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Judgment
Tarun Agarwala, J.—This bunch of writ petitions has been filed by the Dental College as well as by the students of that College. Since the issues relating in all the writ petitions are interlinked, the same have been clubbed and are being decided together. For brevity, Narain Swami Hospital and Dental College will hereinafter be called ''the petitioner'' and the students, who have also filed the writ petitions, will be called ''the students''.
The petitioner, Narain Swami Hospital and Dental College, applied in the prescribed format for running a Dental Hospital and College. The Central Government, after due consideration, accorded formal permission to the petitioner to set up a Dental College u/s 10A(4) of the Dentists Act, 1948, (hereinafter referred to as ''the Act''). The Dental Council of India (hereinafter referred to as ''the DCI'') accordingly conveyed this formal permission to the petitioner by its letter dated 13th July, 2007 permitting the petitioner to set up a Dental College with an annual capacity of 100 students for the B.D.S. course (Bachelor of Dental Surgery) for the academic year 2007-08. The letter indicated that the permission was granted initially for a period of one year and that such permission would be renewed on a yearly basis after re-evaluating the annual targets achieved by the petitioner. On this basis, the students were admitted and the examination was held for the academic year 2008-09. The Central Government, by its letter dated 17th September, 2008, renewed the permission for the second year, however, with the reduced intake of 50 students for the academic year 2008-09. The reason for the reduction from 100 seats to 50 seats was on account of deficiencies in the teaching faculty and infrastructural facilities. The permission so granted was again limited for one year.
For the renewal of the third year course for the academic year 2009-10, the DCI appointed Inspectors by its order dated 28th March, 2009 to verify the achievement of the annual targets so as to enable them to take a decision and recommend renewal or otherwise to the Central Government. Based on the aforesaid direction of the DCI, the Inspectors made the inspection and submitted a joint report dated 9th April, 2009, in which certain deficiencies were pointed out. The entire report has not been brought on record but the extract of the record is mentioned in one of the letters of the DCI, which is extracted hereunder:
There is deficiency of two Readers in the departments of Community Dentistry-1, Periodontics-1.
The classes are not being conducted as per the time-table. The class attendance register was not available. The strength in the class room (theory Physiology on 9.4.2009) was less than 50%, so was the same in the II BDS pre-clinical Prosthetics.
The following faculty has been shown to be residing in the college staff quarters, however on physically inspection, the faculty members are not staying there. Moreover, staff quarters available there are for paramedical staff.
(i) Dr. Puneet Kathuria, Professor, Prosthodontics.
(ii) Dr. Swen Kathuria, Professor, Conservative Dentistry
(iii) Dr. Chetan, Reader, Prosthodontics
(iv) Dr. Jagdish
(v) Dr. Rupa, Professor, Periodontics
(vi) Dr. Masroor Mohamed, Reader, Oral Surgery (Also shown by Uttaranchal Dental College & M.R., Dehradun where he was also absent)
(vii) Dr. Manoj Balani, Reader, Oral Surgery
(viii) Dr. Ajit Kadam, Professor, Oral Pathology
(ix) Dr. S.C. Bajpai, Professor, Periodontics
(x) Dr. Vanchan Shetty, Reader, Conservative Dentistry
Dr. Vachan Shetty, Reader in Conservative Dentistry is not accepted as he had submitted an affidavit in previous institution i.e. Vananchal Dental College, Jharkhand that he will serve the institution for next 5 years, but he resigned and joined the present institution. Moreover his name is also shown in Maitri College of Dental Sciences, Durg.
The medical OPD attendance was very poor with only 29 patients reported on the day of inspection.
The IPD was 3 patients on the day of inspection.
The joint report was considered by the Executive Committee of the DCI in its meeting held on 26/27th April, 2009 and the committee resolved to intimate the petitioner to remove the deficiency pointed out by the Inspectors. Accordingly, a formal letter dated 4th May, 2009 was written to the petitioner, and in pursuance thereof, the petitioner submitted a compliance report to the DCI by its letter dated 11th May, 2009 intimating substantial compliance of the deficiency pointed out in the joint inspection report.
It transpires that the DCI considered the matter and made a recommendation to the Central Government by its letter dated 5th June, 2009 not to renew the permission to the petitioner for the third year course for 100 seats for the academic year 2009-10. Upon receipt of the recommendation of the DCI, the Central Government, by its letter dated 24th June, 2009, directed the DCI to intimate the petitioner to make good the deficiency and again submit a compliance report. Accordingly, the DCI by its letter of the same date, i.e. 24th June, 2009, intimated the petitioner to remove the deficiency and submit a compliance report. In response, the petitioner submitted its reply dated 27th June, 2009 indicating that it had already submitted its compliance report as far back on 11th May, 2009 and that the same may be read again. The petitioner also pointed out that as per the joint inspection report, out of 6 deficiencies pointed out in the joint inspection report, only one could be termed as a deficiency, namely, the deficiency in the teaching faculty. The petitioner, however, submitted that the deficiency by itself should not result in the refusal to grant permission and at best, permission for reduced seats could be granted.
Without waiting for the reply of the petitioner, it transpires that the DCI took a decision on 26th June, 2009 appointing an Inspector to verify the compliance report of the petitioner sent earlier on 11th May, 2009. In pursuance to this decision, the Inspector made a surprise inspection on 30th June, 2009 and again on 2nd July, 2009 and found to his dismay that the college was closed. The inspector was informed that the summer vacation was going on from 15th June, 2009 to 30th June, 2009. On 2nd July, 2009, when the Inspector again visited the premises, he found that the summer vacation had been extended till 10th July, 2009 on account of the strike conducted by the Electricity and Water Department of the State. The Inspector, accordingly, was unable to verify the compliance done by the petitioner of the deficiencies pointed out in the earlier inspection report. For facility, the report submitted by the Inspector on 30th June, 2009 and 2nd July, 2009 is extracted here under:
Letter dated 30th June, 2009
Respected Sir,
I would like to take this opportunity to express my sincere gratitude for appointing me as Council''s Inspector to conduct the above said inspection.
