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Judgment
S. Nagamuthu, J.—Challenge in these Writ Petitions is to the Constitutional validity of a clause in the ""Dental Council of India Revised
B.D.S. Course Regulations, 2007"", prescribing three years upper time limit for a student to successfully complete the I Year B.D.S., University
examination, from the date of admission in the course. The Petitioners in all these Writ Petitions joined the Bachelor''s Degree in Dental Science
(B.D.S.,) course during the academic year 2009-2010 in the 5th Respondent College which is affiliated to ""The Tamil Nadu Dr. M.G.R. Medical
University"". The said course is governed by ""Dental Council of India Revised B.D.S. Course Regulations, 2007"" which has been issued by the
Dental Council of India with the previous sanction of the Central Government in exercise of the power conferred u/s 20 of the Dentists Act.
As per the impugned clause in the scheme, any student, who does not clear the I Year B.D.S. University examination in all the subjects within
three years from the date of admission shall be discharged from the course. For better understanding, let us now reproduce the said clause which
reads as follows:
Scheme of Examination:
The scheme of examination for B.D.S. Course shall be divided into 1st B.D.S. examination at the end of the first academic year, 2nd B.D.S.
examination at the end of the second year, 3rd B.D.S. examination at the end of the third, 4th B.D.S. at the end of 4th and final B.D.S. at the end
of the 5th year. 240 days minimum teaching in each academic year is mandatory.
The examination shall be open to a candidate who satisfies the requirements of attendance, progress and other Rules laid down by the University.
(i) University shall organize admission timings and admission process in such a way that teaching starts from 1st day of August in each academic
year.
I B.D.S. Examination:
General anatomy including embryology and histology.
General human physiology and biochemistry.
Dental Anatomy, Embryology and Oral Histology.
Any student, who does not clear the first B.D.S. University Examination in all subjects within 3 years from the date of admission, shall be
discharged from the Course.
Any candidate, who fails in the subject in an examination is permitted to go to the next higher class and appear for the subject and complete it
successfully before he is permitted to appear for the next higher examination.
II B.D.S. Examination:
A candidate who has not successfully completed the 1st B.D.S. examination can not appear in the IInd year Examination.
General Pathology and Microbiology.
General and Dental Pharmacology and Therapeutics.
Dental Materials.
Pre Clinical conservative - Only Practical and Viva Voce.
The Clinical Prosthodontics - Only Practical and Viva Voce.
(emphasis supplied - clause under challenge)
[The scheme of examination for 3rd, 4th and 5th years are not reproduced as it is unnecessary for the purpose of these cases.]
Admittedly, the Petitioners have not cleared all subjects in the I-Year University examination, within three years from the respective date of their
admission. Therefore, the Controller of Examinations, Tamil Nadu Dr. M.G.R. Medical University, instructed the 5th Respondent to discharge the
Petitioners from the course in accordance with the above Regulation. In pursuance of the same, the 5th Respondent has discharged the Petitioners
from the course. Aggrieved over the same, the Petitioners have come up with these Writ Petitions challenging the Constitutional validity of the
above said clause in the Regulations.
The Petitioners have raised the following grounds:
(a) The impugned clause in the Regulations is void for want of effective consultation with the State Governments including the Government of Tamil
Nadu as required u/s 20(2) of the Dentists Act, 1948 (hereinafter referred as ""the Act"").
(b) The impugned Clause in the Regulation is manifestly arbitrary and unreasonable.
(c) There is no nexus between the impugned Clause and the object sought to be achieved, i.e., to maintain the standard of Dental Education.
In the Counter filed by the Dental Council of India, it is stated as follows:
(a) As per Section 20 of the Dentists Act, the Dental Council of India has got power and authority to frame Regulations and thus, the authority of
the Dental Council of India cannot be doubted.
(b) Before bringing into force the instant Regulations, the Dental Council of India, as required u/s 20 of the Act, had effective consultation with the
State Governments and thus, the contention of the Petitioners that there was no effective consultation is factually incorrect.
(c) The impugned Clause, prescribing an upper time limit of three years for clearing the First Year University examinations, is only with a view to
maintain the standard of Dental Education. Thus, the contention of the petitioners that there is no nexus between the impugned Clause and the
object sought to be achieved is incorrect.
The learned amicus curiae, Mr. Isaac Mohanlal, would submit that undoubtedly, under the Dentists Act, the Dental Council of India has got
power to issue any Regulation to regulate the standard of Dental education. He would further submit that similar power of the Council under the
Mysore University Act was doubted as early as in the year 1965 before the Hon''ble Supreme Court in University of Mysore Vs. Gopal Gowda
and Another, , wherein the Hon''ble Supreme Court has cleared the doubt by holding that the Academic Council of India under the said Act has
got power to regulate the standard of education. The learned amicus curiae would further bring to my notice that in the said Judgment, the Hon''ble
Supreme Court has categorically held that the Academic Council is competent to make Regulations and to refuse to grant a degree or diploma, or
other academic distinction to students, who fail at the final examination and to direct that a student, who is proved not to have the ability or the
aptitude to complete the course within a reasonable time to discontinue the course. This is in tune with the object of maintaining the standards of
education.
Mr. Isaac Mohanlal, would further submit that as has been held by the Hon''ble Supreme Court, of-course, there can be no doubt that the
Dental Council of India has got power to prescribe an upper time limit for the students to complete the First Year course, however, fixation of any
such upper time limit should satisfy the Test of Reasonableness. He would submit that as per the Judgment of the Hon''ble Supreme Court in Indian
Express Newspapers (Bombay) Private Ltd. and Others Vs. Union of India and Others, , a piece of subordinate legislation does not carry the
same degree of immunity, which is enjoyed by a statute passed by a competent Legislature. In the said Judgment, it has been held that the
subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. One of the grounds to question such a
subordinate legislation is unreasonableness of the subordinate legislation; unreasonable in the sense of not being reasonable, but in the sense that it
is manifestly arbitrary. In Paragraph No. 77 of the said Judgment, the Hon''ble Supreme Court has further held that in India, arbitrariness is not a
separate ground, since it will come within the embargo of Article 14 of the Constitution. It has also been held by the Hon''ble Supreme Court that
in India any enquiry into the vires of a delegated legislation must be confined to the grounds on which plenary legislation may be questioned, such
as, it is contrary to the statute under which it is made, that it is contrary to other statutory provisions or that it is so arbitrary that it could not be said
to be in conformity with the statute or that it offends Article 14 of the Constitution.
