Karnataka High Court
P.C. Dental College, Bangalore vs The Dental Council Of India, New Delhi ... on 1 March, 1994
Equivalent citations: AIR1994KANT282, ILR1994KAR1201, AIR 1994 KARNATAKA 282, ILR(1994) KANT 1201
Author: R.V. Raveendran
Bench: R.V. Raveendran
ORDER
1. This petition relates to regularisation of excess intake in a Dental College.
2. The petitioner is a Dental College established by 'P. C. Dental and Nursing College Trust'. The Government of Karnataka granted permission to start the said Dental College from the academic year 1991-92. The Bangalore University (third respondent) by notification dated 11-8-1992 accorded sanction of fresh affiliation for petitioner college for the year 1991-92 and continuation of affiliation for the year 1992-93 to conduct BDS course with an intake of 40 students subject to fulfillment of several conditions stated in the notification, the first of which is that the Management shall obtain approval of the Dental Council of India (First Respondent) immediately. In pursuance of such permission and affiliation, the petitioner established a dental college at an enormous expense with necessary infrastructural facilities.
3. On 22-1-1992 the petitioner applied to the Minister for Health and Family Welfare, Government of India, to increase the permitted intake from 40 to 120forthe academic year 1992-93 and 120 from 1993-94 onwards. As there was no response, the petitioner sent a reminder dated 17-6-1992 to the Minister of State for Health and Family Welfare, Government of India and a further reminder dated 14-9-1992. Pending grant of permission in regard to additional intake of 80 students, the petitioner admitted additional students during academic year 1992-93 in anticipation of approval by the Central Government.
4. The Dental Council of India sent a reply dated 2-8-1993 (Annexure 'F') to petitioner's letter dated 14-9-1992 directing the petitioner to approach the Central Government in terms of the Dentists (Amendment) Act, 1993. The petitioner addressed a letter dated 2-8-1993 to the Central Government seeking clarification regarding the format and fees structure prescribed under the Dentists (Amendment) Act, 1993. In reply, the Central Government by its letter dated 3-8-1993 informed the petitioner that as per the provisitions of the Dentists (Amendment) Act, 1993, an application had to be submitted in the form of a Scheme and that the form of the Scheme was under preparation and the relevant regulation incorporating the form of application will be published in the Gazette of India as soon as it was ready. The petitioners was, therefore, directed to submit the proposal according to the Scheme in due course.
5. The petitioner filed this petition for a declaration that the Denial Council of India and the Central Government are deemed to have approved Scheme/proposal of petitioner for additional intake of 80 students in its Dental College, for the academic year 1992-93 in accordance with the provisions of Section 10-A(5) of the Dentists (Amendment) Act, 1993; alternatively, the petitioner sought a direction to respondents 1 and 2 to consider its application dated 22-1-1992 and reminder dated 7-6-1992 for grant of approval of additional intake of 80 students for the academic year 1992-93. The second prayer of the petitioner is for a direction to the respondents to permit 80 additional students to its dental college (listed in Annexure K to the petition) to take the examinations conducted by the Bangalore University for the first year BDS degree course for the academic year 1992-93.
6. On 11-8-1993, this Court issued rule and granted an interim order permitting the 80 students (additional intake) to appear for the examination to be held on 23-8-1993 subject to the condition that the said interim order shall not create any equity in favour of the students and if the writ petition was dismissed ultimately, the students shall not seek any indulgence or liberal treatment from the Court and further directing that the petitioner to obtain undertakings from each of the 80 additional students that permission given to them for appearing in the examination is subject to the result of the writ petition.
7. Thereafter, on an application for directions, this Court made a further order dated 7-1-1994 following the Division Bench decision of this Court in Gokul Education Foundation v. State of Karnataka (W.A. No. 2065 of 1993, D/- 20-8-1993) directing the third respondent University to declare the results of (he said 80 additional students who had written the first year examinations in pursuance of the interim order dated 11-8-1993. Thereafter, the first and third respondents have filed applications for vacating/ recalling the said interim orders dated 11-8-1993 and 7-1-1994. When these applications filed by respondents 1 and 3 came up for consideration, the learned counsel appearing for the parties agreed that petition itself may be heard finally and disposed of. Accordingly, the writ petition is heard on merits and disposed of by this order.
