Pooranlal S/o Bhagan Neware vs State of Madhya Pradesh

By this writ petition filed under Article 226 of Constitution of India, the Petitioners have challenged the order dated 17/09/2016 issued by Respondent no.3/Modern Dental College & Research Center, Indore in compliance to the order dated 09/09/2016 issued by Respondent No.2/Dental Council of India discharging them from pursuing their studies in MDS (Orthodontics) and (Paediodentics) since 01/06/2015, as a consequence thereof, two academic years of the Petitioners would be wasted.

According to the facts the Petitioners qualified their BDS examination in January, 2013 and were registered with M.P. State Dental Council as dentists. They were desirous to do MDS and subsequently they appeared in Pre PG DMAT examination, 2015 conducted by Respondent No.3 and qualified the same. The Respondent No.4 allotted them respective courses. They deposited the prescribed fee for first year in the month of May, 2015 and pursued their studies. They further deposited fee of second year during January - April, 2016. All of a sudden on 17/09/2016, they are discharged from pursuing their studies by the impugned orders. Aggrieved by these orders they have come before this court.

Learned counsel for the Petitioners submits that the impugned orders will have serious impact on their academic career as two years of their studies would be wasted. The orders are illegal, arbitrary and capricious as they are issued in violation of the principal of natural Justice as they are issued without giving them opportunity of hearing, therefore, it is prayed to setaside the orders dated 09/09/2016 (Annexure-P/10) and 17/09/2016 (Annexure-P/9).

On the other hand, learned counsel for Respondent No.2, vehemently opposing the prayer, argued that the Petitioners are acting as a proxy for Respondent No.3- Dental College. They have come before this court for the same relief after dismissal of Writ petition No.5553/2015 vide order dated 14/03/16 filed by the college (Respondent-3) for the same purpose observing that Respondent 3 had taken 3 excess admissions in MDS courses for the academic session 2015-16 without permission and imposing cost of Rs.25000/- to be paid to each of the Respondents therein, Therefore, the present petition is liable to be dismissed on this ground alone.

It is submitted that Section 10A of the Dentist Act, 1948 (incorporated by Dentist (Amendment) Act, 1993) provides that admission can be made by the dental colleges only within the sanctioned capacity for which permission has been granted. Section 10-B (3) of the Act provides that no dental qualification granted to any student on the basis of increase in its admission capacity shall be a recognized dental qualification for the purposes of this Act. Respondent No.3 made a request to increase intake capacity in the specialty of (i) Orthodontics and Dentofacial Orthodontics from 3 to 5 seats and (ii) Paedodontics and Preventive Dentistry from 4 to 6 seats for the academic year 2015-16, but the same was turned down by Union of India vide its letter dated 31/07/2015.

Respondent No.2 vide its circular dated 18/06/2015 requested all the Dental Colleges to enter/upload the name of the specialty-wise students admitted by the College for the current academic year 2015-16 on the web-site of Respondent No.2 by 10/07/2015 but Petitioner''s College sent its list only on 29/07/2015. By going through this list, Respondent No.2 observed that the Respondent No.3 has admitted three illegal admissions in breach of statutory provisions of Section 10-A of the Dentist Act, 1948. As per decision taken in its meeting held on 16/09/2015, show-cause notices were issued to the Respondent-3, but instead of discharging the students illegally admitted without prior permission of Respondent-1, in breach of statutory provisions of Section 10-A of the Dentist Act, 1948, Respondent-3, replied vide its letter dated 12/10/2015 challenging the authority of the answering Respondent stating that it has not vested with any authority to issue such notices during the pendency of the writ petition and requested to drop the proceedings dated 21/09/15 and recognize the MDS courses in the specialty of Peadodontics and Orthodontics with 2 additional seats in each specialty. Thereafter the letter dated 09/09/2016 citing the judgment dated 14/03/2016 of this Court issued asking the Respondent-3 to immediately discharge excess Petitioner students failing which section 10B of the Dentist (Amendment) Act, 1993 and section 16A of the Dentist Act, 1948 shall be attracted. Then only Respondent-3 issued letter dated 17/09/2016 and discharged the petitioners.