Relying on the law laid down by the Hon''ble Supreme Court in said case, the learned amicus curiae would submit that the impugned Clause in
the Dental Council Regulations is to be primarily tested as to whether it is manifestly arbitrary. If it is found that the said piece of subordinate
legislation is manifestly arbitrary, then on the ground of violation of Article 14 of the Constitution of India, it is liable to be struck down. In this case,
according to him, the impugned Clause in the Dental Council Regulation is manifestly arbitrary. In Order to substantiate the said contention, he
would submit that there is no uniformity among various Universities in this country in conducting the examinations for B.D.S. course. He would
point out that some Universities conduct Semester courses, some Universities conduct annual examinations and some universities conduct even
supplementary examinations. Since there is no uniformity among various Universities in this country regarding the pattern of the examinations, the
impugned Clause, which prescribes upper time limit of three years instead of number of attempts, should be held to be discriminatory and thus, it is
arbitrary.
So far as the consultation process is concerned, the learned amicus curiae would submit that such consultation with the State Governments is
mandatory and absence of such consultation will vitiate the entire subordinate legislation. For this purpose, the learned Counsel has relied on the
Constitution Bench Judgment of the Hon''ble Supreme Court in Naraindas Indurkhya Vs. The State of Madhya Pradesh and Others, . In the case
on hand, though it is the case of the Dental Council of India that all the State Governments were consulted, the learned Counsel for the Petitioner
would submit that factually there was no effective consultation with the State Governments. The learned amicus curiae would point out that there
was no actual consultation with the Government of Tamil Nadu, but there was only a consultation with the Tamil Nadu Dr. M.G.R. Medical
University, Chennai. Thus, according to the learned Counsel, the impugned Clause in the Regulation is liable to be struck down for want of such
mandatory consultation.
Nextly, the learned Amicus Curiae would submit that the impugned Clause in the Regulation does not reflect any nexus towards the object
sought to be achieved as this Clause will not advance the maintenance of standards of education.
The learned Counsel Mr. T. Lajapathi Roy, in order to substantiate his contention that the impugned Clause is arbitrary and the same offends
Article 14 of the Constitution of India, would make reliance on a Division Bench Judgment of the Bombay High Court, in Padmanabh Ratnakar
Muley, Amol Subhash Shingne and Pathan Shaukat Subhan Vs. The State of Maharashtra and Others, . That was a case which arose under the
Indian Medicine Central Council Act, 1970, relating to Bachelor of Ayurvedic Medicine and Surgery course (BAMS). The learned Counsel
pointed out that as per the said Act, Central Council of Indian Medicine is empowered to issue any Regulation, including a Regulation to maintain
the minimum standards of the said education. He would further point out that the Health University, to which the course is affiliated, issued a
Notification dated 7.5.2004, prescribing a time limit or the period for passing the first professional examination. The Bombay High Court found
that the Council had not prescribed any such limit, regarding the number of attempts for a student to pass the University Examinations; whereas, the
Health University, namely the affiliating body, had prescribed such a number of attempts for passing the examinations. The Division Bench also
found that first of all the Health University had no power to prescribe such a time limit and secondly, the same is arbitrary, offending Article 14 of
the Constitution of India.
Placing reliance on the said Judgment, the learned Counsel Mr. T. Lajapathi Roy would submit that the Clause impugned in these Writ
Petitions also would not accomplish the object so as to enhance the quality of dental education and the same is, thus, highly arbitrary, causing
violence to equality assured under Article 14 of the Constitution of India.
The learned Assistant Solicitor General of India, on the contrary, would submit that under the Dental Council of India Act, it is the
responsibility of the Dental Council to maintain higher standard of Dental education and for the said purpose, u/s 20 of the Dental Council of India
Act, the said Council has got power to issue Regulation. He would place reliance on the judgment of the Hon''ble Supreme Court in the State of
Kerala Vs. Kumari T.P. Roshana and Another, . That was a case which had arisen under the Indian Medical Council Act, 1956. While dealing
with the power of the Indian Medical Council, constituted under the said Act, which is analogous to the Dental Council, constituted under the
Dentists Act, in Paragraph 16, the Hon''ble Supreme Court has held as follows:
The Indian Medical Council Act, 1956 has constituted the Medical Council of India as an expert body to control the minimum standards of
medical education and to regulate their observance. Obviously, this high-powered Council has power to prescribe the minimum standards of
Medical education. It has implicit power to supervise the qualifications or eligibility standards for admission into Medical Institutions. Thus, there is
an overall invigilation by the Medical Council to prevent sub-standard entrance qualifications for Medical course.
Referring to the above Judgment, the learned Assistant Solicitor General would submit that the impugned Regulation has been issued aptly by
the Dental Council of India only to enhance the quality of Dental education in the country and the same cannot be stated, at any stretch of
imagination, as without jurisdiction.
Nextly, the learned Assistant Solicitor General would contend that before bringing into force the said Regulation, there was an effective
consultation made by the Council with the State Governments. In support of the said contention, he would refer to a Letter from the Under-
Secretary to Government of India, Ministry of Health and Family Welfare, dated 12.1.2007, addressed to the Secretary, Dental Council of India,
wherein the Secretary to Central Government has stated that the following Authorities had responded with their comments in the matter i.e. the
proposed Regulation. They are:
(i) Government of Haryana;
(ii) The Tamil Nadu Dr. M.G.R. Medical University, Chennai;
(iii) Government Medical College Hospital, Chandigarh;
(iv) Rajiv Gandhi University of Health Sciences, Karnataka.
