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G.C. Bharuka, J.—These two writ applications have been preferred by the Board of Directors and the students of the Sarjug Dental College, Darbhanga, (hereinafter, in short, ''the Institution'' only) praying therein for a mandamus for granting recognition/affiliation to the institute and for holding of B. D. S. examination to the respondent L.N. Mithila University, Darbanga to enable the students of the institute to appear in such examination and to grant consequential relief by way of publication of result and grant of Bachelors degree in Dental Surgery. (B. D. S.). The facts set out by the petitioners in the writ application may first be stated in short. The institution was set up in 1988 by a charitable trust named Om Sewa Trust with an object of imparting professional dental education leading to a degree of Bachelor in Dental Surgery (hereinafter, in short, ''the B.D.S.'' only). By a letter dated 24-1-1988 (Annexure-1) written on behalf of the institution a request was made to the Vice-Chancellor of the respondent University for issuance of a letter of "no objection in affiliating the College with the University". In response thereto, by a letter dated 11-4-1988 (Annexure-2) the Registrar of the University communicated to the institution that the University has no objection if the Government accords permission to start the College. It seems that thereafter pursuant to a request made on behalf of the institution, the Deputy Secretary to the Government in the department of Health, under its letter dated 7-6-1988 (Annexure-3) communicated that the Government has. no objection in relation to establishment of the proposed College. On 23-7-1988 vide Annexure-4, the petitioner deposited a sum of Rs. 1,500/- with the university with a request to hold inspection of the institution, whereupon, a team was constituted by the Vice-Chancellor, which inspected the institution of 27th June, 1989, and submitted its report (Annexure 5) making certain recommendations, pursuant to this report, the Registrar of the University informed the Director, Higher Education, vide Annexure ''6'' that the Vice-chancellor has agreed to grant affiliation to the institution for the conduct of B. D. S. course for five years starting with session 1988-89, Therefore, the proposal may be placed before the Government for according its approval. It further appears that the institution had also made certain application to the Dental Council of India (hereinafter, in short, ''the Dental Council'' only) for seeking prior permission for establishing the institution in question. In response thereto by a letter dated 10th August, 1988 (Annexure 8) the Dental Council appointed a visitor to inspect the institution. His report dated 13-8-1988 has been filed as Annexure ''9''. Under its letter dated 6th September, 1988, (Annexure - 10) the Dental Council, purporting to act under its Regulations, granted approval for starting of the institution from the session 1988-89.
The present writ application was filed on 15-4-92 seeking relief as set out above. this Court by its order dated 28-4-1992 directed the Government to take a final decision in the matter. The Government passed an order declining to accord approval for affiliation of the institution as per its communication dated 10-7-1992 (Annexure 19). But since the Bench hearing the writ application felt that the refusal was not based on relevant considerations, therefore, it directed the Government to pass a fresh order in accordance with Law. Thereupon, a detailed order dated 30-1-93 has been passed refusing to accord approval to the affiliation of the Institution. This order has been filed as Annexure 26 and is being sought to be challenged on various grounds by way of a supplementary affidavit. The ground given by the State Government for not according approval to affiliation of the institution, as contained in Annexure ''26'', in substance are :
(i) The letter of no objection as contained in Annexure ''3'' granted by the Health Department has been cancelled after 1� months of its issuance by another letter dated 27-7-88 and thereafter no fresh permission has been granted for the establishment of the institution.
(ii) In 1989 the Government has taken a policy decision not to grant affiliation/recognition/permission to any private Dental or Medical college, which was duly communicated to all the Universities.
(iii) In spite of objection of the State Government, the Council had accorded permission for establishment of the institution though on a close analysis of the report submitted by its visitor it shows that the institution does not fulfil the required standard, and the quality of teaching in the institution is not in conformity with the standard laid clown by the said Council.
(iv) Certain other facts have also been stated to support the impugned decision of the Government.