It is further submitted that Respondent-3 admitted the petitioners in excess from the sanctioned intake capacity contrary to the order dated 31/07/2015 wherein the Respondent- 1 Union of India had rejected the request of Respondent-3 Dental College for grant of renewal permission. When Respondent-2 came to know from the list of students furnished by the Respondent-3 Dental College vide its letter dated 23.07.2015 that the College has admitted three illegal students against the annual intake capacity, the Respondent-2, vide its show cause notices dated 21.09.2015, immediately directed it to discharge the Petitioners so admitted to protect the career of innocent students. The admissions of Petitioners is neither feasible nor in conformity with provisions of the Dentist Act, 1948 as amended in 1993. Therefore, they can-not be legalized or regularized otherwise it would be a bad precedence in law and each and every dental institution shall admit students without any prior permission and claim their equity before any court of law to legalize such illegal admissions made in blatant and flagrant violation of statutory provisions of Dentist Act, 1948.

According to the learned counsel for the respondent- 2, Contention of the Petitioners that their admission to be legalized and in turn reduce the seats of the R-3 Dental College proportionately cannot be accepted as neither in the Dentist Act nor in the Regulations made there under has any provision for such neutralization or set off the effect of excess admissions.

Learned counsel further states that there is no doubt that the Petitioners would be wasting their valuable/precious time and money, while pursuing 1st years of the MDS Course, but for this they can avail civil and criminal remedies, including compensation in terms of money from the college in accordance with law. If this Court considers it necessary to compensate the Petitioner students then the Court in exercise of suo motu writ jurisdiction under Article 226 of the Constitution of India, following judgment in the case of S.M.B.S.P Mandal vs. State of Maharashtra (2005 (5) Bom. C.R., 395 may award them appropriate compensation.

Learned counsel further submitted that the Petitioner''s enrollment with MP MSU University, Jabalpur does not make any difference as Respondent-3 filed the Writ Petition No.5553/2015 impleading the MP MSU, Jabalpur as Respondent No.4 therein. This Court has dismissed the Writ Petition imposing the cost. Only for that reason, the Petitioner students knowingly and deliberately with their malafide intention have not impleaded the University as a necessary party.

The Petitioners have filed the present Writ Petition in connivance and in collusion with and at the instance or behest of the college authority so as to succeed in regularizing the illegal admission of the Petitioners and also that the petitioners have not filed the present writ petition with their clean heart, hand and mind without disclosing the complete detail of the Writ Petition filed by the Respondent-3 Dental College. Thus, the remedy of Principal of Natural Justice has no application at all in the peculiar facts and circumstances of the case.

The contention of the petitioners of having made representation to Respondent-2 on 12.05.2016 cannot help them for the sole reason that their admissions are illegal not irregular. The illegality cannot be regularized or legalized merely on the ground of sympathy or the factum of wasting their precious time and money.

Learned counsel further submits that the contention of the petitioners placing reliance on Order dated 07.09.2015 passed by the Court in Writ Petition No.6140/2015 is also misleading and completely distinguished from the facts and circumstances of the present case. Reliance has been placed merely on an interim order. In this case there was merely irregularity in the admission and in the present case there is illegality and admissions have been made in the contravention of statutory provision of Section 10-A of the Dentists Act and even without any direction of the Court of Law. The Interim dated 07.09.2015 in Writ Petition No.6140/2015 was directory in nature not to take any coercive action against the students only till the next date of hearing. This Order is of no help to the Petitioners by any stretch of imagination.

On all these grounds, the Respondents have prayed for dismissal of the present petition.

We have heard counsels of both the parties.

