Heera Educational & 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 HONOURABLE MR. JUSTICE A.M. SHAFFIQUE** ## **TUESDAY, THE 22ND DAY OF JANUARY 2013/2ND MAGHA 1934** ## **WP(C). No. 20385 of 2012 (W)** **---------------------------** **PETITIONER:** ## **------------------** **HEERA EDUCATIONAL & CHARITABLE TRUST SUNNY SIDE, KESTON ROAD, KOWDIAR. P.O. TRIVANDRUM-695003, REPRESENTED BY ITS SECRETARY** **BY ADVS. SRI. KURIAN GEORGE KANNANTHANAM (SR.) SRI. TONY GEORGE KANNANTHANAM SRI. JIJI THOMAS** **RESPONDENTS:** **----------------------** **1. THE UNION OF INDIA REPRESENTED BY SECRETARY TO GOVERNMENT MINISTRY OF HEALTH & FAMILY WELFARE DEPARTMENT NEW DELHI-110 001.** **2. THE DENTAL COUNCIL OF INDIA, REPRESENTED BY ITS SECRETARY, KOLTA ROAD NEW DELHI. -110 058** ## **3. STATE OF KERALA,** - **REPRESENTED BY ITS SECRETARY HEALTH & FAMILY WELFARE DEPARTMENT GOVT. SECRETARIAT, TRIVANDRUM- 695 001.** **4. THE KERALA UNIVERSITY OF HEALTH SCIENCES, REPRESENTED BY ITS REGISTRAR,TRICHUR-630 596.** **R1 BY ADV. SRI. P. PARAMESWARAN NAIR, ASG OF INDIA R2 BY ADV. SRI. ALEXANDER THOMAS, SC, DENTAL COUNCIL R3 BY GOVERNMENT PLEADER R4 BY SRI. P. SREEKUMAR, SC, KERALA UNIVERSITY HEALTH & SCIENCES** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-01-2013, ALONG WITH WPC. 20725/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C). No. 20385 of 2012 (W)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **EXT. P1 - COPY OF THE NO OBJECTION CERTIFICATE DATED 17.02.2012 ISSUED BY THE 3RD RESPONDENT. EXT. P2 - COPY OF THE BOND DATED 22.02.2012 EXECUTED BY THE PETITIONER. EXT. P3 - COPY OF THE COVERING LETTER DATED 22.02.2012 TO THE 3RD RESPONDENT. EXT. P4 - COPY OF THE LETTER DATED 15.05.2012 TO THE 4TH RESPONDENT. EXT. P5 - COPY OF THE APPLICATION DATED 15.05.2012 FOR PROVISIONAL AFFILIATION TO NEW COLLEGES DURING 2013-2014. EXT. P6 - COPY OF THE NOTIFICATION DATED 21.05.2012 OF DENTAL COUNCIL OF INDIA.** ## **RESPONDENTS' EXHIBITS:-** **EXT. R2(a) - COPY OF THE LETTER DATED JULY 2011 ISSUED BY THE PRESIDENT, DCI TO THE HON'BLE CHIEF MINISTER. EXT. R2(b) - COPY OF THE DIVISION BENCH JUDGMENT DATED 10.11.2011 IN WP(C) NO.29092/2011. EXT. R2(c) - COPY OF THE CENTRAL GOVERNMENT LETTER DATED 11.05.2012.** **//TRUE COPY//** **P.A. TO JUDGE** sp ## **A.M.SHAFFIQUE, J** *** * * * * * * * * * * * *** W.P.C.Nos.20385 & 20725 of 2012 ---------------------------------------Dated this the 22[nd] day of January 2013 ## **J U D G M E N T** W.P.C.No.20385 of 2012 is filed by an Educational and Charitable Trust which intends to start a Dental College. They challenge an amendment to the Dental Council of India (Establishment of New Dental Colleges, Opening of New or Higher Course of Study or Training and Increase of Admission Capacity in Dental Colleges) Regulations, 2006 (hereinafter referred to as 'the Regulations') as per notification No.DE-22-2012 dated 21/05/2012. By virtue of the amendment clause (h) of sub-regulation (2) of Regulation (6) of the Regulations is substituted as under: _“(h) the applicant shall attach its proposed dental college with a Government/Private Medical College approved/recognised by the Medical Council of India which is located at the distance of 10 Kms. by road from the proposed dental_ W.P.C.No.20385 & 20725 of 2012 2 _college and produce evidence of the said Medical College to the effect that it would facilitate training to the students of the proposed dental college as per syllabus/course curriculum prescribed in respective undergraduate and post graduate dental course regulations as amended from time to time:_ _Provided that not more than one dental college shall be attached with the medical college.”_ 2. According to the petitioner, the aforesaid amendment had virtually prevented them from starting a Dental College despite the fact that they had taken all necessary steps and built up the necessary infrastructure to start the college. Their main grievance is with respect to clause (h) which inter alia insists that the applicant shall attach its proposed Dental College with the Government/Private Medical College approved or recognised by the Medical Council of India and located at a distance of W.P.C.No.20385 & 20725 of 2012 3 10 Kms by road from the proposed Dental College, and the proviso which indicates that not more than one Dental College shall be attached with the Medical College. 