Heera Educational and Charitable Trust v Union of India, Dental Council of India, State of Kerala, Kerala University of Health Sciences

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HON'BLE THE CHIEF JUSTICE DR. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 19TH DAY OF MARCH 2013/28TH PHALGUNA 1934** ## **WA.No. 248 of 2013 --------------------------** ## **AGAINST THE ORDER/JUDGMENT IN WP(C).20385/2012 DATED** ## **APPELLANT(S)/APPELLANT:** ## **------------------** **HEERA EDUCATIONAL AND CHARITABLE TRUST SUNNY SIDE, KESTON ROAD, KOWDIAR P O TRIVANDRUM-695003, REP.BY ITS SECRETARY** **BY ADVS.SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.TONY GEORGE KANNANTHANAM** **RESPONDENT(S):** **----------------------------** **1. THE UNION OF INDIA REP.BY SECRETARY TO GOVERNMENT MINISTRY OF HEALTH & FAMILY WELFARE DEPARTMENT NEW DELHI-110001** **2. THE DENTAL COUNCIL OF INDIA, REP.BY ITS SECRETARY, KOTLA ROAD, NEW DELHI-110058** **3. STATE OF KERALA REP.BY ITS SECRETARY HEALTH & FAMILY WELFARE DEPARTMET, GOVT.SECRETARIAT THIRUVANANTHAPURAM-695001** **4. THE KERALA UNIVERSITY OF HEALTH SCIENCES, REP.BY ITS REGISTRAR, TRICHUR-630596** **R1 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R2 BY SRI.ALEXANDER THOMAS, SC,DENTAL COUNCIL** **R3 BY SR GOVERNMENT PLEADER SRI. P.I. DAVIS R4 BY SRI.P.SREEKUMAR,SC,KERALA UNIVERSITY** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13-02-2013, ALONG WITH WA. 249/2013, THE COURT ON 19.03.2013 DELIVERED THE FOLLOWING:** Manjula Chellur, C.J. & K.Vinod Chandran, J. -------------------------------------------- W.A.Nos.248 & 249 of 2013 -------------------------------------------Dated this, the 19[th] day of March, 2013 ## J U D G M E N T ## Vinod Chandran, J: Appellants are Trusts created for establishing Educational Institutions and are aggrieved by the judgment of the learned Single Judge refusing to declare Ext.P6 amendment to the “Dental Council of India (Establishment of new Dental Colleges, Opening of New or Higher Courses of Study or Training and Increase of Admission Capacity in Dental Colleges) Regulations, 2006” as illegal and unconstitutional. Essentially, the amendment so brought in, according to the appellants would stultify their attempt to establish a Dental College and they ought to be permitted to apply and establish a Dental College as per the unamended Regulations since they have initiated the process of setting up of such an Educational Institution before the amendment. The appellants challenged the amendment as violative of Article 19(1)(g); the same being not in consonance with Article 19(6) of the Constitution of India. The appellants also claim to have had a legitimate expectation to further their interest which have been thwarted by the amendments. W.A Nos. 248 & 249 of 2013 :2: 2. In Writ Appeal No. 248/2013, the Trust claims to have 30 acres of land in Thiruvananthapuram District and having purchased a further 6.3 acres; they have allegedly started construction of buildings for the purpose of establishing a Dental College. Writ Appeal No. 249 of 2013 also filed by another Trust claims to have commenced construction of a college building with all facilities including hostels so as to facilitate commencement of academic courses in the year 2013-14 in tune with the earlier Regulations. While the appellant in the former case has received an endorsement of the State Government on 17.2.2012, the latter obtained sanction dated 4.8.2011. The appellants, respectively, claim to have approached the University for affiliation and contends that as per the stipulation then existing in the Regulations; had sought tie-up, respectively with the Taluk Head Quarters Hospital, Nedumangad and Government General Hospital, Pathanamthitta. The same also were pending when, it is claimed, out of the blue, the Dental Council of India came out with an amendment to the Regulation which was published in the Gazette of India dated 22.5.2012 restricting the affiliation to a Medical College Hospital within 10 kms road distance and having no other dental college affiliated with it. The amendment, according to the W.A Nos. 248 & 249 of 2013 :3: appellants, is a prohibition brought in; affecting the fundamental rights guaranteed under the Constitution of India; to practice any profession or to carry on any occupation, trade or business and is not a restriction as contemplated under Article 19(6). No retrospective operation could be given to such amendments brought to the Regulation and the petitioners applications are to be considered in accordance with the un-amended Regulations, is their contention. 