submitted that UGMEB could not take figures of faculties and residents for period of January-February 2024, because the petitioner’s rights and entitlement for giving admission on enhanced seat were required to be decided on the basis of infrastructure and faculties as on the date of counseling to be held in August, 2024. 21. He argued that after submitting application for enhancement of seats, the petitioners has engaged/deployed additional 66 faculties and therefore, faculty position should be seen as prevailing immediately prior to the date of counseling, which was 206 as against the requisite number of 166. 22. Learned Senior Counsel argued that NMC had provided only two minutes of hearing and in such a short time, though the representative of the petitioners made their best endevour to satisfy but the UGMEB did not consider the facts and data submitted by the petitioners and cursorily turned down petitioners’ request for enhancement of seats. 23. 22. Learned Senior Counsel argued that NMC had provided only two minutes of hearing and in such a short time, though the representative of the petitioners made their best endevour to satisfy but the UGMEB did not consider the facts and data submitted by the petitioners and cursorily turned down petitioners’ request for enhancement of seats. 23. While calling in question the order of first appellate authority, Mr. Singhvi argued that first appellate authority has also rejected petitioners’ appeal on wrong facts/basis. Having read the order of the first appellate authority, learned Senior Counsel submitted that the appellate authority has taken into account the attendance of the faculties from 20 May, 2024 to 20 June, 2024 and has considered only those faculties who had more than 75% of attendance. It was argued that the approach adopted by the first appellate authority is not inconformity with law or regulation and the order impugned is liable to be quashed being based on unsustainable criteria. 24. It was argued that firstly the faculty position as on the date preceding the date of counseling should be taken into account or else the faculty position as on the date of decision of the appeal ought to have taken into account. He argued that when all the figures were placed before the first appellate authority, it was incumbent upon it to have decided the appeal on the basis of present faculty position. 25. He invited Court’s attention towards additional affidavit that has been filed by the petitioners, in which various assertions have been made while enclosing copies of the orders relating to Nova Institute of Medical Sciences and Research Center, Rangareddy, Telangana; Government Medical College, Amravati, Maharashtra; Government Medical College, Banswara and Nagaur, Rajasthan. Learned Senior Counsel highlighted that in spite of the fact that various discrepancies were found by the UGMEB as well as NMC, the approval for establishment of college has been granted by the Respondent-Union of India. 26. It was argued that when the respondents can ignore the norms and accommodate the above referred colleges/institutes and inspite of the fact that major deficiencies in infrastructure were observed, the permission to establish medical college has been granted, then the respondents cannot justifiably turn down petitioners’ request, which is possessing requisite infrastructure and requisite number of faculties. 27. 26. It was argued that when the respondents can ignore the norms and accommodate the above referred colleges/institutes and inspite of the fact that major deficiencies in infrastructure were observed, the permission to establish medical college has been granted, then the respondents cannot justifiably turn down petitioners’ request, which is possessing requisite infrastructure and requisite number of faculties. 27. Learned senior counsel submitted that as per the Regulations of 2023, all faculties are governed by these Regulations and each faculty is required to be enrolled with ‘Aadhar Enabled Biometric Attendance System’ (hereinafter referred to as ‘AEBAS’) data. He submitted that AEBAS data of almost all the faculties was available before the UGMEB so also before the first appellate authority but the appellate authority has not considered such data and has taken arbitrary stand of considering only those faculties who have more than 75% attendance between the period May to June, 2024. 28. Mr. Singhvi, learned Senior Counsel submitted that as per sub-section (3) of Section 28 of NMC Act, every institution is entitled to make up the deficiency pointed out by the UGMEB and since the petitioners had cured the deficiencies (if any) by employing more faculties, the petitioners’ application ought to have been considered in the light of the faculties existing on the date of decision. 29. He submitted that first appellate authority while deciding the petitioners’ appeal ought to have taken figures/number of faculties as available with the petitioner on the date of decision (05.08.2024). 30. Mr. Mukesh Rajpurohit, learned Deputy Solicitor General at the outset raised an objection regarding maintainability of the writ petition by contending that the petitioners have directly approached this Court, without waiting for the decision of the appeal which they had filed. He added that even the order of the first appellate authority has been challenged without availing remedy of second appeal in terms of section 28 of the NMC Act. 31. He argued that the decision of the writ petition involves determination of factual aspect, which this Court cannot go into while exercising its writ jurisdiction. 32. Mr. Rajpurohit, learned Deputy Solicitor General then argued that the first appellate authority has rightly taken into account only those faculties who had more than 75 % of attendance during the period between 20th May to 20th June, 2024 and no fault can be found in such approach of the first appellate authority. 33. 32. Mr. Rajpurohit, learned Deputy Solicitor General then argued that the first appellate authority has rightly taken into account only those faculties who had more than 75 % of attendance during the period between 20th May to 20th June, 2024 and no fault can be found in such approach of the first appellate authority. 