8. The learned Counsel for the petitioner contended that the petitioner had made an application to the Central Government (Second Respondent) for additional intake on 22-1-1992 and 17-6-1992. He relied on Section 10-C(1) of the Dentists (Amendment) Act, 1993 which provides that any person who established an institution for grant of recognised dental qualification, or any institution granting recognised dental qualification, has opened a new or higher course of study or training, or has increased its admission capacity, between 1-6-1992 and 27-8-1992, shall seek, within a period of one year from the commencement of the Dentists (Amendment) Act, 1993, the permission of the Central Government in accordance with the provisions of Section 10A of the Act. He contended that the effect of Section 10C(1) was that any application filed between 1-6-1992 and 27-8-1992 for increasing the admission capacity shall be treated to have been granted subject to the institution making an application for permission in the manner provided in Section 10A, and therefore, Section 10C(1) regularised the admission of the 80 students admitted by the petitioner, in excess of the permitted intake as the petitioner had applied for additional intake between 1-6-1992 and 27-8-1992: and under these circumstances, the students covered by the additional intake made in pursuance of an application for additional intake filed between 1-6-1992 and 27-8-1992, cannot be considered as unauthorised students or students of an unauthorised institution.
9. Petitioner's contention based on Sec. 10C(1) is not tenable. Section 10A, subsection (1) provides that no person can establish an institution for a course of study or training which would enable a student to qualify himself for the grant of a recognised dental qualification and that no existing institution can open a new or higher course of study or, increase its admission capacity, except with the previous permission of the Central Government obtained in accordance with the provisions of the said Section. Subsection (2) provides that every institution seeking such permission shall submit to the Central Government a scheme (in such form and containing such particulars as may be prescribed) and the Central Government shall refer the said Scheme to the Dental Council for its recommendations. Sub-section (3) provides for consideration of the Scheme by the Dental Council and submitting of recommendations by the Dental Council to Central Government. Sub-section (4) provides for approval or disapproval of the Scheme by the Central Government, after considering the Scheme submitted by the Institution and recommendations of the Dental Council made under sub-section (3); Section 10A(5) provides that where within a period of one year from the date of submission of the scheme to the Central Government, no order passed by the Central Government is communicated to the applicant, then such scheme shall be deemed to have been approved by the Central Government. Section 10B provides for non-recognition of dental qualifications in certain cases. Sub-section (3) of Section 10B provides that where an institution granting recognised dental qualification increases its admission capacity in any course of study or training, except with the previous permission of the Central Government in accordance with the provisions of Section 10A, no dental qualification granted to any student of such institution on the basis of the increase in its admission capacity shall be a recognised dental qualification for the purpose of the Act.
Section 10C makes it mandatory for institutions newly established or institutions which opened a new or higher course of study or training or institutions which increased its admission capacity, after 1-6-1992 and on or before 17-8-1992, to seek permission of the Central Government in accordance with the provisions of Section 10A, within a period of one year from 27-8-1992. Section 10-C is not intended to permit unauthorised opening of institutions or unauthorised increase in the admission capacity during 1 -6-1992 and 27-8-1992, as contended by the petitioner, but bring within the regulatory provisions of Section 10-A, the categories of institutions, courses and admissions referred to therein.
10. Prior to 27-8-1992, the Dental Council of India was charged with the responsibility of according recognition to the Dental Degrees awarded by the several Universities and for maintaining uniform standards of dental education in the country. In the discharge of its functions, the Council used to inspect the various dental institutions to ensure that they fulfilled certain minimum requirements in respect of teaching and non-teaching staff, infrastructure like buildings, equipment, library and other facilities. In spite of clear instructions from the Government of India to the effect that no dental college could start functioning unless the Dental Council of India had satisfied itself that minimum requirements with regard to teaching staff, equipments, building etc. were in conformity with the norms laid down by the Council, in addition to permission of the respective State Government and affiliation from the respective University, certain dental colleges came into existence without fulfilling these norms. As a consequence, students of these non-recognised institutions had to suffer. Hence the Dentists (Amendment) Ordinance, 1992, was promulgated on 27-8-1992 and came into force at once amending the Dentists Act, 1948, in order to curb the growth of such institutions. Later the Parliament passed the Dentists (Amendment) Act, 1993 (Act 30 of 1993) in place of the said ordinance. The Amendment Act came into force with effect from 27-8-1992. The entire purpose of Section 10A to 10C of the said Act is to curb unauthorised and unrecognised institutions with inadequate facilities and underqualified or unqualified teaching staff, from churning out dental Graduates and to ensure availability of proper facilities and teaching staff in the interests of public.
11. Section 10-B of the Dentists (Amendment) Act, 1993 lays down that any dental qualification granted by any dental institutions established without Central Government's permission, shall not be a recognised dental qualification for the purpose of this Act. The Dental Council also gave wide publicity to the list of recognised Dental Institutions and the institutions which were permitted to start BDS courses. Petitioner is not one of the institutions so recognised or permitted. It is clear from the documents produced that even in regard to the permitted intake of 40 students, the petitioner is yet to obtain the approval of the Dental Council of India. In the absence of such permission, whether the petitioner's institution can be treated as a recognised institution even in regard to the intake of 40 permitted by the State Government and the Bangalore University is a moot point. However, as this petition relates only to the additional intake of 80 students which is admittedly not permitted, it is unnecessary to go into the position of the permitted intake of 40 students.
