W.P. (C) No. 18090 of 2016 (I) and connected cases

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** **SATURDAY, THE 17TH DAY OF DECEMBER 2016/26TH AGRAHAYANA, 1938** **WP(C).No. 18090 of 2016 (I) ----------------------------** **PETITIONER(S):** **-------------** **1. ABDUL RAHEEM, AGED 25 YEARS, S/O.LATE MOHAMMED KUTTY HAJI, RESIDING AT PARAPPARAMBIL HOUSE, THRIPPANGODE P.O., MALAPPURAM, TIRUR, PIN 676108, PRESENTLY 3RD YEAR STUDENT IN PSM COLLEGE OF DENTAL SCIENCE AND RESEARCH, AKKIKAVU, THRISSUR, PIN 680 915, (UNIVERSITY REGISTRATION NO. 100020881) 2. ABHILASH S., AGED 25 YEARS, S/O.SATYASEELAN, RESIDING AT BHASKAR NIVAS, KANAL PURAYIDOM, MUNDAKKKAL, EAST KOLLAM, PIN 691 001, STUDENT OF 3RD YEAR BDS 2010 BATCH, PARIYARAM DENTAL COLLEGE, PARIYARAM MEDICAL COLLEGE P.O., PARIYARAM, KANNUR, PIN 670 503 (UNIVERSITY REGISTRATION NO. 100020781)** **3. DIVYA RAMESAN, AGED 24 YEARS, D/O.RAMESAN, RESIDING AT ASWATHY, TC. 16/799-1, JAGATHY, THYUCAUD P.O., THIRUVANANTHAPURAM, PIN 695 014, STUDENT OF 3RD YEAR BDS 2010 BATCH, PMS DENTAL COLLEGE, TRIVANDRUM, PIN 695 028, (UNIVERSITY REGISTRATION NO. 100020857)** **BY ADVS.SRI.KURIAN GEORGE KANNANTHANAM (SR.) SRI.THOMAS M.JACOB SRI.AKHIL K.MADHAV SRI.T.R.JERRY SEBASTIAN** **RESPONDENT(S):** **--------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN 695 001.** **msv/** **-2-** **-2-** **WP(C).No. 18090 of 2016 (I)** **----------------------------** ## **2. DENTAL COUNCIL OF INDIA,** - **AIWAN-E-GALIB MARG, KOTLA ROAD, NEW DELHI, PIN 110 002, REPRESENTED BY ITS SECRETARY** ## **3. KERALA UNIVERSITY OF HEALTH SCIENCES,** - **MEDICAL COLLEGE P.O., THRISSUR, PIN 680 596, REPRESENTED BY ITS REGISTRAR** **4. PSM COLLEGE OF DENTAL SCIENCE AND RESEARCH, AKKIKAVU THRISSUR, PIN 680 915, REPRESENTED BY ITS PRINCIPAL.** ## **5. PARIYARAM DENTAL COLLEGE,** - **PARIYARAM MEDICAL COLLEGES P.O., PARIYARAM, KANNUR, PIN 670 503, REPRESENTED BY ITS PRINCIPAL.** ## **6. PMS DENTAL COLLEGE,** - **GOLDEN HILLS, VATTAPARA, VENKODE, THIRUVANANTHAPURAM, PIN 695 028, REPRESENTED BY ITS PRINCIPAL.** **R1 BY GOVERNMENT PLEADER SRI.MATHEW GEORGE VADAKKEL R2 BY ADV. SRI.TITUS MANI VETTOM, SC** **SRI.PRAKASH M.P., SC** **R3 BY ADV. SRI.P.SREEKUMAR, SC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-12-2016 ALONG WITH WPC.19090/2016 AND CONNECTED CASES THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 18090 of 2016 (I)** ## **---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS -----------------------** - **P1 TRUE COPY OF NOTIFICATION NO. 0276/AC II/BOS/2012 (DENTAL) DATED 13.12.2013 OF THE 3RD RESPONDENT** - **P2 TRUE COPY OF JUDGMENT DATED 19.08.2014 IN WPC. NO. 32281/2013 AND CONNECTED CASES** - **P3 TRUE COPY OF THE ORDER NO.DE 22-2014/4882 DATED 06.08.2014 FROM DCI TO 3RD RESPONDENT UNIVERSITY** - **P4 TRUE COPY OF THE NOTIFICATION NO. 0276/ACII/BOS/2012 (DENT) DATED 25.09.2014** - **P5 TRUE COPY OF THE ORDER NO. 8855/AC.B/2014/KUHS DATED 05.11.2014** - **P6 TRUE COPY OF THE CLARIFICATION NO. DE 87(1) 2015/16188 DATED 19.01.2016** - **P7 TRUE COPY OF DISCHARGE ORDER NO. 5952/ACA/KUHS/2015 DATED 10.05.2016** - **P8 TRUE COPY OF THE CORRECTION ORDER NO. 5952/ACA/KUHS/2015 DATED 13.05.2016** ## **RESPONDENT(S)' EXHIBITS** **-----------------------** - **EXT.R2(a): TRUE COPY OF RELEVANT PAGES OF BDS COURSE REGULATIONS (AS MODIFIED UPTO 25-7-2007).** - **EXT.R2(b): TRUE COPY OF RELEVANT PAGES OF THE GAZETTE OF INDIA NOTIFICATION NO.211 DTD.MAY 23 MAY 29 INCLUDING REVISED BDS COURSE (7TH AMENDMENT) REGULATIONS, 2015.** - **EXT.R2(c): TRUE COPY OF INTERIM ORDER DTD.24.5.2016 IN WPC.18090/2016.** ## **//TRUE COPY//** **msv/** **P.S.TO JUDGE** ## **A.M. SHAFFIQUE, J.** =============== W.P. (C) No. 18090, 19090, 19125, 19126, 19283, 19461, 19546, 19559, 19868, 20161, 21556, 21558, 21567, 21776, 21845, 22026, 23066, 23076, 23488, 23858, 24094, 24237, 24512, 35681, 35955, 37976, 39185 & 39916 of 2016 ============================ Dated this, the 17[th] day of December, 2016 ## **J U D G M E N T** These writ petitions concern the plight of the students who have joined BDS Course in various Colleges coming under the Kerala University of Health Sciences during the period 2010-11 to 2013-14. As per Regulations framed by the Kerala University of Health Sciences, from 2010 onwards, it was indicated that the first year students will have to complete the course in five attempts. However, as per the Dental Council of India (DCI) Regulations of 2007, students will have to complete the first year within a period of three years. In other words, they got a chance to write the examinations for a period of three years and thereafter if they do not complete, they cannot continue the course. In the