3. According to the petitioner, the previous regulation (h) read as under: _“(h) the applicant owns and manages a General Hospital of not less than 100 beds as per Annexure I with necessary infrastructure facilities including teaching pre-clinical, paraclinical and allied medical sciences in the campus of the proposed dental college,_ ## _or_ _the proposed dental college is located in the proximity of a Government Medical College or a Medical College recognised by the Medical Council of India and an undertaking of the said Medical College to the effect that it would facilitate training to the students of the proposed dental college in the subjects of Medicine, Surgery and Allied Medical Sciences has been obtained,_ _or_ W.P.C.No.20385 & 20725 of 2012 4 _where no Medical College is available in the proximity of the proposed dental college, the proposed Dental College gets itself tied up at least for 5 years with a Government General Hospital having a provision of at least 100 beds and located within a radius of 10 K.M, of the proposed Dental College and the tie-up is extendable till it has its own 100 bedded hospital in the same premises. In such cases, the applicant shall produce evidence that necessary infrastructure facilities including teaching pre-clinical, paraclinical and allied medical sciences are owned by the proposed dental college itself.”_ 4. It is their case that they have taken all necessary steps to start a Dental College by providing the infrastructure facilities that are required as mentioned in the unamended provision and suddenly when a notification was issued making an amendment to clause (h) whereby the first and third categories of the unamended provisions had been deleted and it is restricted only to one category of Dental W.P.C.No.20385 & 20725 of 2012 5 Colleges that can attach to the Medical college and that too within a distance of 10 Kms from the proposed Dental College and that only one Dental College can be attached to a Medical College, which is contrary to the right of the petitioner to set up a Dental College and hence violative of Article 19(1)(g) of Constitution of India and is to be held as illegal and unconstitutional. The main grounds urged by the petitioner are as follows: i) That the petitioner had obtained necessary essentiality certificate from the Government which inter alia requires only the need of the population to set up the colleges and does not insist for attachment to the Medical College. It was enough to obtain an essentiality certificate if the petitioner had tie-up with a hospital as per the unamended provision. ii) The judgment in **T.M.A.Pai Foundation & Others v. State of Karnataka & Others** _[2002(8) SCC 481]_ is relied upon to contend that the educational W.P.C.No.20385 & 20725 of 2012 6 institution is also entitled to get the protection of Article 19 (1)(g) of the Constitution wherein it is held that the right to establish and administer educational institution is guaranteed under the Constitution to all cititizens under Article 19(1)(g). iii) When Section 10A of the Dentists Act 1948 (hereinafter referred as the Act) provides that no person shall establish an institution without previous permission from the Central Government and in terms of Section 10A (2) (a) of the Act, a scheme is to be submitted to Central Government in such form and shall contain such particulars. Since the form has not undergone any amendment corresponding to the amendment made to the Regulations, the applicants are only called upon to submit the application in accordance with the said form now available and the same cannot be rejected for the reason that the amendment had come into effect. 7 W.P.C.No.20385 & 20725 of 2012 iv) That as per Section 10A (7)(d) of the Act the Council while making recommendations to the Central Government and the Central Government by passing an order shall have due regard to various factors which includes as to whether adequate hospital facilities are available having regard to the number of students likely to attend such authority or institution or course of study or training or as a result of the increased admission capacity have been provided or would be provided within the time limit specified in the scheme. The argument is that when the statute only prescribes the applicants to provide adequate hospital facilities and the Council as well as the Central Government have to consider the scheme and make recommendations taking into account the adequate hospital facilities, it may not be possible for the Council to frame regulations which insists that the hospital facilities as envisaged under Section 10A (7) (d) of the Act is restricted only to Medical Colleges within a distance of 10 Kms and that too only one Dental W.P.C.No.20385 & 20725 of 2012 8 College to be attached to one Medical College. The power to make regulations is provided under Section 20 of the Act by which the council with the approval of the Central Government can make regulations which are not inconsistent with the provisions of the Act. The contention is that Clause (h) of the amended provision is clearly inconsistent with the provisions of the Act and therefore