Sir, when I reached the college, I was surprised to see that the College is closed. I enquired about the matter. I was told that Tuesday (Today) is the weekly off as well as the college is observing the summer vacation from 15th June to 30th June 2009. I wanted to meet Principal (Dr. Ibrahim) but I found that he is out of station. Then I tried to meet Chairman (Mr. Manish Verma) but I was given an impression he is also away. I tried to contact him on his mobile but he did not picked up my mobile. Reasons may be many including my surprise visit to the college for inspection purpose.
Sir, I happen to meet Ms Bindu Shroff who is working as Director-Administration for the Dental College. I enquired whether the college has, in writing, intimated the university to which it is affiliated and the state government about their decision of closing the college on Tuesdays and in return has received their positive consent? No letter was made available to me.
Sir, to know more about this matter I tried to contact the Registrar of the university (Mr. Thapaliyal Sahab Contact No. 01346-252143). I was told that he is not in the office. I tried to contact the Controller of the Examination (Prof. M.S. Rohtan Mobile No. 094120-37232). His mobile was continuously out of coverage area so could not contact him in this regard.
Sir, I asked about intimation to Dental Council of India regarding the Tuesday off and the summer schedule. I was given a letter Dated 5th Feb 09 posted to DCI on 11th Feb 09 in response to DCI letter No. DE-222008/A-7643 Dated 6th Jan 09. This letter does not indicate about the summer schedule of 2009 (indicates about 2010). Sir, kindly note this letter has no reference No. and the designation of the person who has signed it (Mr. I.P. Saxena) is not mentioned in the letter. Photocopy attached.
Sir, because of the reasons stated above, in-depth evaluation of the college could not be done.
Letter dated 2nd July, 2009
Respected Sir,
I would like to take this opportunity to express my sincere gratitude for appointing me as Council''s Inspector to conduct the above said inspection.
Sir, when I reached the college, I was surprised to see that the college is closed even today. It was closed on 30.06.09 also when I visited the college for DCI inspection, reason - Tuesday is the weekly off as well as the college was observing the summer vacation from 15th June to 30th June 2009. Sir, please note - I was not given any impression at all about the planning of the extension of the summer vacation till 10th July 09.
Sir, I enquired about the matter, I was told that there is strike of Electricity, Water and Municipal Bodies at local level so the college has extended the summer vacation up to 10th July 09. Staff (Letter attached) and the Students were intimated through a notice issued on 01.07.09 (Letter attached).
Sir, please note that these 2 letters have been signed by Director - Administration. These letters have no reference No. and indicate that University, State Government and Dental Council of India, New Delhi are not intimated about the extension the summer vacation at all.
Sir, for your kind reference I am attaching the report of last inspection (on 30.06.09) with related papers.
Sir, because of the reasons stated above, verification of the compliance could not be done.
In the meanwhile, the petitioner also wrote an undated letter in response to the letter of the DCI dated 1st July, 2009 indicating that as per the deficiency pointed out in the first joint inspection report, there was a shortfall of two Readers in the Teaching Department, but submitted that the college was eligible for 5% relaxation as per the decision of the Central Government dated 26th March, 2007.
Based on the second report submitted by the Inspector, the Executive Committee of the DCI made a recommendation to the Central Government not to renew the permission for the third year. On the basis of the recommendation of the DCI dated 8th July, 2009, the Central Government issued the impugned order dated 23rd July, 2009 refusing to grant the permission to the petitioner to admit 100 students for the third year BDS course for the academic year 2009-10.
The petitioner, being aggrieved by the said order, filed the present writ petition. During the pendency of the writ petition, the petitioner filed a Misc. Application No. 4256 of 2010 praying that a direction be issued to the DCI to make an inspection in the petitioner''s college for the purpose of renewal of the permission for the academic year 2010-11. The Court, by its order dated 7th May, 2010, directed the DCI to file a supplementary affidavit in response to the application filed by the petitioner. When the matter was taken up on 8th June, 2010, the learned Counsel for the DCI made a statement that the DCI would make the necessary inspection and accordingly, the Court issued an order on 8th June, 2010, which is extracted hereunder:
Shri A. Rab, Advocate, present for the writ petitioners.
Shri S.S. Chauhan, Advocate, present for the respondent No. 1 and 2.
Shri Sudhir Kumar, Advocate, holding brief of Shri J.P. Joshi, Advocate, present for the respondent No. 4 and 5.
Heard.
Learned Counsel for the Dental Council of India, made a statement that the Dental Council of India is ready and willing to inspect the premises of the college run by the petitioners, and it has already issued a letter dated 20.05.2010, to the Principal of the College in this regard.
Learned Counsel for the petitioners states that the petitioner''s institution is ready to get the premises inspected by the Dental College of India, within a week.
The petitioner is directed to intimate accordingly, immediately to the Dental Council of India, in response to their letter dated 20.05.2010, with copy endorsed to the respondent No. 1, respondent No. 4 and respondent No. 5.
List this writ petition in the week commencing 12th of July, 2010.
