Arun Raj M.R. and others v. Dental Council of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.V.RAMAKRISHNA PILLAI** ## **THURSDAY, THE 29TH DAY OF OCTOBER 2015/7TH KARTHIKA, 1937** ## **WP(C).No. 26131 of 2009 (J)** **----------------------------** - **PETITIONER(S): --------------------------** **1. ARUN RAJ.M.R., S/O.N.J.RAJAPPAN, RAJ BHAVAN, VALLASSERY, KADUTHURUTHY P.O., KOTTAYAM.** **2. DEEPAK.K.T., S/O.K.K.KRISHNAN, KANDANGALI P.O., PAYYANNUR, KANNUR.** **3. GEORGY JAMES, S/O.G.JAMES KUTTY, PATTATHIL HOUSE, S.V.MARKET P.O., KARUNAGAPALLY, KOLLAM.** **4. GIRISANKAR.M., S/O.B.SIVASANKARAN NAIR, MANIMANGALATH NANDANAM, KANAKAVAL GARDENS, EVAUGELICKAL CHURCH ROAD, M.O.WARD, ALEPPEY.** **5. AFSAL.A.S., S/O.A.ABDUL SALAM, MOSQUE VIEW, NR.KOLLAM KSRTC STAND,** **KOLLAM HEAD (P.O), KOLLAM-1.** **6. SATHEESH S.L., S/O.B.SASIDHARAN, DARSANA, TKD ROAD, MUTTADA P.O., THIRUVANANTHAPURAM.** **7. KRISHNA KUMAR.M.G.,S/O.GOPALAKRISHNAN NAIR, MANIMANDIRAM, THEKKUMCHERY, PUTHOOR P.O., KOTTARAKKARA, KOLLAM-691 502.** **8. NASIL SAKKIR, S/O.AISHA SAKKIR, TC NO.2/453 (22), P.T.CHACKO NAGAR, MEDICAL COLLEGE P.O., ULLOR, TRIVANDRUM.** **9. SHABI MOHD MUSTHAFA, S/O.P.MOHAMMED MUSTHAFA, SARGAM, MANGATTIRI, TIRUR, MALAPPURAM-676 105.** **10. SHAHIN KABEER, S/O.KABEER KUTTY, CHARINJAVILA KIZHAKKE PUTHEN VEEDU, AYIKKUNNAM, SASTHAMCOTTA, KOLLAM.** - **BY ADV. SRI.M.K.CHANDRA MOHANDAS** **2/-** **sts** **-2-** ## **WP(C).NO.26131/2009** ## **RESPONDENT(S):** - **----------------------------** **1. THE DENTAL COUNCIL OF INDIA, REPRESENTED BY THE SECRETARY, AIWSM-E-GALIB MERG, KOTIA ROAD, NEW DELHI.** **2. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GOVERNMENT HEALTH & FAMILY WELFARE DEPARTMENT, SECRETARIAT, TRIVANDRUM.** **3. THE UNIVERSITY OF KERALA, REPRESENTED BY THE REGISTRAR, TRIVANDRUM.** **4. THE PMS COLLEGE OF DENTAL SCIENCE AND RESEARCH, GOLDEN HILLS, VATTAPPARA, TRIVANDRUM, REPRESENTED BY THE CHAIRMAN, PMS COLLEGE OF DENTAL SCIENCE AND RESEARCH, VATTAPPARA, TRIVANDRUM.** **5. THE DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE, TRIVANDRUM.** **6. PRINCIPAL, PMS COLLEGE OF DENTAL SCIENCE AND RESEARCH, VATTAPPARA,** **TRIVANDRUM.** **R1 BY ADV. SRI.TITUS MANI VETTOM, SC, DENTAL COUNCIL OF INDIA SRI.SAJEEV KUMAR K.GOPAL** **R2 & R5 BY SR GOVERNEMNT PLEADER SRI.K.K.SAIDALAVI R3 BY ADV. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY. SRI.GEORGE POONTHOTTAM,SC,KERALA UTY. SRI.BECHU KURIAN THOMAS, SC, UNIVERSITY OF KERALA R4 & R6 BY SRI.KURIAN GEORGE KANNANTHANAM,SENIOR ADVOCATE ADV. SRI.C.S.MANU** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-10-2015 , ALONG WITH WPC.NO. 26880/2009 AND WPC.NO. 36009/2009, THE COURT ON 29-10-2015 DELIVERED THE FOLLOWING:** **sts** ## **WP(C).NO.26131/2009** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE RELEVANT PORTION OF THE INSTRUCTION PUBLISHED IN THE WEB SITE OF THE 1ST RESPONDENT** - **P2 COPY OF THE MINUTES OF THE MEETING** - **P3 COPY OF THE GOVERNEMNT ORDER DATED 8/1/2009** - **P4 COPY OF THE GOVERNEMNT ORDER NO.32/2009/H & FWD DATED 21/1/2009** - **P5 COPY OF THE REPRESENTATION TO THE 1ST RESPONDENT** - **P6 COPY OF THE LETTER OF THE 1ST RESPONDENT TO THE 6TH RESPONDENT** - **P7 COPY OF THE PROCEEDINGS OD THE 3RD RESPONDENT** - **P8 COPY OF THE NOTICE ISSUED BY THE ROYAL DENTAL COLLEGE CHALISSERY** - **P9 COPY OF THE EXPLANATION TO THE 5TH RESPONDENT** - **P10 COPY OF THE EXPLANATION TO THE 2ND RESPONDENT** ## **RESPONDENT'S EXHIBITS:** **R1(A) COPY OF THE LETTER OF THE DENTAL COUNCIL DATED 28/12/2007 R1(B) COPY OF THE LETTER DATED 1/11/2007 OF THE DENTAL COUNCIL OF INDIA** ## **/TRUE COPY/** ## **P.A.TO JUDGE** **sts** ## **A.V. RAMAKRISHNA PILLAI, J.** -------------------------------------------------W.P.(C) Nos. 26131, 26880 & 36009 of 2009 -------------------------------------------------Dated this the 29[th] day of October, 2015 ## **J U D G M E N T** The issue involved in these writ petitions is the grant of stipend to certain BDS students, who are undergoing internship in the PMS College of Dental Science and Research, Golden Hills, Vattappara, Thiruvananthapuram. 