Thus, according to the learned Assistant Solicitor General, there was effective consultation and thus Section 20 stands satisfied.
The learned Assistant Solicitor General would further submit that at any rate, the power of judicial review of this Court under Article 226 of the
Constitution of India, in respect of matters relating to standard of education, scheme of examination, etc. is very limited. According to him, the
Dental Council of India, being an expert body, has been fully empowered by the Parliament to issue Regulation regarding the standard of education
and the said Regulation issued by the Dental Council of India cannot be struck down, unless it is shown that the said Regulation is palpably
arbitrary or offending any other provisions of the Constitution of India. For this proposition, he would rely on the Judgments of the Hon''ble
Supreme Court in, (a) Medical Council of India Vs. Sarang and Others, ; (b) Visveswaraya Technological University and Another Vs. Krishnendu
Halder and Others, ; and (c) National Board of Examinations Vs. G. Anand Ramamurthy and Others, .
Referring to the law laid down in the above Judgments, the learned Assistant Solicitor General would submit that in the case on hand, the
Petitioners have not at all demonstrated that the impugned Regulation is, in any manner, arbitrary. He would further submit that a student, who is
incapable of clearing the First Year University examinations within three years from the date of admission to the course, is certainly unfit to continue
to do the course, as his standard is not upto the standard expected of from a dentist. Thus, according to him, the impugned Clause is not at all
arbitrary.
The Registrar of the Tamil Nadu Dr. M.G.R. Medical University has filed a separate Counter, in which, inter alia, he has stated that the
University is the highest authority to decide the academic issues. It is further stated that based on the impugned Regulation issued by the Dental
Council of India, this University had placed an agenda regarding ""carry over of failed subjects"" in ""Medical, Dental, AYUSH and Allied Health
Science Degree course"", before the 44th Standing Academic Board held on 15.6.2012. In the said meeting, it was resolved to follow the existing
Regulations of the Dental Council of India. Accordingly it was resolved as follows:
(a) A candidate is permitted to carry over only one subject of the I Year B.D.S. Degree examination to the II Year B.D.S. Degree course, but
shall pass all the subjects of the I Year and II year B.D.S. Degree examinations before admission to the III B.D.S. Degree course.
(b) A candidate is permitted to carry over only one subject of the III Year B.D.S. Degree examinations to the IV Year B.D.S. Degree course, but
should pass III B.D.S. subjects before appearing for IV B.D.S. subjects.
(c) Any candidate, who fails in one subject in an examination is permitted to go to the next higher class and attend the classes and complete it
successfully before he is permitted to appear for the next higher examination.
(d) A candidate, who has not successfully completed the I Year B.D.S. examination cannot appear in the II Year examination.
(e) A candidate who has successfully completed the II Year B.D.S. examination can appear III Year B.D.S. examination.
It is, in tune with the above decision of the Tamil Nadu Dr. M.G.R. Medical University and the Dental Council of India Regulations, the Petitioners
were discharged, since they had not completed their First Year B.D.S. course, within three years from the date of their admission.
I have considered the above submissions.
The physicians, dentists and other Medical professionals are trusted by the people as saviors at critical moments, when someone''s health is
deteriorating and causing threat to his life. At that crucial moment, the people see the God almighty in the shape of a Doctor. When so much of
trust is reposed on these professionals, it is, undoubtedly, necessary that the professional standards of these professionals should be of high quality.
It is, with this view, the Parliament has enacted several enactments, like Indian Medical Council Act, The Dentists Act, Indian Medicine Central
Council Act, etc., to regulate the said Medical education and the professional standards of these professionals. With these objects, the Dentists
Act has been brought into the statute book. As per the said Act, it is the Dental Council of India, which is the supreme body, which has been given
enormous powers to regulate admission of students, prescribing qualifications, scheme of examinations, registration of dentists, professional
conduct and so on so forth.
Section 20 of the Act empowers the Dental Council to issue Regulations to carryout the purpose of the Act, which reads as follows:
20.(1) The Council may, with the approval of the Central Government, by Notification in the Official Gazette make Regulations not inconsistent
with the provisions of the Act to carry out the purposes of this Chapter.
(2) In particular and without prejudice to the generality of the foregoing power such Regulations may--
(a) to (f) ................ (not necessary)
(g) prescribe the standard auricular for the training of dentists and dental hygienists, and the conditions for admission to courses of such training;
(h) prescribe the standards of examinations and other requirements to be satisfied to secure for qualifications recognition under this Act;
(i) any other matter which is to be or may be prescribed under this Act:
Provided that Regulations under Clauses (g) & (h) shall be made after consultation with State Governments.
(3) ......
(4) .......
(emphasis supplied)
A close reading of the above provision would make it abundantly clear that the Dental Council has been empowered to issue Regulations,
prescribing the standards of examinations and other requirements to be satisfied to secure qualifications for recognition under the Act. But, before
issuing any such Regulation, falling within Section 20(2)(g) & (h) of the Act, there shall be consultation with the State Governments. In this case,
one of the contentions of the Petitioners is that there was no such consultation with the Statement Governments with reference to the above
impugned clause, which falls within the ambit of Section 20(2)(h) of the Act. But, to meet the above challenge, the learned Assistant Solicitor
General has relied on a letter from the Officiating Secretary, Dental Council of India, in No. DE-124(2094)-2013/10131, dated 28.10.2013,
wherein the Officiating Secretary has stated that the Dental Council of India had circulated the draft revised B.D.S. Course Regulation to all the
Health Secretaries of the State Governments and to the Registrars of all the Medical Universities and requested them to furnish their Clause-wise
comments within 30 days to facilitate the Government of India to finalise the Regulations so as to enable them to notify the same well before the
commencement of the academic year 2007-2008. The learned Assistant Solicitor General has produced copies of such letters dated 6.10.2006 &
1.12.2006. He would further submit that the Government of India had received responses only from the Government of Haryana, The Tamil Nadu
Dr. M.G.R. Medical University, Chennai, Government Medical College Hospital, Chandigarh and Rajiv Gandhi University of Health Sciences,
Karnataka. It is further stated that after considering the above comments, the Dental Council finalised the draft Regulations, 2007 and forwarded
the same to the Government of India, which, in turn, accepted the same and published it in the Official Gazette, dated 10.9.2007. It is also stated
that the same was tabled before both the Houses of Parliament.