While the first writ application was pending in this Court, the petitioners succeeded in persuading the Vice-Chancellor and the Chancellor of the University to frame transitory regulations permitting the students of the Institution to appear at the 1st Year B.D.S. examination 1992. The notification dated 29-4-1992 (Annexure 17) issued in this regard from the Governor''s Secretariat, Bihar, reads as under :
In exercise of the powers conferred upon him u/s 39(2) (ii) of the Bihar State Universities Act 23 of 1976 as amended up-to-date, the Chancellor, L. N. Mithila University, Darbhanga, has been pleased to approve the following transitory regulation as proposed by Vice-Chancellor, L.N. Mithila University for conduct of 1st Year Examination of Bachelor of Dental Surgery Course, 1992, for the students of Sarjug Dental College and Hospital, Darbhanga, and Dr. S. M. Naqvi Imam Dental College & Hospital, Bahera, Darbhanga, and order that this may be published in the Bihar Gazette and brought into with immediate effect :
TRANSITORY REGULATION FOR 1ST YEAR EXAMINATION OF BACHELOR OF DENTAL SURGERY COURSE, 1992.
Notwithstanding anything contrary to the provisions as made in the Regulations, it is hereby provided that,
(a) The L. N. Mithila University, Darbhanga, shall conduct the B. D. S. Examination 1992.
(b) The syllabus approved by the Dental Council of India for conduct of examinations of B. D. S. Course shall be applicable for the examination.
(c) Eligibility of students for admission to the aforesaid examination shall be as approved by the Dental Council of India. However, their results will not be published till the formalities of inspection by the Dental Council of India and clearance of affiliation by the State Government are completed.
According to the petitioners, pursuant to the aforesaid transitory Regulations, the students were allowed to sit at the 1st Year of the theoratical examination but the practical examination could not be held because in the meantime, as stated above, the State Government refused to grant approval to affiliation of the institution by its order dated 10-7-1992, referred to above (Annexure 19).
I may also notice here that the petitioners also filed SLP (Civil) No. 4135 of 1993 and the writ petition being W. P. (C) No. 241 of 1993 and 175 of 1993 in the Supreme Court. But by its orders dated 7-5-1993 (Annexures 28, 29 and 30) the apex Court declined to exercise its jurisdiction leaving it to the High Court to decide the present issues.
In the above background, Mr. Thakur Prasad, Learned Counsel for the petitioners, while assailing the impugned order of the Government refusing to accord approval to affiliation of the institution, has raised the following issues :
(i) No decision of the Government order or statutory provision has been placed on the record to support that the Government has taken any policy decision in relation to non-grant of approval of affiliation to private Medical or Dental Colleges;
(ii) The State Government as also the University having granted ''no objection'' to the establishment of the institution in question, as is evident from communication (Annexures 2 and 3) they can not now refuse to accord affiliation to the College to its detriment and such an action is hit by the doctrine of promissory estoppel;
(iii) In view of the Inspection report of the team constituted by the Vice-Chancellor as also that of the Visitor appointed by the Denial Council, there was no occasion on the part of the State Government to refuse to accord approval to affiliation of the Institution and the impugned decision is fit to be annulled as being arbitrary.
Recently the Supreme Court while dealing with the question of right to education and establishment of educational institution within the framework of our Constitution has in the case of Unni Krishnan vs. State of A. P., reported in (1993) 1 S.C.C., 645, (Pr. 226 at P. 765) inter alia held that,
(i) the citizens of this country have a fundamental right to education;
(ii) the Constitutional obligation to provide education to its citizens can be discharged by the State either by establishing institutions of its own or by aiding, recognising and/or granting affiliation to private educational institutions;
(iii) a citizen of this country may have a right to establish an educational institution but no citizen, person or institution has a right muchless a fundamental right, to affiliation or recognition, or to grant-in-aid from the State;
(iv) the recognition and/or affiliation shall be given by the State subject only to the conditions set out in and only in accordance with the scheme contained in part III of the judgment;
(v) No Government/University or authority shall be compeatent to grant recognition or affiliation except in accordance with the said scheme; and
(vi) the said scheme shall constitute a condition of such recognition or affiliation, as the case may be, in addition to such other conditions and terms which such Government, University or other authority may choose to impose.
