Patna High Court
Dr. S.M. Naqui Imam, Dental College And ... vs Dental Council Of India And Ors. on 14 September, 1993
Equivalent citations: 1994(42)BLJR173
JUDGMENT S.N. Jha, J.
1. This writ petition on behalf of Dr. S.M. Naqui Imam Dental College and Hospital Bahera, said to be a religious minority institution registered under the Societies Registration Act, was initially filed against the Dental Council of India (in short, "Dental Council') and the Central Government for a direction commanding them to hold inspection and finalise the question of approval of the institution. In view of the stand taken by the Dental Council that the permission of the concerned State Government and the affiliating University is a pre-requisite condition of recognition by the Dental Council, the State Government was later impleaded as respondent.
2. According to the petitioner, the institution sponsored by Rauf Muslim Jamia Society was established on 20-1-1989. Information to this effect was sent to the Dental Council with a request that necessary steps may be taken for recognition of the institution. The Dental Council vide letter dated 1-3-1989 informed the management of the institution about its policy decision that without permission or no objection cetificate of the concerned State Government and letter of affiliation or no objection certificate of the concerned affiliating University no permission for establishing any new dental college can by granted. The petitioner took the stand that being a minority institution, it does not require any permission for establishment. The Council vide its letter dated 30-4-1990 after taking advice of the Central Government informed the petitioner that right conferred upon the religious or linguistic minority in the matter of establishment and administration of educational institution of their choice is not absolute and is subject to the prescribed regulatory measures as a pre-condition for grant of recognition of new educational institutions.
3. It is said that the petitioner took steps to get the necessary permission and no objection certificate from the State Government. Upon reference made by the State Government to the L.N. Mithila University, its ViceChancellor held inspection and submitted report on 12-6-1990 stating that the institution fulfils the necessary conditions and the University had no objection to its affiliation. Thereafter, it is said, on 31-5-1991 the Additional Secretary of the Department of Health, Medical Education and Family Welfare of the State Government requested the Secretary of the Dental Council to hold necessary inspection so that the State may take further action in the matter at its level. The request was reiterated on 30-11-1992 and 13-1-1993. In the meantime, it appears, the State Government took a policy decision not to grant recognition to any private medical, dental or pharmacy college. Accordingly, the aforementioned communications dated 31-5-1991, 30-11-1992 and 13-1-1993 were withdrawn on 6-2-1993. During course of hearing, validity of the aforesaid policy decision of the State Government putting a blanket ban on the establishment of any private medical/dental/pharmacy college as well as the aforesaid consequential letter dated 6-2-1993 was also challenged on behalf of the petitioner.
4. The Dental Council and the State the Bihar have filed counter-affidavits. The Council has more less reiterated its stand taken in the aforesaid letter dated 1-3-1989 stating further that in view of the policy decision of the State Government aforesaid, there is no question of holding any inspection or giving its recognition inasmuch as prior permission of the State Government is a pre-requisite or any recognition by the Council. The State Government in its counter-affidavit has stated that establishment of colleges imparting technical education such as medical science, dental science, engineering, pharmacy in the private sector has created a lot of embarassment to the State causing heavy financial burden on the public exchequer in the past inasmuch as quite a number of such private colleges had to be taken over by the State. It has been stated that there has been a mushroom growth of technical institutions in almost every branch without having the necessary infrastructure of any kind or expertise in the name of minority. Coming from mouth of the State, it would be worthwhile to quote the following except from the affidavit. "Although, on a strict consideration of statute there is no doubt that mere establishment of such institution is no ground to grant them recognition unless they conform to the educational standard prescribed by the expert bodies in the field. However, practical experience is very discouraging. Such institutions are established, admissions are taken and thereafter all possible pressure tactics is adopted by Much institutions on the State Government at the political level, administrative level and in courts and it is just possible that they get affiliation/recognition by one or the other means". Accordingly, the ban on the establishment of private institution of the kind is sought to be justified with clarification that the ban is not for all times to come and the policy is subject to review periodically.
5. Detailed arguments were advanced on behalf of the parties as to whether the right of the minority to establish educational institution of its choice can be subjected to any restriction. After the hearing was closed, counsel for the Dental Council brought to our notice certain amendments made in the Dentists Act, 1948 by Act 30 of 1993 published in the Gazette of India dated 3-4-1993 inserting, inter alia, new Sections 10-A, 10-B and 10-C. Section 10-A so far as relevant provides :
(i) Notwithstanding anything contained in this Act or any other law for the time being in force--
(a) no person shall establish an authority or institution for a course of study or training (including a post graduate course of study or training) which would enable a student of such course or training to qualify himself for the grant of recognised dental qualification ; or
(b) no authority or institution conducting a course of study or training (including a post-graduate course of study or training) for grant of recognised dental qualification shall--
(i) open a new or higher course of study or training (including a post-graduate course of study or training) which would enable a student of snch course of training to qualify himself for the award of any recognised dental qualification, or
(ii) increase its admission capacity in any course of study or training (including a post-graduate course of study or training) except with the previous permission of the Central Government obtained in accordance with the provisions of this section.
Section 10-B in its material part may also be quoted thus :
(1) Where any authority or institution is established for grant of recognised dental qualification except with the previous permission of the Central Government in accordance with the provisions of Section 10-A no dental qualification granted to any student of such authority or institution shall be a recognised dental qualification for the purposes of this Act.