2. WP(C) Nos.26131/2009 & 26880/2009 are filed the interns, who are undergoing house surgeoncy (compulsory internship) for BDS at the PMS College of Dental Science and Research, who is the 4[th] respondent in the writ petitions. According to them, as per the scheme of internship, stipend is to be paid as continued in the scheme of the Dental Council of India. They point out that the University of Kerala had taken Ext.P7 decision directing the 4[th] respondent to pay stipend to the petitioners. According to them, nothing is paid by the 4[th] respondent and it is in arrears from February, 2009. W.P.(C) No. 26131/09 & con. cases **==> picture [20 x 8] intentionally omitted <==** Though several representations have been made before the Government and the Dental Council of India, they went into deaf ears and did not evoke any positive response. Thus, the writ petitions. 3. WP(C) No.36009/2009 is filed by the PMS College of Dental Science and Research, who is the 4[th] respondent in the other writ petitions. They are aggrieved by Ext.P2 order passed by the respondent university, by which, the university has directed the self-financing colleges to pay stipend to students, who are undergoing internship. According to the petitioner, it is an unaided self-financing college, affiliated to the respondent university and no grant or aid is provided by the university or the State Government to the college. They are providing the facility for internship to the students, who have undergone BDS course in their college. According to them, the students undergoing the internship in the college are not required to render any service to the college and they are not rendering any W.P.(C) No. 26131/09 & con. cases **==> picture [20 x 8] intentionally omitted <==** service in the clinical section of the college unlike the house surgeons in the Government Medical Colleges. Therefore, the petitioner is not making any payment to the students undergoing internship. At the same time, the petitioner is also not collecting any fees or payment for providing the facility for training to the students. As per the BDS Course Regulations, 2007, the internship has been dispensed with from 2007-08 onwards. As per the said regulation, the BDS course shall be of 5 years' duration and the internship has been integrated into 5 years' programme to meet international standard. The petitioner challenges Ext.P2 on the ground that it is ultra vires and void. According to them, there is no provision in the Kerala University Act, 1974, which empowers the university to pass any order like Ext.P2 directing the colleges to pay stipend to the students undergoing internship. Hence, the writ petition. 4. Similar statements have been filed by the Dental Council of India in WP(C) Nos.26131/2009 & W.P.(C) No. 26131/09 & con. cases **==> picture [20 x 8] intentionally omitted <==** 26880/2009, in which, it is stated that BDS Course Regulation, 1983 inter alia envisages that every candidate would be required after passing the final BDS Examination to undergo one year paid rotating internship in a dental college. Quantum of amount to be paid to the interns has not been mentioned in the said regulation. Therefore, the stipend to the interns of the dental colleges are to be paid to them as per the Rules and Regulations prescribed by the concerned State Government/University in this regard. However, the Dental Council of India has recommended to the Central Government that a minimum stipend of 3,000/- be paid₹ to the interns by private dental colleges in the country vide Ext.R1(a) letter dated 28.12.2007, for which approval of Central Government is awaited. As regards the claim of the petitioners that they are undergoing house surgeoncy without being paid stipend for their internship in the college, it is stated that the interns are those, who do one year compulsory rotating internship W.P.