illegal. v) That the amendment is a retroactive in nature. As per the notification, the amendment comes into effect on 21/5/2012. It affects institutions which had already constructed buildings and made necessary infrastructure for the hospitals in order to start a Dental College as per the unamended clause (h) of Regulation 6(2). Though the amendment is stated to be effective from the date of notification, it has the effect of affecting those agencies who had made substantial investments in making or providing the infrastructure facilities that were required to submit W.P.C.No.20385 & 20725 of 2012 9 necessary applications. In fact the application of the petitioner was returned only on the ground that it does not have an attachment to a Medical College within the distance of 10 Kms. Therefore the contention is that the amendment has retroactive effect which affects the interest of the petitioner. vi) That going by the amendment, there is a total prohibition for starting a Dental College since a classification is made on geographical basis. The amended notification indicates that the Dental College will have to be attached to a Medical College within a distance of 10 Kms and only one such college can be attached. According to the petitioner this would definitely prevent persons who are desirous of starting a dental college from starting the same outside the 10 Kms limit of the medical colleges. Contention is that the rule making power under Section 20 of the Act does not permit the regulations to be framed with such geographical restrictions. W.P.C.No.20385 & 20725 of 2012 10 5. As far as the petitioner is concerned, the contention is that they have almost completed the construction of the entire college with all facilities including hostels. Construction of almost 160000 sq.ft. of built up area is in progress and it was getting ready to be completed before the formal inspection by the Dental Council of India. It is stated that they have already spent over and above Rs.22 crores. The State Government has issued Essentiality Certificate and had submitted necessary application to the University. They had already made arrangements for an inspection. The petitioner has a tie up with the 225 bedded Taluk Headquarters Hospital, Nedumangad and formal orders are awaited. It is at this stage that the impugned amendment to the regulation has come into effect. 6. W.P.C.No.20725 of 2012 is also filed by a similar institution who intended to start a Dental College. They too commenced construction of the college with all facilities and according to them the works will be completed before it is W.P.C.No.20385 & 20725 of 2012 11 due for formal inspection and that they had obtained the Essentialility Certificate from the State Government. Necessary application had been submitted to the University for approval and application is pending before the District Medical Officer, Pathanamthitta for a tie up with the Government General Hospital. It is at this stage, the amendment had come into effect. They had raised identical contentions in the writ petition. 7. Dental Council of India, the 2[nd] respondent in the writ petition has filed counter affidavit inter alia contending that the regulations framed by Dental Council of India under Section 20 of the Act with prior approval of the Central Government has statutory force and therefore it is not open for the petitioner to challenge the said regulations as illegal. It is further submitted that the amendment to the Regulations were framed in exercise of the powers under Section 20 of the Act. Reference is made to the statutory provision under Section 10A of the Act and contends that W.P.C.No.20385 & 20725 of 2012 12 unless the petitioners comply with the requirements of the statutory provisions and regulations framed thereunder there is no obligation on the part of the Dental Council of India to recommend for grant of permission to the petitioners. 8. Reference is made to paragraphs 15 to 25 of the counter affidavit. It is contended that the intention behind this amendment is to impart dental education by giving a complete in depth training and exposure in basic Medical Science and to foster a complete understanding of the Human Anatomy, Physiology, Pathology, Microbiology, Pharmacology and therapeutics etc. to understand the diagonosis and symptomatology of human disease with special focus on oral manifestations. Therefore the entire educational system and process of dentistry hinges on understanding and being part of the National Health Policy and very crucial comprehensive teaching in all basic medical sciences is required. It is said that historically dentistry was W.P.C.No.20385 & 20725 of 2012 13 taught as a speciality with two year training subsequent to the MBBS degree and