33. Learned Deputy Solicitor General submitted that if the AEBAS data of all the faculties are taken into account, faculty position as on 01.07.2024 was 166. He submitted that such figures have been calculated by the respondents pursuant to the interim direction given by this Court on 26.09.2024. He submitted that such exercise was done, without prejudice to his contention that the appellate authority has rightly taken figures and no interference is warranted. He argued that the figures of 21.09.2024 cannot be taken into account. 34. He however, pointed out that even if AEBAS data of 01.07.2024 is taken into account then also there is deficiency of two faculties. 35. So far as the facts pleaded by the petitioners that despite having found deficiencies in infrastructure and faculties, approval for establishment of colleges has been granted, Mr. Rajpurohit submitted that he does not have any instructions or material about the permission granted to such colleges/institutions which are situated in Telangana, Maharashtra, Rajasthan. He however argued that simply because some of the colleges have been granted approval, petitioners cannot claim any parity so long as petitioners are unable to satisfy that it has requisite number of faculties. 36. In rejoinder, Mr. Singhvi, learned Senior Counsel submitted that the objection of availing alternative remedy of second appeal raised by Mr. Rajpurohit is not sustainable, particularly when Central Government had preferred an SLP against the interim order/direction issued by this Court on 21.08.2024, and various grounds including the ground of alternative remedy was taken by the Central Government in its SLP and Hon’ble the Supreme Court while disposing of the SLP vide order dated 24.09.2024 did not interfere and rather directed the Central Government to produce the AEBAS data before this Court. 37. 37. Learned Senior Counsel submitted that a period of more than two and a half month has since passed and two rounds of counseling has already taken place and third round of counseling is scheduled tomorrow and urged that if the petitioners are relegated to avail remedy of second appeal, their right would be totally negated because by the time the petitioners would file second appeal and it is taken up for hearing, the admission process for academic year 2024-2025 would be over. 38. He asserted that no factual determination as claimed by Mr. Rajpurohit is required and even if the figures produced and accepted by the respondents are taken into account, the deficiency is of only two faculties, which is less than 5%. 39. He submitted that as per the communication dated 07.07.2017 as has been noted by the Delhi High Court in the case of IQ City Medical College Vs. National Medical Council and Ors. [W.P.(C) 12906/2024 & CM APPL. 53760/2024] decided on 19.09.2024, 5% relaxation is required to be given in total number of faculties. While maintaining that petitioners have 206 faculties, he argued that even if the figures of faculties as on 21.09.2024 given by the respondents (166) are taken into account, it is well within permissible limit, if 5% relaxation on requisite number of faculties (168) is given. 40. Heard learned counsel for the parties and perused the record. 41. Dealing with the objection of maintainability of the writ petition raised by Mr. Rajpurohit, learned Deputy Solicitor General suffice it to observe that the petitioners had approached this Court on 20.07.2024 with the grievance that inspite of the fact that an appeal has been filed on 06.07.2024, the same has not been taken up for hearing and counseling schedule has been notified. 42. It is to be noted that during the pendency of the present writ petition (perhaps under the instructions of Mr. Rajpurohit), the first appeal was heard on 30.07.2024 and the order was pronounced on 05.08.2024. Said order has also been assailed in this writ petition. 43. According to this Court relegating the petitioners to file second appeal at this point of time would be an exercise in futility, as the third last round of counseling would be over. Rajpurohit), the first appeal was heard on 30.07.2024 and the order was pronounced on 05.08.2024. Said order has also been assailed in this writ petition. 43. According to this Court relegating the petitioners to file second appeal at this point of time would be an exercise in futility, as the third last round of counseling would be over. Considering that second round of counseling has already taken place and third and last counseling is scheduled tomorrow, this Court is of the view that this writ petition deserves decision on merit – on the basis of facts available on record. More particularly when the appellate authority has no power to grant interim relief. 44. A perusal of the order impugned passed by MARB on 29.06.2024 shows that the Board has rejected petitioners’ application for enhancement of seats on unsustainable grounds. So far as the first reason given by the Board that the College was fined for deficiency in UGMEB for 150 seats is concerned, this Court is of the view that imposition of fine per-se cannot be a reason for refusal of enhancement of seat. Though the petitioners have preferred an appeal against the imposition of fine but even if the order dated 29.06.2024 is affirmed, the application for enhancement of seat cannot be rejected. The entitlement of enhancement of capacity is to be dealt with and decided on the basis of infrastructure and requirement of faculties and residents as per the current status vis-a-vis the norms. For the deficiencies which were found, the petitioners have already been penalized/punished by way of imposition of fine of Rs.6,00,000/-. The deficiency which were found during the inspection cannot be a reason to deny seat enhancement unless the deficiencies were so shocking or substantial so as to disentitle the petitioners’ college from claiming enhancement of seats. 45. So far as second reason given by the MARB is concerned, the same is factually incorrect inasmuch as the Board has taken faculty position and position of residents during the period of January, 2024 by which time even the petitioners had simply applied for enhancement of seat and had not increased its faculties as per the requirement, maybe because it was not commercially viable and practical to engage the faculties and make payment of their salary, when the application was not even processed. 