The Principal, Educare Institute of Dental Sciences, Kiliyamannil Campus, Chattiparamba, Malappuram v. Kerala University of Health Sciences, Dental Council of India, Union of India

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MRS. JUSTICE MARY JOSEPH** **MONDAY, THE 13TH DAY OF JANUARY 2020 / 23RD POUSHA, 1941** **WA.No.1987 OF 2019** **AGAINST THE JUDGMENT DATED 7.8.2019 IN WP(C) 15925/2019(M) OF HIGH COURT OF KERALA** ## **APPELLANT/PETITIONER:** **THE PRINCIPAL, EDUCARE INSTITUTE OF DENTAL SCIENCES, KILIYAMANNIL CAMPUS, CHATTIPARAMBA, MALAPPURAM-676 504.** **BY ADVS.** **SRI. KURIAN GEORGE KANNANTHANAM-SR. SRI.TONY GEORGE KANNANTHANAM SRI.P.M.SANEER** ## **RESPONDENT/RESPONDENTS:** - **1 KERALA UNIVERSITY OF HEALTH SCIENCES REPRESENTED BY ITS REGISTRAR, MEDICAL COLLEGE P.O., TRICHUR-680 596.** - **2 THE DENTAL COUNCIL OF INDIA, REPRESENTED BY ITS SECRETARY, KOTLA ROAD, NEW DELHI-110 011.** - **3 THE UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF HEALTH AND FAMILY WELFARE, (DENTAL EDUCATION SECTION), NIRMAN BAHVAN, NEW DELHI-110 011.** - **R1 BY SRI.P.SREEKUMAR,SC,KERALA UTY.HEALTH AND ALLIED SCIENCE R2 BY SRI.PRAKASH M.P., SC, DENTAL COUNCIL OF INDIA R3 BY ADV. SRI.P.VIJAYAKUMAR** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13.01.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WA.No.1987 OF 2019 2 ## **JUDGMENT** ## **Dated this the 13th day of January 2020** ## **Shaffique, J** This appeal is filed by the petitioner in W.P(C) No.15925/2019, challenging the judgment dated 7.8.2019 by which the learned Single Judge after taking into consideration the respective contentions passed the following order. “25. Under Clause 2 of Statute 8 of the University Statute, the University has to consider whether the application is in consonance with the perspective plan. However so far there is no perspective plan. Therefore, in case the University does not publish the perspective plan or does not call for applications by January 2020, the University shall reconsider Ext.P6 series of applications and pass orders on merits, before February, 2020.” 2. The factual aspects involved in the case would disclose that the petitioner intends to start Post Graduate courses during the academic year 2020-2021. As per the regulations framed by the Dental Council of India (DCI), they were expected to produce consent of affiliation from the Kerala University of Health Sciences. In order to enable the institution to start such courses, the University statute prescribes invitation of an application by the University. However, no such application was invited by the University with reference to commencement of Post Graduate courses during the academic year 2020-2021. The petitioner WA.No.1987 OF 2019 3 submits that during the previous years they were all along attempting to start Post Graduate courses, however, the same did not fructify on account of the delay on the part of the Government in issuing the essentiality certificate and also the University in not providing the consent of affiliation during the prescribed time. 3. Accordingly the petitioner submitted Ext.P6 series application dated 28.12.2018 before the University to start MDS Courses in various disciplines. The said applications were not considered by the University. However, by Ext.P8 dated 9.4.2019, the University rejected the applications and fee was returned. In Ext.P8, it is inter alia stated as under: “As per paper read (1) University invited application for starting new Colleges/Courses/Seat enhancement for the academic year 2016-17 and the last date for submission of such applications was 31.12.2015. But the Managing Director, Educare Institute of Dental Sciences, Malappuram vide paper read (2) to (4) above applied for starting MDS Courses-Conservative Dentistry and Endodontics, Orthodontics and Dentofacial Orthopaedics, Periodontology along with application fees of Rupees Two lakh for each course respectively only on 14.07.2016, which was after the cut off date. Hence the application was rejected by the University vide paper read (5) above. The application fee was retained by the University and the College was intimated to submit the application as and when the University issues fresh notification for starting the new Courses. 