later it was separated from Medical Colleges. Later when the scope of dental science is increased, Dental Colleges were created but with shared resources in terms of teaching of basic and applied science, clinical sciences etc. The sudden growth of Dental Colleges in India could be associated to the increasing specialised scope of dentistry as a science on the one hand and the recognition of dentistry and its specialised branches as distinct entities within the health care system. It is said that the council faced a problem to ensure that the requisite standards of education in medical sciences and clinical training and it was earlier mandated that all dental colleges should be attached to 100 bedded hospitals and subsequently it was amended stating that all dental colleges needed a 100 bedded hospital as an integral part. 9 It is further contended that there was an absence of a teaching hospital whereby the dental students were W.P.C.No.20385 & 20725 of 2012 14 denied the necessary teaching and clinical exposure in crucial aspects of medical science and the 100 bedded hospitals did not have the diversity of the clinical material nor the competence of a teaching medical faculty. Therefore a decision was taken that teaching of basic medical sciences and clinical training would be more effective and pertinent by faculty of medical colleges and therefore while recommending the attachment of new dental college to a medical college it would be crucial to recognize that keeping the recommended staffing patterns of the Medical Council of India, it would be possible to recommend the attachment of only one Dental College with a Medical College to ensure adequacy of both teaching faculty and clinical material. A mandate had been made with reference to the distance factor of 10 Kms as the necessity was to provide the students to the Dental College to have easy access to the training centres. W.P.C.No.20385 & 20725 of 2012 15 10. In paragraph 27 of the counter affidavit it is further mentioned that the matter has been considered by the Dental Council of India in 2008 and necessary recommendations were made by the Executive Committee. The General Body of the Dental Council has approved the recommendations of the Executive Committee and sent to the Central Government for seeking its approval under Section 20 of the Act vide DCI letters dated 28/01/2011, 12/03/2012 etc. The Central Govt after detailed consideration was convinced of the necessity and justification for the proposed amendment and by letter dated 11/5/2012 conveyed its approval to the draft 4[th] amendment of the DCI Regulations 2006 by which the 4[th] amendment to the Regulations had been notified on 21/5/2012. It is also contended that the amendments made are within the domain and competence of Dental Council of India and Central Government as provided under various provisions of the Act and the rule making power under W.P.C.No.20385 & 20725 of 2012 16 Section 20(1), 20(2) (fa) and (fb) etc. of the Act. 11. The learned counsel for the Dental Council of India also relied upon the judgments of the Supreme Court MCI v. State of Karnataka _[1998(6) SCC 130],_ **MCI v. Sarang and Ors.** _[(2001) 8 SCC 427]_ and **K.S.Bhoir v. State of Maharashtra** _[2001(10)SCC 264]_ to highlight the fact that the regulations issued by the Dental Council of India after approval by the Central Government cannot be challenged under the circumstances mentioned in the Statute as these Regulations have statutory force. 12. The learned Standing Counsel for the University on instructions submitted that as matters stand now there are 23 Medical colleges and 23 Dental colleges. The 22 dental colleges are under the Kerala University of Health Sciences and one is under the Amrita Institute of Medical Sciences. There are 1360 Dental Surgeons in the State of Kerala which according to the learned Standing Counsel, is on the higher side thereby indicating that there is no additional W.P.C.No.20385 & 20725 of 2012 17 ## requirement of Dental Surgeons. 13. Heard the learned senior counsel for the petitioners Sri.Kurian George Kannanthanam, Sri.Alexander Thomas appearing for Dental Council of India, Sri.P.Sreekumar appearing for the Kerala University and the learned Government Pleader Sri.Roshan D. Alexander. 14. Having regard to the factual circumstances involved in the above cases, the complaint of the petitioners is that they have taken various steps pursuant to the requirement to start a Dental College as per the unamended clause 6(2)(h) of the Regulations. But, when an amendment is imposed on 21/5/2005, at a time when their applications are submitted, it clearly affects their interests since they have made large investments for constructing the buildings and providing infrastructural facilities. Though this is a crucial aspect to be considered in the matter, it cannot be disputed that the 4[th] amendment to the Regulation had come into effect on 21/5/2012 and that the said amendment W.P.C.No.20385 & 20725 of 2012 18 has statutory force. 