In response to the said direction, it transpires that the petitioner issued two letters dated 12th June, 2010 intimating the DCI to make the inspection so that permission be accorded for the academic year 2010-11. It transpires that no such inspection was made. On the other hand, it transpires that some letter dated 15th June, 2010 was written by the DCI to the Central Government and based on such letter, the Central Government issued an order dated 9th July, 2010 directing closure of the petitioner''s college and further directing the DCI to take necessary action in consultation with the State Government and other Dental Colleges in the State as well as outside the State for shifting the students admitted in the petitioner''s college. Upon the issuance of the said letter, the petitioner filed an amendment application, which was allowed and the writ petition was amended, wherein the petitioner also prayed for the quashing of the order of the Central Government dated 9th July, 2010.
The Central Government has filed the counter affidavit indicating that the permission to set up the college was granted to the petitioner in accordance with the Regulation 11 of Dental Council of India (Establishment of New Dental Colleges, Opening of New or Higher Course of Study or Training and Increase of Admission Capacity in Dental Colleges) Regulations, 2006 (hereinafter referred to as ''the Regulations of 2006'') and that the refusal to accord permission was made in accordance with the provision of Section 10A of the Act of 1948 and that Section 16A was not applicable as alleged by the petitioner in as much as the provision of Section 16A was applicable to a recognized Dental College, whereas the petitioner''s college was not a recognized college but was only an approved college.
The DCI also filed a counter affidavit justifying their stand in recommending the matter to the Central Government for non-renewal of admissions in the petitioner''s college. The respondent submitted that the inspection report clearly indicated lack of infrastructural and teaching facilities and that the petitioner was avoiding the inspection. It was contended that the alibi mentioned for the extension of the summer holidays was not tenable and was an afterthought. The said respondents contended that the country does not want half baked dentists and since infrastructural facilities were lacking in the petitioner''s college, the DCI made a recommendation to the Central Government requesting it not to accord permission for the 3rd year course.
The State of Uttarakhand has also filed their counter affidavit and submitted that the petitioner was only doing a commercial activity, which fact could be seen that the petitioner started the Medical College without obtaining the permission from the Central Government and without obtaining an Essentiality Certificate from the State Government. The State Government further submitted that the petitioner was guilty of hiking their fee structure and charging a higher rate from the students and consequently, the Central Government was justified in the issuance of the impugned order. The allegation made by the State Government was, however, refuted vehemently by the petitioner contending that the Essentiality Certificate as well as No Objection Certificate had been issued by the State Government, which have not been cancelled till date and that with regard to the establishment of the Medical College, a separate writ petition had already been instituted by the petitioner, which is pending consideration before the Court.
The petitioner, in rejoinder, refuted the allegations and submitted that assuming without admitting that the deficiency pointed out in the first joint inspection report was correct, it only amounts to non-fulfillment of the total number of persons to be appointed in the teaching faculty and for such deficiency, the DCI could recommend renewal with limited intake of the students or reduced intake of the students from 100 to 50 as was done by the DCI and the Central Government for the previous academic year, i.e., 2008-09.
The petitioner further submitted in the rejoinder affidavit that there was no justification for the DCI or for the Central Government to refuse to grant the permission even for the reduced number of seats since the petitioner was eligible for the grant of at least 50% seats for the third year as per the norms laid down by the DCI. To buttress this contention, the petitioner relied upon the letter of the Central Government dated 26th March, 2007, wherein the Central Government itself provided for relaxation by 5% in the deficiency in the teaching faculty on the ground that suitable candidates are not available immediately and that it takes time to fill the posts. The petitioner submitted that even though this policy of the Central Government in its letter of 26th March, 2007 related to Medical Colleges in the eastern hill districts of India, nonetheless, the said policy was being applied by the DCI to other Dental Colleges in all parts of India.
The petitioner was not granted an interim order during the pendency of the writ petition and even though the Central Government had issued clear directions in its order dated 9th July, 2010, the students of the petitioner''s college were not adjusted in other Dental Colleges in the State of Uttarakhand or in other colleges located outside the State of Uttarakhand. As a result of the stalemate between the DCI, the Central Government and the State Government, Writ Petition No. 941 of 2010 (M/S) was filed by some of the students of the petitioner''s college and after hearing the parties, the Court disposed of the writ petition with certain directions by its order dated 12th July, 2010. For facility, the direction given by the Court is quoted hereunder:
The writ petitioners/students of B.D.S. course shall be allowed to appear in the IIIrd year examination by the respondent No. 3 Hemwati Nandan Bahuguna Garhwal University, as at the time of their admission with respondent No. 5 Narayan Swami Hospital and Dental College, said College was recognized by Dental Council of India. It is left open to the respondents to accommodate or allow them to appear through any recognized institution. This writ petition is disposed of without observing anything as to the validity of derecognition of the respondent No. 5 institution, which is subject matter in the writ petition No. 1341 of 2009 (M/S).
Based on the aforesaid direction, the Garhwal University conducted the examination, which is the examining body and the results were declared. The students who cleared the examination were not accommodated in other colleges since the petitioner''s college remained closed pursuant to the order of the Central Government dated 9th July, 2010. Many of the students made representations to the authorities praying that they should be accommodated in other colleges. Reminders were also sent, but the same fell on deaf ears and those, who could apply pressure upon the DCI, were given orders to be adjusted in other colleges, but, a majority of the students could not be adjusted by any order of the DCI.