3. The learned Single Judge accepted the stand of the Dental Council of India that the amendments were brought in with the intention of maintaining the higher standards in imparting dental education by the dental colleges/institutions in the country; to which end the Dental Council of India had been constituted under the provisions of the Dentists Act, 1948. The learned Single Judge found that the mere fact of the petitioner having provided the infrastructural facilities based on the un-amended provisions, would not in any way result in the appellants having a vested right for consideration as per the un-amended Regulations. Considering the issue in the perspective of the scheme of the Act as also the increased significance of providing specialised training to professionals who deal with the human body and life, in the W.A Nos. 248 & 249 of 2013 :4: context of the National Health Policy; the learned Single Judge found that the amended Regulations cannot be struck down as retro active. It was found that the Dental Council of India and the Central Government had the intention of making the curriculum more effective with the students exposed to all parameters of medicine and it was after due deliberation that the amendments were brought in. The challenge, on the ground of a prohibition brought in attracting the vice of offending Article 19(1)(g) was also negated by the learned Single Judge. 4. Before us also, learned Senior Counsel strenuously urged the violation of the fundamental rights guaranteed under the Constitution of India and contended that the amended regulations does not at all further the cause of dental education, but, is intended only to prohibit dental colleges being established in all parts of the country, especially in rural areas. The factual aspects in each of the cases were highlighted to point out that both the appellants have commenced the process by starting the construction activities of the building to house a dental college and also obtained 'No Objection Certificate' from the Government of Kerala. The appellants having initiated the process and proceeded considerably towards the object of establishing a Dental College W.A Nos. 248 & 249 of 2013 :5: could not be prevented from establishing the said College merely on the ground of an amendment brought to the Regulations. While contending for declaring the amended Regulation to be _ultra vires_ and having no nexus to the object sought to be achieved, the appellants also have an alternative claim to consider their application on the basis of the pre-amended Regulations. 5. The appellant in Writ Appeal No. 248/2013 would contend that their own covering letter would evidence the construction activities having commenced. The appellant in the other appeal also rests their contention on such self assertion. It is not as if the factum of the commencement of construction activities would in any manner sway a Court; considering the constitutionality of the regulation framed by a statutory body. We notice this, only to lay bare the fickle premise on which the challenge on the ground of legitimate expectation is built. We have to first notice that despite their assertion of having proceeded considerably in the establishment of a dental college, there is absolutely nothing on record except the 'No Objection certificate' obtained from the Government of Kerala. We also notice that both the appellants do not have a contention that an application had been made to the Dental Council of India before the amended W.A Nos. 248 & 249 of 2013 :6: Regulations came in. However, they would contend that the mere fact of the pre-amended Regulation having provided for a tie-up with a General Hospital or Medical College or a hospital within the campus of the Dental College would confer on them a right to be considered as per the un-amended Regulations. 6. Merely on the premise of having obtained a 'No Objection Certificate' from the Government and the alleged commencement of construction activities no claim of legitimate expectation can be raised. The 'No Objection Certificate' cannot and does not hold out any promise since it is not within the domain of the State Government to hold out such expectations. The State, in fact, in the 'No Objection Certificate', specifically states that the essentiality certificate would be issued only subject to the execution of a bond that the applicant will set up full facility as per Dental Council of India norms within a period of three years and subject to other usual terms and conditions to be abided by Self Financing Colleges. The Governments' role primarily is only in ensuring allotment of 50% of seats to the Government for merit quota students, as a laudable measure for ensuring the meritorious to be admitted to professional colleges. W.A Nos. 248 & 249 of 2013 :7: 7. To understand the issue better, we deem it fit that sub-clause (h) of Clause 2 of Regulations (6), un-amended and amended are examined; they having been extracted in the judgment of the learned Single Judge. The un-amended Regulation mandates the required hospital facility as a 100 bedded General hospital within the campus of the proposed dental college or availability of a Medical College in the proximity of a proposed dental college, and in the latter case an undertaking of the said medical college to provide the required facilities for the newly proposed dental college. The tie-up facility with a 100 bedded Government hospital within the radius of 10kms, for at least five years, is an alternative condition, which, facility can be continued only till the College sets up the general hospital facility within the campus. We can hence safely conclude that the alternative requirement of tie-up with General Hospital was only for a maximum of five years within which time the newly opened dental college had to set up the necessary hospital facilities within its campus. That alternative arrangement is now obviously taken away. Even before the amendment, hence, what was required essentially had to be confined to two options being the existence of a General Hospital within the campus or availability of a Medical College in W.A Nos. 248 & 249 of 2013 :8: the proximity of the campus. 