V.S. Dental College and Hospital vs The Dental Council of India and Others

N. Kumar, J—The petitioner - V.S. Dental College and Hospital has preferred this writ petition seeking a writ of certiorari for quashing the communication/letter of the second respondent-Union of India-Government of India dated 15.7.2015 addressed to the petitioner informing them that they would not renew/increase the capacity of the petitioner Institute for its BDS course and also the letter of the Dental Council of India dated 9.7.2015 refusing to comply with the direction issued by the Central Government for verification of the compliance report and for other consequential reliefs.

Petitioner was established in the year 1986 by the Vokkaligara Sangha. The petitioner-College is offering UG (BDS) and PG/MDS, diploma and PG diploma courses. Earlier it was affiliated to the Bangalore University. Now it is affiliated to Rajiv Gandhi University of Health Sciences, Bangalore. The original sanctioned admission capacity was 55 in the year 1986. It has been increased to 60 in the year 1988-89. Subsequently the intake was increased to 100. This increased intake was permitted from the academic year 2012-13. It was renewed for the academic year 2013-14 and 2014-15. The petitioner applied for renewal of permission for the fourth batch of BDS students for the academic year 2015-16 for the increased capacity of 100 students in August, 2014. Six months after the application, inspection team from Dental Council of India (DCI) inspected the petitioner -college on 19.3.2015 for the purpose of renewal of permission to the fourth batch of the increased capacity. After such inspection they pointed out the following deficiencies.

"a. Absence of a Medical staff affidavit.

b. The absence of 2 professors and one reader on the day of the inspection.

c. The absence of a water tank, X Ray Unit and A-v aides in the mobile dental vans.

d. The need for up-gradation of class rooms.

e. The need for a separate space for staff in the library.

f. RVG not functioning in the Oral medicine and Radiology Department.

g. The absence of a gas connection in Pre-Clinical Prosthetics.

h. The non-working of a few required major equipment."

On being pointed out the aforesaid deficiencies the petitioner/college immediately rectified the same and wrote to the DCI on 27.4.2015 with the compliance report. On receipt of the compliance report, the DCI on 19.5.2015 appointed inspectors to verify the compliance. The compliance inspection was carried out on 22.5.2015 and report submitted on 15.6.2015. After such inspection DCI wrote to the Government of India declining to recommend grant of permission to the petitioner for its fourth batch of increased intake. On receipt of the said letter the petitioner was surprised to find that the earlier deficiencies pointed out, which were rectified by the petitioner, were not taken note of in the compliance verification by the new inspectors. The new Inspectors again pointed out the very same deficiencies and also pointed out further deficiencies which were never pointed out by the earlier inspectors. Pursuant to the letter dated 15.6.2015 of the DCI, the Central Government by its letter dated 19.6.2015 called the petitioner for hearing which was held on 24.6.2015. The Principal of the College having appeared pointed out to compliance submitting all supporting documents. Being satisfied with the compliance by the petitioner. the Central Govt. directed the DCI to review/verify its earlier recommendation dated 15.6.2015. Accordingly, a communication dated 26.6.2015 was issued by the Central Government directing the DCI to review its earlier decision. However, the DCI under its communication 9.7.2015 returned the compliance report without conducting the verification process on the ground that the period prescribed under the schedule has expired.

Accepting the stand of the DCI i.e. the last date for sending the recommendation to the Government of India was dated 15.6.2015, which has already over, the Government of India by their communication Annexure-M dated 15.7.2015 conveyed to the petitioner that the Central Government has decided "not to renew" permission for the fourth batch BDS course and "not to allow" admissions at the petitioner-college with increased intake capacity from 60 to 100 for the academic session 2015-16. Challenging the communication of the Government of India as well as the DCI, this writ petition is filed.

The learned counsel assailing the impugned orders contended when the petitioner has rectified all the deficiencies pointed out in the earlier inspection, in the inspection done to verify the compliance (which was done by totally different inspectors) not only they have not properly verified the compliance but for the first time raised several other new deficiencies. On being served with the said notice pointing out the deficiencies, the petitioner complied with the same and submitted its report to the DCI. However, the DCI without properly looking into the said compliance report, recommended to the Government not to renew permission for the fourth batch. When the Central Government issued notice to the petitioner to appear in person and have its say, petitioner brought to the notice of the Government of India that all the deficiencies have been complied with. Being satisfied with the said explanation, the Government of India directed the DCI to review the recommendations made by it. Instead of complying with the said direction, they wrote back saying that the time prescribed under schedule is over and nothing could be done. Accepting such letter, Government of India has passed the impugned order refusing to renew the permission. He submits when the Central Government was satisfied that the petitioner has rectified all the defects and when it called upon the DCI to review its earlier recommendation, if the DCI has not reviewed its recommendation, the Government ought to have granted renewal ignoring the earlier recommendation of the DCI. When the DCI pleaded their inability to renew, the Central Government ought not to have acted on such report and therefore he submits the case for setting aside both the impugned orders is made out.

