Educare Charitable Trust v Union of India and The Dental Council of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **TUESDAY, THE 2ND DAY OF JULY 2013/11TH ASHADHA, 1935** ## **WP(C).No. 13586 of 2013 (W)** **----------------------------------------** **PETITIONER:** ## **-------------------** **EDUCARE CHARITABLE TRUST, CHATTIPPARAMBA, MALAPPURAM - 676 504, REP. BY ITS MANAGING TRUSTEE NASSAR KILIYAMANNIL.** ## **BY ADV. SRI.ANIL K.NARENDRAN.** **RESPONDENTS:** **------------------------** ## **1. UNION OF INDIA,** **REP. BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HEALTH AND FAMILY WELFARE, (DENTAL EDUCATION SECTION), NIRMAN BHAVAN, NEW DELHI - 110 011.** ## **2. THE DENTAL COUNCIL OF INDIA,** **AIWAN-E-GALIB MARG, KOTLA ROAD, NEW DELHI - 110 002, REP. BY ITS SECRETARY.** **R1 BY SRI.P.PARAMESWARAN NAIR,A.S.G OF INDIA, R2 BY ADV. SRI.ALEXANDER THOMAS, S.C.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-06-2013, ALONG WITH W.P.(C).NO.13837/2013, THE COURT ON 02-07-2013 DELIVERED THE FOLLOWING:** **Prv.** ## **W.P.(C).NO.13586/2013-W:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXT.P1: TRUE COPY OF NOTIFICATION NO.DE-22-2005 DATED 16/1/2006 ISSUED BY THE 2ND RESPONDENT.** - **EXT.P2: TRUE COPY OF NOTIFICATIN NO.DE-22-2012 DATED 21/5/2012, PUBLISHED BY THE 2ND RESPONDENT IN THE GAZETTE OF INDIA DATED 22/5/2012.** - **EXT.P3: TRUE COPY OF LETTER DATED 10/7/2012 OF THE 2ND RESPONDENT APPOINTING INSPECTORS IN RESPECT OF THE PETITIONER'S DENTAL COLLEGE.** - **EXT.P4: TRUE COPY OF LETTER DATED 7/1/2013 OF THE 2ND RESPONDENT ADDRESSED TO THE 1ST RESPONDENT.** - **EXT.P5: TRUE COPY OF NOTIFICATION DATED 23/1/2013 ISSUED ON BEHALF OF THE 1ST RESPONDENT GRANTING RECOGNITION TO THE EXISTING INTAKE FOR B D S COURSE IN EDUCARE INSTITUTE OF DENTAL SCIENCES, WITH EFFECT FROM 14/7/2012.** - **EXT.P6: TRUE COPY OF COVERING LETTER DATED 8/8/2012 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT, ALONG WITH APPLICTION DATED 8/8/2012 FOR PERMISSION TO INCREASE ADMISSION CAPACIT FOR BDS COURSE IN EDUCARE INSTITUTE OF DENTAL SCIENCES FROM 50 TO 100.** - **EXT.P7: TRUE COPY OF REVISED ESSENTIALITY CERTIFICATE DATED 29/12/2012 ISSUED BY THE GOVERNMENT OF KERALA.** - **EXT.P8: TRUE COPY OF REVALIDATED CONSENT OF AFFILIATION DATED 31/12/2012, ISSUED BY KERALA UNIVERSITY OF HEALTH SCIENCES.** - **EXT.P9: TRUE COPY OF PETITIONER'S COVERING LETTER DATED 31/12/2012, ADRESSED TO THE 1ST RESPONDENT.** - **EXT.P10: TRUE COPY OF COMMUNICATION DATED 31/12/2012 ISSUED ON BEHALF OF THE 1ST RESPONDENT.** - **EXT.P11: TRUE COPY OF LETTER DATED 4/2/2013 OF THE 2ND RESPONDENT ADDRESSED TO THE 1ST RESPONDENT.** - **EXT.P12: TRUE COPY OF REPRESENTATION DATED 6/2/2013, SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **EXT.P13: TRUE COPY OF JUDGMENT DATED 3/4/2013, THIS HONOURABLE COURT IN W.P.(C). NO.2592 OF 2013 AND CONNECTED CASES.** **Prv.** ## **W.P.(C).NO.13586/2013-W:** **EXT.P14: TRUE COPY OF REPRESENTATION DATED 23/4/2013 SUBMITTED BEFORE THE 1ST RESPONDENT.** **EXT.P15: TRUE COPY OF COMMUNICATION DATED 24/5/2013, ISSUED ON BEHALF OF THE 1ST RESPONDENT.** **EXT.P16: TRUE COPY OF JUDGMENT DATED 13/3/2013 OF THE HONOURABLE HIGH COURT OF KARNATAKA, CIRCUIT BENCH AT DHARWAD, IN WRIT PETITION NO.75950 OF 2013 (EDN-RES).** **EXT.P.17: TRUE COPY OF THE RELEVANT WEBPAGES OF THE OFFICIAL WEBSITE OF THE R.2, DOWNLOADED ON 14/06/2013, ALONG WITH COPY OF THE CENTRAL GOVERNMENT NOTIFICATION DTD. 23/01/2013, DOWNLOADED FROM THE LINK HTTP://WWW.DECIINDIA.ORG/NOTIFICATION PAGE/PDF FILES/EDU CARE-BDS -NOTIFICATION -2012 PDF.** ## **RESPONDENTS' EXHIBITS:** **EXT.R2.A: TRUE COPY OF THE JUDGMENT OF THE DIVISION BENCH IN W.A. 1356/11.** **EXT.R2.B: TRUE COPY OF D C I LETTER NO.DE-22-2013/B-6545 DT. 04/02/2013. EXT.R2.C: TRUE COPY OF JUDGMENT IN W.P.(C).8603/12. EXT.R2.D: TRUE COPY OF THE D C I REGULATIONS 2006. EXT.R2.E: TRUE COPY OF THE D C I REGULATIONS 1956. EXT.R2.F: TRUE COPY OF JUDGMENT IN W.P.(C).5827/13.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **Prv.** ## **A.M.SHAFFIQUE, J** *** * * * * * * * * * * * *** W.P.C.Nos.13586 & 13837 of 2013 ----------------------------------------------Dated this the 2[nd] day of July 2013 ## **J U D G M E N T** Since common questions arise for consideration in the above writ petitions those are decided together. 