The amendments aforesaid have come into force from 27-8-1992 that is after the alleged establishment of the petitioner-institution. However, in view of the provisions as contained in Section 10-C, there is no doubt that the provisions of Sections 10-A and 10-B are applicable to institution claiming to have already been established from before. Section 10-C reads as follows :
(1) If after the 1st day of June, 1992 and on and before the commencement of the Dentists (Amendment) Act, 1993 any person has established an authority or institution for grant of recognised dental qualification or any authority or institution granting recognised dental qualification has opened a new or higher course of study or training (including a post-graduate course of study or training) or increased its admission capacity, such person, authority or institution, as the case may be, 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 10-A. (2) If any person or, as the case may be, any authority or institution granting recognised dental qualification fails to seek the permission under Sub-section (1), the provisions of Section 10-B shall apply, so far as may be, as if permission of the Central Government under Section 10-A has been refused.
6. A Bench of this Court while considering similar amending provisions of the Indian Medical Council (Amendment) Ordinance ; 1993, which are in pari materia with those of Dentists (Amendment) Act, 1993, in the cases of Syed Welaiat Hussain and Ors. v. The State of Bihar (CWJC No. 11696 of 1992) and Dr. Abdul Khair and Anr. v. The State of Bihar CWJC No. 11507 of 1992, disposed of on 19-7-1993 has observed :
It is not correct to contend that the provisions of the Amending Act of 1992 being prospective in nature the same will have no application in relation to Institutions which had already been established A right to obtain affiliation is not an absolute right and the same would depend upon the fulfilment of the conditions laid down therefor by reason of the relevant statutes. As before the affiliation to the said college could be granted, a parliamentary statute has come into force which would prevail over the State Legislation, an affiliation can be granted only upon fulfilment of the terms and conditions laid down by the parliamentary legislation.
7. Section 10-C clearly embraces within its fold all institutions established before the commencement of the said Act. If the provisions are intended to apply to even existing institution the question of recognition of the institution in question has now to abide .by decision of the Central Government in accordance with the provisions contained in Section 10-A.
8. The entire argument of the Counsel for the parties proceeded on the premise that the State Government has to consider the matter first and only after it accords its permission or no objection, the Dental Council comes in the picture. The grievance of the petitioner in view of the intervening parliamentary legislation coming into force has now to be considered in the light of the provisions as contained thereunder. In that view of the matter, I do not propose to go into details of the argument. It is expected that an appropriate decision in the matter will be taken in the light of the amended provisions as early as possible preferably within six months from the date of receipt of a copy of this order ignoring the aforesaid policy decision of the State Government putting a general ban on the establishment of new medical or dental colleges in the private sector but keeping in view (he Judicial pronouncements on the subject, I would like to make special mention of the case of A.P. Christians Medical Educational Society v. Government of Andhra Pradesh , wherein the apex Court observed :
These institutions must be educational institutions of the minorities in truth and reality and not mere masked phantoms. They may be institutions intended to give the children of the minorities the beat general and professional education to make them complete men and women of the country and to enable them to go out into the world fully prepared and equipped. They may be institutions where special provision is made to the advantage and for the advancement of the minority children. They may be institutions where the parents of the children of the minority community may expect that education in accordance with the basic tenets of their religion would be imparted by or under the guidance of teachers, learned and steeped in the faith. They may be institutions where the parents expect their children to grow in a pervasive atmosphere which is in harmony with their religion or conducive to the pursuit of it. What is important and what is imperative is that there must exist some real positive index to enable the institution to be identified as an educational institution of the minorities.
Obviously the so-called establishment of Medical College was in the nature of a financial adventure for the so-called society and its office bearers, but an educational misadventure for the students. Many, many conditions had to be fulfilled before affiliation could be granted by the University. Yet the society launched, into the venture without fulfilling a single condition beyond appointing someone as Principal. No one could have imagined that a Medical College could function without a teaching hospital, without the necessary scientific equipment, without the necessary staff, without the necessary building and without the necessary funds. Yet that is what the society did or pretended to do. There was no doubt that the society and the so-called instituions were started as business ventures with a view to make money from gullible individuals anxious to obtain admission to professional College. It was nothing but a daring imposture and skul-duggery. By no streth of imagination status and dignity of a minority institution can be conferred on it.
9. Before I part with the order, on the question as to whether right of the minority to establish an institution of its choice is absolute and no permission of any authority is required therefor, I would like to refer to two decisions of the Supreme Court which are enough to bring home the legal position in that regard. In the case of Ahmedabad St. Xaviers College Society v. Stale of Gujarat , decided by a Bench of nine teamed Judges, it was stated :
Because Article 30(1) is couched in absolute terms, it does not follow that the right guaranteed is not subject to regulatory laws which would not amount to its abridgment. It is a misconception to say that because the light is couched in absoulute terms, the exercise of the right cannot be regulated or that every regulation of that right would be an abridgment of the right.
Recently, in State of Mahrashtra v. Vikash Sahebrao Roundale , it has been said :
In All Bihar Christian Schools Association v. State of Bihar , this Court, when the illequipped and mismanaged schools were taken over by an Act whose : validity was challenged on the anvil of Article 30 of the Constitution, held that even the minority institutions are subject to statutory regulations and establishment and mainienance of such an educational institution should be in conformity with the statute and the State is entitled to regulate the establishments of the educational institutions and the admission of the students in those educational institutions, it was held that the educational institutions of the minorities have no right to mal-administration. Any rule or direction issued by the Government to prevent mal-administration would be valid. (emphasis added) The law on the subject is replete with decisions and I do not want to encumber this order with more decisions.
10. This application is disposed of with observations and directions mentioned above.
S.K. Chattopadhyaya, J.
11. I agree.