Calcutta High Court (Appellete Side)
And Research & Anr vs Union Of India & Ors on 12 March, 2013
1 12.03.2013
sd & as Sl. No.109 MAT 314 of 2013 With CAN 2051 of 2013 Gurunanak Institute of Dental Sciences and Research & Anr.
Vs. Union of India & Ors.
Mr. Jaydip Kar, Mr. Kishore Dutta, Mrs. Ashmita Chakraborty ......... for the appellants.
Mr. Rabindra Nath Pal .... For Union of India.
Mr. Joytosh Majumdar, Ms. Debjani Ray ..... for State.
Mr. Jaydip Kar, learned Senior Counsel appears on behalf of the appellants and Mr. Rabindra Nath Pal, learned Counsel appears on behalf of the Union of India.
The appellants wanted to increase the capacity of the MDS course already running in a dental college. The application submitted by the appellants had been rejected on the ground that this application had been filed beyond the 2 prescribed period by the impugned order dated 4th September, 2012 passed by Government of India, Ministry of Health and Family Welfare.
The Single Bench has dismissed the writ application and intra court appeal has been filed before us.
Fact lies in a narrow compass. The appellants wanted to increase the admission capacity in dental college by virtue of amendment made in Regulation 6(2)(hh) of the Establishment of New Dental Colleges, Opening of New or Higher Course of Study or Training and Increase of Admission of Capacity in Dental Colleges), Regulation 2006 (hereinafter referred to as the 'said Regulation'). It came into force on the date of its publication in the official gazette i.e. on 21st May, 2012. Regulation 6(2)(hh) provided that no permission for grant of MDS course in the specialty of Oral and Maxillofacial Surgery shall be granted by the Central Government under Section 10A of the Dentists (Amendment) Act, 1993 unless and until the desirous existing dental college is attached with a Government/Private Medical College approved/recognized by the Medical Council of India located at the distance of 10kms. by road. The appellants applied for increase in the seats in Oral and Maxillofacial Surgery from 2 to 6. Initially the application was filed by the appellants on 23rd June, 2012. The 3 application was not considered on the ground that the college was not attached to the medical college as required in Regulation 6 of Regulation 2006 as notified on 21st May, 2012. The appellants institute was asked to furnish the attachment of MCI approved/recognized Medical College within the range of 10Kms. distance immediately to enable the Ministry to process the case further. The appellants admittedly was not attached to a Medical College within distance of 10Kms. as required under Regulation 6 of the Regulation 2006 specially for the purpose of Oral and Maxillofacial Surgery. The appellants institute got attached to the College of Medicine & Sagar Dutta Hospital, Kamarhati, Kolkata vide order dated 28th August, 2012 passed by the Government of West Bengal. The appellants having obtained the qualification for applying as per the amended Regulation on 28th August, 2012, resubmitted its application being Annexure P-9 to the petition on 29th August, 2012 for increase of MDS seats from 2 to 6 for Oral and Maxillofacial Surgery. The application was rejected vide order dated 4th September, 2012 by the Government of India, Ministry of Health and Family Welfare, with liberty to the appellants to apply afresh in the next academic year i.e. 2014- 15 as per DCI Regulation, 2006, if they so desired. 4
Being aggrieved by the rejection of the application communicated on 4th September, 2012 vide Annexure P-10 writ application was filed before the Single Bench, same having been dismissed by the impugned order, appellants have preferred the instant appeal.
The Single Bench has opined that regulations are binding and in the facts and circumstances of the case no interference was called for.
Mr. Jaydip Kar, learned Senior Counsel appearing with Mr. Kishore Dutta, learned Counsel, appearing on behalf of the appellants submitted that application was filed in the month of June, 2012. The appellants were under the impression that amended Regulation is not applicable to it. It was pointed out that attachment is necessary to a recognized college within the periphery of 10 Kms. distance. Attachment was sought for and granted on 28th August, 2012 by the State Government. Thereafter application was resubmitted. It ought to have been processed. Learned Counsel has submitted that more or less on similar facts the Hon'ble Apex Court had diluted the time fixed in the case of Priyadarshini Dental College and Hospital vs. Union of India & Ors., reported in (2011) 4 SCC 623. Learned Senior Counsel has referred to a decision of a Single Bench of the High Court of Kerala at Ernakulam in the case of 5 Noorul Islam Educational Trust Nice Garden, Aralummoodu, Neyyattinkara Thiruvananthapuram District, 695123 Rep. by Its Chairman A.P. Majeed Khan vs. Union of India Rep. by The Secretary to Government Ministry of Health and Family Welfare Department of Health and Family Welfare (Dental Education Section), Nirman Bhavan New Delhi-110 011 and The Dental Council of India Aiwan-E-Galib Marg, Kotla Road, New Delhi- 110002 Rep. by Its Secretary, in which relying upon Priyadarshini Dental College and Hospital (Supra), direction was issued by the Single Bench to Central Government to consider extension of time as per Note (2) of the Schedule attached to the Regulations.