meantime, the DCI Regulations came to be challenged before the Madurai Bench of Madras High Court in WP(MD) Nos. 8276 to 8280/2013 ( _**Nizvy Sunil**_ _**Prakash and Others v. The Secretary, Dental Council of India**_ ## W.P(C) No.18090/16 & conn.cases ## -:2:- _**and Others**_ ), which quashed the aforesaid restriction and held as under:- _“53. In view of the foregoing discussions, I hold that the impugned clause is unconstitutional and the same is liable to be struck down. In the result, these Writ petitions are allowed, the impugned Clause in “the Dental Council of India Revised BDS Course Regulations, 2007”, prescribing “any student who does not clear the First Year BDS University examination in all subjects within 3 years from the date of admission, shall be discharged from the Course” is hereby struck down. Consequently, the Respondents in the failed papers and then allow them to continue the course. Consequently, connected Miscellaneous Petitions are closed. No costs.”_ 2. Pursuant to the aforesaid direction of the Madras High Court, DCI Regulations underwent an amendment. The amendment is produced as Ext.R2(b) in WP(C) No. 18090/2016. The amendment reads as under:- _“No.DE-87(1)-2015- In exercise of the powers conferred by Section 20 of the Dentists Act, 1948, the Dental Council of India, with the previous sanction of the Central Government, hereby makes_ W.P(C) No.18090/16 & conn.cases ## -:3:- _the following Amendment to the existing principle Revised BDS Course Regulations, 2007, published in Part III, section 4 of the Gazette of India, Extraordinary, dated 10[th] September, 2007:-_ _1. Short title and commencement:-_ _(i) These Regulations may be called the Revised BDS Course (7[th] Amendment) Regulations, 2015._ _(ii) They shall come into force on the date of their publication in the Official Gazette._ _2. In Revised BDS Course Regulation, 2007, the following insertion/ modifications/ deletions/ substitutions, shall be as indicated therein:-_ _3. In the existing Regulations under heading captioned as “EXAMINATIONS”, sub-heading “SCHEME Examinations” and sub-heading “1 B.D.S.Examination:” the existing clause that “Any student who does not clear the 1[st] year BDS examination in all the subjects within 3years from the date of admission shall be discharged from the course.”_ _Substituted by the following clause that:-_ _“Any student who does not clear the BDS Course in all the subjects within a period of 9 years, including one year Compulsory Rotatory paid Internship from the date of admission shall be discharged from the course”._ 3. The apprehension expressed by the petitioners in W.P(C) No.18090/16 & conn.cases ## -:4:- these cases is with reference to the letter dated 19/1/2016 issued by the DCI by which it has been mentioned that the benefit of the amendment shall be available only to students who have been admitted after the date of the notification. Ext.P6 reads as under:- ## _“Sir/Madam,_ _As we are aware that the Dental Council of India, with the previous approval of the Central Government, in order to mitigate the hardship being faced by the students of 1[st] year BDS Course who could not pass their first year BDS Course within a period of three years from the date of their admission, as per the Principle Revised BDS Course Regulations, 2007, amended its Principle Revised BDS Course Regulations, 2007 and provided_ inter alia _for that “Any student who does not clear the BDS course in all the subjects within a period of 9 years, including one year Compulsory Rotatory paid Internship from the date of admission shall be discharged from the course”. “The Revised BDS Course (7[th] Amendment) Regulations, 2015 has been notified and published in the official gazette on 27.4.2015 and as such come into force since then._ _The Dental Council of India is in receipt of various representations/clarifications etc. from various dental Institutions/Universities/Students_ ## W.P(C) No.18090/16 & conn.cases ## -:5:- _seeking clarification as to whether or not, the provision of Revised BDS Course (7[th] Amendment) Regulations, 2015 would be applicable to the BDS students admitted before the date of its commencement i.e., 27.4.2015._ _The General Body of the Dental Council of India, in its meeting held on 28[th] & 29[th] December, 2015 considered the issue and after discussion and deliberation decided to_ inter alia _clarify that “The provision of revised BDS Course (7[th] Amendment Regulation 2015) are applicable only to those students who have been admitted in BDS Course in any Dental Institution after the date of commencement of these regulation i.e. 27.4.2015 (Date of publication of this regulation in official gazette of India)”._ 4. Pursuant to Ext.P6, Ext.P7 order was issued by the University on 10/5/2016 wherein direction was issued to all the Principals of affiliated Dental Colleges to discharge all BDS students (on existing batches) who have not completed their first year BDS Course by consecutive chances forthwith. The said letter had been clarified by another letter dated 13/5/2016 wherein it was stated that if any students who do not clear the first year BDS examination in all subjects within three years from ## W.P(C) No.18090/16 & conn.cases -:6:- the date of start of the course shall be discharged from the BDS Course. 