While dismissing the W.P. No.5553/2015 filed by Respondent No.3, in para 23 and 26 of order dated 14/03/2016 this court has clearly held as under :- 23. In the instant case, the application of the Petitioner was in-complete due to non-submission of the University affiliation within the time schedule prescribed in the regulations for the academic year 2015-16. It is also not in dispute that the Petitioner - Dental College admitted three illegal admissions in the speciality of Orthodontics and Paedodontics for the academic year 2015-16, without the prior approval of Union of India under Section 10A (4) of the Dentists Act, 1948. The factum of admission has not been disclosed by the Petitioner in it''s writ petition. The stand of the Petitioner that he in terms of order dated 7.5.2015 passed W.P. No.2898/2015, granted admission to three students. As per operative para of the order dated 7.5.2015, this Court only quashed the order dated 31.3.2015 passed by the Union of India, which does not make entitled the Petitioner - Dental College to admit any student to the extent increase admission capacity in each speciality merely on the ground of quashing and setting aside the order, particularly when the Division Bench directed the Respondent No.2 and Respondent No.1 - Union of India to take their further decision and to pass an appropriate orders. This shows that the Petitioner - Dental College has not approached this Court with its clear heart, mind and hands. The jurisdiction under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the Petitioner approaching the writ court must come clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief.

The Respondent No.2 initiated proceedings for withdrawal of recognition because the Petitioner - Dental College has admitted three admissions, (2) two in Orthodontics and (1) one in Paedodontics for the academic session 2015-16 in contravention of Section 10A (1) (b) (3) and contrary to the impugned order dated 31.7.2015, we are of the view that the Petitioner is not entitled for any discretionary relief nor impugned order dated 31.7.2015 is liable to be quashed / set aside.

Thus, no relief can be granted through this pseudo petition.

In 1993, with a view to maintain high standards in imparting dental education by the dental colleges/institutions and to check the unregulated and uncontrolled growth of dental colleges/institutions the legislature made amendments in the Dentist Act, 1948 by Dentists (Amendment) Act, 1993 and incorporated new provisions of 10-A & 10-B thereby making it absolutely mandatory and obligatory for any person desirous of establishing a dental college or starting of higher courses or increase of admission capacity in UG/PG Courses in Dentistry to obtain a prior permission from the Respondent-1/Union of India. Section 10A (1)(b)(ii) and Section 10(B)(3) of the Dentists Act, 1948 are material for the present purpose which reads as under :- "10-A. 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 in being in force.

(a) ...............

(b) no authority or institution conducting a course of study or training (Including a postgraduate course of study or training) for grant of recognized dental qualifications shall-

(I).... Increase its admission capacity in any course of study or training (Including a postgraduate course of study or training) except with the previous permission of the Central Government obtained in accordance with the provisions of this Section."

Section 10(B)3 - Where any authority or institution granting recognized dental qualifications increases 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 in accordance with the provisions of Section 10A, no dental qualification granted to any student or such authority or institution on the basis of the increase in its admission capacity shall be a recognized dental qualification for the purposes of the of the Act."

The Apex Court, in the case of State of U.P. v. PRAVEEN KUMAR, AIR 1995 SC 220, has held that the statutory provision which is relevant at this stage is Section 10A which came to be introduced in Dentist Act, 1948 under Dentist Ordinance, 1993. That Section imposes a complete embargo that no institution could increase its capacity in any course of study and training except with the previous mission of the Central Government. Similarly, in the case of State of Punjab v. Renuka Singal 1994 SCC (1) 175, the Supreme Court, when faces with the problem of admission in excess of the approved admission capacity to BDS Course was pleased to hold that :- "The admission in medical course throughout India is governed by different statutory provisions, including regulations framed under different Acts. During last several years efforts have been made to regulate the admissions to the different medical institutions, in order to achieve academic excellence. But, at the same time, a counter-attempt is also apparent and discernible, by which the candidates, who are not able to get admissions against the seats fixed by different statutory authorities, file writ applications and interim or final directions are given to admit such Petitioners. We fail to appreciate as to how the High Court or this Court can be generous or liberal in issuing such directions which in substance amount to directing the authorities concerned to violate their own statutory rules and regulations, in respect of admissions of students. It cannot be disputed that technical education, including medical education, requires infrastructure to cope with the requirement of giving proper education to the students, who are admitted. Taking into consideration the infrastructure, equipment, staff, the limit of the number of admissions is fixed either by the Medical Councilof India or Dental Council of India. The High Court cannot disturb that balance between the capacity of the institution and number of admissions, on "compassionate ground". The High Court should be conscious of the fact that in this process they are affecting the education of the students who have already been admitted, against the fixed seats, after a very tough competitive examination. According to us, there does not appear to be any justification on the part of the High Court, in the present case, to direct admission of Respondent 1 on " compassionate ground" and to issue a fiat to create an additional seat which amounts to a direction to violate Section 10-A and Section 10- B(3) of the Dentists Act referred to above."