However, pursuant to the direction of the Court dated 12th July, 2010, the DCI wrote a letter to the Secretary, Medical Health, Government of Uttarakhand, dated 3rd August, 2010 to shift the students to another institution, namely, to Uttaranchal Dental College, which is a college located in the State of Uttarakhand. The State Government in response to the direction of the Court dated 12th July, 2010, wrote letters to Uttaranchal Dental College and Seema Dental College, Rishikesh, directing them to accommodate the students of the petitioner''s college in the interest of justice and in anticipation of formal approval being issued by the DCI and/or the Central Government. Another reminder was sent by the State Government by its letter dated 30th July, 2010.
It has been alleged that in spite of these directions, the colleges were not admitting the students and accordingly, Writ Petition No. 2091 (M/S) of 2010 was filed by the students praying that supernumerary posts be created in Seema Dental College and Uttaranchal Dental College for the fourth and fifth year BDS course and that the students of Narain Swami Hospital and Dental College should be accordingly adjusted. An interim order dated 10th December, 2010 was passed directing Seema Dental College to permit the students of the petitioner''s college to pursue their studies in the fourth year. For facility, the relevant portion the said interim order is extracted hereunder:
In the mean time the interim mandamus is issued to respondent No. 4 either to permit to those petitioners, who have appeared in 3rd year examination of B.D.S. Course, to pursue study in 4th year course or show cause by filing counter affidavit within three weeks.
Based on the said interim direction, some of the students of the petitioner''s college are pursuing their studies in Seema Dental College. In this writ petition, the DCI has filed a counter affidavit contending that there is no provision for creation of supernumerary posts either under the Act or under the Regulations of 2006 and that the seats could only be increased on the request of the college to the Central Government which was to be given on a prescribed format, and that, in the present scenario, a student of Narain Swami Hospital and Dental College could not be given a Migration Certificate, but such adjustment in other colleges would be known as a ''shifting arrangement''.
Similar writ petitions were filed by other students being Writ Petition No. 2221 (M/S) of 2010 and Writ Petition No. 187 (M/S) of 2011. In Writ Petition No. 2221 (M/S) of 2010, no interim order was passed and in Writ Petition No. 187 (M/S) of 2011, an interim order dated 31st January, 2011 was passed permitting the petitioner college to allow the students to study in the 3rd and 4th year provided the classes for the said course were being held. For facility, the relevant portion of the interim order dated 31st January, 2011 is extracted hereunder:
Keeping in view the above facts and circumstances, respondent No. 5 is directed to allow the petitioners to join the studies of the 3rd and 4th year of BDS Course, in case the classes of the said course are being held by the College. In case, the classes of the said BDS Course are not being held by the respondent No. 5, then respondent No. 3 is directed to adjust the petitioners in some other recognized Dental College, as the career of the petitioners is at stake.
The DCI also took a stand that the responsibility to adjust the students of the petitioner''s college was entirely upon the State Government as certified in the Essentiality Certificate so issued by it under Regulation 6(2)(e) of the Regulations of 2006. The DCI went a step further contending that the State Government alone was responsible in adjusting the students of the petitioner''s college in other colleges in Uttarakhand and/or in the colleges located in the neighbouring States.
The Central Government also filed their counter affidavit and submitted that the responsibility was upon the State Government as well as upon the DCI to identify the number of vacant seats and accordingly adjust them. For facility, paragraph 7 of the counter affidavit of the Central Government is quoted hereunder:
That the contents of paragraph No. 13 and 14 of the writ petition needs no comments as being matter of record and Union of India will take action when DCI will identify the vacant seats in recognized dental college and forward the list to the Union of India only then permission for shifting of the students will be granted.
The State Government has also filed counter affidavit and has come out with certain important facts and figures, which the DCI nor the Central Government had placed before the Court. The State Government submitted that 38 students of the 2nd year and 97 students of the 3rd year are being affected by the closure of the petitioner college. The State Government further indicated that for the 2nd year, there were 2 vacancies in Seema Dental College and 33 vacancies in Uttaranchal Dental College and for the 3rd year, the vacancies were 2 & 5 respectively. The State Government accordingly submitted that 3 supernumerary posts were required to be created for the 2nd year course and 90 supernumerary posts were required to be created for the 3rd year course. The State Government submitted that the supernumerary posts could only be done by the DCI and the Central Government and that the State Government had no role to adjust the students in Dental Colleges.
In the light of the pleadings which has come on record and which has been extracted aforesaid, the Court has heard Mr. A. Rab, the learned Counsel for the petitioners in WPMS No. 1341/2009, Mr. Sharad Sharma, the learned senior counsel with Mr. B. M. Pingal, the learned Counsel for the petitioners in WPMS No. 2091/2010, Mr. Arvind Vashisht, the learned Counsel for the petitioners in WPMS No. 2221/2010, Mr. Piyush Garg, the learned Counsel for the petitioners in WPMS No. 187/2011, Mrs. Anjali Bhargava, the learned Counsel with Mr. B. P. S. Mer, the learned Counsel for the Dental Counsel of India and for the Union of India, Mr. Sushil Vashist, the learned Brief Holder for the State of Uttarakhand, Mr. Gajendra Tripathi, the learned Counsel for the Hemwati Nandan Bahuguna Garhwal University, Mr. Ajay Veer Pundir, the learned Counsel for the Uttaranchal Dental & Medical & Research Institute and Mr. Anurag Bisaria, the learned Counsel for the Seema Dental College & Hospital.
The learned Counsel for the Seema Dental College and Uttaranchal Dental College submitted that pursuant to the interim order of the Court, a large number of students of the petitioner''s college are pursuing their studies and some of them are in excess of the strength granted by the Central Government and that the said college is awaiting formal approval from the DCI/Central Government. During the course of the argument, the learned Counsel for the DCI also made a submission that some of the students have been given admission in the Dental Colleges in the neighbouring States and that a large number of students have not been adjusted. According to the learned Counsel for the DCI and the Central Government, if directions are issued by the Court, they will take appropriate measures at the earliest.