8. The appellants have made much about the apocalyptic consequences of prescription of the medical college being within 10 Kms. road distance of the newly proposed college; to urge that this brings in a prohibition from setting up dental colleges especially in rural areas. Even as per the un-amended Regulations it was insisted that the Medical College ought to be in the proximity of the proposed dental college and when even an alternative arrangement of a tie-up with a Government Hospital was to be with a hospital within a radius of 10 kms it cannot be gainsaid that the Medical College with which the tie-up is contemplated could be at any distance from the proposed dental college. Necessarily what has to be looked at, is the purpose of the prescription of proximity, which is further emphasised even in the un-amended Rules and more so in the amended one. According to us, by the amended Rules the tie-up facility with a General Hospital, in the interregnum in which the new College itself would set up the general hospital facility and the provision for providing a 100 bedded general hospital within the campus of the proposed dental college were both taken away. It was insisted that the tie-up should be with a Government/private Medical College, who offers the W.A Nos. 248 & 249 of 2013 :9: facility to train students of the proposed dental college and also has only one such dental college affiliated to it. Whether this prescription would result in prohibition violating the fundamental rights of citizens proposing to set up dental colleges especially in the perspective of the specialist training imparted and the larger needs of the public and would the amendment be reasonable is the question posed before us. 9. As per the amended regulations for facilitating clinical studies the proposed Dental College should have an arrangement with a Medical College situated within a distance by road, of 10 Kms., and the said medical college should not have any other dental colleges affiliated to it. As we noticed earlier, the prescription of 10 Kms., distance by road is not a new requirement. Even as per the un-amended provisions what was required was either a general hospital within the campus of the proposed dental college or a medical college recognised by the Medical Council of India within the proximity of the Dental College and having an alternative option of having a tie-up with a general hospital within the radius of 10 Kms., till the new college sets up a General Hospital inside its campus. The 'proximity' of the Medical College referred to in the un-amended provision cannot be taken as being W.A Nos. 248 & 249 of 2013 :10: within any distance as chosen by the applicant. Taking colour from the prescription of 10 Kms, with respect to the general hospital with which the proposed Dental College has a tie-up, it can be safely inferred that the Medical College also should be within the said distance thus giving a definite determinative meaning to the term 'proximity'. 10. What has been done by the amendment is to take away the prescription of clinical studies being carried on in a General Hospital either owned by the dental college or in a hospital by virtue of a tie-up. It is the specific stand of the Dental Council that the dental profession being as clinically oriented as the profession of medicine, the students are required to be exposed to the various ailments, both general and dental centric so as to produce good dentists capable of functioning effectively; both in the rural and urban setting. The growth of the community branch of health care viewed in the larger perspective of the National Health Policy, the need for crucial comprehensive teaching in all medical sciences and critical training in principles of general surgery, medicine, anaesthesiology and so on and so forth were found to be the need of the hour. Though, earlier on, dentistry was taught as a speciality with two years training subsequent to W.A Nos. 248 & 249 of 2013 :11: the MBBS degree, now the same is a separate branch. Though, confined to the care of teeth, the professional dentist deals with all those aspects of medicine, like general treatment, surgery, anaesthesiology, reconstructive surgery etc., It was to ensure the requisite standard in dental education with an overview of medical sciences and clinical training that, there was a prescription earlier that all dental colleges should be attached to an integral 100 bedded hospital within its campus itself. However, on an analysis of the working of the said system, it was found that the teaching and the clinical exposure of dental students to crucial aspects of medical sciences stood compromised. 