5. It is contended by the learned senior counsel appearing for the petitioners that in so far as the clause by which there was a limitation provided for writing examination for the first year students within a period of three years had already been struck off by the Madhurai Bench of the Madras High Court. The said provision no longer exists. 6. On the other hand, learned counsel appearing for the DCI placed reliance on Section 20 of the Dentists Act, 1948, which gives power to the Dental Council of India to frame Regulations in terms of Section 20(4). Every Regulation made under the Act shall be placed before each of the House of Parliament. In other words, it has to be approved by the Central Government. It is stated that though the amendment to the Regulation Ext.R2(b) had been notified, taking into account the difficulties faced by the students after the letter dated 19/1/2016 had been issued, the DCI further considered the matter and issued letter dated 6/7/2016 to the W.P(C) No.18090/16 & conn.cases ## -:7:- Government seeking for clarification and necessary amendment. DCI had proposed the following amendment by way of a proviso to the 7[th] Amendment Regulations, which reads as under; _“In partial modification of DCI's Revised BDS Course (7[th] Amendment) Regulations, 2015 approved by GOI letters dated 27/01/2015 and 25/2/2015 and notified in the Official Gazette on 27/4/2015, the following proviso is hereby added:-_ _Provided these regulations shall also applicable to the students admitted in BDS Course in any Dental Institutions from the academic session 2008-09 onwards but has not clear their 1[st] year BDS Course within a period of 3 years from the date of admission.”_ 7. It is therefore submitted that unless the Government of India modifies Ext.R2(b) notification by making necessary amendments, the decision taken in letter dated 19/1/2016 shall remain in force. 8. Having heard the learned counsel on either side and having perused the records, I do not think that there can be any confusion in regard to the statutory provision by which amendment had been made to the Regulations. First of all, the ## W.P(C) No.18090/16 & conn.cases **==> picture [21 x 9] intentionally omitted <==** clause which restricts right of the first year students a maximum period of three years for passing the examinations has already been set aside by the Madurai Bench of the Madras High Court in _**Nizvy Sunil Prakash**_ (supra). Under such circumstances, it has to be treated that the said provision is no longer in force. 9. Now coming to the present notification as extracted above, the notification itself states that the earlier clause which insisted for the students to complete the first year BDS examination in all the subjects within three years has been substituted with the present clause. When it is a substitution, there cannot be any doubt regarding the fact that it amounts to an addition to the statutory provision itself. The provision has to be treated as to be in existence as on the date when the Act shall come into force. Under such circumstances, the DCI itself had felt that a clarity has to be given to the aforesaid statutory provision and they have already recommended necessary amendments to be made to the Regulations. In the light of the aforesaid facts, I am of the view that these ## W.P(C) No.18090/16 & conn.cases ## -:9:- writ petitions can be disposed of as under:- (i) It is made clear that the students who had already been admitted to the Courses from 2010-11 to 2013-14, who are the petitioners in the above cases and similarly situated persons, shall be entitled to the benefit of the notification dated 27/4/2015 [Ext.R2(b)]. (ii) All other contentions urged by the petitioners are left open to be decided in appropriate proceedings. (iii) The University shall publish the results of the candidates who had already written the examination, of course, subject to other eligibilities as provided under the relevant statutes. Sd/- ## **A.M. SHAFFIQUE, JUDGE** Rp17/12/2016 //True Copy// P.S to Judge