Per contra, Learned counsel appearing for the DCI submitted, by the time the Central Government called upon them to review their earlier recommendation, the time prescribed under the schedule was over and therefore, they were justified in not reviewing for the present academic year and they cannot be found fault with.

The Assistant Solicitor General appearing for the Union of India submits the DCI could have reviewed the earlier report as the Central Government had the power to extend the time schedule prescribed under the schedule, which they have not noticed. However, he submits a direction may be issued to the DCI to review the earlier report and then submit a fresh report, so that they could act on such report considering granting renewal of permission.

In the connected batch of writ petitions where admission to MBBS under graduate course was involved, we have set out the law on the point based on the various decision of the Apex Court.

Therefore, the question for consideration is, whether both the authorities were justified in refusing to look into the compliance report on the ground the time schedule prescribed is over.

In the recent judgment the Apex Court in Royal Medical Trust (Regd.) and Others Vs. Union of India and Others held as under:

"29. The cases in hand show that the Central Government did not choose to extend the time limits in the Schedule despite being empowered by Note below the Schedule. Though the Central Government apparently felt constrained by the directions in Priya Gupta it did exercise that power in favour of Government Medical Colleges. The decision of this Court in Priya Gupta undoubtedly directed that Schedule to the Regulations must be strictly and scrupulously observed. However, subsequent to that decision, the Regulations stood amended, incorporating a Note empowering the Central Government to modify the stages and time limits in the Schedule to the Regulations. The effect of similar such empowerment and consequential exercise of power as expected from the Central Government has been considered by this Court in Priyadarshini. The Central Government is thus statutorily empowered to modify the Schedule in respect of class or category of applicants, for reasons to be recorded in writing. Because of subsequent amendment and incorporation of the Note as aforesaid, the matter is now required to be seen in the light of and in accord with Priyadarshini where similar Note in pari materia Regulations was considered by this Court. We therefore hold that the directions in Priya Gupta must now be understood in the light of such statutory empowerment and we declare that it is open to the Central Government, in terms of the Note, to extend or modify the time limits in the Schedule to the Regulations. However the dead line namely 30th of September for making admissions to the first MBBS course as laid down by this Court in Madhu Singh and Mridul Dhar must always be observed."

It is relevant to point out at this juncture the said note was added to the MCI Regulations on 1.10.2012. The inspiration for the amendment to the MCI Regulation is traceable to the Schedule to the Regulations framed under the Dentists Act, 1948. Such a note is there in the Dental Regulations from the year 2007.

"Note - 1. If any clarification is sought by the Central Government on the recommendation of the Council, the same will be furnished by the Council forthwith, if necessary, after conducting inspection;

The time schedule indicated above may be modified by the Central Government, for reasons to be recorded in writing, in respect of any class or category of applications."

Therefore, the note to the Schedule to the Dental Regulations makes it clear that if any clarification is sought by the Central Government on the recommendation of the council, the same will be furnished by the council forthwith, if necessary, after conducting inspection.

Unfortunately both the DCI and the Central Government did not notice this note to the Dental Regulations. When the petitioner has appeared before the Government of India pointing out the errors committed by the DCI and also pointing out removal of all deficiencies pointed out by them in the first inspection as well as in the second inspection and substantiated the same by producing documents and when the Government of India called upon the DCI to review its earlier recommendation in the light of the aforesaid material, there was an obligation cast on the DCI to review its earlier order. The reason given for not reviewing is, asunder:--

"Since the last date for sending recommendation to GOI was 15.6.2015 which is already over and the Executive Committee observed that the Council has already inspected the said college two times i.e. 24th March, 2015 and 22nd May 2015 and after some discussion and deliberation decided to reiterate its earlier decision as under:

The Council recommends to the Central Government "not to renew" its permission for 4th year BDS Course and "not to allow" the admission at V.S. Dental College and Hospital, Bangalore with increased intake capacity from 60 to 100 for the academic session 2015-2016 for the reasons mentioned therein."