15. Petitioners therefore challenge the validity of the amendment on the grounds mentioned above which is required to be considered in the present writ petition. A reference to the judgment of the Supreme Court in **K.S. Bhoir** (Supra) would clearly go to show that interference in such matters relating to standards to be maintained in Medical education is very limited and that compassion or sympathy cannot be reasons to dilute the statutory provisions. Though this case related to a claim for increasing the number of seats in respects of students already admitted, the principle of law is applicable to this case as well. The principles are extracted as under: _“Sub-section (1) of Section 10-A is a substantive provision in itself and begins with non obstante clause “notwithstanding anything contained in the Act...”, it means there is a prohibition in the matter of an increase in the admission capacity in a medical college unless previous permission of_ W.P.C.No.20385 & 20725 of 2012 19 _the Central Government is obtained in accordance with the recommendation of the Medical Council of India. The entire scheme of Section 10-A of the Act has to be read in consonance with other sub-sections to further the object behind the amending Act. The object being to achieve the highest standard of medical education. The said objective can be achieved only by ensuring that a medical college has the requisite infrastructure to impart medical education. As noticed earlier, the object of amending Sections 10-A, 10-B and 10-C was for a specific purpose of controlling and restricting the unchecked and unregulated mushroom growth of medical colleges without requisite infrastructure resulting in decline in the maintenance of highest standard of education. The highest standard of medical education is only possible when the requirement of provisions of Section 10-A and the Regulations are complied with. It has been experienced that unless there is required infrastructure available in the medical college, the standard_ W.P.C.No.20385 & 20725 of 2012 20 _of medical education has declined. Unless an institution can provide complete and full facilities for training to each student who is admitted in various disciplines, the medical education would remain incomplete and the medical college would be turning out halfbaked doctors which, in turn, would adversely affect the health of the public in general. Thus, for every increase in the admission capacity, either it is one-time or permanent, the Council is obliged to ensure a proportionate increase of infrastructure facilities. The Medical Council can only make recommendations to the Central Government for grant of permission for one-time intake capacity in seats only when it is satisfied that scheme to be submitted by the medical colleges fulfills all the requirements. Unless such a scheme providing for all the requirements provided for in the Act and the Regulations is submitted to the Central Government and the Medical Council is satisfied that the scheme complies with all the requirements and makes a_ W.P.C.No.20385 & 20725 of 2012 21 _recommendation to that effect, only then the Central Government can consider for grant of permission for increase of admission capacity in a medical college. Similarly, the Central Government without compliance with the Act and the Regulations cannot grant, without recommendation of the Medical Council, any permission for one-time increase in admission capacity in various courses conducted by the medical colleges. For the aforesaid reasons, we are of the view that the Central Government was fully justified when it rejected the request of the State Government for grant of permission for onetime increase in the admission capacity in Medicine and Dentistry courses in various medical colleges in the State of Maharashtra.”_ ## Paragraph 11 further reads as under: _**“11.