In para 194 of the above referred judgment, the Supreme Court after reviewing the various expert reports has also held that,
the hard reality that emerges is that private educational institutions are a necessity in the present day context. It is not possible to do without them because the Government are in no position to meet the demand particularly in the sector of medical and technical education which call for substantial outlays. While education is one of the most important functions of the Indian State it has no monopoly therein. Private educational institutions including minority institutions educational too have a role to play.
The above pronouncements by the Supreme Court, apart from other things, are by themselves enough to demolish the first ground taken by the State counsel for not granting approval to affiliation of the institution in question on the ground that the Government has taken a decision of not permitting the establishment of private medical or dental college. Moreover nothing has been placed on the records to substantiate the existence of any such policy decision by the Government except the averment to this effect made in the impugned order. But even if any such policy decision exists it has to be held as unreasonable and inoperative. Therefore, a private medical or Dental College can be established but its establishment or grant of recognition is subject to the statutory provisions in this regard and the scheme laid down by the Supreme Court in Unni Krishnan''s case (Supra).
The scheme has been formulated in paragraphs 206 to 213 of the judgment of the Supreme Court, referred to above. I need not quote the entire scheme, but it will be necessary to refer to some of its important features. The scheme is meant for private institutions running professional Colleges and institutions like Medical, Dental Colleges and other institutions imparting Nursing, Pharmacy and other courses allied to Medicine as well as technical education. The scheme provides for :
(i) The permission to establish and / or administer a professional College shall be granted only to a Society registered under the Societies Registration Act, 1860, or by a public trust, religious or charitable, registered under the Trusts Act, Wakfs Act,
(ii) No individual, firm, company or other body of individuals, by whatever appellation called except a registered society or public trust as mentioned above, shall be permitted to establish and/or administer a professional college. All the existing professional colleges not conforming to the said norms, were directed to take steps to comply with the same within a period of six months from the date of the judgment i.e. by 4th August, 1993, and in default, thereto, recognition/affiliation if accorded will ipso facto stand withdrawn;
(iii) No private educational institution shall be allowed to send its students to appear for an examination held by any Government or body constituted by it or under any law or to any examination held by any University unless the concerned institution and the relevant courses of study is recognised by the appropriate authority and/or is affiliated to the appropriate University, as the case may be;
(iv) No professional college shall call for applications for admission separately or individually. All the applications for admission to all the seats available in such colleges shall be called for by the competent authority alone, may be, Government, University or its authorities so designated in accordance with law. The seats in the professional Colleges have to be filled by taking admission on the basis of a common notification issued by the competent authority calling for simultaneous application for all professional Colleges of a like nature, may be, medical, dental, medicinal, engineering or nursing. Admissions in the professional Colleges are required to be offered by such competent authorities only as per the scheme laid down by the judgment.
In paragraph 210 of the said judgment, the Supreme Court has further commanded that for grant of permission/recognition/affiliation, the conditions laid down in the scheme, some of which have been referred to above, have to be necessarily imposed in addition to such other conditions as the appropriate authority may think proper.
In the background of the facts of the present case, as set out above, and the general law laid down by the Supreme Court in the present context, I shall now proceed to examine respective statutory provisions relating to grant of recognition, courses of studies pertaining to Denial surgery, qualifications, like degree and diplomas with respect thereto and the institutions or authorities competent to undertake courses of studies, holding of examination and conferring of the said qualification.
In the present case, the relevant statutes, the provisions whereof have a bearing on the rival contentions are the Dentists Act, 1948 (hereinafter, in short, the Central Act) and the Bihar State Universities Act, 1976 (hereinafter in short, the State Act). In the Central Act Sections 10 A, 10 B and 10 C and Sections 20 (2) (fa) and (fc) have been inserted by the Dentists (Amendment) Act, 1993 with effect from 27th August, 1992, the date of promulgation of the precursor ordinance. The newly added provisions to the Central Act may have material bearings on the relief as claimed by the petitioners.