Therefore they refused to review their earlier recommendation on the ground that the last date for sending recommendation to the Government of India was 15.6.2015. After referring to the judgment of Apex Court in Mridul Dhar (Minor) and Another Vs. Union of India (UOI) and Others, AIR 2005 SC 666 : (2005) 1 CTC 764 : (2005) 2 ESC 198 : (2005) 1 JT 340 : (2005) 2 SCC 65 : (2005) 1 SCR 380 : (2005) AIRSCW 471 : (2005) 2 Supreme 658 and Priya Gupta Vs. State of Chhatishgarh and Others, AIR 2012 SC 2413 : (2012) 5 SCALE 328 : (2012) 7 SCC 433 : (2012) AIRSCW 3354 , they were of the view that time schedule upheld by the above mentioned pronouncement where it is clearly held that any authority which failed to follow the statutory time schedule will be held liable for the Contempt of Court Act 1971. They decided not to reconsider any compliance report/representation/application of the Dental College without any physical report/compliance of inspection report, because of the dicta of the aforesaid Hon''ble Supreme Court of India they cannot carry out any special inspection after 15.6.2015. In coming to the said conclusion the DCI did not notice that under the Regulations the time schedule indicated may be modified by the Central Government for the reasons to be recorded in writing in respect of any class or category of any applications. In fact in the judgment of the Apex Court in Royal Medical Trust case, the Supreme Court declared that it is open to the Central Government, in terms of their note, to extend or modify the time limits in the schedule to the Regulations. This aspect has been completely missed out by both of them i.e. DCI as well as the Central Government. When the Central Government gave a personal hearing to the petitioner on 24.6.2015 after the last date i.e. 15.6.2015 and called upon the council to review/verify their earlier recommendation dated 15.6.2015, unless they intend to modify the time schedule, they would not have given such direction at all. Therefore, it is a case where the Central Government ought to have extended the time limit and consider the compliance report of the petitioner and should have passed appropriate orders on merits.

Assuming for arguments sake, that the Dental Council of India, being the Apex body which is established for the maintenance of the standards in Dental Education, found deficiencies in the second visit, on that ground, if they have to submit report to the Central Government recommending not to renew the permission it has serious civil consequences, insofar as the petitioner''s college is concerned. Similarly, if the Central Government were to accept the report and reject renewal permission it would also have serious civil consequences. Therefore, both Dental Council of India and the Central Government were under an obligation to furnish a copy of the report to the college, point out the said deficiencies, give them opportunity to have their say and also give them an opportunity to rectify the deficiencies, and if requested to give them personal hearing and then on consideration of the same pass appropriate orders in accordance with law. The said procedure is not followed either by the Dental Council of India or by the Central Government. Without following the said procedure, the impugned orders are passed. The said impugned orders are in violation of principles of natural justice. The said orders seriously affect the rights of the petitioner. In fact, it also affects all meritorious students who are eligible for BDS seat and therefore, it is unsustainable and accordingly it requires to be quashed.

Now the appropriate course for this Court is to permit the petitioner to have its say insofar as the fresh deficiencies pointed out in the second inspection on 22.5.2015. If the deficiencies do not exist and if they have been complied with by removing the same, they can also file the compliance report. The said exercise shall be done on or before 31.08.2015. Thereafter, the Dental Council of India shall consider the same by giving them personal hearing and pass appropriate orders on or before 10.09.2015. The Dental Council of India shall submit its report to the Central Government forthwith and the Central Government shall pass appropriate orders after hearing the petitioners on or before 18.09.2015.

The Dental Council of India and the Central Government also to take note of the fact that in pursuance of the consensus agreement entered into between the petitioners'' institution and the Government of Karnataka, 25% of the seats are to be surrendered to the Government for being filled up on merit basis. Any denial of permission would affect public at large and the students who have found place in the merit list prepared by the Karnataka Examination Authority.

In this context it is useful to refer to the observation made by the Apex Court in Priya Darshni Dental College and Hospital Vs. Union of India (UOI) and Others, (2011) 3 JT 553 : (2011) 3 SCALE 543 : (2011) 4 SCC 623 : (2011) 2 SCR 945 : (2011) AIRSCW 2383 : (2011) AIRSCW 2404 , wherein it was observed that, applicants for renewal were existing dental colleges, which were functioning for three or four years and each college had admitted hundreds of students either directly or through the state Government allotment. The colleges had the benefit of initial permission and several renewals of permission. Refusal of renewal of permission in such cases should not be abrupt nor for insignificant or technical violations. Nor should such applications be dealt in a casual manner, by either granting less than a week for setting right the ''deficiencies'' or not granting an effective hearing before refusal. The entire process of verification and inspection relating to renewal of permission should be done well in time, so that such existing colleges have adequate and reasonable time to set right the deficiencies or offer explanations to the deficiencies. The object of providing for annual renewal of permissions for four years, is to ensure that the infrastructural and faculty requirements are fulfilled in a gradual manner and not to cause disruption. The need for renewal of permission emanates from the fact that a newly established college is not required to have in place, full complement of the teaching faculty and complete infrastructure in the first year itself. This is because, during the first year, the college will be catering only to a limited number of first year students. During the second, third and fourth and fifth years, the student strength will increase and every year correspondingly the infrastructure and faculty will have to be increased.

