Kerala High Court
Noorul Islam Educational Trust vs Union Of India on 16 January, 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR
FRIDAY, THE 12TH DAY OF OCTOBER 2012/20TH ASWINA 1934
WP(C).No. 22268 of 2012 (G)
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PETITIONER(S):
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NOORUL ISLAM EDUCATIONAL TRUST
NICE GARDEN, ARALUMMOODU, NEYYATTINKARA
THIRUVANANTHAPURAM DISTRICT. 695 123
REP. BY ITS CHAIRMAN A.P.MAJEED KHAN.
BY ADV. SRI.ANIL K.NARENDRAN
RESPONDENT(S):
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1. 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.
2. THE DENTAL COUNCIL OF INDIA
AIWAN-E-GALIB MARG, KOTLA ROAD, NEW DELHI-110 002
REP. BY ITS SECRETARY.
R1 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
R2 BY ADV. SRI.ALEXANDER THOMAS, SC,DENTAL COUNCIL
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
12-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC NO. 22268/2012
APPENDIX
PETITIONER(S) EXHIBITS
P1- TRUE COPY OF NOTIFICATION NO.DE-22-2005 DATED 16.1.2006 ISSUED BY
THE 2ND RESPONDENT.
*P1- COPY OF NOTIFICATION NO.DE-22-2005 DATED 16.01.2006 ISSUED BY THE
2ND RESPONDENT. (THE DOCUMENT TO BE SUBSTITUTED AS EXT.P1 IN WP(C)
NO.22268/2012)
(*P1 IN I.A. NO.13201/2012 DATED 29.09.2012)
P2- TRUE COPY OF COVERING LETTER DATED 29.5.2012 OF THE PETITIONER,
FORWARDING APPLICATIONS FOR PROVISIONAL AFFILIATION TO THE KERALA
UNIVERSITY OF HEALTH SCIENCES.
P3- TRUE COPY OF NOTIFICATION NO.DE-22-2012 DATED 21.5.2012, PUBLISHED
BY THE 2ND RESPONDENT IN THE GAZETTE OF INDIA.
P4- TRUE PRINTOUT OF THE WEB PAGE IN WWW.DCIINDIA.ORG, PUBLISHING THE
ANNOUNCEMENT REGARDING THE AMENDMENT OF THE REGULATIONS, AS NEWS
ITEM DATED 19.6.2012.
P5- TRUE COPY OF REPRESENTATION DATED 27.6.2012, SUBMITTED BY THE
PETITIONER BEFORE THE KERALA UNIVERSITY OF HEALTH SCIENCES.
P6- TRUE COPY OF CONSENT OF AFFILIATION DATED 9.7.2012, ISSUED BY THE
KERALA UNIVERSITY OF HEALTH SCIENCES.
P7- TRUE COPY OF COVERING LETTER DATED 29.6.2012 SUBMITTED BY THE
PETITIONER BEFORE THE IST RESPONDENT, ALONG WITH THE APPLICATIONS
FOR STARTING MDS COURSE IN THE SPECIALITIES OF (I) PROSTHODONTICS
AND CROWN & BRIDGE, (II) ORTHODONTICS & DENTOFACIAL ORTHOPEDICS,
AND (III)CONSERVATIVE AND ENDODONTICS, AND DEMAND DRAFT FOR
RS. 9,00,000/-.
P8- TRUE COPY OF LETTER DATED 17.7.2012 OF THE IST RESPONDENT.
P9- TRUE COPY OF LETTER DATED 6.8.2012 OF THE IST RESPONDENT.
P10- TRUE COPY OF PETITIONER'S REPRESENTATION DATED 18.8.2012,
SUBMITTED BEFORE THE IST RESPONDENT.
P11- TRUE COPY OF CONSENT OF AFFILIATION DATED 13.8.2012, GRANTED BY
THE KERALA UNIVERSITY OF HEALTH SCIENCES.
P12- TRUE COPY OF PETITIONER'S LETTER DATED 18.8.2012, FORWARDING
EXHIBIT P11 CONSENT OF AFFILIATION TO THE IST RESPONDENT.