(C) No. 26131/09 & con. cases **==> picture [20 x 8] intentionally omitted <==** after final BDS, and they are awarded BDS degree depending upon their successful completion of the internship programme, whereas they are students, who hold recognized BDS degree of an Indian University. It is further stated that the revised BDS Regulation, 2007 published in the Gazette of India dated 10.09.2007 inter alia envisages the duration of the BDS course as five years without internship and this is effective from the date the regulations have been published in the Gazette of India, i.e., 10.09.2007. The Dental Council of India, vide Ext.R1(b) letter dated 01.11.2007, has informed all concerned including the dental colleges in the country regarding this. 5. Similar counter affidavits have been filed by the 3[rd] respondent university in WP(C) Nos.26131/2009 & 26880/2009, in which, they have contended that the petitioners are students joined for BDS course in October, 2003 in the PMS College of Dental Science and Research, Vattappara, Thiruvananthapuram and are now W.P.(C) No. 26131/09 & con. cases **==> picture [20 x 8] intentionally omitted <==** undergoing house surgeoncy from 09.02.2009 onwards for one year as a part of Compulsory, Rotating Internship Programme. The students, who are doing house surgeoncy at the said college had submitted a request to the university for issuing a university order regarding payment of stipend to them. The Syndicate of the University, in its meeting held on 25.03.2009 (Special Item No.4), considered the request from the House Surgeon of PMS College of Dental Science and Research, which is a self-financing college under the University of Kerala and resolved that the request be agreed to. The Syndicate, in its meeting held on 29.04.2009, confirmed the preliminary minutes of the 33[rd] meeting of the Syndicate held on 25.03.2009 subject to certain modifications; resolved that the request be agreed to and further resolved that the management of self-financing colleges be directed to pay stipend at the rate of 7,000/-₹ as is being paid in the Government Dental Colleges on implementation of GO(MS) No.32/2009/H & FWD dated W.P.(C) No. 26131/09 & con. cases **==> picture [20 x 8] intentionally omitted <==** 21.01.2009. Accordingly, sanction has been accorded for the payment of an amount of 7,000/- per mensum as₹ stipend by the management of self-financing dental colleges to BDS students, undergoing one year internship. Ext.P7 is the copy of the university order in this regard. 6. In the statement filed by the State in WP(C) No.26131/2009, they have stated that the petitioners challenged the stand taken by the 4[th] respondent college regarding the non-granting of stipend to the petitioners for doing house surgeoncy. The 4[th] respondent college is a self-financing medical institution and no grant-in-aid is issued from the part of the State Government to the college. The State Government also does not have any administrative or any other type of control over the self-financing medical/dental institutions and the Government is not in a position to give any direction to the college authorities to grant stipend. Since the Government is having no control over the institution, no W.P.(C) No. 26131/09 & con. cases **==> picture [20 x 8] intentionally omitted <==** direction to the college authorities could be issued; according to them. It is further stated that the Government have enhanced the stipend given to the dental house surgeoncy in the Government Dental Colleges as per GO(MS) No.32/2009.H&FWD dated 21.01.2009. 7. In WP(C) No.36009/2009, the University of Kerala filed a counter affidavit, contending as follows; The university has prescribed a curriculum for the BDS course in accordance with the Dental Council of India Regulations. As per the curriculum prescribed by the University for DBS Programme (1995), the interns shall be paid stipend during the period of internship not extending over a period of one year. The internship shall be compulsory and rotating as per the regulations prescribed for the purpose. This provision in the regulation is applicable to all dental colleges affiliated to the University of W.P.