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Judgment
V. Dhanapalan, J.—The petitioner has filed this petition seeking a writ of certiorarified mandamus calling for the proceedings of the first
respondent made in F.No.V.12017/2006-DE dated 23.07.2007 and the decision of the second respondent dated 09.07.2007 made in DE.3(36)-
2007 B-7230 and quash the said proceedings of respondents 1 and 2 respectively and consequently direct the respondents to accord permission
to the petitioners'' college for the increase in the intake of students from 40 to 100 in the B.D.S. from the academic year 2007-2008 .
The case of the petitioner in a nutshell, is as under:
The petitioner which is a Dental College and Hospital was established in the year 1987 with an intake of 40 students and is affiliated to Dr. MGR
Medical University. Desirous of increasing its intake to 100 students for the B.D.S. Course, the petitioner submitted an application in September
2006 to the first respondent enclosing Essentiality Certificate issued by the State Government. Inspection was carried out on 16 & 17.05.2007 by
a team deputed by the second respondent. Despite the direction of the inspection team to consider the petitioner''s application for additional intake,
the second respondent, vide its letter dated 29.05.2007 addressed to the petitioner, stated that it is not recommending to the Central Government
and further directed the petitioner to furnish compliance report in respect of certain deficiencies on or before 04.06.2007. The petitioner too,
having rectified the said deficiencies, submitted its compliance report on 04.06.2007 to the second respondent and requested for passing of
appropriate orders. Since no response was forthcoming from the second respondent, the petitioner, vide its letter dated 09.07.2007 drew the
attention of the second respondent with regard to the pendency of its claim pursuant to which, the second respondent, by its letter dated
13.07.2007, informed that it has forwarded the petitioner''s request to the first respondent. Subsequent thereto, the first respondent passed an
order dated 23.07.2007 stating that it has decided not to grant permission for increase in intake for the academic year 2007-2008 based on the
second respondent''s letter dated 09.07.2007. Calling in question the legality of this order of the first respondent, the present writ petition.
The second respondent has filed its counter contending that the petitioner submitted its application to the first respondent on 30.09.2007 who in
turn forwarded the same to it on 22.01.2007 as against the deadline of 31.12.2006 and it has sent a letter on 24.04.2007 to the petitioner
proposing to conduct inspection in the first week of May 2007 and it was only the petitioner which sought postponement of the inspection due to
road expansion work undertaken by the National Highways Authority of India. The second respondent has further contended that the petitioner''s
request for postponement of inspection was acceded to and inspection was conducted on 16th & 17th May 2007 and it has sent its
recommendation to the first respondent on 15.06.2007 (adhering to the time-frame) expressing its disapproval of the petitioner''s application based
on the inspection report submitted by the inspection team and the failure on the part of the petitioner to rectify the deficiencies.
Heard Mr. R. Muthukumarasamy, learned Senior Counsel appearing for the petitioner, Mr. V.T. Gopalan, learned Additional Solicitor General
of India appearing for the first respondent and Mr. P. Chandrasekaran, learned Standing Counsel for the second respondent.
Attacking the reason assigned by the second respondent in its letter dated 09.07.2007 addressed to the first respondent that the last date for
submission of its recommendations to the first respondent was over on 15.06.2007, the learned Senior Counsel has vehemently argued that the
second respondent has caused inspection belatedly on 16 & 17.05.2007 when the petitioner has submitted its application in September 2006
itself, i.e. about eight months prior to the date of inspection. Pointing out that the first respondent ought to have forwarded the petitioner''s
application to the second respondent on or before 31.12.2006 but it has forwarded the same to the second respondent only on 22.01.2007
thereby causing a delay of about 21 days, the learned Senior Counsel appearing for the petitioner has contended that the petitioner cannot be
made to suffer for the laches on the part of the respondents 1 and 2. On the point of deficiency that one Dr. Sharada was not a Professor in Oral
Pathology, the learned Senior Counsel has contended that on coming to know that there was impersonation in this regard, the petitioner has filed a
criminal complaint before the Komarapalayam Police on 07.06.2007 and has also kept the second respondent apprised of this in its compliance
report and has replaced one Dr. Rajeswari in place of Dr. Sharada. As regards the deficiency pointed out by the second respondent that certain
members of the faculty were not present on both the days of inspection, the learned Senior Counsel has contended that this cannot be termed as a
deficiency particularly when the petitioner has produced enough materials on record to prove that the said members of the faculty were employed
by it.