From the very admission made by the learned Solicitor General, based on the above letter of the officiating Secretary of Dental Council of
India, it is crystal clear that except the Government of Haryana, no other State Government was effectively consulted. Tamil Nadu Dr. M.G.R.
University, Chennai, Government Medical College Hospital, Chandigarh and Rajiv Gandhi University of Health Sciences, Karnataka, are not at all
the bodies, who are to be consulted, as per Section 20 of the Act. Therefore, the views expressed by them in response to the proposed Revised
Regulation were all irrelevant. Thus, there was consultation only with the Government of Haryana and there was no such consultation with any
other State Governments, as required to be had u/s 20 of the Act, before bringing into force the above Revised Regulation, 2007.
In this regard, the learned Counsel for the Petitioners would rely on the information furnished by the Dental Council of India under the Right to
Information Act, under Letter No. DE-109-2013/6775, dated 21.8.2013, for the queries raised by the learned Counsel for the Petitioner. The
queries are:
(i) Whether the provisions of Section 20(2)(g) & (h) of the Dentists Act were complied with, before the Revised B.D.S. Course Regulations, 2007
was brought into existence and if so, the details, along with copies of documents, may be furnished.
(ii) Whether the opinion of the State Governments, in particular the opinion of the Government of Tamil Nadu, was obtained under Proviso to
Section 20(2)(g) & (h) of the Act, before the Regulation was notified. If so, copies of documents be furnished.
(iii) If the Government of Tamil Nadu was consulted, the date on which the State of Tamil Nadu furnished its opinion may be given.
For the above queries, the reply given by the Dental Council of India reads as follows:
That a diligent search have made (sic) by the office of the Dental Council of India to trace the records if any information available available as
sought by you, but search yielded no result to unearth the information, therefore, we are not in a position to furnish the same. Moreover, every
possible effort is being made to trace the relevant records.
It is not as though the Regulations were issued several decades before, so as to accept the explanation that original files are presently found
missing at the office of the Dental Council of India. These Regulations came into being very recently, only in the year 2007. It is surprising that the
Dental Council of India has stated in the above letter that the records could not be traced. But, it is not known as to how in the absence of the file,
in the letter of the Secretary to the Dental Council of India, referred to above, it could be stated that Letters were sent to all the State Governments
seeking their comments. From this, I have reasons to conclude that there was no effective consultation with all the State Governments which ought
to have been mandatorily done u/s 20 of the Act.
It needs to be noted that Section 20 of the Dentists Act delegates power to the Dental Council of India to make Regulations, in general, to
carryout the purpose of the Act and in particular to make Regulations in respect of the topics enumerated therein. A close reading of sub-section
(2) of Section 20 of the Act would show that only in respect of the subjects enumerated in Clauses (g) & (h) of sub-section (2) of Section 20 of
the Act, for making any Regulation, the Dental Council of India is required to have consultation with the State Governments. The very fact that the
legislature has not made it either imperative or discretionary for the Dental Council to have consultation with the State Governments in general and
in respect of the subjects other than the subjects dealt with in Clauses (g) & (h) of sub-section (2) of Section 20 of the Act, would indicate that
such consultation, as required in respect of the subjects dealt with in Clauses (g) & (h) of sub-section (2) of Section 20 of the Act, is imperative.
Undoubtedly, the subjects dealt with in these provisions are very vital for the society. Any Regulation on these subjects will certainly have greater
impact on the Dental professionals and eventually on the society. There can be no compromise in the quality and standard of Dental Education and
the Dentists. Keeping in view these in mind, the Parliament, in its wisdom, thought it fit to make it necessary for the Dental Council to have
consultation with the State Governments in respect of the subjects dealt with in Clauses (g) & (h) of Section 20(2) of the Act. Therefore, I have no
hesitation to hold that ''consultation'', as envisaged in these provisions is mandatory.
Now, what do we mean by the term ""consultation"" as envisaged in Section 30 of the Act? This question has been examined by the Hon''ble
Supreme Court in the context of several enactments. The term ""consultation"" may mean differently in different situations depending on the nature
and purport of the statutes [vide N. Kannadasan Vs. Ajoy Khose and Others, . In the said Judgment the Hon''ble Supreme Court has held that
with regard to appointment of the president of the State Commission under ""The Consumer Protection Act"" the term ""consultation"" shall mean
concurrence"". But, so far as the term ""consultation"" as referred to in Section 20 of the Dentists Act, it cannot be interpreted to mean
concurrence"". At the same time, there can be no second opinion that the consultation as contemplated in Section 20 of the Act is mandatory as
the same serves a salutary purpose. Such consultation must be real and meaningful. In Indian Administrative Service (S.C.S.) Association, U.P.
and Others Vs. Union of India (UOI) and Others, , the Hon''ble Supreme Court had an occasion to survey many of its earlier Judgments relating to
the term ""Consultation"" as required under various statutes. Finally, while interpreting the term ""Consultation"", the Hon''ble Supreme Court had to
say thus:
Consultation is a process, which requires meeting of minds between the parties involved in the process of consultation on the material facts and
points involved to evolve a correct or at lest satisfactory solution. There should be meting of minds between the proposer and the persons to be
consulted on the subject of consultation. There must be definite facts which constitute the foundation and source for final decision. The object of
the consultation is to render consultation meaningful to serve the intended purpose. Prior consultation in that behalf is mandatory.