2. The petitioners in both these writ petitions are educational agencies which has established dental colleges and have permission to conduct B.D.S course with a capacity of 50 students. They applied for increasing the admission capacity from 50 to 100. In accordance with the procedure they submitted application before the Central Government and by separate communication dated 31/12/2012 petitioners were informed by the Central Government that since their applications with complete particulars as required under the Regulations were not received by 31/12/2012, the application does not meet the qualifying criteria for increase of seats in the B.D.S course for the academic session 20132014. One of the reasons stated for rejection was that the W.P.C..Nos. 13586/13 & conn.cases 2 50 B.D.S seats was not recognised till the date of the last date of application. Petitioners challenged the said communication dated 31/12/2012 by filing separate writ petitions. The B.D.S course was recognised on 23/01/2013. During the pendency of the writ petition certain criteria insisted by the Central Government was relaxed especially regarding the requirement to have M.C.I approved/recognised medical colleges in the nearby locality. On the basis of the subsequent changes petitioners preferred a representation before the Central Government in the light of the subsequent events. Petitioners also relied upon note No.2 of the schedule appended to DCI Regulations which enable the Central Government to modify the time schedule in appropriate cases. 3. By common judgment dated 03/04/2013 this Court directed the Central Government to consider the representations submitted by the petitioners and to pass appropriate orders. Petitioners are now faced with a W.P.C..Nos. 13586/13 & conn.cases 3 communication dated 24/05/2013 by which their application had been rejected by the Central Government on the ground that the time schedule in terms of the DCI Regulations of 2006 has already been over and the B.D.S degree with the existing intake of the petitioner's Dental College has been recognised only as per notification dated 23/01/2013 in terms of DCI's recommendation dated 07/01/2013 and therefore it is not feasible for the Central Government to consider the petitioners' application for increase in seats in the B.D.S course from 50 to 100 for the academic session 2013-14. The petitioners impugns the above communication dated 24/05/2013 inter alia contending that the same is arbitrary, illegal and violative of Articles 14 and 19(1)(g) of the Constitution of India, that the said decision was taken by total non-application of mind as none of the contentions in their representations had been looked into. That apart, petitioners relies upon the judgment of the Supreme Court in **Priyadarsini Dental College and Hospital v. Union of** W.P.C..Nos. 13586/13 & conn.cases 4 **India** _[(2011) 4 SCC 623]_ wherein the Supreme Court has referred to Note (2) of the schedule and held that when the Central Government has the discretion to modify the time schedule in appropriate cases for reasons to be recorded, such a consideration has not been made by the Central Government in this matter. Another argument raised is regarding the procedure followed in considering the applications by the respondents. According to the petitioner when a scheme in accordance with provisions of clause (a) and (b) of sub Section (2) of Section 10A of the Dentist Act (hereinafter referred as 'the Act') is submitted to the Central Government, the same has to be referred to the Council for its recommendations. Even if a scheme is defective and does not contain necessary particulars, the Council usually gives an opportunity to the applicant for making a written representation and to rectify the defects. The contention of the petitioner is that when the entire scheme of Section 10A of the Act provides that the Central Government has to W.P.C..Nos. 13586/13 & conn.cases 5 depend upon the recommendation of the DCI, without even forwarding the application of the petitioners to the 2[nd] respondent it was wrong on the part of the Central Government to have refused the request on the mere ground of delay. It is also contended that there was no delay on the part of the petitioners in getting the recognition from the Central Government in regard to the existing 50 seat B.D.S course. After necessary inspection the executive committee of the 2[nd] respondent which held on 26/11/2012 had recommended the grant of recognition to the BDS degree awarded in respect of 50 seats and the 2[nd] respondent's general body had recommended the same on 27/11/2012 and 28/11/2012. But according to the petitioners the same was forwarded to the 1[st] respondent for issuance of notification under Section 10(2) of the