The learned Senior Counsel appearing for the petitioner, while drawing the attention of this Court on the aspect that the petitioner has produced
15 batches of B.D.S. students and is equipped with necessary infrastructure including the members of faculty, has relied on a Government of India
letter dated 30.08.2006 to indicate that 5% relaxation for teaching faculty is allowed in dental colleges. While concluding his arguments, the learned
Senior Counsel appearing for the petitioner has pointed out notwithstanding the recommendations of the second respondent, the first respondent
has got ample powers to grant recognition for additional intake to the petitioner.
Contending contra, the learned Additional Solicitor General of India, at the foremost, has contended that, by the impugned order, the first
respondent has not rejected the claim of the petitioner in entirety, but, it has rather decided not to grant recognition for the academic year 2007-
2008 only and the doors are still wide open to the petitioner to get recognition for the next academic year by rectifying the deficiencies pointed out
by the second respondent within the specified time. In reply to the contention of the learned Senior Counsel appearing for the petitioner that the
first respondent can grant recognition to the petitioner even disregarding the deficiencies pointed out by the second respondent, it is the earnest
submission of the learned Additional Solicitor General that the first respondent cannot disregard or bye-pass the recommendations of the second
respondent which is a statutory authority established for the purpose of monitoring the functioning of Dental Colleges in the country. He has further
argued that when the Supreme Court has held at least in more than one case that the Central Government has to strictly adhere to the time
schedule prescribed in the Dental Council of India Regulations, 2006, the first respondent has rightly expressed its inability to consider the case of
the petitioner for the academic year 2006-2007.
On the other hand, the learned Standing Counsel for the second respondent has contended that the first respondent, vide its letter dated
22.01.2007 forwarded to the second respondent the petitioner''s application for increase in intake and the second respondent informed the
petitioner that it would take up the inspection during 03 & 04.05.2007 and that it was only the petitioner which sought postponement of inspection
to the third week of May 2007. He has further pointed out that a meeting of the Executive Committee was held on 06.05.2007 and had the
petitioner agreed for the inspection on 03 & 04.05.2007, as proposed by the second respondent, the Executive Committee would have
considered the case of the petitioner. It is his further contention that not being satisfied with the report of the inspection team, the second
respondent by its letter dated 15.06.2007 to the first respondent, expressed its disapproval to recommend the scheme of the petitioner and based
on the letter dated 03.07.2007 from the first respondent requesting the second respondent to reconsider its negative recommendations, the latter
scrutinised the records including the compliance report and after discussion and deliberation, reiterated its earlier recommendation to the first
respondent, pointing out thereby the deficiencies which still existed based on which the first respondent came to a conclusion not to consider the
case of the petitioner for the academic year 2007-2008.
9 In support of his contention that this Court cannot issue a writ of mandamus straightaway and this Court can only remit the matter to the second
respondent for consideration afresh, the learned Standing Counsel for the second respondent has relied on a judgment of the Supreme Court
reported in The Dental Council of India Vs. Subharti K.K.B. Charitable Trust and Another, . (para 8)
At the outset, we would reiterate that u/s 10-A of the Dentists Act, 1948, it is the function of the Central Government to accord approval for
establishing the Dental College and the High Court ought not to have passed the order straightaway according the approval despite the inspection
report submitted by the DCI and the order refusing to grant such permission passed by the Central Government. In such cases, if the High Court
finds that the order passed by the Central Government is dehors the statutory provisions or arbitrary for some reason, the course open to it is to
remit the matter to DCI for reinspection of the establishment and for reconsideration by the Central Government rather than to issue a writ of
mandamus as quoted above.
But, the learned Counsel for the petitioner has contended that the above ruling of the Supreme Court cannot be made applicable to this case as the
above referred to appeal was filed by the second respondent.