P13- TRUE COPY OF COMMUNICATION DATED 10.9.2012 ISSUED BY THE IST
RESPONDENT.
RESPONDENTS' EXHIBITS - NIL
// TRUE COPY //
P.A. TO JUDGE
SD
T.R.RAMACHANDRAN NAIR, J.
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W.P.(C).No. 22268 of 2012
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DATED THIS THE 12th DAY OF OCTOBER, 2012
JUDGMENT
The petitioner seeks for a direction to the first respondent Central Government to reconsider Ext.P13 which is a reply given to the petitioner's request for starting M.D.S. Course in certain Specialities. The direction in Ext.P13 is that the petitioner is free to apply afresh in the next academic year, i.e. 2014-2015.
2. Mainly it is pointed out in Ext.P13 that the proposal cannot be considered for the academic session 2013-2014, as 31st July was the last date for forwarding complete application of MDS course for the academic session 2013-14. It is contended that Note (2) to the schedule contained in Ext.P1 confers power on the Central Government in appropriate cases to modify the time schedule and there are ample reasons for the same as far as the petitioner's case is concerned.
3. Necessary facts for the disposal of the writ petition are the following: The petitioner, an Educational Trust, has established a Dental College, viz. Noorul Islam College of Dental Science at Aralummoodu in Thiruvananthapuram District. The first batch of the students for Bachelor W.P.(C).No.22268/2012 -2- of Dental Surgery (BDS) were admitting during the academic year 2006- 2007 and their final year examinations have been held during the academic year 2011-12. The College is having affiliation with the University of Kerala and after the establishment of the Kerala University of Health Sciences, it was brought under the said University.
4. The petitioner submitted an application for starting MDS programme in four Specialities on 29.5.2012 and provisional affiliation was sought with the Kerala University of Health Sciences. The application for No Objection Certificate was submitted before the Government of Kerala, who have granted the same as per G.O.(Rt) No.2096/20120/H&FWD dated 28.6.2012 and G.O.(Rt) No.2545/2012/H&FWD dated 31.7.2012. The Specialities are: (i) Conservative Dentistry, (ii) Orthodontics, (iii) Oral & Maxillofacial Surgery and (iv) Prosthodontics. This was granted for the academic year 2013-2014. While the matter regarding grant of provisional affiliation was pending before the Kerala University of Health Sciences, the second respondent amended the Regulations 2006 and Exts.P3 and P4 contain the details of the amendment. As a result of the amendment, the petitioner's Dental College should be attached to a Government/Private Medical College approved/recognised by the Medical Council of India W.P.(C).No.22268/2012 -3- which is located at the distance of 10 kms. by road. Therefore, the petitioner, by Ext.P5 representation dated 27.6.2012 opted for the Speciality Orthodontics, instead of Oral & Maxillofacial Surgery. The University granted affiliation by Ext.P6 dated 9.7.2012 in the Specialities of: (i) Oral & Maxillofacial Surgery, (ii) Prosthodontics and Crown & Bridge and (iii) Conservative Dentistry and Endodontics. Simultaneously, the petitioner submitted an application before the first respondent on 29.6.2012, viz. Ext.P7 along with a Demand Draft for Rs.9 lakhs. The petitioner received a reply, Ext.P8 dated 17.7.2012 informing that "on initial scrutiny of Ext.P7 application, it has been observed that the consent of University affiliation is not furnished." Thereafter, the petitioner approached the University and the University conducted an inspection on 3.8.2012. While the matter was pending before the University, by Ext.P9 the first respondent informed the petitioner that as the Consent of Affiliation from the concerned University valid for the academic session 2013-14 is not received in the Ministry by 31.7.2012, the application along with the Demand Draft are returned, informing that the petitioner is free to apply afresh in the next academic year, i.e.2014-15.
5. The petitioner thereafter by Ext.P10, explained various aspects and W.P.(C).No.22268/2012 -4- seeking for extension of time and to consider the application for the year 2013-14 itself, the applications were resubmitted. Thereafter, on getting Consent of Affiliation, the same was also forwarded along with Ext.P12 letter. The reason stated in Ext.P13 is that the time schedule is over by 31.7.2012 which was the last date for forwarding completed applications for MDS course 2013-14.