Before proceeding to examine the statutory provisions, it will be necessary to explore and understand the meaning of the words and phrases- "recognition", "affiliation" and "admission of colleges to the privileges of the University". Clause (a) of Section 12Aof the University Grants Commission Act, 1956, provides that :"affiliation" together with its grammatical variations, includes in relation to a college, recognition of such college by association of such college with, and admission of such college to the privileges of a University. Section 2(ag) of the State Act provides that, "recognition" with all its grammatical variations, and cognate expressions means recognitions according to the provisions of this Act and statutes. Section 2(c) of the State Act further defines ''affiliated college'' means educational institution having received privileges of the University according to the provisions of this Act and the University Statutes thereto. Therefore, the three expression in question are apparently cognate in nature carrying the same meaning and import and use thereof in relation to any College or institution leads to the same consequences.
The Central Act has been enacted by the Parliament with an object to regulate the profession of dentistry and to make provisions for laying down the minimum standard of training in this branch of learning. The parliament having competence to legislate on the subject both in view of Entry 66 of the Union List and Entry 28 of the concurrent list and Article 19 (6) of the Constitution, have made legislation in this regard. Certain provisions of the Central Act need to be quoted hereunder :
2 (j) "recognised dental qualification" means any of the qualification included in the Schedule.
(1) "registered dentist", "registered dental hygienist" and "registered dental mechanic" shall mean, respectively, a person whose name is for the time being registered in a register of dentists, a register of dental hygienists and a register of dental mechanics.
10 (1) Recognition of dental qualifications.- The denial qualifications, granted by any authority or institution in India, which are included in Part I of the Schedule shall be recognised dental qualifications for the purpose of this Act.
Qualification for subsequent registration.- (1) After the date appointed under sub-section (2) of section 32a person shall, on payment of the prescribed fee, be entitled to have his name entered on the register of dentists, if he resides or parries on the profession of dentistry in the State and if he
(i) holds a recognised dental qualification,
.. .. .. .. ..
.. .. .. .. ..
Effect of registration.- (1) reference in any other law to a person recognised by law as a dentist shall be deemed to be a reference to a dentist registered under this Act.
(2) No certificate required by or under any other law from a dentist shall be valid unless the person signing it is registered as a dentist under this Act.
(3) After the expiry of three years from the date appointed under sub-section (2) of Section 32, a person who is not registered in Para A of the State register of dentist shall not, except with the sanction of the Central Government or the State Government hold any appointment as dentist in any dispensary, hospital or other institution which is supported wholly or partially from public or local funds :
Provided that the provisions of this sub-section shall not apply to any such person who is holding such an appointment immediately before the said date.
(4) After the expiry of two years from the publication of a register of dental hygienists in a State, no person whose name is not entered in that register shall hold appointment as dental hygeinist in any dispensary, hospital or other institution in the State which is supported wholly or partially from public or local fund.
(5) Any person who is a registered dentist, registered dental hygicnist or registered denial mechanic in a State may practise as such in any other State.
Chapter V of the Central Act create offences for certain acts and omission. u/s 49of the Central Act, practice in dentistry or allied matters by a person other than by a registered dentist, has been made an offence. In Part 1 of the Schedule, in the State of Bihar, only Patna University has been authorised to grant a recognised dental qualification of Bachelor of Dental Surgery (B. D. S., Patna). Therefore, keeping in view the provisions of Central Act, the respondent L. N. Mithila University is not competent to conduct courses of studies or training for grant of any recognised dental qualification. It is a matter of record as has been admitted at the Bar as also is apparent from the statutes of this University that as required u/s 26of the State Act, it has neither any faculty of dentistry nor it has prescribed any syllabus or courses of studies in this branch of laming nor there is any regulation providing for grant of any affiliation or recognition to any private Dental College. In this view of the matter provisions of newly inserted Section 10 A of the Central Act will have its immediate play. The relevant clauses of Section 10Aof the Central Act may be quoted thus :
10 A. (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 recognised 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 recognised dental qualification shall-
(i) open a new or higher course of study or training (including a postgraduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised 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 permission of the Central Government obtained in accordance with the provisions of this section.