12. What is the position of students admitted in excess of the permitted intake? Whether the position of students admitted in excess of the permitted intake in approved or recognised institutions, is different from the students of unrecognised institutions? The Government and/or the University, grant recognition to an institution, with reference to the capacity of the institution. An institution will have to provide infrastructural facilities like buildings, equipment, laboratories, library, playground etc., in addition to qualified teaching and non-teaching staff of standards not less than the prescribed minimum, to instruct and impart the course of study and training. In the case of professional courses, in addition, access to and control over workshops, Hospitals and Schools where practical training can be imparted is also necessary. Thus an 'intake' or 'admission capacity is fixed by the concerned authority, having regard to the facilities available. For example there is no point in permitting an institution to admit 100 students for a particular course, if the facilities and staff available can cater to a strength of only 50 students. That is why the concerned authority makes local inspections to determine the facilities provided and available. Once an intake is fixed with reference to the available facilities and teaching and other staff, it can be increased only after the institution provides correspondingly larger facilities and staff and satisfies the concerned authority about the need for such increase and its capacity to manage and train the increased intake. Therefore, it becomes necessary to have further inspections and thereafter process the applications, to assess the position regarding the proposed additional intake. Thus the process for approving or recognising an additional intake is the same as the process of approving or recognising the initial intake of a new institution. It cannot be gainsaid that the position of students admitted in excess of the permitted intake, is the same as the students of an unrecognised institution. Merely because an institution is permitted and recognised, the students admitted by such institution in excess of permitted intake cannot claim a better position or right either for regularisation or for grant of permission, as they are in no better position than the students of an unrecognised institution. As a consequence, all principles and tests applicable to an unrecognised institution apply equally to the unauthorised excess intake* in a recognised institution. This position is same for all educational institutions, more so, in the case of colleges or institutions imparting professional training like Medical, Dental, Nursing, Pharmacy, Engineering and Teachers Training Courses. Dental Colleges are no exception and the Dentists Act as amended, specifically reiterates this position. To have it any other way would be to the detriment of the students and quality of education to be imparted to them and ultimately against the interests of the public.
13. Reference may also be made to Section 53(10) of the Karnataka State Universities Act, which embodies the above principle :
"53(10)(a) ; No admission of students shall be made by a new college seeking affiliation to any University or by an existing college seeking affiliation to a new course of study to such course, unless, as the case may be, affiliation has been granted to such new college or to the existing college in respect of such course of study.
(b) The maximum number of students to be admitted to a course of study shall not exceed the intake fixed by the University or the Government, as the case may be and any admission made after this section came into force in excess of the intake shall be invalid.
(c) No student whose admission has become invalid under clause (b) shall be eligible to appear nor shall he be presented by the college to appear at any examination conducted by the University."
Dealing with Section 53(10) extracted above, in Muneshwaraswamy T. T. Institute v. State of Karnataka (W. A. No. 668 of 1994 disposed of on 25-2-1994) The Chief Justice speaking for a Division Bench of this Court observed :
"The Appellant institution has been recognised and permitted to take only 30 students per class. Therefore, when it admitted 120 students, i.e., four times the permissible intake, the excess intake of 90 students can obviously be said to be admitted by an institution which was not recognised and those 90 students have to be treated as belonging to an unrecognised institution..... In view of this, no management is entitled to intake such excess candidates without prior permission and seek for examination....."
It is needless to say that the tag 'unrecognised' attaches itself not only to excess intake, but also to new course of studies in an existing recognised College unless the affiliation has been granted in respect of such new course of studies also.
14. The petitioner has not obtained the permission or approval either from the Bangalore University or from the State Government or from the Dental Council of India or from the Central Government in regard to the excess/additional intake of 80. It is stated that subsequent to filing of this writ petition the petitioner has submitted a scheme in the prescribed form to the Central Government on 30-12-1993 with the prescribed-fee of Rupees 2,00,000/- and the matter is pending consideration with the Central Government. Even prior to the commencement of the Dentists (Amendment) Act, 1993, the petitioner could not have started a dental college or increased the intake without the permission and approval from the Dental Council, State Government and the University. Petitioner had not obtained any such permission or approval. After the Amendment Act came into force, the only change is instead of obtaining the approval/recognition by the Dental Council of India, the previous permission of the Central Government has to be obtained in the manner contemplated in the Dentists (Amendment) Act, 1993. Therefore, the contention that any application made for additional intake between 1-6-1992 and 27-8-1992 does not require permission and merely making an application for the permission to the Central Government is sufficient, cannot be accepted. There is no provision for additional students in excess of the permitted intake being taken, without any kind of permission.