11. The general hospitals lack diversity in the clinical material for study and the faculty to instruct the students. This is the context in which the Regulations were revisited and it was found that an acceptable standard of instructing students would be achieved and made possible only with an integral Medical College, wherein both the faculty as well as the diversity of clinical exposure would ensure a sound foundation to dental education. The counter affidavit of the Dental Council of India refers to various specialties in dentistry and the nuances unique to each of such branches. The counter affidavit also list out the justification for attachment of W.A Nos. 248 & 249 of 2013 :12: proposed dental college with medical college, both for graduate study and post graduate study, separately. 12. On the basis of the overwhelming materials referred to in the counter affidavit it is deliberately and determinatively opined by the expert council constituted under a statue that there is justification for bringing in a convincing change in the Regulation which is basic to the establishment of a dental college. We cannot, but, say that that is an area which the court would and should shy away from entering into; except for looking at the reasonableness behind the prescription and confine the examination to any patent illegality, or obvious irregularity or seeming irrationality. If we find the changes brought in, to be vitiated by any of these ills referred to by us; this Court would be amply justified in interfering with the same. 13. We are not convinced that the amendment brought in suffers from any of the aforementioned vices or that the rule now brought in is _ultra vires_ the powers of the rule making authority. _**T.M.A Pai Foundation v. State of Karnataka**_ **[2002 (8) SCC 481]** found that education though cannot be regarded as a trade or business and would be doubtful to be included as a profession; would eminently fit the bill as 'occupation', and even in W.A Nos. 248 & 249 of 2013 :13: the absence of profit motive would be an activity serving as a means of livelihood or life's mission. However, the right to regulate the establishment of an educational institution with a view to maintain proper academic standards, atmosphere and infrastructure was recognized by the Constitution Bench. Hence, while recognizing the indefeasible right to carry on the occupation of establishing and continuing an educational institution under Article 19(1)(g) the need to maintain standards through regulations was also conceded to the State's machinery subject only to the reasonableness exhorted by Article19(6). 14. The learned Single Judge has also referred to the decision in _**Medical Council of India v. State of Karnataka**_ **[1998 (6) SCC 131]** to emphasize the statutory force of a Regulation and the mandatory nature of the same. In _**Medical Council of India v. Sarang**_ **[2001 (8) SCC 427]** it was held that academics are best left to academicians and Courts should normally not interfere with or interpret the rules. The Hon'ble Supreme Court in _**K.S Bhoir v. State of Maharashtra**_ **[2001 (10) SCC 264]** drew a distinction between adjusting equities under Article 226 and the High Court assuming the role of the Government or the Medical Council of India and cautioned the Courts from waiving the mandatory W.A Nos. 248 & 249 of 2013 :14: requirement of law in exercise of its extraordinary power and directing an authority to act contrary to statutory prescriptions. 15. Section 20 of the Dentist Act, confers on the Dental Council; a creature of the very same statute, the power to make regulations consistent with the provisions of the Act, with the approval of the Central Government. The Regulations specifically refer to the establishment of new Dental Colleges opening of new or higher courses of study and increase of capacity in Dental Colleges. The claim that it provides for prohibition to establish a Dental College at a distance of 10 Kms. from a Medical College, according to us, does not at all violate the right to carry on an occupation. Establishment of dental colleges is regulated by the State and also by the statutory bodies created for making provisions. Maintaining minimum standards for imparting training and the right to carry on an occupation by establishment of institutions has to be definitely subject to the rules and regulations made by the said statutory body; that would be reasonable as contemplated under Article 19(6). We are not persuaded to find any unreasonableness in the amended rule. The format of application, as noticed by the learned Single Judge cannot control the regulations and to hold so would be a classic case of putting W.A Nos. 248 & 249 of 2013 :15: the cart before the horse. The amendment was brought in by notification dated 21.5.2012 and would apply prospectively from the academic year 2013-14, for which applications are to be made on or before 31.9.2012. Interestingly the appellants do not have a case that they are applying for the coming academic year. The amendment has been challenged as retrospective only on the basis or factum of their having laid a stone for the construction of building prior to the amendment. In view of the above, we are of the opinion that the judgment of the learned Single Judge is not liable to be interfered with, we dismiss the appeal, however, without costs. Sd/Manjula Chellur, Chief Justice jma/ Sd/K.Vinod Chandran, Judge. //true copy// P.A to Judge