2. University had not issued any notification inviting applications for starting new Colleges/Courses/Seat enhancement of Dental PG courses for the academic year 2019-20. But Managing Director, Educare Institute of Dental Sciences, Malappuram vide paper read (6) & (7) above, again applied for starting MDS Courses-Conservative Dentistry and Endodontics, Orthodontices and Dentofacial Orthopaedics, WA.No.1987 OF 2019 4 Periodontology, Pedodontics and Preventive Dentistry. The institute remitted an amount of Rs.two lakhs and forty thousand rupees only and requested to adjust the fee remitted by them earlier which was retained by University, as application fee for the courses. 3. The whole matter was placed before the 51[st] meeting of Governing Council held on 01/03/2019 and the Governing Council vide paper read (8) above decided to reject the request submitted by Educare Institute of Dental Sciences, Chattiparamba, for starting new Dental PG Courses and to refund the amount of Rs.8,40,000/- as the request submitted for starting new courses was not in response to any valid notification issued by the University. 4. The details of application fee remitted by the institute are detailed below:- Sl.No. Name of the Course DD Remittance Details |1. MDS Pedodontics and|The Federal Bank Ltd,| |---|---| |Preventive Dentistry|Malappuram Br.DD No.607320| ||dtd.29.12.2018 for Rs.2,10,000/-| |______________________________________________________________________|| |2. MDS Orthodontics<br>|1)SIB DD No.104778 dtd.16.7.2016| ||for Rs.2,00,000/-| ||2) The Federal Bank Ltd.,| ||Malappuram Br.DD No.607321| ||dtd.29.12.2018 for Rs.10,000/-| |______________________________________________________________________|| |3. MDS Periodontics<br>|1) SIB DD No.104781| ||dtd.16.7.2016 for Rs.2,00,000/-| ||2)The Federal Bank Ltd.,| ||Malappuram Br.DD No.607323| ||dtd.29.12.2018 for Rs.10,000/-| |____________________________________________________________________|| |4. MDS Conservative Dentistry|1) SIB DD No.104780| ||dtd.16.7.2016 for Rs.2,00,000/-| ||2. The Federal Bank Ltd.,| ||Malappuram Br.DD No.607322| ||dtd.29.12.2018 for Rs.10,000/-| |______________________________________________________________________|| |Total amount|Rs.8,40,000/-| |______________________________________________________________________|| 5. Sanction has therefore been accorded by the Hon'ble Vice Chancellor by implementing the decision of the Governing Council read (8) above, to reject the request submitted by Educare Institute of Dental Sciences, Chattiparamba, for starting new Dental PG course and to refund the amount of Rs.8,40,000/- (Rupees Eight lakhs forty thousand only) to the institute since the request submitted for starting new courses was not in response to any valid notification issued by the University. 6. The Finance Branch shall refund the amount to the College under proper acknowledgment. 7. Orders are issued accordingly.” 4. It is challenging Ext.P8 that this writ appeal was WA.No.1987 OF 2019 5 filed. 5. We heard the learned Senior Counsel Sri.Kurian George Kannanthanam appearing for the petitioner and the learned counsel Sri.P.Sreekumar appearing for the University. Sri.Prakash M.P, the learned Standing Counsel entered appearance on behalf of the Dental Council of India. 6. It is pointed out by the learned counsel appearing for the petitioner that the Dental Council of India, by Ext.P9 dated 11.6.2019 had called upon the college authorities to fulfill the deficiencies and to furnish compliance report to the Council. It is observed as under: “The Consent of Affiliation is not issued for MDS Courses in the specialties of (I) Orthodontics & Dentofacial Orthopaedics (ii) Conservative Dentistry & Endodontics and (iii) Periocontology.” 7. The learned counsel submits that since the Dental Council India has permitted the college to furnish the Compliance Report and they had confirmation from the Dental Council India that the compliance report has to be filed on or before 25.1.2020, the University should be directed to consider their applications afresh and they are ready and willing to pay the fee that had been returned by the University. 8. The learned Single Judge had issued the impugned WA.No.1987 OF 2019 6 direction observing that the statute governing the issue clearly indicates that the Kerala University of Health Sciences Act, has to prepare a perspective plan to enable applicants to submit their applications for consideration. As on the date when the judgment was rendered, no such perspective plan had been prepared by the University. During hearing of the Writ Appeal, the learned Standing Counsel for the University submits that the perspective plan has already been prepared by the University but the same has to be approved by the Governing Council and it has to be notified in accordance with the procedure prescribed. However, it is pointed out that the petitioner college comes within the area which is not excluded for the purpose of starting MDS Course. Apparently, there is no impediment for the University in considering their application as the perspective plan is already in place. 