** The aforesaid observations by the High Court were in the context of the extraordinary and difficult situation that had_ W.P.C.No.20385 & 20725 of 2012 22 _arisen due to revision of the merit list. It is in this light the aforesaid observation has to be read and understood. It is no doubt true that a large number of students who were already admitted in the colleges and incurred a lot of expenditure in taking admissions were to be dislodged by issue of the revised merit list. In such a situation one can sympathise with the plight of such students who for no fault of their own were to be dislodged. However, compassion and sympathy have no role to play where a rule of law is required to be enforced. The High Court has rightly declined to issue any direction to the Central Government to grant one-time increase in the admission capacity in the medical colleges, otherwise it would not have been proper exercise of jurisdiction under Article 226 of the Constitution. Adjusting equities in exercise of extraordinary jurisdiction under Article 226 is one thing, and the High Court assuming the role of the Central Government and the Medical Council under Section 10-A of the Act is a different thing. The Court_ W.P.C.No.20385 & 20725 of 2012 23 _cannot direct to waive the mandatory requirement of law in exercise of its extraordinary power under Article 226. It is not permissible for the High Court to direct an authority under the Act to act contrary to the statutory provisions. The power conferred on the High Court by virtue of Article 226 is to enforce the rule of law and ensure that the State and other statutory authorities act in accordance with law. However, it does not mean that the High Court is powerless in that regard. It can do so only when it finds that there was some illegality in the order of the Central Government in refusing to increase the admission capacity in various colleges. The increase in admission capacity is permissible only when a scheme, in accordance with the Regulations, is submitted by a medical college under Section 10-A of the Act to the Central Government and the Medical Council is satisfied that the scheme complies with the requirement of the Act and Regulations and thereafter the Medical Council recommends for such an_ W.P.C.No.20385 & 20725 of 2012 24 _increase in admission capacity. So long as the requirements under Section 10-A of the Act are not complied with, no permission can be granted by the Central Government. If any direction is issued by the High Court to the Central Government to increase the admission capacity in a medical college, it would be in the teeth of the statutory provisions and amount to amending the provisions of Section 10-A. It is not permissible for the High Court to direct an authority under the Act to act contrary to the statutory provisions. The power conferred on the High Court by virtue of Article 226 is to enforce the rule of law and ensure that the State and other statutory authorities act in accordance with law.”_ 16. The first ground is that they have already obtained the essentiality certificate from the government in form No.4, as per Regulation 6(2)(e) which format contains only the requirements as specified in the unamended Clause 6 W.P.C.No.20385 & 20725 of 2012 25 (h). Therefore according to the petitioners, when essentiality certificate had been obtained as per Ext.P1 dated 17/2/2012, there was no requirement of such a nature as provided under the amendment. But, on a reading of the Essentiality certificate Ext.P1 it could be seen that it is only a no-objection certificate from the State Government given in both the cases and it is not an essentiality certificate as envisaged under Regulation 6(2)(e). Essentiality certificate has to be produced along with the application duly signed by the competent authority which should include the noobjection of the State Government as well. Therefore the format of the essentiality certificate does not make any difference at all as the petitioner as on the date of submission of the application has to comply with the requirement of the regulations as on that date which apparently should comply with the amended regulation as well. W.P.C.No.20385 & 20725 of 2012 26 17. In regard to the second contention, relying upon the right to carry on business under Article 19(1)(g) of the Constitution of India, though starting a college is considered to be the right to carry on business as provided under Article 19(1)(g), the restrictions imposed by the statute has also to be complied with. Therefore if the amended regulation is upheld, merely for the reason that the petitioner has the right to carry on business does not mean that the regulation is invalid in any manner. A reference to the judgments relied upon by the learned counsel for Dental Council of India by itself would indicate that the regulations framed by the Dental Council of India is having statutory force. In that view of the matter, when restrictions are imposed by the regulation, it cannot be termed as violation of Article 19(1) (g) of the Constitution. 