(C) No. 26131/09 & con. cases ..9.. Kerala. Ext.R1(a) is the copy of the relevant portion of the curriculum of the BDS course. The Kerala University Act, 1974, Section 56 (2) empowers the university to prescribe the terms and conditions of affiliation of colleges of courses. The petitioner college, which is affiliated to the University of Kerala, is liable to strictly adhere to the curriculum prescribed by the university since affiliation is granted on the implied condition that they shall follow the university curriculum and rules pertaining to the course. The non-payment of the stipend to the students, who study in self-financing dental colleges amounts to violations of the BDS curriculum and discrimination as the students in the Government Dental Colleges are paid stipend. The 2[nd] respondent considered the request of 2003-04 batch of House Surgeons of PMS College W.P.(C) No. 26131/09 & con. cases **==> picture [26 x 8] intentionally omitted <==** of Dental Science and Research and resolved that the request be agreed and further resolved stipend at the rate of 7,000/- as is being paid in₹ the Government Dental Colleges on implementation of Ext.R1(b), GO(MS) 32/2009/H&FWD dated 21.01.2009. In the representation, it was contended that House Surgeons under other Universities are being paid stipend as done by the government colleges. They produced a copy of the notice dated 15.12.2008 issued by the Royal Dental College, Chalissery related to disbursement of stipend. The petitioner cannot deviate from the BDS curriculum, which provides for paid internship on the mere ground that they are not utilizing the service of the interns. The students cannot be be denied their legitimate right for stipend for the failure of the college in utilizing the service of interns. The petitioner is bound to pay stipend to W.P.(C) No. 26131/09 & con. cases **==> picture [26 x 8] intentionally omitted <==** the interns and at the same time, utilize their service to the advantage of the institution and benefit of the society. The medical and nursing students are paid stipend during their internship period. Hence, the university is fully justified in issuing the order for the payment of stipend to the interns of self-financing colleges. Moreover, the petitioner has not challenged the university order directing the management of the self-financing dental colleges to pay internship to the BDS students. The relief sought in the writ petition is only to quash Ext.P1, the revised BDS Regulations, 2007. According to them, Ext.P1 is applicable to future admissions as and when the same is accepted by State Governments and universities. 8. Arguments have been heard. 9. For convenience of discussion, the petitioners W.P.(C) No. 26131/09 & con. cases **==> picture [26 x 8] intentionally omitted <==** in WP(C) Nos.26131/2009 & 26880/2009 can be referred to as, “the interns”, and the petitioner in WP(C) No.36009/2009 can be referred to as, “the college”. 10. The interns commenced their BDS course in 2003. At that time, the course was having a duration of four years plus one year internship. The definite stand taken by the Dental Council is that the BDS Course Regulation, 1983 envisages that after passing the final BDS examination, every candidate would be required to undergo one year paid rotating internship in a dental college. However, the quantum of amount to be paid to the interns has not been mentioned in the said regulation. Therefore, the stipend to the interns of the dental colleges are to be paid to them as per the rules and regulations prescribed by the concerned State Government/University in this regard. However, the Dental Council of India has recommended to the Central Government that a minimum stipend of 3,000/- be paid₹ to the interns by private dental colleges in the country W.P.