46. 46. One cannot lose sight of the fact that engagement/employment of faculty not only creates financial burden on institution but also leads to engagement of faculty which is a valuable human resource. There may be a number of colleges desirous of engaging faculties. Such faculties cannot be kept ideal for a period of 5 to 6 months. Ideally the faculty position should be seen as on the date of consideration of application and if the number of faculties is lesser than the requisite number a notice should be given to cover up the deficiency. 47. Had the decision been taken within time subject of course to petitioners’ right to fulfill the deficiencies in terms of sub-section (3) of section 28, the requisite deficiency would have been removed. The provisions of sub-section (3) of section 28 should be given its full effect and the appellate authority ought to have considered faculty position as on the date of deciding the appeal (06.08.2024). When the petitioners had furnished details/data of faculty, the appellate authority was not justified in rejecting petitioners’ appeal based on the criteria that only those facilities would be taken into account who had more than 75% of attendance during the period of May to June, 2024. If the faculties working in May/June 2024 can be considered, why faculties engaged on 29.06.2024 (the date of decision by the UGMEB) cannot be considered, is a question to be asked to the respondents – there is no rationale for reckoning the faculties on May/June, 2024. 48. According to this Court, When the appellate authority has taken figures of May to June, 2024, it ought to have taken AEBAS data without insisting upon 75% of attendance. According to this Court, deciding application on the basis of 75% of attendance is arbitrary and not in accordance with law. When AEBAS data of all the faculties are available and a faculty attached with one college cannot engage itself in another college because of Regulation of 2023, it does not stand to logic to exclude those faculties who have less than 75% attendance. 49. Admittedly, during the period of May to June, 2024, the petitioners’ college was functioning with a seating capacity of 150 seats. 49. Admittedly, during the period of May to June, 2024, the petitioners’ college was functioning with a seating capacity of 150 seats. The additional faculties which though have been deployed/engaged and were being paid may or may not have attended on all the working days or have taken leave with due sanction, but simply because they failed to achieve 75% attendance, their names cannot be excluded from the number of faculties available with the petitioners. 50. According to this Court, 75% attendance of the faculties on roll can be insisted upon when a surprise inspection amidst a session takes place but such condition of 75% cannot be insisted upon when for the first time application for approval of scheme of admission or enhancement of seat is being considered. Compelling to have 75% attendance at the time of approving the scheme or considering request for seat enhancement would be like asking impossible act to be done. 51. The fact asserted by the petitioners that as of today, they have got 206 faculties has not been disputed by the respondents. The only reason for rejecting petitioners’ application is that out of those faculties, only 166 have 75% attendance. According to this Court, unless the very fact of engagement/employment of the faculties is disputed, simply because their attendance is not more than 75%, they cannot be excluded. 52. As demonstrated in the writ petition, the faculties who were found absent on 01.07.2024 were as a matter of fact absent on account of personal reasons or had taken leave with due approval of management and otherwise their attendance is more than 75%. 53. That apart, the list (Annexure-49) shows that some of them have joined after 01.07.2024. According to this Court, the faculties who have to obtained duly sanctioned leave(s) are required to be added and if these faculties are added, then the number of faculties with the petitioners’ institution is way above the requisite norms of 168 faculties. 54. While passing the order instant, this Court cannot leave the matter here only, more particularly, when the orders have been passed by the Central Government in favour of four institutions, namely Nova Institute of Medical Sciences and Research Center, Rangareddy, Telangana; Government Medical College, Amravati, Maharashtra; Government Medical College, Banswara and Nagaur Rajasthan. 55. 54. While passing the order instant, this Court cannot leave the matter here only, more particularly, when the orders have been passed by the Central Government in favour of four institutions, namely Nova Institute of Medical Sciences and Research Center, Rangareddy, Telangana; Government Medical College, Amravati, Maharashtra; Government Medical College, Banswara and Nagaur Rajasthan. 55. Without commenting much upon the manner in which these institutions have been granted permission, this Court would simply like to express its concern about the manner in which the permissions have been granted to the above named institutions. These permissions unravels rampant arbitrariness and favoritism, may be towards Government institutions. Such orders adversely effect credibility of the statutory bodies and it is for them to keep their house in order or for the Central Government to ensure transparency. 56. The writ petition is allowed; the communication dated 29.06.2024 issued by MARB as well as the order dated 06.08.2024 passed by the appellate authority are hereby quashed and set aside. 57. The respondent No.5 is directed to reflect 250 seats (instead of 150 seats) in seats matrix qua the petitioners’ college for the 3rd counseling which is scheduled tomorrow. 58. Needless to observe that in case, the respondents find that the number of faculties or other infrastructure is lacking in any manner, they shall be free to take appropriate proceedings in accordance with law. 59. The stay application also stands disposed of, accordingly.