The Hon''ble Supreme Court in Dental Council of

India v. Harpreet Kaur Bal, 1995 Supp (1) SCC 304 held that this Court has no jurisdiction under Article 226 of the Constitution of India to regularize the admissions granted to the Petitioners in contravention of Section 10A of the Dentists Act and to direct the Respondents to do so thereby directing the statutory authorities to disobey their own laws and to affect the educational standards. Para 4 reads: "There are many pronouncements of this Court cautioning against exercise of jurisdiction characterized more by benevolence than on settled legal principles. A relief must be such as could be considered permissible in law and worked out by the application of legally recognized principles. The decision must have legitimacy of legal reasoning and should not incur the criticism of lacking objectivity of purpose and rational and legal justification. Where an educational institution embarks upon granting admissions without the requisite affiliation and recognition and the students join the institution with their eyes wide open as to the lack of legitimacy in the admission, it would be preposterous to direct the University to hold examinations for the benefit of such students. We cannot sufficiently deplore this attitude and approach. The High Court has, by its order, simply bolstered the hopes and aspirations of these students without any means of gratifying these expectations in a manner known to law."

It is settled law that the Hon''ble High Courts, while exercising jurisdiction under Article 226 of the Constitution of India would not be empowered to substitute its own opinion over the opinion of the expert authorities created under the statues framed by the Parliament. In the case of Krishna Priya Ganguli V. University of Lucknow (1984) 1 SCC 307 -the Hon''ble Supreme Court, observed as under:- "..... The High Court under Article 226 cannot ignore the rules framed by the Admissions Committee; nor can it devise its own criterion for admission. It is a matter of decision of admission committee by ignoring, relaxing or dispensing with statutory rules and Govt. orders and by giving ex-parte directions for admission of candidates,"

"With this short prelude, now to the facts of the case, which disclose a sad story indeed-not because those in charge of the institutions commit errors but because the courts start directing the authorities to grant provisional admissions to students even if they did not deserve the same in some cases. Experience has shown that in view of the huge accumulation of arrears in courts, it takes a long time for the petitions to be disposed of, hence we have evolved the practice of forcing the authorities to grant provisional admissions which has resulted in a piquant and pungent situation because by the time the case comes up for hearing, the rejected candidates having completed their course and having appeared at the examination with every hope of success become eligible for admission to the higher course in case of success though the Court may ultimately find that their initial rejection was justified. Such a situation becomes a sort of a fait accompli for those in charge of the institutions as a result of which the candidates are admitted in due deference to the desire of the court by increasing or creating vacancies even in the absence of suitable and proper facilities to train the extra candidates. This results in an anathema and a dilemma for which there is hardly any remedy."