In the light of the pleadings, the Court considers it appropriate to take a look into certain provisions of the Act and the Regulations. The entire genesis and the foundation of the controversy lies in Section 10A of the Dentists Act as amended in the year 1993. For facility, the said provision is extracted hereunder.
10A. Permission for establishment of new dental college, new courses of study etc. - (1) Notwithstanding anything contained in this Act or any other law for the time being in force,
(a) no person shall establish an authority or institution for a course of study or training (including a post-graduate course of study or training) which would enable a student of such course or training to qualify himself for the grant of recognized dental qualification; or
(b) no authority or institution conducting a course of study or training (including a post graduate course of study or training) for grant of recognized dental qualification shall -
(i) open a new or higher course of study or training (including a post-graduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognized dental qualification; or
(ii) increase its admission capacity in any course of study or training (including a post-graduate course of study or training).
except with the previous permission of the Central Government obtained in accordance with the provisions of this section.
Explanation 1- For the purposes of this section, "person" includes any University or a trust but does not include the Central Government.
Explanation 2- For the purposes of this section, "admission capacity", in relation to any course of study or training (including a post-graduate course of study or training) in an authority or institution granting recognized dental qualification, means the maximum number of students that may be fixed by the Council from time to time for being admitted to such course or training.
(2) (a) Every person, authority or institution granting recognized dental qualification shall, for the purpose of obtaining permission under Sub-section (1), submit to the Central Government a scheme in accordance with the provisions of Clause (b) and the Central Government shall refer the said scheme to the Council for its recommendations.
(b) The scheme referred to in Clause (a) shall be in such form and contain such particulars and be referred in such manner and be accompanied with such fee as may be prescribed.
(3) On receipt of a scheme by the Council under Sub-section (2), the Council may obtain such other particulars as may be considered necessary by it from the person, authority or institution concerned, granting recognized dental qualification and thereafter, it may.-
(a) if the scheme is defective and does not contain any necessary particulars, give a reasonable opportunity to the person, authority or institution concerned for making a written representation and it shall be open to such person, authority or institution to rectify the defects, if any, specified by the Council;
(b) consider the scheme, having regard to the factors referred to in Sub-section (7), and submit the scheme together with its recommendations thereon to the Central Government, (4) The Central Government may, after considering the scheme and the recommendations of the Council under Sub-clause (3) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person, authority or institution concerned, and having regard to the factors referred to in Sub-section (7), either approve (with such conditions, if any, as it may consider necessary) or disapprove the scheme and any such approval shall be a permission under Sub-section (1):
Provided that no scheme shall be disapproved by the Central Government except after giving the person, authority or institution concerned granting recognized dental qualification a reasonable opportunity of being heard:
Provided further that nothing in this Sub-section shall prevent any person, authority or institution whose scheme has not been approved to submit a fresh scheme and the provisions of this section shall apply to such scheme, as if such scheme has been submitted for the first time under Sub-section (2).
(5) Where within a period of one year from the date of submission of the scheme to the Central Government under Sub-section (2), no order passed by the Central Government has been communicated to the person, authority or institution submitting the scheme, such scheme shall be deemed to have been approved by the Central Government in the form in which it had been submitted, and accordingly, the permission of the Central Government required under Sub-section (1) shall also be deemed to have been granted.
(6) In computing the time-limit specified in Sub-section (5), the time taken by the person, authority or institution concerned submitting the scheme in furnishing any particulars called for by the Council or by the Central Government, shall be excluded.
(7) The Council, while making its recommendations under Clause (b) of Sub-section (3) and the Central Government, while passing an order either approving or disapproving the scheme under Sub-section (4), shall have due regard to the following factors, namely:
(a) whether the proposed authority or institution for grant of recognized dental qualification or the existing authority or institution seeking to open a new or higher course of study or training, would be in a position to offer the minimum standards of dental education in conformity with the requirements referred to in Section 16A and the regulations made under Sub-section (1) of Section 20;
(b) whether the person seeking to establish an authority or institution or the existing authority or institution seeking to open a new or higher course of study or training or to increase its admission capacity has adequate resources;
(c) whether necessary facilities in respect of staff, equipment, accommodation, training and other facilities to ensure proper functioning of the authority or institution or conducting the new course of study or training or accommodating the increased admission capacity have been provided or would be provided within the time-limit specified in the scheme;
(d) whether adequate hospital facilities, having regard to the number of students likely to attend such authority or institution or course of study or training or as a result of the increased admission capacity have been provided or would be provided within the time-limit specified in the scheme;
(e) whether any arrangement has been made or programme drawn to impart proper training to students likely to attend such authority or institution or course of study or training by persons having the recognized dental qualifications;
(f) the requirement of manpower in the field of practice of dentistry: and
(g) any other factors as may be prescribed.
(8) Where the Central Government passes an order either approving or disapproving a scheme under this section, a copy of the order shall be communicated to the person, authority or institution concerned.