Act only on 07/01/2013 and the necessary notification was issued only on 23/01/2013 granting recognition to the existing intake for the B.DS course. However the argument of the 6 W.P.C..Nos. 13586/13 & conn.cases petitioners is that in relation to the petitioner in W.P.C.No.13586 of 2013 the course is recognised w.e.f 14/07/1012 and in relation to the petitioner in W.P.C.No.13837 of 2013 the course is recognised w.e.f 19/07/2012. Therefore according to the petitioners when the effective date of recognition was 14/07/2012 and 19/07/2012 necessarily their application was complete in full particulars and should not have been refused merely for the reason that necessary notification had not been issued by the Central Government before 31/12/2012. 4. Counter affidavit is filed by the second respondent inter alia contending that the time limit is scrupulously followed as the Dental Council will have to conduct various inspections and prepare reports in respect of Colleges which requires fresh permission as well as additional intake of students. A cut off date of 31/12/2012 is specified to enable the applicants to submit the application with all necessary particulars within the said time so that the necessary W.P.C..Nos. 13586/13 & conn.cases 7 verification, inspection and reports could be prepared well in time. In the case on hand, as per the schedule to the Regulations, inspection of the colleges ought to have been over and the report should have been submitted to the Central Government by 15/06/2013. On account of the fact that there had been delay if the time is extended, DCI will not be in a position to complete the necessary inspection and forward the report to the Central Government within the time stipulated for completion of admission. Therefore according to them, even though there is a power vested with the Central Government to modify the time schedule for reasons to be recorded, it is practically difficult for DCI to complete the formalities within a very short time. The 2[nd] respondent also contended that the petitioner is not entitled to invoke the jurisdiction of this Honourable Court as the present writ petition is barred by the general principles of res judicata. It is contended that in the previous writ petitions, similar contentions were urged by the petitioners W.P.C..Nos. 13586/13 & conn.cases 8 but ultimately without getting a decision on merits they only insisted for a disposal of their representation by the Central Government. The Central Government had already disposed of their representation and therefore according to the respondents they are not entitled to challenge the decision taken by the Central Government on merits. It is not that the Central Government did not consider the representation of the petitioners, whereas the only fact that remained to be considered was whether the Central Government ought to have exercised their discretion to relax the time schedule in order to enhance the student intake of the petitioners' institutions. 5. Two questions arise for consideration in the above writ petition. One is whether the writ petitions are barred by general principle of res judicata and secondly whether the impugned order suffers from any vice as claimed by the petitioners. W.P.C..Nos. 13586/13 & conn.cases 9 6. In regard to the first question, a perusal of the judgment would show that the contentions urged by the petitioners in the present writ petition were raised in the earlier writ petition also, but they did not chose to get a decision on merits of the case whereas they only wanted their representation to be considered. Therefore the Court did not go into the merits of the issue and permitted the representation to be considered. The petitioners had submitted that the main hurdle was already cleared by virtue of Ext.R2(b) and even if for any reasons the application preferred by the petitioners cannot be favourably considered for the present year eligibility of 2[nd] respondent can be considered for the next year. Hence the court found that there is no necessity to adjudicate the issue on merits and the writ petitions were disposed of permitting the petitioners to pursue the representations aforesaid. In the light of the aforesaid findings I do not think that the writ petition can be dismissed on the principle of res judicata. W.P.C..Nos. 13586/13 & conn.cases 10 That apart, a contention is raised that it was on account of delay on the part of DCI as well as Central Government that their recognition for the five year course with 50 students got