In view of the aforesaid provisions, the respondent-University having not been so authorised to grant any recognised degree in dental surgery, if so advised, has to approach the Central Government seeking for permission for the courses of studies in question for grant of recognised dental qualification and it is only subsequent to the grant of such permission, it can proceed with the laying down the syllabus or courses of studies for the dental qualification so recognised, and further proceed to include faculty of denistry in its statue u/s 26of the State Act. It has then to provide for (a) the courses of studies to be laid down for dental degree, and (b) the conditions under which students shall be admitted to the said degree course and to the University examination and shall be eligible for such degree as required u/s 39(a) and (b) of the State Act.
The University has not framed any statute for admission of Dental College to its privileges i.e. for grant of affiliation/recognition as required u/s 34of the State Act. In view of the discussions made above, the respondent University is not competent to process any application for grant of affiliation/recognition to the petitioner for imparting any course of study or training, which may enable a student of such course or study to qualify himself for grant of any recognised denial qualification.
Neither the Dental Council of India constituted under the Central Act nor the State Government under any existing statutory provisions including State Act has any authority to grant affiliation or recognition to any dental college. u/s 4 (19) read with section 21(2) of the State Act, an affiliation of the College can not take effect unless it is approved by the State Government. Therefore, the State Government will have its say in relation to affiliation/recognition only when a proposal to this effect is sent to the State Government in accordance with the provisions of the statutes made in this regard by the authorities of the University defined u/s 17of the Act.
So far as the impugned tranistory regulation, as quoted above, permitting the candidates of even unrecognised/unaffiliated Colleges to appear at the examination is concerned, less said is better about the framing of such regulations by the higher authorities like Vice-Chancellor and Chancellor to whom powers have been vested by the legislature for up-keeping the academic interest of the University. By firming the transitory regulation in question they have malafidely tried to defeat the very object of the University Act, which has been enacted to promote the educational excellence and to ensure certain standards of learning and training from the recipient/holder of University qualifications. Making of such a subordinate legislation which are opposed to the legislative policy and the verdict of the Supreme Court in this regard, has to be held as ultra vires and inoperative. The impugned transitory regulation is also bad, since, as discussed in C. W. J. C. No. 5855 of 1993 Nawadah Vidhi Maha Vidyalaya, Nawadah and others Vs. The State of Bihar and Others, , which has been disposed of today, the Vice-Chancellor has no statutory authority to propose framing of any such regulation. Moreover, this regulation having not been published in the official gazette, as required u/s 39 (2) proviso of the State Act, can not even otherwise be said to have come into force at any point of time.
Before parting, I may indicate that a Bench of this Court in the case of Syed Welayat Hussain & others vs. The State of Bihar and others (C. W. J. C. No. 11696 & 11507 of 1992) D/- on 19-7-1993, while dealing with amendment in the Indian Medical Council Act inserting Section 10 A, 10 B, and 10 Cby Indian Medical Council (Amendment) Act, 1993, has held that the newly inserted provisions providing for seeking permission of the Central Government will have its application in relation to such institutions, which have not been granted affiliation/recognition and has directed the Central Government to consider the application of the petitioner in that case for grant of permission/affiliation keeping in view the new provisions. So far as the present case is concerned, as I have noticed above, the respondent University itself is not competent to award any recognised dental qualification, therefore, there can not be any occasion either on the part of the University or the State Government to grant any permission/affiliation to the institution.
Even the Central Government can not grant any permission to the institution in question keeping in view the provisions of section 10 A (a) of the Central Act because such permission can be granted for establishment of an authority or institution for a course of study or training, which would enable a student to such course or training to qualify himself for grant of recognised dental qualification as is apparent from the provisions thereof quoted above. In the present case, as discussed above, the respondent University under whose territorial jurisdiction the present institution claims to have its establishment is not empowered to grant any recognised dental qualification. Therefore, unless the Central Government grants permission to the University as required u/s 10 A (b)of the Central Act, for conducting the Courses of studies in question and it is authorised to award recognised dental qualification, there can not be any occasion for the Central Government for granting permission to the institution like the present one to have its permission for imparting courses and training in dentistry. In view of the discussions made above, in my opinion, no relief can be granted to the petitioners. The writ applications arc, accordingly, dismissed. No costs.
Gurusharan Sharma, J.
I agree.