The above judgment has been followed subsequently by the Hon''ble Supreme Court in Gauhati High Court and Another Vs. Kuladhar
Phukan and Another, . That was a case relating to appointment of Deputy Secretary in Assam Legal Services Grade-III. In that matter, there is a
Constitutional requirement of consultation with the High Court, mandatorily. While interpreting the said word ""consultation"", the Hon''ble Supreme
Court has held as follows:
Merely because the State Government sent a copy of its Notifications to the High Court, the requirement of consultation cannot be said to have
been satisfied. An invalidity caused by failure to comply with mandatory Constitutional requirement, such as of consultation, cannot be cured by
sheer inaction on the part of one or both of the functionaries between whom was to be fulfilled or by mere lapse of time.
As has been held by the Hon''ble Supreme Court in the above Judgments, mere information or sending copy of Notification to the party to be
consulted, does not amount to consultation. Similarly, inaction or absence of response of such party on being informed or passage of time will not
cure the initial inadequacy in consultation. Applying the above principles enunciated in the Judgments cited supra, if we look into the facts of the
present case, though it is stated that Draft Regulation was sent to all State Governments, except one State Government, other State Governments
did not send their response. The failure of the State Governments to send their responses or mere passage of time will not cure the inadequacy in
consultation. Consultation, as has been held by the Hon''ble Supreme Court, should be meaningful, inasmuch as there should have been meeting of
minds between the Dental Council of India and the State Governments. There was no such meeting either held. There was no discussion of the
subject between the Dental Council of India and the State Governments. Mere sending of the Draft Regulation would not satisfy the legal
requirements. Thus, I hold that in the instant case, ''consultation'', as required under sub-section (2) of Section 20 of the Act, in respect of the
subjects enumerated in Clauses (g) & (h) of sub-section (2) of Section 20 of the Act, has not been scrupulously adhered to. This, in my considered
view, vitiates the impugned clause.
Now, let us examine as to what is the effect of the so called consultation that the Dental Council of India had with authorities like Tamil Nadu
Dr. M.G.R. Medical University, etc., In Chandra Mohan Vs. State of Uttar Pradesh and Others, , the Hon''ble Supreme Court had to consider as
to whether the consultation of the agencies other than those, which are required to be consulted would vitiate the consultation process. The
Hon''ble Supreme Court, in Para 7 of the Judgment, while dealing with the consultation which the Governor had to have with the High Court in the
matter of appointment of District Judges, has held as follows:
........ Therefore, a duty is enjoined on the Governor to make the appointment in consultation with a body which is the appropriate authority to
give advice to him. This mandate can be disobeyed by the Governor in two ways, namely, (i) by not consulting the High Court at all, and (ii) by
consulting the High Court and also other persons. In one case he directly infringes the mandate of the Constitution and in the other he indirectly
does so, for his mind may be influenced by other persons not entitled to advise him.
Thus, if the agencies which are not enumerated in the statute have been consulted, certainly, the inputs of such consultation would have influenced
the mind of the decision making authority. This will be contrary to the consultation, which is required to be made with the specified authorities
under the Act.
Applying the principle laid down in the above Judgment to the facts of this case, admittedly, instead of the State Governments, the Dental
Council of India had consulted the Tamil Nadu Dr. M.G.R. Medical University, Chennai, Government Medical College Hospital, Chandigarh and
Rajiv Gandhi University of Health Sciences, Karnataka. These institutions ought not to have been consulted. Further, the inputs given by these
institutions would have certainly influenced the mind of the decision making authorities in the Dental Council of India. This action, as per the law laid
down by the Hon''ble Supreme Court in the above Judgment also vitiates the impugned Clause.
In Narayanan Sankaran Mooss Vs. The State of Kerala and Another, , referred to by Mr. Isaac Mohanlal, while dealing with a similar
situation, the Hon''ble Supreme Court has held that the breach of this condition precedent should also entail the same consequence as the breach of
other conditions. It is precisely stated as follows:
Having regard to the object and context, we are of the view that the condition of consulting the Board is mandatory and the breach of this
condition will make the order of revocation void. We have already held that the Board was not consulted after the explanation was received.
Accordingly, we are of the opinion that the order is void. The consequential order of acquisition will ipso facto fall down.
A Constitution Bench of the Hon''ble Supreme Court in Naraindas Indurkhya Vs. The State of Madhya Pradesh and Others, , in Paragraph
No. 16 has held as follows:
It is settled that where the validity of an order depends on the fulfillment of a condition precedent and there is a recital in the order that the
condition precedent is satisfied, the presumption arises in favour of the satisfaction of the condition precedent and the burden lies on the person
challenging the satisfaction of the condition precedent to prove that in fact the condition precedent was not satisfied.
It is further stated in the same paragraph as follows:
The Proviso clearly lays down a condition for the exercise of the power and unless this condition is satisfied the power cannot be exercised by the
State Government. Any attempted exercise of the power without complying with this condition would be null and void.
As has been held by the Hon''ble Supreme Court in the above Judgments, as per the well settled principles of law on the question of
''consultation'', I hold that in the instant case, before bringing into force the impugned Clause, there was no effective and meaningful consultation
with the State Governments, as required under sub-section (2) of Section 20 of the Act. For this reason, I have to hold that the impugned Clause is
liable to be struck down.
Now, let us move on to the challenge made on the ground of arbitrariness. In this regard, I wish to state that any subordinate legislation or even
a statue, if found to be manifestly arbitrary or unreasonable, the same cannot withstand the scrutiny under Article 14 of the Constitution of India
and the same would be liable to be struck down. When it is complained to this Court that there is infringement of the rights guaranteed under
Article 14 of the Constitution of India, being a Constitutional functionary, vested with the power of Judicial Review under Article 226 of the
Constitution, it is obligatory for this Court to meticulously examine the same.