In A.P. Christian Medical College Vs. State of A.P. & Anr. - (1986) 2 SCC 667 - the Hon''ble Supreme Court observed: 10. Shri K.K. Venugopal, learned counsel for the students who have been admitted into the MBBS course of this institution, pleaded that the interests of the students should not be sacrificed because of the conduct or folly of the management and that they should be permitted to appear at the University examination notwithstanding the circumstance that permission and affiliation had not been granted to the institution. He invited our attention to the circumstance that students of the Medical college established by the Daru-Salaam Educational Trust were permitted to appear at the examination notwithstanding the fact that affiliation had not by then been granted by the University. Shri Venugopal suggested that we might issue appropriate directions to the University to protect the interests of the students. We do not think that we can possibly accede to the request made by Shri Venugopal on behalf of the students. Any direction of the nature sought by Shri Venugopal would be in clear transgression of the provisions of the University Act and the regulations of the University. We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the court to disobey the laws.

In this judgement (A.P. Christians Medical Educational Society v. Government of Andra Pradesh & Anr. (1986) 2 SCC 667) the Hon''ble Apex Court rejected the plea that the interests of the students should not be sacrificed because of the conduct or folly of management and that they should be permitted to appear at the university examination. Similarly, in Regional Officer, CBSE v. Ku. Sheena Peethambaran & Ors. 2003 Supp (3) SCR 275 the Hon''ble Apex Court has held that condoning the lapses or overlooking the legal requirements in consideration of mere sympathy factor does not solve the problem, but disturbs the discipline of the system and ultimately, adversely affects the academic standards. In the case of MCI Vs. Sarang & Ors. (2001) 8 SCC 427 the Hon''ble Supreme Court also observed that in the matters of academic standards, courts should not normally interfere or interpret the rules and such matters should be left to the experts in the field.

As per the provisions of the Section 10A (1) (b) (ii) of the Dentist (Amendment) Act, 1993, no persons, no authority and institutions can increase its admission capacity in any course of study or training (including a post-graduate course of study of training) except with the previous permission of the Central Government. The Hon''ble Supreme Court in Medical Council of India v. State of Karnataka (1998) 6 SCC 131 held that the number of students admitted cannot be over and above that fixed by the Medical Council as per the Regulations and that seats in the Medical Colleges cannot be increased indiscriminately without regard to proper infrastructure as per the Regulations of the Medical Council. In Medical Council of India v. Madhu Singh (2002) 7 SCC 258, the Court held that there cannot be telescoping of unfilled seats of one year with permitted seats of the subsequent year. Recently, in Satyabrata Sahoo v. State of Orissa (2012) 8 SCC 203 the court has reiterated that it would not be possible to increase seats at the expense of candidate waiting for admission in the succeeding years.

The Hon''ble Apex Court has in State of Punjab v. Renuka Singla 1994 SCC (1) 175, State of U.P. vs. Harish Chandra 1969 AIR 1020, Union of India vs. Kirloskar Pnenumatic 1996 SCC (4) 413, University of Allahabad vs. Dr. Anand Prakash Mishra in SLP (C) No.2602/1996 dated 16/12/1996 and Karnataka SRTS vs. Ashrafulla Khan in Appeal (Civil) No.1341/1990 dated 14/01/2002 . settled a general legal proposition that neither the Court has competence to issue a direction contrary to law nor the Court can direct an authority to act in contravention of the statutory provisions. The courts are meant to enforce the rule of law and not to pass the orders or directions which are contrary to what has been injected by law.

In an order passed on 14/09/2016 the Division Bench of this Court in a similar matter in W.P. No.7474/2015 has held that the Court cannot regularize any irregularity or illegality. Admission granted in excess to the sanctioned intake capacity by the concerned authorities. The Bench also denied to accept the contention of petitioner to regularize his admission by keeping a seat vacant for the next academic year. Para 21 & 22 of the order reads as under :- 21. An ''intake'' or admission capacity is fixed by the concerned authority, having regard to the facilities available. That is why the concerned authority makes local inspections to determine the facilities provided and available. Once an intake is fixed with reference to the available facilities and teaching and other staff it can be increased only after the institution provides correspondingly larger facilities and staff and satisfies the concerned authority about the need for such increase and its capacity to manage and train the increased intake. It cannot be gainsaid that the position of students admitted in excess of the permitted intake, is the same as the students of an unrecognised institution. Merely because an institution is permitted and recognised, the students admitted by such institution in excess of permitted intake cannot claim a better position or right either for regularisation or for grant of permission, as they are in no better position than the students of an unrecognised institution. The petitioner has not filed any document to prove that Director of Medical Education granted admission to Deepak Singh Kirar nor such was the stand of the Government of M.P.