(C) No. 26131/09 & con. cases **==> picture [26 x 8] intentionally omitted <==** vide Ext.R1(a) letter dated 28.12.2007. However, the approval of the Central Government in this regard is awaited. The trump card of the college is that so long as the university or the Government has not made any regulation, they are not bound to pay any stipend to the interns as prayed for. However, the university has resolved that stipend @ 7,000/- be paid in Government₹ Dental Colleges. 11. It is submitted by the learned counsel for the college that instead of providing stipend, the interns are giving free accommodation and free food during their period of internship. But, it is crucial to note that according to the State, the stipend given to the Dental House Surgeons in the Government Dental Colleges has been enhanced as per GO(MS) No.32/2009.H&FWD dated 21.01.2009. There cannot be any doubt that the interns of the Government Dental Colleges are being paid stipend. Therefore, though no specific rule or regulation has been made by the State/University, the college is W.P.(C) No. 26131/09 & con. cases **==> picture [26 x 8] intentionally omitted <==** bound to pay stipend at the rate paid in the Government Dental Colleges as it was the definite direction of the Dental Council of the Government of India that the interns have to be paid stipend. 12. Mr.M.K.Chandramohan Das, the learned counsel appearing for the interns, would submit that this is the only college, where stipend is denied to the interns of the BDS course. This Court had occasion to consider the legality of a direction issued by the Medical Council of India to the self-financing colleges to pay stipend to the post graduate students at par with the stipend paid in the government colleges. The Kerala Christian Professional College challenged the legality of the same before this Court; and this Court dismissed the writ petition upholding the stipulation to pay stipend [See **Kerala Christian Professional College, Kakkanad** v. **Medical Council of India & Another** reported in 2015 (3) KHC 572]. Though the same was taken in appeal in WA No.1250/2015, the same was dismissed as per the W.P.(C) No. 26131/09 & con. cases **==> picture [26 x 8] intentionally omitted <==** decision reported in 2015 (3) KLT 487. 13. It was strenuously argued by the learned counsel for the college that in that case, it was on the basis of the Medical Education Regulation, 2000 issued in terms of Medical Council Act, 1956; and as there is no statute in the present case envisaging payment of stipend to PG students, this Court cannot compel the college to pay stipend to the interns by way of a writ of mandamus. I am not inclined to accept the said argument, because, it is the definite case of the Dental Council of India that they have specifically instructed that stipend be paid to the interns of private dental colleges though the amount was not specified. The non-specification of the quantum by the Dental Council of India is not a bar in granting the benefit as the interns are to be treated at par with the students in the government medical colleges. Therefore, on a consideration of the entire materials now placed on record, this Court is of the view that the college is bound to pay stipend to the interns at the rate W.P.(C) No. 26131/09 & con. cases **==> picture [26 x 8] intentionally omitted <==** of stipend paid to the students of the Government Dental Colleges in the State. In the result, the writ petitions are disposed of as follows; - WP(C) Nos.26131/2009 & 26880/2009 are allowed. The 4[th] respondent college is directed to pay stipend at the rate of stipend paid to the students of the Government Dental Colleges in the State to the petitioners within a period of one month from the date of receipt of a copy of this judgment. Needless to say that the arrears calculated at the rate shall also be disbursed to the interns within the said period. - WP(C) No.36009/2009 is dismissed. Sd/- **A.V. RAMAKRISHNA PILLAI JUDGE** bka/-