delayed. Such a contention was also raised earlier and they did not chose to prosecute the matter. They only wanted the representation to be considered. Therefore it would be proper for this Court to consider the said arguments as well. 7. With reference to the contention that there is violation of Article 14 and 19(1)(g) of the Constitution of India I do not think that such a situation has arisen in the present case as no particulars are shown to indicate violation of Article 14. In regard to the violation of Article 19 (1)(g) the petitioners do not have a case that their application was not considered at all. Their applications for additional seats were considered and rejected as the same did not comply with the statutory provisions. If the petitioners do not comply with the regulations in force which W.P.C..Nos. 11 13586/13 & conn.cases has statutory force, they cannot complain of violation of fundamental rights under Article 14 or article 19(1)(g) as the case may be. 8. The second contention urged is based on Note (2) which reads as under: _“Note (2): The time-schedule indicated above may be modified by the Central Government, for reason to be recorded in writing, in respect of any class or category of applications.”_ 9. Going by the schedule applicable for B.D.S course , it is not in dispute that the Central Government has to receive the applications from 01[st] August to 30[th] September and the applications are to be forwarded by the Central Government to DCI for technical scrutiny upto 31[st] December. The recommendation is to be made by DCI to the Central Government by 15[th] June and the letter of permission by Central Government is to be issued by 15[th] July. According to the respondent authorities the application was W.P.C..Nos. 13586/13 & conn.cases 12 defective. This is based on the Regulations of DCI, produced as Ext.R2(d). The qualifying criteria for increasing the admission capacity in the Dental College is covered by clauses 18 to 24. As per clause 18 the College has to submit to the Central Government the scheme subject to clause 19. Clause 19 specifies the qualifying criteria and clause (a) reads as under: _“The Dental qualification granted to the students of the college and in respect of which the capacity sought to be increased is recognised with the existing admission capacity”._ 10. The main contention urged is that the recognition with the existing admission capacity was only under process and was not available at the time when the application was submitted or as on 31/12/2012 when the Central Government has to forward the applications to DCI for technical scrutiny. This fact is not disputed. Therefore apparently the application was defective and need not be W.P.C..Nos. 13 13586/13 & conn.cases entertained by the Central Government at all. If that approach is taken, the Central Government is justified in refusing the additional intake of students in terms of the impugned orders. 11. Another contention raised is based on the procedure that is followed under the Dentists Act 1948 and the Regulations framed thereunder. The learned counsel for the petitioners relied upon sub Section (2)(b) of Section 10A of the Act to indicate that whenever a person applies for the grant of recognised dental qualification they have to submit a scheme in accordance with the provisions of Clause (b) and the Central Government shall refer the said scheme to the Council for its recommendations. The contention is that no such reference has been made by the Central Government. It is for the Council to consider the scheme as such in terms of sub Section (3) of Section 10A and they have to give their recommendations to the Central Government. Sub Section (4) of Section 10A further W.P.C..Nos. 13586/13 & conn.cases 14 indicates that the Central Government may after considering the scheme and recommendations of the Council require the person or authority to either approve or disapprove the scheme. But it is relevant to note that this is not an instance where the application was complete in all particulars. The Regulations, which admittedly has statutory force prescribes the method of submitting application. If an application does not contain the eligibility criteria specified therein there is no reason for the Central Government to refer the application to the Council for their recommendations. Whether the applications are in proper format and complying with all eligibility criteria is a matter which the Central Government has to consider. That is the very reason why an initial