In this background, let us now have a quick look into the Judgment of the Hon''ble Supreme Court of India in Indian Express Newspapers
(Bombay) Private Ltd. and Others Vs. Union of India and Others, In Paragraph No. 75 of the said Judgment, the Hon''ble Supreme Court has
held as follows:
A piece of subordinate legislation does not carry the same degree of immunity, which is enjoyed by a statute passed by a competent legislature.
Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned
on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some
other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is
unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary.
Again, in Paragraph No. 77, the Hon''ble Supreme Court has held as follows:
In India arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. In India any enquiry into the
vires of delegated legislation must be confined to the grounds on which plenary legislation may be questioned, to the ground that it is contrary to the
statute under which it is made, to the ground that it is contrary to other statutory provisions or that it is so arbitrary that it could not be said to be in
conformity with the statute or that it offends Article 14 of the Constitution.
The above Judgment is, consistently followed, with approval, in a number of subsequent Judgments. Thus, the law has been well crystallized
with respect to the question of arbitrariness. As has been held by the Hon''ble Supreme Court, a subordinate legislation can be questioned on the
ground that it is unreasonable; unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. Any legislation,
which does not provide for level playing field, will render it arbitrary thereby offending Article 14 of the Constitution of India.
In the case on hand, the impugned clause in the Regulation does not speak of number of maximum attempts within which the students doing
B.D.S. course should clear-off the First Year B.D.S. examinations. Instead, it speaks of three years from the date of admission. One could
understand, if all the Universities throughout the Country are maintaining the same pattern of examinations, then there may not be any doubt in
accepting that the impugned Regulation is not discriminatory. But, admittedly, the Universities in this country do not follow uniform pattern of
examinations. For example, so far as the Tamil Nadu Dr. M.G.R. Medical University is concerned, as I have extracted above, as stated in the
Counter, it follows a kind of pattern of examination, in which a student, who does not clear the First Year course will not be permitted to go to the
Second Year course. The examinations are conducted annually. There are also supplementary examinations conducted in between. Some
Universities do not conduct such supplementary examinations and they conduct only annual examinations. Some Universities conduct examination
on the Semester pattern in which case, there shall be two examinations in a year. Thus, when the Universities are not uniformly following one and
the same pattern of the examinations and when the Universities are not uniformly following the pattern of allowing the students to move to the next
year course, in my considered opinion, the Regulation, prescribing an upper time limit of three years for the students to clear off the first year
examination, is highly discriminatory.
To illustrate, a student, who undergoes the course affiliated to a University, which conducts Supplementary examinations, has got more number
of chances to clear off the First Year examination within three years from the date of admission. A student, who undergoes the course affiliated to a
University, which conducts only annual examination, will have only two more chances to complete the First Year course. In some Universities, this
Court is informed, the First Year course spreads to 1-1/2 years. In those cases, the students will get only a minimum number of opportunities to
clear off the examinations of the First Year course. Thus, in the matter of number of attempts for students, who are undergoing the course under
various Universities, there is no uniformity. Some students are in advantageous position and some are not, though the Universities are governed by
one and the same Regulation. Thus, the impugned Clause, which prescribes an upper time limit of three years for clearing the First Year B.D.S.
course, is highly arbitrary, as the same had not taken into account the above different patterns of examinations.
Instead of prescribing an upper time of three years from the date of admission, if the impugned Regulation provides for maximum number of
attempts as criteria, then, it may not be stated as discriminatory, among the students studying in various universities. In such an event, it may not be
possible to contend that such a subordinate legislation is arbitrary. In this case, because there is no uniformity among various universities in the
pattern of examinations, but the impugned Regulation is one and the same for all the Universities and because under the impugned Regulation, some
students are in better advantageous position and some are not, I hold that the impugned Regulation is manifestly arbitrary. In a given case, suppose
a candidate doing First Year M.B.B.S. course falls sick for three years and is unable to write any examination, can it be said that he is not
meritorious to continue the course thereafter simply because he has not passed the First Year examination within three years from the date of
admission. Thus, applying the test of Indian Express Newspaper case, I have no hesitation to hold that the impugned Clause prescribing three
years as upper time limit for a student to clear off the First Year examination is liable to be struck down.
Now, let us consider the judgment of the Division Bench of Bombay High Court in Padmanabh Ratnakar Muley, Amol Subhash Shingne and
Pathan Shaukat Subhan Vs. The State of Maharashtra and Others, . I do not think that the said Judgment has got much relevance to the issues
involved in our case. However, since reliance has been made by the learned Counsel for the Petitioners, let us have a look into that Judgment also.