9. Of course the petitioner has a case that the requirement of perspective plan shall not apply in respect of the petitioner college, as it has already started the college and what is required is only to grant affiliation for Post Graduate courses. It is argued that Section 51(2) does not indicate that for starting a new course, there is requirement of perspective plan. Section 51(2) reads thus: WA.No.1987 OF 2019 7 “No application for opening a new college or institution of higher learning which is not in conformity with such plan, shall be considered by the University.” 10. We do not think that it is necessary for us to consider the aforesaid contention as the perspective plan is already in place, and is only to be notified. Even otherwise it shall be open for the University to consider the application taking into consideration of all relevant factors including the requirement of MDS course in the particular locality. 11. The learned Standing Counsel appearing for the Dental Council of India placed before us the judgment of the Apex Court in **Medical Council of India v. V.N.Public Health & Educational Trust and Others (2016 KHC** **6246)** wherein the Apex Court while considering the case where the High Court had given direction to the Medical Council of India to consider an application for grant of approval, observed that, when the essentiality certificate given by the Government was a conditional one and the application itself was defective, the High Court could not have directed the Medical Council of India to consider the said application as it was a defective one. Paragraphs 15 and 16 of the judgment read thus: “15. The impugned order passed by the High Court is to be tested and adjudged on the anvil of the aforesaid authorities. The application for grant of approval was filed with the WA.No.1987 OF 2019 8 Essentiality Certificate which was a conditional one and, therefore, a defective one. It was not an Essentiality Certificate in law. In such a situation, the High Court could not have directed for consideration of the application for the purpose of the inspection. Such a direction, we are disposed to thinks, runs counter to the law laid down in Educare Charitable Trust (supra) and Royal Medical Trust (supra). We may further proceed to state that on the date of the application, the Essentiality Certificate was not in order. The Schedule prescribed by the MCI, which had been approved by this Court, is binding on all concerned. MCI cannot transgress it. The High Court could not have gone beyond the same and issued any direction for conducting an inspection for the academic year 2016-17. Therefore, the directions issued by the learned singe judge and the affirmation thereof by the Division Bench are wholly unsustainable. 16. Consequently, the appeal is allowed and the judgments and orders passed by the High Court are set aside. It will be open to the Trust to submit a fresh application for the next academic year in consonance with the provisions of the Regulations of the MCI and as per the time Schedule; and in that event, it will be considered appropriately. In the facts and circumstances of the case, there shall be no order as to costs.” 12. We do not intend to issue any direction to the Dental Council of India to consider the application of the petitioner. We are issuing the following direction only since the Dental Council of India as per Ext.P9 dated 11.6.2019 directed the college to rectify the deficiencies. It is for the Dental Council of India to consider the application, if the application is proper and it is to be considered in accordance with law. Taking into consideration of the aforesaid facts, the Writ Appeal is disposed as under: The petitioner shall submit the fresh applications along with the requisite fee for which the University shall open its WA.No.1987 OF 2019 9 portal for a period of five days from today. The University shall consider the application taking into consideration of the aforesaid direction and pass appropriate orders within a further period of two weeks from the date of receipt of the online application. **Sd/-** **A.M.SHAFFIQUE** **JUDGE** **Sd/-** **MARY JOSEPH JUDGE** **ab**