Looking to the totality of the facts and circumstances of the case, we cannot accept the contention of the petitioner - Dental College that they will keep seat vacant in the Special Conservative Dentistry in the next academic year 2015-16 against the sanctioned capacity of three seats that will be contrary to the permission granted by the Government of India. Taking into consideration the infrastructure, equipment, staff, the limit of the number of admissions is fixed by the DCI, this Court cannot disturb that balance between the capacity of the institution and the number of admissions, on "compassionate ground" and to issue a fiat to create additional seat, which amounts to a direction to violate Section 10-B of the Dentists Act. In the case of MCI V/s. Sarang & Ors. (supra), Hon''ble the Supreme Court observed that in the matters of academic standards court should not normally interfere or interpret the rules and such matters should be left to the experts in the field.

We have observed that it has become a regular practice on the part of the educational institutions to admit students illegally without complying the law regulating their admissions, without making proper arrangements in conformity of law and without developing any necessary infrastructure and facilities for imparting education of the requisite standards and when the statutory authority refuses to accede their request to regularize their irregularities or illegalities, then they come before the court and try to get sympathy in the name of the career of the students. If they fail, then they persuade either students or their parents to approach the court to seek regularization of the illegal admissions. Now, it has become necessary to stop such type of tendencies. The Apex Court has repeatedly held that imparting education is not a trade or business. If writ jurisdiction is allowed to be used for regularization of illegal admissions, then the writ courts unknowingly might become party to the illegal action of the educational institutions.

As per the Dentist (Amendment) Act, 1993 all the necessary sanctions and approvals have to be taken by the college or the institute imparting education in the field. Before taking any action against any erring institute, it is binding for the central government or the MCI to give them opportunity of hearing following the principals of natural justice. But they are not responsible to provide such hearing to each and every student. In the present case respondents 1, the Union of India on 15.04.2014 while conveying its approval for renewal of permission for 3rd year MDS Courses in the specialty of Orthodontics and Paedodontics for last academic year 2014-15, have informed well in time that the admission of next batch of students without its approval will be treated as irregular admission and action u/s 10B (3) of the Dentist (Amendment) Act, 1993 will be initiated against the Petitioner Dental College. Later, when Respondent-2 came to know from the list of students furnished by the Respondent-3 Dental College vide its letter dated 23.07.2015 that the College has admitted three illegal students against the annual intake capacity. The Respondent, vide its show cause notices dated 21.09.2015, immediately directed it to discharge Petitioners so admitted to protect the career of innocent students. It does not appear that the petitioners were not aware of all these proceedings, in spite of that they chose not to disclose the fact of the dismissal of the WP 5553/2015. From the facts, it also does not appear that the petitioners were not aware of the status of their admission rather they opted to pursue the course and even deposited the fee particularly for the second year of their study. Thus, submission of any representation before the respondents 1 & 2, does not create any right in favour of the petitioners.

In view of the facts stated and submissions made and also keeping in view the legal position, in our considered opinion, the prayer of the petitioners made in the present Writ Petition is neither maintainable nor sustainable in law. The Respondent-3 Dental College has admitted the petitioners in contravention of Section 10-A (1) (b) (ii) of the Dentist Act, 1948 (as amended in 1993) and contrary to the UOI order dated 31/07/2015 without prior and valid permission, which is illegal and therefore the Petitioners have rightly been discharged by the Respondents. The present petition deserves to be dismissed and is dismissed accordingly. However, considering the peculiar facts of the case, we are not inclined to pass any order in respect of any compensation to the petitioners as suggested by the Respondent-2. There is no order as to the cost.