18. The next contention based on the format of the application is also irrelevant. The argument of the learned counsel for the petitioner is that the power to make W.P.C.No.20385 & 20725 of 2012 27 regulations in regard to the form is under Section 20(2)(fa) which reads as under: _“prescribe the form of the scheme, the particulars to be given in such scheme, the manner in which the scheme is to be preferred and the fee payable with the scheme under clause (b) of sub Section (2) of Section 10-A”._ When the rules are amended it is only proper that the format is also amended. But that does not mean that the amendment has no effect at all as long as it has statutory force. The format should be suitably changed in order to comply with the statutory provision. That apart, on a perusal of the list of enclosures at Serial No.6 extracted below would show that attachment with Medical College was also one of the alternative requirements which formed part of the unamended rule and therefore there was no necessity to change the format as at present the other two categories are deleted. W.P.C.No.20385 & 20725 of 2012 28 _“Proof of ownership of 100 bedded General Hospital/attachment with Medical College/100 bedded Government Hospital”_ 19. As already indicated, the format do contain attachment to the Medical college and it can only be stated that the other two alternatives had become redundant on account of the amendment made to Clause 6(h). Therefore the contention that the format is not suitably amended is not sustainable. 20. The next argument is based on Section 10A(7)(d) of the Act. A reference to the said provision only shows that adequate hospital facilities are available having regard to the number of students likely to attend. What should be the adequate hospital facilities is required to be considered by the Council and the Central Government. If Section 20 of the Act refers to the regulation making power and if a reference is made to sub Section (1) of Section 20, it inter alia states that the Council may with the approval of the Central Government make regulations not inconsistent with W.P.C.No.20385 & 20725 of 2012 29 the provisions of this Act to carry out the purposes of this Chapter. Sub Section (2) of Section 20 states that without prejudice to the generality of the foregoing power given under subsection (1) in particular, sub section (2) provides for various contingencies as mentioned under clauses (a) to - (i). Specifically clause (fb) indicates as under: _“Prescribe any other factors under clause (g) sub Section 7 of Section 10A.”_ Clause (i) reads as under: _“Any other matter which is to be or may be prescribed under this Act.”_ 21. If we go back to Section 10A(7)(g) it says _“any other factors as may be prescribed”_ . No doubt 'prescribed' means prescribed by the rules or regulations made under the Act as defined under Section 2(g). Therefore one cannot say that there is no power to make a regulation. Hence the challenge on this ground is also unsustainable. W.P.C.No.20385 & 20725 of 2012 30 22. The next contention is regarding the retro active nature of the amendment. The amendment has come into effect from 21/5/2012 and therefore all applications being submitted by virtue of the amendment has to comply with the requirements of the amended provision also. The last date of submitting applications was on 30/09/2012. A comparison of the regulations which were in force prior to the amendment and after the amendment would show that three alternatives were available for an applicant. One was to have a General Hospital of not less than 100 beds with necessary infrastructure facilities including teaching preclinical, para-clinical and allied medical sciences in the campus of the proposed Dental College, the other was the proximity of a Government Medical College or a Medical College recognised by Medical Council of India and an undertaking that the said Medical College would facilitate training to the students of the proposed Dental College in the subjects of Medicine, Surgery and Allied Medical W.P.C.No.20385 & 20725 of 2012 31 Sciences and when no such Medical College is available in the proximity of the proposed Dental College, the proposed Dental College gets itself tied up atleast for 5 years with a Government General Hospital having a provision of atleast 100 beds and located within a radius of 10 Kms of the proposed Dental College and the tie-up is extendable till it has its own 100 bedded hospital in the same premises. In fact there were only two alternatives as per the amended regulations. One having a 100 bedded hospital with all facilities or proximity of a medical college with an undertaking that the said college facilitate the training of the students. It was only in the absence of the Medical College in the proximity, that the 3[rd] alternative of tie-up with the Government General Hospital arise. 23. By virtue of the amendment, the applicant owning or managing a General Hospital having not less than 100 beds is deleted and the alternative of tie-up with Government General Hospital is also deleted. Present W.P.C.No.20385 & 20725 of 2012 32 amendment necessitates attachment to a Medical College within a distance of 10 Kms and restricts that one Dental College shall alone be attached with the Medical College. 