On a perusal of the impugned order 09.07.2007 passed by the second respondent, it can be seen that the petitioner''s application seeking
permission for additional intake has not been considered for two reasons. The first reason is that the last date for submission of the second
respondent''s recommendations to the first respondent i.e. 15.06.2007, has expired and the second reason is that the petitioner has not rectified the
deficiencies despite being afforded reasonable opportunities. Similarly, the impugned order dated 23.07.2007 has been passed by the first
respondent based on the impugned order of the first respondent and also taking into account the direction of the Supreme Court in its various
judgments to strictly adhere to the time schedule prescribed in the Dental Council of India Regulations, 2006. Thus, the main points which emerge
for consideration in this petition are whether there is any delay caused by the respondents and whether the second respondent in rejecting the case
of the petitioner based on the deficiencies.
As for the first point for consideration is concerned, it would be useful to refer to the Gazette Notification dated 16.01.2006 which prescribes
the time-table for each stage of processing of an application and the same runs thus:
==============================================================================
Sl. Stage of processing Time Schedule for BDS
No.
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
1 Receipt of applications From 1st August to 30th September
by the Central Government (both days inclusive) of any year
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
2 Forwarding of applications Upto 31st December
by the Central Government
to the Dental Council of
India for technical
scrutiny
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
3 Recommendations of DCI Upto 15th June
to the Central Government
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
4 Issue of Letter of Upto 15th July
Permission by Central Govt.
============================================================================
It may also be useful to have a glance of the various dates from the following tabular column on which the parties to this petition have
performed various tasks required to be completed at various stages:
=================================================================================
Sl. Action to be performed Date on which parties
No. by parties have performed action
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
1 Submission of application 30th September 2007
by petitioner to first
respondent
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
2 Forwarding of application 22nd Jan. 2007
by first respondent to as against 31st December 2007
second respondent
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
3 Letter sent by second 24th April 2007
respondent with regard to
its proposed inspection of
the petitioner institution
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
4 Letter sent by petitioner 1st May 2007
to second respondent seeking
postponement of inspection
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
5 Inspection carried out by 16th & 17th May 2007
the second respondent
~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
6 Recommendation of second 15th June 2007
respondent to first respondent
=================================================================================
From the above tabular column, it can apparently be seen that the first respondent has forwarded the petitioner''s application to the second
respondent on 22.01.2007 as against the deadline of 31.12.2006 and no reason whatsoever is assigned by the first respondent for this delay.
Secondly, it can also be seen that though the first respondent has forwarded the petitioner''s application on 22.01.2007, the second respondent has
written to the petitioner of its proposal to conduct inspection only on 24.01.2007 and hereagain, no reason whatsoever has been attributed by the
second respondent for this delay of about two months in writing to the petitioner to conduct inspection. Of course, the petitioner too, for its part,
has sought postponement of the inspection due to road expansion work undertaken by National Highways Authority of India, which is a public
cause and the time sought by the petitioner is negligible and beyond its control. Thus, when the respondents themselves have not adhered to the
time schedule prescribed in the Dental Council of India Regulations, 2006, as rightly argued by the learned Senior Counsel for the petitioner, the
petitioner cannot be made to suffer for the laches on the part of both the respondents. It is to be noted the first respondent itself which says in its
impugned order that the directions of the Supreme Court with regard to keeping up of time schedule have to be strictly adhered to, has not done its
part of forwarding the petitioner''s application to the second respondent in time. Of course, the petitioner could have come before this Court
immediately after the first respondent failed to adhere to the time schedule. But, at the same time, the first respondent cannot cite, as an excuse, the
failure of the petitioner to approach this Court. Taking all these aspects into consideration, those portions of the impugned orders of the first and
second respondents to the effect that the last date for them to take action is over cannot be sustained and they are accordingly quashed.