15. The Supreme Court has repeatedly pointed out the danger of the Courts permitting the admission of students in excess of the permitted intake or permitting the students of unrecognised institutions to take examination. Recently, in the case of St. John's Teacher Training Institute for Women (Madurai) v. State of Tamil Nadu, the Supreme Court observed thus (at P-51) :
"Before we pan with this judgment, we consider it necessary to strike a note of caution in respect of passing of interim orders by Courts directing the students of unrecognised institutions, to appear at the examinations concerned. In view of the series of judgments of this Court, the Courts should not issue fiat to allow the students of unrecongised institutions to appear at the different examinations pending the disposal of the writ applications. Such interim orders affect the careers of several students and cause unnecessary embarrassment and harassment to the authorites, who have to comply with such directions to the Court. It is a matter of common knowledge that as a part of strategy, such writ applications for directions to recognise the institutions in question and in the meantime to allow the students to appear at the examinations are filed only when the dates for examinations are notified. Many of such institutions are not only "masked phantoms" but are established as business ventures for admitting sub-standard students, without any competitive tests, on the basis of considerations which cannot serve even the interest of the minority. There is no occasion for the Courts to be liberal or generous, while passing interim orders, when the main writ applications have been filed only when the dates for the examination have been announced. In this process, students without knowing the design of the organisers of such institutions, become victim of their manipulations."
In A. P. Christian Medical Educational Society v. Government of Andhra Pradesh. the Supreme Court observed (at p. 1497) :
"We do not think that we can possibly accede to the request made by Shri Venugopal on behalf of the students. Any direct ion of the nature sought by Shri Venugopal would be in clear transgression of the provisions of the University Act and the regulations of the University. We cannot by our fiat direct the University to disobey the statute to which it owes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the Court to disobey the laws."
In Nageswaramma v. State of Andhra Pradesh, it was held (at p. 1191):
"It was argued that the students of the institute in which she had undergone training were permitted in previous years to appear at the Government Examination and as in previous years she may be allowed to appear at the examination this year. A similar request was made by Shri Garg that the students who have undergone training for the one year course in these private institutions may be allowed to appear at the examination notwithstanding the fact that permission might not be accorded to them. We are unable to accede to these requests. These institutions were established and the students were admitted into these institutes despite a series of press notes issued by the Government. If by a fiat of the Court we direct the Government to permit them to appear at the examination we will practically be encouraging and condoning the establishment of unauthorised institutions. It is not appropriate that the jurisdiction of the Court either under Article 32 of the Constitution or Article 226 should be frittered away for such a purpose."
In Santosh Kumar v. Central Warehousing Corporation the Supreme Court pointed out (at p. 1166) :
"Surely what may not be done under the provisions of the Act may not be permitted to be done by invoking the jurisdiction of the High Court under Article 226. Article 226 is not meant to avoid or circumvent the process of the law and the provisions of the statute."
In State of Maharashtra v. Vikas Sahebrao Roundale while negativing the question as to whether students of an unauthorised college were entitled to seek a direction from Court to permit them to sit in examination, the Supreme Court observed (at Pp.1929, 1930):
"Slackening the standard and judicial fiat to control the mode of education and examining system are detrimental to the efficient management of the education. The directions to the appellants to disobey the law is subversive of the rule of law, a breeding ground for corruption and feeding source for indiscipline. The High Court, therefore, committed manifest error in law, in exercising its prerogative power conferred under Art. 226 of the Constitution, directing the appellants to permit the students to appear for the examination etc."
16. Even if permission was given by an interim order to 80 students of the petitioner's institution to take the examination commencing from 23-8-1993, that does not give them any right to be treated as students of a recognised institution. The interim order is subject to the final decision in this petition and the students cannot claim any equities on the basis of such interim order.
17. Let me now consider the relief to be granted. The first relief is relating to deemed permission. Under Section 10A(5) of the Act, deemed permission can be claimed only after one year from the date of submission of the scheme. In this case the Scheme itself was submitted subsequent to the filing of the writ petition (on 30-12-1993). Hence the question of declaring that there is deemed permission for the additional intake does not arise. The petitioner is, however, entitled to the alternative prayer for consideration of its application. The second prayer seeking a direction to respondents to permit the additional students to appear for and take up examinations pending consideration of petitioner's application for additional intake cannot be granted. Whatever be the hardship to the students, unless and until recognition is obtained, it is not permissible for this Court to permit the students to take the examinations. The predicament of the said students is wholly a consequence of the petitioner's unauthorised action.
18. In view of the above, this petition is allowed in part and the second respondent is directed to consider the petitioner's application dated 22-1-1992 and 30-12-1993, for grant of permission in regard to the additional intake under the provisions of the Dentists (Amendment) Act, 1993, in accordance with law expeditiously to allieviate the misery of the students. A time frame of two months from the date of receipt of this order and the date by which petitioner fulfils, the requirements under the Dentists (Amendment). Act, 1993 is suggested for disposal of the application. The petition is disposed of accordingly.
19. Order accordingly.