Under this provision, the Central Government is required to grant the permission to a person or authority or institution to set up a Dental College after considering the recommendations given by the DCI. The said provision makes it apparently clear that no person, authority or institution could establish a Dental College except with the previous permission from the Central Government. Section 13 provides for recognition of a dental qualification. Section 2(j) defines dental qualification as a qualification which is included in the Schedule. A perusal of the Schedule indicates a list of colleges, which has been given recognition by the Central Government. Section 15 of the Act provides for inspections to be made by the DCI in a Dental College. Section 16A provides for withdrawal of recognition of dental qualification. Section 20 of the Act gives power to the DCI to make regulations after approval from the Central Government. Based on this provision, the Regulations of 2006 were framed. Regulation 5 provides that any person, who is eligible under the Regulation 6, may establish a Dental College after obtaining prior permission from the Central Government. The persons who are eligible to establish a Dental College has been specified in Regulation 6. Regulation 6(2)(e), which is being relied upon by the DCI, is extracted hereunder for brevity:
6 (2)(e) - an Essentiality Certificate in Form 4, as annexed, regarding No Objection of the State Government or Union territory administration for the establishment of the proposed dental college at the proposed site and availability of adequate clinical material as per the Council''s regulations have been obtained by the applicant from the concerned State Government or Union territory administration.
Relevant portion of Form 4 which is heavily relied upon by the DCI and the Central Government is quoted hereunder:
It is further certified that in case the applicant fails to create infrastructure for the dental college as per Dental Council of India norms and fresh admissions are stopped by the Dental Council of India, the State Government shall take over the responsibility of the students already admitted in the College with the permission of the Central Government.
Regulation 10 provides that the Central Government would grant permission to establish a Dental College in terms of Section 10A of the Act. Under Sub-clause (4) of Regulation 10, the permission would be granted for one year and would be renewed on a yearly basis subject to verification of the achievement of annual targets and revalidation of the performance bank guarantees. Regulation 11 provides for renewal of permission. For facility, the provisions of Regulations 10 and 11 are extracted hereunder:
Grant of Permission to establish a dental college:
(1) The Central Government may, after considering the application submitted under regulation 7 in terms of Section 10A of the Act and the recommendations of the Council thereon, issue a Letter of intent to grant permission to establish a dental college subject to such conditions or modifications in the original proposed as it considers necessary. The formal permission will be granted by the Central Government after the conditions stipulated and the modifications suggested are accepted by the applicant and a performance bank guarantee from a Scheduled commercial bank valid for the entire duration of the course in favour of the Council is furnished as follows:
50 admissions - Rs. 100 lakh
100 admissions - Rs. 200 lakh
(2) The provisions regarding performance bank guarantee will not apply to a dental college established by a State Government or a Union territory Administration provided that it gives an undertaking to provide funds in its Plan budget regularly till facilities are fully provided as per the time bound programme indicated by it.
(3) The formal permission will include conditions for fulfillment of a time-bound programme and achieving of annual targets commensurate with initial the intake of students for the establishment of a dental college.
(4) The permission under sub-regulation (1) to establish a new dental college will be granted for a period of one year and will be renewed on yearly basis subject to verification of the achievement of annual targets and revalidation, if necessary, of the performance bank guarantees.
Renewal of Permission:
(1) Admissions of the next batches shall not be made by the dental college unless the permission granted under regulation 10 has been renewed by the Central Government.
(2) The application for renewal of permission shall be submitted to the Council, with a copy to the Central Government, six months prior to the expiry of the current academic session. The recommendation of the Council in all cases of renewal shall be made by 15th June and the Central Government shall issue final orders regarding renewal of permission by 15th July of each year.
Provided that the process of renewal of permission will not be applicable after the completion of phased expansion of the infrastructure facilities and teaching faculty as per norms laid down by the Council and the first batch of students take the final year examination.
A perusal of Regulations 10 and 11 read with Sections 10A and 13 of the Act makes it clear that permission to set up a college is distinct and different from a recognized dental college as contemplated u/s 13 of the Act. A perusal of the aforesaid provisions would clearly indicate that the permission to set up a dental college is granted on a yearly basis, which would be renewed on a year to year basis subject to verification of the achievement of annual targets and requirements as contemplated under Sub-clause (7) of Section 10A of the Act. This would continue till the first batch of students graduate and obtain a degree and thereafter formal recognition of that college would be granted. Once such ''recognition or dental qualification'' is granted, the name of that college is then entered in Part I of the Schedule. Such recognition so granted can be withdrawn u/s 16A of the Act.
In the light of the aforesaid analysis, the Court is of the opinion that the submissions of the learned Counsel for the petitioner that the provision of Section 16A of the Act was not complied with, no opportunity of hearing was provided for and no notice was given before the issuance of the order of the Central Government dated 9th July, 2010, are not correct inasmuch as the said provision is not applicable whatsoever. The petitioner has not yet been recognized as per the provision of Section 13 of the Act and consequently, its withdrawal u/s 16A does not arise. Only permission to establish a college was granted u/s 10A, which has now been refused. As a result of such refusal, closure of the petitioner institution is automatic.
The provision of Section 10A of the Act read with Regulation 10 of the Regulations of 2006 gives a clear picture with regard to the procedure to be adopted by the DCI and by the Central Government with regard to the renewal of the permission to be granted under the Act. Sub-clause (3) of Section 10A of the Act provides an obligation upon the DCI to give its recommendation to the Central Government for the purpose of permission to be granted or not. Under Sub-clause (4), the Central Government, after considering the recommendation, and after obtaining such other information and particulars and after considering the factors referred in Sub-clause (7), would either approve or disapprove the permission. Sub-clause (7) contemplates various factors, which are required to be considered by the DCI while making recommendations.