The Apex Court in the case of Al-Karim Educational Trust and another Vs. State of Bihar and others, (1996) 2 AD 367 : AIR 1996 SC 1469 : (1996) 2 JT 662 : (1996) 2 SCALE 474 : (1996) 8 SCC 330 : (1996) 1 UJ 540 has observed that, it is impractical to insist, for a fool proof or absolute adherence to all requirements without regard to their importance or relevance, for the purpose of imparting education, in a practical way, especially because the institution has begun to function, students admitted to institution have taken the examination and the fate of a good many number of students should not hang in the balance in an unending or everlasting manner. The question to be posed, is whether there exists the minimal and satisfactory requirements to keep the matter going, and not whether better arrangements that will render the set up more efficient and more satisfactory, should be insisted as "a wooden" rule. It may be that there are some minor deficiencies here and there which call for rectification. Time can certainly set right such matters. What is required is a total, practical, overall view and not literal compliance with the deficiencies pointed out. Finally, in paragraph No. 12 it is observed that, the totality of the circumstances disclosed in the said case and having regard to the fact that at each stage new deficiencies are being pointed out and they were satisfied beyond any manner of doubt, that the deficiencies have been substantially complied with and minor deficiencies pointed out in the last mentioned report are not such as to permit withholding of the affiliation to which the appellants'' institution is entitled, from the manner in which the deficiencies have been pointed out from time to time, each time the old deficiencies are shown to have been removed, new deficiencies are shown, gives the impression that the affiliation is unnecessarily delayed. Once the institution feels secure on the question of affiliation, we have no doubt that these minor deficiencies, if they exist, shall be taken care of by those in charge of the institution. For taking such further steps, the grant of affiliation need not wait. Therefore, the deficiencies which come in the way of renewal are of such a nature which are fundamental and even minimum requirements are not satisfied. Therefore, both the Dental Council of India as well as the Central Government shall bear in mind the aforesaid observations of the Hon We Supreme Court while considering the compliance report submitted by the college in answer to the fresh deficiencies pointed out on 22.5.2015 which was noticed during second visit.

Under these circumstances we are of the view as the last date for admission to these under graduate courses is 30.9.2015 and when the Central Govt. has the power to extend the time schedule, for reasons to be recorded in writing and when the Central Government has directed the DCI to review its earlier recommendation after the time schedule prescribed is over, the proper course would be to direct the DCI to review its earlier recommendation as directed by the Central Government and submit its fresh recommendation to the Central Government so that on the basis of the same, the Central Govt. could pass appropriate orders and in accordance with law. That would meet the ends of justice.

It is made very clear when the DCI inspects the college for verification of the compliance report they shall confine that inspection only to find out whether the deficiency as pointed out is complied with or not and they shall not point out any fresh deficiencies raised for this academic year.

Hence, we pass the following order:--

"(a) Writ Petition is allowed.

(b) The impugned communication/letter of the 2nd respondent-Government of India dated 15.7.2015 in No. N.12025/44/2015-DE [Annex-M] and the letter of the Dental Council of India dated 9.7.2015 in No. DE - 22-2015/4889 (Annexure-K) to the 2nd respondent are hereby quashed.

c) As the last date for admission to the under graduate courses is 30.9.2015 and when the Central Govt. has the power to extend the time schedule, for reasons to be recorded in writing and when the Central Government has directed the DCI to review its earlier recommendation after the time schedule prescribed is over, the proper course would be to direct the DCI to review its earlier recommendation as directed by the Central Government and submit its fresh recommendation to the Central Government so that on the basis of the same, the Central Govt. could pass appropriate orders and in accordance with law

d) Petitioner is given liberty to file a compliance report on or before 31.8.2015 in respect of the deficiencies pointed out in the second inspection on 22.5.2015.

(d) The first respondent- Dental Council of India shall consider the same giving them personal hearing and pass appropriate orders on or before 10.9.2015.

(e) Thereafter, the Dental Council of India shall submit its report to the Central Government and the Central Government shall pass appropriate orders after hearing the petitioners on or before 18.9.2015.

No costs."