24. The question is whether the petitioner having provided the infrastructure facilitates based on the unamended provision would in any way give him a right to start a Dental College. No doubt the petitioner would have started construction of a 100 bedded hospital but to say that he had started the hospital for obtaining a permission to start a dental college does not seem to be a justifiable cause. The question is whether the petitioner having made some infrastructural facilities to start a 100 bedded hospital has a vested right to obtain a permission to start a Dental College or is it that once you have already provided infrastructural facilities, the Dental Council of India and the Central Government is under obligation to permit the petitioner to start a college. W.P.C.No.20385 & 20725 of 2012 33 25. I do not think that the scheme of the Act is to grant permission to all persons. There is no mandate on the part of the Dental Council of India or the Central Government to grant permission to all applicants. The main argument of the 2[nd] respondent is that limitation has been brought out by way of amendment to give specialised coaching or training or teaching to the students of Dental College through the faculty of a medical college recognised by the Medical Council of India and the restriction of one Dental College being attached to one Medical College is brought in, to see that the students of the dental college would get the appropriate training facility with the faculty approved by the Medical Council of India in the Medical Colleges. Therefore, the restriction now imposed by attaching the institution with a Medical College with a proximity of 10 Kms, cannot be termed as retro active taking into consideration one or two instances. Only persons who had a 100 bedded hospital at the relevant time for W.P.C.No.20385 & 20725 of 2012 34 submitting the application was entitled to apply for the permission. Apparently there is a change in the rule which resulted in the petitioner not being able to apply for permission. Since the statute had been framed with the conscious effort of seeing that specialised training in all fields of medicine is to be given to the students joining Dental College, I do not think that merely because it affects one or two institutions like the petitioners the regulations should be struck down as retroactive. 26. Another ground is that there is a total prohibition to start a Dental College on geographical reasons. This is on account of the rule regarding proximity of 10 Kms from the Medical College. The reasons stated in the counter affidavit making such a provision by attaching one Dental College to a Medical College is for the reason that the faculty in the Medical College will be enough only for one Dental College. The faculty as approved by the Medical Council of India for the Medical College will have to train the medical students W.P.C.No.20385 & 20725 of 2012 35 and also the students coming from the Dental College. Apparently the faculty of medical students should not be burdened with more students when several colleges are attached to such Medical College. If an expert agency like Dental Council of India comes to such a conclusion and it is approved by the Central Government I do not think that the rule can be struck down on the basis of total prohibition. This is an instance where the Dental Council of India and the Central Govt have come to the conclusion that the study of dental curriculum should be more effective and those students should have an expert study on all parameters of medicine and the capability of giving such training should be entrusted with medical colleges and when they come to the conclusion that 100 bedded hospital or a General Hospital may not cater to such a need, it may not be proper for this Court to come to the conclusion that the Rule suffers from any unreasonableness or illegality. W.P.C.No.20385 & 20725 of 2012 36 27. It is not a case where there is a geographical prohibition as alleged. The whole concept of the present regulation is to enable the dental student to have access to the Medical College attached to it for training in general medicine which includes various subjects and such insistence by the Dental Council of India cannot be termed as prohibitive in nature. In the result, I do not think that any of the contentions raised by the petitioners to challenge the regulation are sustainable. Accordingly writ petitions are dismissed. (sd/-) ## **(A.M.SHAFFIQUE, JUDGE)** jsr W.P.C.No.20385 & 20725 of 2012 37 W.P.C.No.20385 & 20725 of 2012 38