6. Learned counsel for the petitioner submits that the reason pointed out in Exts.P9 and P13 is by way of mechanical application of the time schedule and the cut off date and there is no advertence to the reasons pointed out by the petitioner. It is submitted that the communications are issued without any application of mind to the relevant circumstances pointed out by the petitioner. It is further submitted that the schedule in Ext.P1 and Note 2 are important which permits the time schedule to be modified by the Central Government. Note 2 to Ext.P1 reads as follows:
"(2) The time-schedule indicated above may be modified by the Central Government, for reason to be recorded in writing, in respect of any class or category of applications."
It empowers the Central Government to modify the time schedule for reason to be recorded in writing. Thus, it can be definitely seen that no other reasons are discernible in Ext.P13 which evidences consideration of the W.P.(C).No.22268/2012 -5- points raised by the petitioner in Ext.P10.
7. Heard learned counsel for the petitioner Shri Anil D. Narendran, learned Assistant Solicitor General appearing for the first respondent and Shri Alexander Thomas, learned Standing Counsel appearing for the second respondent.
8. Learned counsel for the petitioner sought for a reconsideration of the matter in the light of the principles stated by the Apex Court in Priyadarshini Dental College and Hospital v. Union of India and others {(2011) 4 SCC 623} and the judgments in similar cases rendered by this Court, viz. W.P.(C) Nos.37118/2010 and 10188/2012.
9. The question is whether the time schedule can be varied for reasons to be recorded. After considering various aspects, the Apex Court in Priyadarshini Dental College's case (supra), has held as follows in para 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 W.P.(C).No.22268/2012 -6- 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 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 above paragraph will show that Note (2) to the Schedule Ext.P1 has been considered by the Apex Court and it has been held that after recording reasons the time schedule can be extended in specific cases.
10. Judged in the light of the above principle, it can be seen that herein a mechanical application of the time schedule alone has been W.P.(C).No.22268/2012 -7- reiterated in Exts.P9 and P13.
11. In the judgment in W.P.(C) No.37118/2010, with respect to a similar order, this Court held in para 3 thus:
"As is evident from Ext.P7, the case of the petitioner is that it was for reasons beyond their control that they could not submit their application before 30.6.2010 and therefore that they sought the benefit of Note (2) of Ext.P1. However, in Ext.P7 order, the application of the petitioner has been rejected only on the ground that the application was not received before 30.6.2010 and in the process, the first respondent has not considered the request of the petitioner for the benefit of Note (2) of Ext.P1. This itself shows that Ext.P7 order has been passed without any application of mind and for that reason, I quash Ext.P7."
Thereafter a reconsideration was ordered.
12. In the judgment in W.P.(C) No.10188/2012, after relying upon the decision of the Apex Court in Priyadarshini Dental College's case (supra), this Court held as follows in para 20:
"20. But taking into consideration the fact that the Central Government is vested with the power to extend time as stated in Note (2) of the schedule to the Regulations it was only proper for the 1st respondent to have considered whether under the special facts and circumstances the time requires to be extended, rather than mechanically disapproving the application as done in W.P.(C).No.22268/2012 -8- Ext.P17. Hence as held in Priyadarshini Dental College case (supra), it is necessary that the 1st respondent should consider whether time for obtaining the report from the Dental Council requires to be extended and to what extent in terms with Note (2) of the Schedule."
13. Thus, it can be seen that the communications Exts.P9 and P13 lack application of mind. In Ext.P10 the petitioner has given detailed reasons in the matter which can be considered for passing appropriate orders.
14. Accordingly, Ext.P13 is quashed. There will be a direction to the first respondent to reconsider the matter and pass appropriate orders within a period of one month from the date of receipt of a certified copy of this judgment, in the light of the findings rendered above and in the light of the principles stated in the judgments quoted above. The petitioner will forward a certified copy of this judgment along with a copy of the writ petition to the first respondent.
The writ petition is allowed as above. No costs.
(T.R.RAMACHANDRAN NAIR, JUDGE) kav/