As I have already pointed out, that case arose out of the Indian Medicine Central Council Act, 1970. Under the said Act, a Council known as
Central Council of Indian Medicine (CCIM), has been constituted. The said Council has got power to issue any Regulation prescribing minimum
standards of education in Indian Medicine. The said Council had earlier issued Indian Medicine Central Council (Minimum Standards of Education
in Indian Medicine) Regulations, 1986, wherein, Clause 8(1)(i) prescribes three attempts for passing the First Year BAMS Course. Clause 8.1(v)
specifies that those candidates, who failed in their three attempts, would not be allowed to continue with their studies. Based on the above
Regulation, the Health University had issued a Notification, dated 27.4.2004, limiting the number of attempts. Subsequently, the Central Council of
Indian Medicine amended its Regulations vide Indian Medicine Central Council (Minimum Standards of Education in Indian Medicine)
(amendment) Regulations, 2012, by which Clause 8.1 of the earlier Regulation was replaced by Clause 6.1 and with the said introduction of
Clause 6.1 the limit on the number of attempts was totally done away with, in relation to BAMS course, by the CCIM. But, the Health University
was still following the Notification dated 27.4.2004 and discharged the students, who did not pass the examinations within the time limit. It was, in
those circumstances, the Division Bench of the Bombay High Court held in Paragraph 31 as follows:
What we find is that if the Health University was to introduce any clause, which would stand the Test of Arbitrariness and simultaneous
obedience, that could have been acceptable. Though it has been canvassed before us by the Health University that it''s aim is to raise the standard
of education, we find that the said attempt would result in prohibiting the students from pursuing further education in the said Degree course on
account of being disallowed from taking the First Year Professional examination after six attempts, which consequentially would prevent them from
taking admission to the second and further years of the said Professional Degree course. The impugned Notification dated 9.5.2004 cannot co-
exist with the Regulations of CCIM dated 25.4.2012. The impugned Notification would not, thus, achieve the object behind CCIM introducing it''s
amended Regulations of 2012. We, therefore, have no hesitation in concluding that the Health University cannot continue with the limit of six
attempts for the First Professional examination in the light of Clause 6.1 of the amended Regulations 2012 of CCIM. Consequently, the Orders
issued by the Health University and the respective Ayurvedic Colleges, impugned in these Petitions, are unsustainable.
Thus, the Bombay High Court had to consider the question as to whether the Health University''s Notification which runs contrary to the
Regulations of CCIM would stand the Test of Arbitrariness. The Bombay High Court held that it cannot co-exist with the amended Regulation,
2012. It was, in those circumstances, the Bombay High Court struck down the Notification issued by the Health University. But, in the instant
case, the Regulation issued by the Dental Council of India itself is under challenge on the ground of arbitrariness and for want of consultation.
Therefore, the Judgment of the Division Bench of the Bombay High Court will not help the Petitioners in any manner.
Nextly, it is contended by the learned Counsel for the Petitioner that the objects sought to be achieved by the impugned Clause of the Revised
Regulation will not be achieved, as there is no nexus. But, according to the learned Assistant Solicitor General of India, the Dental Council of India
is concerned with the maintenance of the standards of Dental Education and it is for that purpose an upper time limit has been prescribed.
In this regard, as fairly brought to the notice of this Court by Mr. Isaac Mohanlal, the learned amicus curiae, I have gone through the decision
in University of Mysore Vs. Gopal Gowda and Another, . That was a case where the Academic Council of Mysore University issued Regulations
and in Clause (3) of the said Regulations, it was provided that no candidate, who failed in an examination for four times, would be permitted to
continue the course. This provision was challenged before the Hon''ble Supreme Court, contending that it was beyond Rule making power of the
Governing Council and that the Regulation would not achieve the object of maintaining the high standards in education. The Hon''ble Supreme
Court has extensively dealt with the power of the Academic Council under the Mysore University Act. The Hon''ble Supreme Court finally found
that the Council had power to issue such a Regulation and the impugned Clause (i.e., no candidate, who fails four times shall be permitted to
continue the course), is within the Rule making power of the Academic Council of India.
In the case on hand, it is not at all the case of the Petitioners that the Dental Council of India lacks power to issue Regulations under the
Dentists Act. It is their contention that there is no nexus between the impugned Clause of the Regulation and the object sought to be achieved. In
the above said case, the Hon''ble Supreme Court examined the question as to whether the above clause would subserve the purpose of maintaining
the standard mentioned in Section 22 of the Mysore University Act. The Hon''ble Supreme Court has ultimately held as follows:
Once it admits him into the course of study, it must be held to have entertained the opinion that he does have the minimum suitability to take that
course which means that he has the capacity by undergoing the course of study to attain the standard necessary for receiving the degree."" We are
unable to agree with the view expressed by the High Court. The Academic Council is invested with the power of controlling and generally
regulating teaching, courses of studies to be pursued, and maintenance of the standards thereof and for those purposes the Academic Council is
competent to make Regulations amongst others, relating to the courses, schemes of examination and conditions on which students shall be admitted
to the examinations, degrees, diplomas, certificates and other academic distinctions. The Academic Council is thereby invested with power to
control the entire academic life of the student from the stage of admission to a course of study to the ultimate conferment of a degree or academic
distinction. Admission to a course or branch of study depending upon possession of the minimum qualifications prescribed does not divest the
Academic Council of its control over the academic career of the student, for the Council has for maintaining standards the power to prescribe
schemes of examinations, and also to prescribe conditions on which students shall be admitted to the examinations. ""Power to prescribe conditions,
on which, a student may be admitted to the examinations, in our opinion, necessarily implies the power to refuse to admit a student in certain
contingencies, for the power to admit to an examination implies the power to weed out students, who have, on the application of a reasonable test,
proved themselves to be unfit to continue the course or persecute training in that course. If on account of general in aptitude for being trained in a
course or on account of supervening disability to prosecute a course of study, a student admitted to that course is found by the Academic Council
to be unfit to prosecute his training, it would, in our Judgment, be within the power of the Academic Council, in exercise of its authority to control
and maintain standards, and also of its authority to prescribe conditions on which students may be admitted to examinations, to direct that the
student shall discontinue training in that course. And failure by a student to qualify for promotion or degree in four examinations, is certainly a
reasonable test of such inaptitude or supervening disability. If after securing admission to an institution imparting training for professional courses, a
student may be held entitled to continue indefinitely to attend the institution without adequate application and to continue to offer himself for
successive examinations, a lowering of academic standards would inevitably result. Power to maintain standards in the course of studies in our
Judgment, confers authority not merely to prescribe minimum qualifications for admission, courses of study, and minimum attendance at an
institution, which may qualify the student for admission to the examination, but also authority to refuse to grant a degree, diploma, certificate or
other academic distinction to students, who fail to satisfy the examiners at the final examination, and to direct that a student, who is proved not to
have the ability or the aptitude to complete the course within a reasonable time to discontinue the course. There is no warrant for restricting the
expression ""maintenance of the standards"" only to matters such as minimum attendance, length of the course and prescription of minimum academic
attainments. The High Court was, therefore, in error in holding that the Academic Council had no power to prescribe Regulation 3(c).