In the light of this provision, the Court finds that the first inspection report dated 9th July, 2009 pointed out certain deficiencies in the teaching faculty and the infrastructural facility in the petitioner college. The Court further finds that the DCI, by its letter dated 5th June, 2009, has extracted the deficiencies pointed out by the Inspectors and recommended to the Central Government not to renew the permission for the third year course to the petitioner college. The Court finds that the DCI has not applied its own mind to the factors enumerated under Sub-clause (7) of Section 10A of the Act while making recommendations to the Central Government and has mechanically extracted the relevant portion of the inspection report without taking note of the objections pointed out by the petitioner in its compliance report and has mechanically forwarded it to the Central Government. No reasons has been given by the DCI in its letter as to why the permission should not be given for reduced seats, namely, for 50 seats as given to the petitioner college in the previous academic session. Nothing has been stated as to whether the existing teaching faculty in the petitioner college was sufficient to take the reduced seats for the third year. The Court is, consequently, of the opinion that the first recommendation sent by the DCI dated 5th June, 2009 does not contain any reasons. Mere extraction of the report of the Inspector is not substantial compliance of Sub-clause (7) of Section 10A of the Act.
In the light of the recommendations made by the DCI in its letter dated 5th June, 2009 and the deficiencies pointed out by this Court, the Central Government was justified in directing the DCI, by its letter dated 24th June, 2009, to get a fresh report of compliance from the petitioner college. Accordingly, a fresh inspection was made and the Inspector visited the college when it was closed for the summer vacation. A specific assertion has been made that the DCI knew that the college would be closed from 15th June, 2009 to 30th June, 2009, in spite of which, the Inspector made a surprise visit on 30th June, 2009 and found to his dismay that the college was closed.
There is no assertion in the counter affidavit of the DCI that the college was not closed for the summer vacation. The second inspection report was directed by the DCI to find out whether the deficiencies pointed out in the first inspection report had been removed and complied with by the petitioner college or not. The Inspectors, who made the visit on 30th June, 2009 and again on 2nd July, 2009, could not inspect the college as it was closed on both the dates. The DCI on that basis again made a recommendation to the Central Government by its letter dated 7th July, 2009 again extracting the report of the Inspector dated 2nd July, 2009 and no reasons were assigned by the DCI or by its Executive Council. There is nothing on record before the Court to indicate that the DCI or its Executive Council had applied its mind and gave its own reasons.
In the light of the parameters contemplated under Sub-clause (7) of Section 10A of the Act, the DCI did not take a decision that the petitioner college was deliberately avoiding inspection and had deliberately closed its college or the fact that the alibi made by the petitioner was an afterthought. In the light of the aforesaid, the Court is of the opinion that the recommendation made by the DCI again on 7th July, 2009, was mechanical and based on irrelevant considerations.
As a result of the recommendation made by the DCI by its letter dated 5th June, 2009 and 7th July, 2009, the consequential action taken by the Central Government by its letter dated 23rd July, 2009 refusing to accord permission to the petitioner college for the third year course for the academic session 2009-2010, becomes erroneous and is based on irrelevant consideration. Even assuming that the first inspection report and the second inspection report are correct, the Central Government has not applied its mind on the question as to whether the existing infrastructural and teaching facilities available was sufficient as per the norms of the DCI to take a reduced intake of 50 seats as given to the petitioner''s college in the previous academic session. The Central Government has not considered its own policy as per its letter dated 23rd March, 2007, namely, whether the petitioner college was eligible for 5% relaxation in its teaching facilities. In the light of the aforesaid, the Court is of the opinion that the Central Government committed an error in refusing to grant permission for the third year.
The academic session 2009-2010 is over. The clock cannot be turned back. The session cannot be revived and is lost forever. Since no action was taken by the DCI to adjust the students in other Dental Colleges, the students themselves had to take recourse to a legal action and filed Writ Petition No. 941 (M/S) of 2010, wherein a final order dated 12th July, 2010, was passed, in which specific directions were issued to accommodate the students in other recognized institutions. In another Writ Petition No. 2091 (M/S) of 2010, an interim order was issued on 10th December, 2010 permitting the students to pursue their studies in Seema Dental College. Yet another interim order was passed on 31st January, 2011 in another Writ Petition No. 187 (M/S) of 2011 allowing the petitioner''s college to allow its students to pursue their studies in the college itself, provided classes were being taken by the college. Based on this direction, the petitioner has filed an affidavit alleging that they are teaching some of the students in their college. On what basis, the petitioners are holding classes, is not known, but, under the garb of the interim order of 31st January, 2011, the petitioners are alleging that they are permitting the students to pursue their studies. The Court, while hearing the matter, had orally directed the counsel for the Central Government and the DCI to inspect and intimate the Court as to whether any students were pursuing their studies in the petitioner''s college or not, but such information had not been made available till the dictation of this judgment.
Be that as it may. The fact remains that the students for the academic year 2010-11 are required to be adjusted as per the order of the Central Government dated 9th July 2010. Some of the students are studying in Seema Dental College and Uttaranchal Dental College, which are located in the State of Uttarakhand. Some of the students have been adjusted in dental colleges in the neighbouring States. The fate of the remaining students are to be adjudicated as well as those students, who are studying in excess of the seats sanctioned by the DCI/Central Government for Seema Dental College and Uttaranchal Dental College.
The stand of the DCI and the Central Government is somewhat contradictory. The DCI states that the responsibility to adjust the students is upon the State Government inasmuch as the State Government has given a clear undertaking while issuing the Essentiality Certificate in Form 4 as per Regulation 6(2)(e) of the Regulations of 2006. The Central Government, on the other hand, has clearly stated that it would take action along with the DCI after identifying the vacant seats and then would shift the students in consultation with the State Government. A submission was made by the learned Counsel for the DCI that the DCI would act immediately pursuant to the directions issued by the Court. The State Government, on the other hand, has clearly stated that insofar as their responsibility is concerned, they had directed the two dental colleges located in the State of Uttarakhand to accommodate the students of the petitioner''s college and permit them to pursue their studies in their colleges pending formal approval being given by the DCI and the Central Government. The State Government has taken a specific stand that beyond that they cannot do anything neither could they direct the dental colleges of a neighbouring State to adjust the students of the petitioner college. The State Government has clearly stated that the DCI was solely responsible for the adjustment of the students.