After hearing the learned Counsel for the appellants at length we are of the considered opinion that in the instant case no case is made out for extending time limit or to grant relaxation in any manner whatsoever. As per amended Regulation No. 6 of the Regulation 2006 it was necessary even for the purpose of increase of the seats in the subject of Oral and Maxillofacial Surgery that college should be attached to a recognized medical college situated within 10 Kms. as envisaged under the aforesaid Regulations. Admittedly the college was not attached to such a college, attachment had been made on 28th August, 2012. As per schedule of the 6 Regulations time schedule is provided for submission of application within a year. The Central Government has to forward the application to the Dental Council of India for scrutiny upto 31st July, 2012 and recommendations have to be made to the Dental Council of India by the Central Government upto 28th February of the subsequent year. Then letter of permission may be issued by the Central Government upto 31st March of the subsequent year. The last date for submitting appropriate application was 30th June, 2012. Upto the aforesaid date, the appellants' institute lacked the requisite qualification of attachment to a college within the distance of 10 Kms. which is necessary as per amended Regulation of 2006. When the initial application was filed on 23rd June, 2012 the application was rightly returned as the college was not attached to a medical college within 10 Kms. by road which was necessary for the subject of Oral and Maxillofacial Surgery. Thus it was incumbent to the appellants to acquire the requisite qualification before the cut off date of attachment as per Regulations amended on 21st May, 2012. Thus, the case of the appellants cannot be compared with those institutions which were otherwise qualified and could have applied within the cut off date i.e 30th June, 2012. Thus, in our considered opinion, Central Government was right in returning the 7 application. The appellants had obtained the attachment on 28th August, 2012 to a medical college situated within the distance of 10 Kms. Consequently its application could not have been dealt with or scrutinized by the Central Government. Otherwise, it would be creating a totally different class of institutions, which were not eligible or qualified to be apply as per amended Regulations and have attained the requisite qualification for preferring applications after the cut off date. There may be several other institutions that might have acquired such eligibility after the cut off date.
Fixation of the cut off date is necessary as processing and scrutiny of application take time. Time is required for the Dental Council of India in making inspection and then to objectively consider the application and that is why time has been fixed in the schedule. Now we are at the fag end of the year 2012 - 13 and all that dates mentioned in the schedule for inspection and scrutiny is already over. Thus, the application of the appellants can only be now processed effectively for the next year i.e. 2014-15 as prescribed in the calendar mentioned in the schedule.
Learned Senior Counsel has relied upon the decision of the Hon'ble Supreme Court in the case of Priyadarshini Dental College and Hospital (Supra), in which the Apex Court has laid 8 down that in appropriate cases time limit fixed in the schedule can be extended. No doubt that such power has been conferred in Note (2) in the schedule to the Regulations also. Schedule indicated may be modified by the Central Government. Reasons to be recorded in writing in respect of any class or any category of applications. Their Lordships of the Apex Court considered the question of renewal of Priyadarshini Dental College and Hospital (Supra). Renewal stands on different footing than increase of admission capacity as in the present case. The eligibility criteria were fulfilled within the prescribed period of time. The Apex Court has also considered that the college in question had complied with the requirements and was not at fault. It was not responsible in any manner for the delay in considering the application and there were other applicants of similar nature as observed by Their Lordships in paragraph 20 :
"If the Central Government was of the view that a dental college deserved renewal of permission in accordance with the Act and the Regulations, it should grant such permission. If it was of the view that the dental college did not deserve renewal of permission, it should refuse the permission. If the Central Government felt that the last date for granting renewal of permission was over and there was no justification for extending the time schedule, it could refuse the renewal of permission on that ground. On the other hand, if the Central Government was of the view that the applicant College had complied with the requirements and was not at fault, and it was not responsible in any manner for the delay in considering the application, and there were other 9 applicants of similar nature, it could have recorded those reasons in writing and extended the time schedule for that category of applicants and then granted the renewal of permission, provided the last date for admissions had not expired. Note 2 to the Schedule to the DCI Regulations enables the Central Government to modify the time schedule, for reasons to be recorded in writing, in respect of any class or category of applications. The applicants for renewal of permission for the fourth or fifth year, where there is compliance with the requirements relating to infrastructure, equipment and faculty, could be such a class or category of applications. Similarly, applications where the High Courts have directed consideration beyond 15th July in view of special circumstances, can also constitute a class or category of applicants."
The facts in the instant case are totally different. College had failed to comply with the requirement within the cut off date. It was not attached to a medical college within the distance of 10 Kms. as mandated under the amended Regulations of 2006. The college was at fault and it was responsible for the delay in moving the application on 29th August, 2012 which was rightly returned as the appellants failed to attain the eligibility criteria itself within the cut off date. A different class would have been created in favour of the appellants as there may be other institutions who might have such criteria after the cut off date. Thus, the ratio of the decision is not attracted at all in the instant case. Rather the ratio supports the reasonings employed by the Single Bench for rejecting the writ application.
10
Reliance has also been placed on the decision of the High Court of Kerala at Ernakulam in the case of Noorul Islam Education Trust Nice Garden (Supra). In the instant case Central Government had considered the case and had returned the application. The facts were not similar to the instance case. In the instant case eligibility criteria itself had not been attained within the time frame, processed and we are not impressed by the reasoning given by the High Court of Kerala at Ernakulam in Noorul Islam Educational Trust Nice Garden, Aralummoodu, Neyysyyinksts Thiruvananthapuram District. 695123 Rep. by Its Chairman A.P. Majeed Khan (supra).
Hence, we find no case for interference. The appeal being devoid of merit and is accordingly dismissed. It is open to the appellants to apply afresh as per time schedule.
In view of the above, the connected application being CAN 2051 of 2013 stands dismissed.
There is no order as to costs.
(Joymalya Bagchi,J.) (Arun Mishra, Chief Justice)