[Emphasis supplied]
Relying heavily on the above Judgment, the learned Assistant Solicitor General of India would submit that in the case on hand also the object
sought to be achieved viz., maintaining high standard in Dental education, would be achieved by prescribing the said time limit.
In this regard, the learned amicus curiae, Mr. Isaac Mohanlal would submit that in the year 1965, when the University of Mysore case,
referred to above, was decided, the law as to whether the subordinate legislation can be tested on the touch stone of reasonableness had not
crystallized. In that Judgment, the Hon''ble Supreme Court had to examine as to whether the subordinate legislation in question was within the
parameters or the frame work of the parent Act. Therefore, according to the learned Counsel Mr. Isaac Mohanlal, the said Judgment cannot be
made use of to the facts of the present case.
I have considered the above submissions. As I have already stated, a subordinate legislation can also be challenged on the ground that it is
manifestly arbitrary. I have already concluded that the impugned Clause in the Regulation of the Dental Council Regulations is manifestly arbitrary
and on that ground itself, the impugned Regulation is liable to be struck down. Going further, I have a doubt as to whether the objects sought to be
achieved by the Regulation will be really achieved. As I have already pointed out, by keeping different yardsticks under different university
Regulations, in my considered opinion, it is doubtful as to whether the objects would be uniformly achieved by this impugned Clause.
It is needless to point out that so far as the State of Tamil Nadu is concerned, the admission to the B.D.S. course is made through single
window system of the Government as against the seats available in the Government Dental Colleges. So far as the colleges run by the private
bodies, 50% of the seats are filled through the single window system by the Government on merits. The balance 50% seats are also filled up by the
management by following certain selection process to ascertain the merits of the candidates. Thus, at the time of the admission, students are
admitted only on merits. At the time of the admission, higher standards can be prescribed for entry of the students into the course. After students
have entered into the course, there should be a conducive atmosphere available for the students to prove their merits using their knowledge and to
emerge successful. For the success of a student, it is not only the intelligence and hard work of the student that matters, but also there are other
factors, such as the contribution of the college, the contribution of the teaching faculty, the contribution of the family members, etc. There are also
colleges, where there is paucity of faculty and there are faculties, who are not much competent like others, though they do possess required basic
qualification. When there are several such factors involved, whether prescribing a time limit of three years, without prescribing number of attempts
would achieve the objects sought to be achieved by the impugned clause of the legislation, is highly doubtful. Therefore, I find some justification in
the contention of the learned Counsel for the Petitioners in this regard.
Turning to the arguments of the learned Assistant Solicitor General of India, I am forced to reject his contention that the power of judicial
review is not available to this Court under Article 226 of the Constitution of India in academic standards prescribed by the statutory bodies. In this
case, this Court has not been called upon to review the academic standards prescribed under statute by the Dental Council of India. Instead this
Court has been called upon only to examine as to whether the impugned Regulation is manifestly arbitrary or whether it falls within the ambit of
Article 14 of the Constitution of India. To test as to whether a subordinate legislation is arbitrary or the same is in conformity with the Article 14 of
the Constitution of India, the power of judicial review is certainly available to this Court. Therefore, the argument of the learned Assistant Solicitor
General of India, relying on the judgments of the Hon''ble Supreme Court in Medical Council of India case, Visveswaraiah Technological
University case and National Board of Examination case, is rejected.
The learned Assistant Solicitor General of India would submit that in a few cases before this Court, the double duration prescribed for
M.B.B.S. course was challenged and this Court has taken the view that such duration prescribed by the Regulation is Constitutionally valid. The
learned Counsel has brought to my notice the Judgments of this Court in Tanima Rituparna Barman Roy v. Tamil Nadu Dr. M.G.R. Medical
University, W.P. Nos. 15956 & 15957 of 2012; Puspa Mary Peter v. Tamil Nadu Dr. M.G.R. Medical University, W.P. Nos. 4592 & 4756 of
2012; and K. Geethalakshmi v. The Registrar, Tamil Nadu Dr. M.G.R. Medical Council and others, W.P. No. 17474 to 17476 of 2012.
I have gone through the above Judgments, wherein I find that in those cases, the validity of the Regulations concerned was not challenged on
the ground of arbitrariness. It was not at all the case of the Petitioners in those cases that the Regulation concerned was arbitrary. Secondly, it was
not at all the case of the Petitioners therein that there was no effective consultation. But, here, in this case, I have found that the impugned
Regulation is manifestly arbitrary and the same is void for want of effective consultation with the State Governments by the Dental Council of India.
I have also found that it is doubtful as to whether this would accomplish the object sought to be achieved by the Dental Council.
In view of the foregoing discussions, I hold that the impugned clause is unconstitutional and the same is liable to be struck down. In the result,
these Writ Petitions are allowed, the impugned Clause in ""the Dental Council of India Revised B.D.S. Course Regulations, 2007"", prescribing ""any
student who does not clear the First Year B.D.S. University examination in all subjects within 3 years from the date of admission, shall be
discharged from the Course"" is hereby struck down. Consequently, the Respondents are directed to permit the Petitioners to write the First Year
examinations in the failed papers and then allow them to continue the course. Consequently, connected Miscellaneous Petitions are closed. No
costs.
It is brought to my notice that these Petitioners have written their First Year B.D.S. Course examination in the failed subjects, during February
2013. The Tamil Nadu Dr. M.G.R. Medical University is directed to publish the results of the same. Before parting with these cases, I wish to
place on record the excellent assistance rendered by the learned Amicus Curiae Mr. Isaac Mohanlal.