In the light of the aforesaid, the Court finds that the DCI has adopted a casual approach and was callous and least bothered in the fate of the students of the petitioner''s college. Some of the students have been accommodated, but others have been left in the lurch and no effort whatsoever till date has been made by the DCI to adjust the students in another dental colleges. The responsibility is solely on the DCI. They alone are aware as to how many seats are vacant in a dental college. The State Government is not aware. The State Government at best could provide the number of vacancies in its own State, but cannot provide the information of the vacancies in a dental college which is outside their State. Such direction for adjustment could only be issued by the DCI in consultation with the Central Government and the respective State Governments. The responsibility under the Essentiality Certificate is upon the State Government but the necessary adjustment is required to be done by the DCI.
The Court finds that for the academic session 2010-11, an application was made by the petitioner''s college seeking directions of the Court to the DCI to make inspection and issue necessary recommendation u/s 10A of the Act for the renewal of the permission for intake of the students for the fourth year. The directions were given by the Court to the DCI to file an affidavit, in spite of which, no affidavit was filed. The learned Counsel for the DCI gave a statement that necessary inspection would be made. It has been brought on record that in spite of the necessary directions and letters written by the petitioner''s college to the DCI, no inspection was made and on the other hand, some recommendation dated 15th June, 2010 was sent, which has not been brought on record, on the basis of which, the impugned order dated 9th July, 2010 was passed by the Central Government not only refusing permission for the fourth year, but also directing closure of the institution and directing the DCI to adjust the students of the petitioner''s college in other dental colleges.
In the opinion of the Court, the order of 9th July 2010 is not only arbitrary but violative of the principles of natural justice. Neither the letter of 15th January, 2010 was intimated to the petitioner nor it has been brought on record. No effort was made by the learned Counsel to even point out this letter from the record, which has been brought before the Court. The Court is unaware of the reasons given therein, but one thing is apparently clear is that the basic principles of natural justice was not adhered to. Permission sought for the academic year 2010-11 was required to be given on the basis of the procedure contemplated u/s 10A read with Regulation 10 of the Regulations of 2006. A bare minimum inspection was required to be done in the college to ensure whether teaching and infrastructure facilities were in accordance with the norms provided by the DCI. In the absence of any inspection being done in spite of the directions of this Court, the order of the Central Government dated 9th July, 2010 refusing to grant permission was patently illegal, arbitrary and violative of Article 14 of the Constitution and is liable to be quashed.
In the light of the aforesaid, the Court issues the following directions:
(i) Writ petition No. 1341 of 2009 filed by Narayan Swami Hospital and Dental College is partly allowed and the writ petitions filed by the students, being writ petition Nos. 2221/2010, 2091/2010 and 187/2011 are disposed of. The recommendations given by the DCI to the Central Government by its letters of 5th June, 2009 and 7th July, 2009, being based on non-application of mind and non-consideration of the essential factors contemplated under Sub-clause (7) of Section 10A of the Act read with Regulation 10(4) of the Regulations of 2006, cannot be sustained and are quashed.
(ii) Consequently, the order of the Central Government dated 23rd July, 2009, being based on the recommendations of the DCI dated 5th June, 2009 and 7th July, 2009, is also quashed.
(iii) Since the academic year 2009-10 has already come to an end, the Court has already issued an order dated 12th July, 2010 in writ petition No. 941 of 2010 (M/S), consequently, no further directions are required to be issued.
(iv) The order of the Central Government dated 9th July 2010, being arbitrary and based on non-inspection of the petitioner''s college in utter violation of the directions of this Court, is also quashed.
In the light of the aforesaid, further direction is issued, namely,
(v) The DCI will make an inspection for the purpose of making its recommendation to the Central Government u/s 10A of the Act for the fourth year course in BDS for the academic session 2010-11.
(vi) Such inspection would be done on or before 31st May 2011 after giving due intimation to the petitioner''s college in writing. Upon such report being furnished and after giving an opportunity to the petitioner to remove the deficiencies, etc., the DCI would make the appropriate recommendation to the Central Government.
(vii) The Central Government would pass appropriate orders on or before 15th June, 2011 either according or refusing to grant permission for the academic year 2010-11.
(viii) If permission is granted to the petitioner''s college, necessary directions would be issued by the DCI within a week thereafter in consultation with the Central Government and the State Government issuing directions for adjustment of the excess students studying in Seema Dental College and Uttaranchal Dental College to be transferred back to the petitioner''s college or be allowed to be permitted to continue in those colleges where they are pursuing their studies or adjusting them in another college outside the State of Uttarakhand.
(ix) Necessary direction will also be issued within the same period by the DCI in consultation with the Central Government and the State Government for adjusting the students who are alleged to be studying in the petitioner''s college or have not been adjusted so far.
(x) The students of the petitioner''s college, who have been adjusted and are pursuing their studies in other dental colleges in Uttarakhand or in any college outside the State of Uttarakhand, will not be touched if they are studying within the permissible seats sanctioned in those colleges.
(xi) Since no argument was raised by any of the parties with regard to payment of fees or refund and even though a prayer was made in some of the writ petitions, this Court is not dwelling on that matter.
Certified copy of the order shall be made available to the learned Counsel for the parties on payment of usual charges within ten days.