While coming to the second aspect of rejection of the petitioner''s case by the second respondent, it may be useful to refer to the relevant
portion of the impugned order which reads as under:
Since the college authority has not made good the following deficiencies even after giving the reasonable opportunities, and the last date for
submission of DCI''s recommendations to the Government of India is 15.06.2007, the Scheme/Application of J.K.K. Natrajah Dental College,
Tamil Nadu for increase of seats from 40 to 100 in BDS course to the Govt. of India for disapproval:
There is deficiency of one Professor in the department of Oral Pathology since the college authority has misled the Council by furnishing the false
affidavit and declaration in respect of Dr.P.Sharda, Professor, Oral Pathology for claiming as working in their institution but as per enquiry from
Dr. P. Sharda, she confirmed that she has not joined J.K.K. Natrajah Dental College and the said college has shown her name at their own and
the strict action against the college authorities may be taken. The Council is not in agreement with explanation given by the Secretary, J.K.K.
Natrajah Dental College and Hospital, Komarapalayam as the forgery pointed out by the Council was investigated after the discrepancies was
brought to the notice of the management which would otherwise have been overlooked (copy of the compliance from the Secretary, JKK
Natrajah Dental College and Hospital, is attached for ready reference).
There is deficiency of one Reader in the department of Community Dentistry since Dr. Abinaya, Reader in Community Dentistry is not accepted
as she is having MDS qualification in the subject of Periodontics.
There is deficiency of one Reader in the Department of Anatomy since Dr. S. Devadoss Sivaprakasam, Reader in Anatomy has not furnished
the original affidavit and not being paid as per UGS pay scale
There is deficiency of one Reader in the Department of Microbiology since Dr. Vijaya Chandra Bose, Reader in Microbiology has not furnished
the original affidavit and not being paid as per the UGS pay scale.
There is deficiency of one Reader in the Department of General Pathology since Dr. G. Vijayalaxmi, Reader in General Pathology has not
furnished the original affidavit and relieving order from the previous institution.
The following teaching faculty is not accepted since they were not present on both the days of inspection:
i Reader in Prosthodontics Dr. Angela Ray Chaudhuri
ii Lecturer in Oral Pathology Dr. K. Venkatesh
iii Lecturer in Periodontics Dr. P. Kavitha
iv Lecturer in Periodontics Dr. O. Obliraj
It is to be noted that pursuant to the second respondent''s proceedings dated 29.05.2007 pointing out various deficiencies, the petitioner has
sent its compliance report on 04.06.2007 on or before which date it was required to furnish the same explaining compliance of each and every
deficiency pointed out by the second respondent. But, the second respondent, without properly considering the compliance report of the petitioner
with due application of mind, has stuck to the deficiencies pointed out by the inspection team despite the recommendation of the inspection team
that the petitioner''s case may be considered if the observations pointed out by it are attended to by the petitioner. From a perusal of the materials
available on record, it is seen that among the various deficiencies pointed out by the second respondent, only deficiency no.2 which states that one
Dr. Abinaya, Reader in Community Dentistry cannot be accepted as she is having M.D.S. Qualification in the subject of Periodontics instead of
Community Dentistry, is not rectified by the petitioner. The explanation given by the petitioner is that her teaching experience of five years can be
considered since there is acute shortage of teachers with M.D.S. qualification in the specialty of Community Dentistry. All other deficiencies
pointed out by the second respondent have been duly replied to by the petitioner; yet, as already stated, the second respondent, without assigning
any reason, has stuck to the deficiencies pointed out by it and has stated that the petitioner has not rectified the deficiencies even after being
afforded reasonable opportunities and accordingly expressed its disapproval to the first respondent for consideration of the petitioner''s case. This
stand of the second respondent without due application of mind, cannot be accepted.
Therefore, on an overall consideration of the facts and circumstances of the case, since this Court feels that the case of the petitioner deserves
a re-look, the second respondent is directed to reconsider the petitioner''s case afresh in the light of the compliance report submitted by the
petitioner, with due application of mind, in respect of each and every compliance made by the petitioner and accordingly, send its
recommendations to the first respondent in accordance with Rule 10(A) of the Dentists Act. Thereafter, based on the second respondent''s
recommendations, the first respondent is directed to pass appropriate orders on the petitioner''s application in accordance with the rules and
regulations and grant permission to the petitioner for increase in intake from 40 students to 100 students.
In fine, the writ petition is allowed in part with the above directions. No costs. Consequently, connected M.P. is closed.