scrutiny is being done by the Central Government. According to the petitioner any provision in the Regulations which insists for an initial scrutiny by rejecting an application at the threshold is void and ultra vires the statute. If we go by the statute, only a recognised institution can submit an W.P.C..Nos. 13586/13 & conn.cases 15 application. Admittedly the petitioners' organisations were not having the recognition as contemplated at the time when they submitted the application. So it can be termed that the application itself was defective or rather they could not have submitted their application without the necessary recognition. In that view of the matter, I do not think that the contentions raised by the petitioner in that regard are sustainable. 12. The next question is whether the Central Government should be called upon to exercise the discretion for modifying the time schedule in terms of Note 2 of Ext.P1. It is true that at Ext.P1 notification, there is a power vested with the Central Government to modify the time schedule in appropriate cases and for reasons to be recorded in writing. True that the petitioner had requested the Central Government to exercise such a power. But going by the impugned orders, I do not think that the Central Government had exercised such a power though the petitioner had W.P.C..Nos. 13586/13 & conn.cases 16 requested for the same in their representations. Though it would have been proper for the Central Government to have stated some reason for not exercising the power under Note 2, according to me, it is a discretionary power which cannot be enforced in all cases. In appropriate cases, if the Central Government thinks fit that the time schedule can be modified it has the jurisdiction to do so. If the Central Government had not exercised such a power it may not be possible for this Court to insist or direct the Central Government to exercise such a power. The impugned order would only show that Central Government did not exercise their power under Note 2. The learned counsel for the petitioners relied upon the judgment in **Priyadarsini Dental College** (Supra). It is not in dispute that the Central Government can exercise the power under Note 2 but Court cannot insist that the Central Government should exercise such a power in a particular case. It is purely a discretionary relief depending upon the factual situations in W.P.C..Nos. 13586/13 & conn.cases 17 each case. It is pointed out by the 2[nd] respondent that under normal circumstances the DCI ought to have completed the scrutiny and should have made the recommendations by 15[th] June which is apparently over and if at this point of time the Central Government forwards the application for technical scrutiny it will take a substantial long period and by the time the Central Government will not be in a position to issue a letter of permission the last date of which is 15[th] July and taking into consideration the fact that allotment and admissions will be held soon, it is not practically possible to complete the process for the additional 50 seats. 13. Learned counsel for the respondent relied upon the judgment of the Supreme Court in **Maa Vaishno Devi Mahila Maha Vidyalaya v. State of U.P** [(2013) 2 SCC 617]. That was a case relating to affiliation and recognition for B.Ed courses in terms with National Council for Teachers Education Act 1993 and the Supreme Court was highlighting the fact that the time schedule for affiliation, recognition as W.P.C..Nos. 13586/13 & conn.cases 18 prescribed by regulations has to be strictly followed without any exceptions. No doubt in the scheme of things as far as Dental colleges are concerned, Ext.P1 contains a clause for extension of time but the said time cannot be extended merely for the reason that the petitioner had requested for the same. As already indicated it is purely a discretion vested with the Central Government and they have to exercise the same depending upon the nature of urgency in each case. It will depend upon the facts and circumstances involved on a case to case basis and should not be based on any hard and fast rule as such. 12. Such being the position, I am of the view that the petitioners are not entitled for any relief as prayed for in the writ petitions and the writ petitions are liable to be dismissed. Hence the writ petitions are dismissed. ## (sd/-) **(A.M.SHAFFIQUE, JUDGE)** jsr |W.P.C..Nos.|19| |---|---| |13586/13 & conn.cases|| W.P.C..Nos. 20 13586/13 & conn.cases |W.P.C..Nos.|21| |---|---| |13586/13 & conn.cases||