Bombay High Court
Dental College & Hospital Of The vs Government Of India on 25 July, 2013
Author: Anoop V. Mohta
Bench: Anoop V.Mohta, Z.A. Haq
WP 2471/13 1 Judgment/Order
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.2471/2013
Dental College & Hospital of the
Vidarbha Youth Welfare Society,
Tapowan - Vadali road, Camp,
Amravati - 444 602; through its Dean. PETITIONER
ig .....VERSUS.....
1. Government of India,
Ministry of Health & Family Welfare,
Dental Education Section, Nirman
Bhavan, New - Delhi;
through its Secretary.
2. Dental Council of India,
Aiwan-E-Galib Marg, Kotla road,
New Delhi;
through its Secretary.
3. Government of Maharashtra,
Medical Education & Drugs department,
Mantralaya, Mumbai;
through its Director (ME).
4. Maharashtra University of Health Sciences,
Mharsul, Vani road, Nashik;
through its Registrar. RESPONDENTS
1. Dr.Anirudha Satyajit Bhattacharya,
aged about 26 years, Occupation -
Student, Resident of Flat No.1,
Yogiraj Anand Apartment, Cherry Camp,
Suraksha Colony, Tapowan, Amravati
444 602.
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WP 2471/13 2 Judgment/Order
2. Dr.Bhushan Ramdas Bhagat,
Aged about 26 years, Occupation - Student,
Resident of C/o Shri Devidas Kadane,
Bhagyashri Colony, Circuit House,
Camp, Amravati 444 602. INTERVENOR
S
Shri S.G. Jagtap and Shri S.S. Godbole, counsel for petitioner.
Shri S.K. Mishra, Assistant Solicitor General of India, for respondent nos.1 & 2.
Shri A.D. Sonak, Assistant Government Pleader for respondent no.3.
Shri A.L. Deshpande, counsel for respondent nos.4.
Shri A.A. Naik, counsel for Intervenors.
CORAM :ANOOP V. MOHTA AND
Z.A. HAQ, JJ.
DATE
ig : 24 TH & 25 TH JULY , 2013 .
ORAL JUDGMENT (Per ANOOP V. MOHTA, J)
RULE. Rule made returnable forthwith. The petition is heard finally at the stage of admission in view of the urgency expressed by all.
2. The petitioner-Dental College & Hospital has prayed for several reliefs, which are reproduced as under:
a. quash and set aside the impugned refusal/non-
renewal of the Permission as communicated under Letter dated 30.3.2013 (Annexure-P1) interalia, direct the respondent No.1 Government of India, Ministry of Health and Family Welfare, Dental Education Section, Nirman Bhavan, New Delhi to renew/grant permission for 3rd Year ::: Downloaded on - 27/08/2013 21:10:59 ::: WP 2471/13 3 Judgment/Order MDS Course of Oral and Maxillofacial Surgery in the Vidarbha Youth Welfare Society's Dental College and Hospital, Amravati for the Academic Session 2013-14, in view of above and in the interest of justice.
b. considering the Representation dated 16/18.4.2013 (Annexure-P4) of the petitioner - College, direct the respondent No.2 Dental Council of India, Kotla road, New Delhi to Inspect and Verify the Compliance of deficiencies as pointed out under the Letter dated 28.2.2013 (Annexure-P3) of the respondent No.2 Dental Council of India & to the respondent No.1 Government of India, Ministry of Health and Family Welfare, Dental Education Section, Nirman Bhavan, New Delhi to take a decision thereon and inform the same within a stipulated period on the basis of such Inspection/Verification of Compliance Report, in view of the last date of admissions being 31.5.2013 and in the interest of justice.
c. during the pendency of the instant Petition, grant stay to the operation and effect of the impugned ::: Downloaded on - 27/08/2013 21:10:59 ::: WP 2471/13 4 Judgment/Order refusal/non-renewal of the Permission as communicated under Letter dated 30.3.2013 (Annexure-P1) interalia, direct the respondent No.1 Government of India, Ministry of Health and Family Welfare, Dental Education Section, Nirman Bhavan, New Delhi to Permit the petitioner the Vidarbha Youth Welfare Society's Dental College and Hospital, Amravati to admit the students in MDS Course of Oral and Maxillofacial Surgery for the Academic Session 2013-14, by way of interim, ad-interim and ex-
parte ad-interim relief, in view of above and in the interest of justice.
3. ABOUT ACT :
The relevant portion of Section 10(A) of the Dentists (Amendment) Act, 1993 (hereinafter referred to as 'The Act of 1993' for the sake of brevity)as relied by the petitioner is as under:
"10 A. Permission for establishment of new dental college, new courses of study etc.-(1) 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 ::: Downloaded on - 27/08/2013 21:10:59 ::: WP 2471/13 5 Judgment/Order enable a student of such course or training to qualify himself for the grant of recognized 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 recognized 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 such course or training to qualify himself or 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.
Explanation 1- For the purposes of this section "person"
includes any University or a trust but does not include the Central Government.
Explanation 2- For the purposes of this section "admission capacity", in relation to any course of study or training (including a post-graduate course of study or training) in an authority or institution granting recognised dental qualification, means the maximum number of students that may be fixed by the council from time to time for being admitted to such course or training.
::: Downloaded on - 27/08/2013 21:10:59 :::WP 2471/13 6 Judgment/Order (2) (a) Every person, authority or institution granting recognised dental qualification shall, for the purpose of obtaining permission under sub-section (1), submit to the Central Government a scheme in accordance with the provisions of clause (b) and the Central Government shall refer the said scheme to the Council for its recommendations.
(b) The scheme referred to in clause (a) shall be in such form and contain such particulars and be preferred in such manner and be accompanied with such fee as may be prescribed.
(3) On receipt of a scheme by the Council under sub-
section (2), the Council may obtain such other particulars as may be considered necessary by it from the person, authority or institution concerned, granting recognised dental qualification and thereafter, it may-
(a) If the scheme is defective and does not contain any necessary particulars, give a reasonable opportunity to the person, authority or institution concerned for making a written representation and it shall be open to such person, authority or institution to rectify the defects, if any, specified by the Council;
(b) consider the scheme, having regard to the factors referred to in sub-section (7), and submit the scheme together with its recommendation thereon to the Central Government.
(4) The Central Government may, after considering the scheme and the recommendations of the Council ::: Downloaded on - 27/08/2013 21:10:59 ::: WP 2471/13 7 Judgment/Order under sub-section (3) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person, authority or institution concerned, and having regard to the factors referred to in sub-section (7), either approve (with such conditions, if any, as it may consider necessary) or disapprove the scheme and any such approval shall be a permission under sub-section (1):
Provided that no scheme shall be disapproved by the Central Government except after giving the person, authority or institution concerned granting recognised dental qualification a reasonable opportunity of being heard:
Provided further that nothing in this sub-section shall prevent any person, authority or institution whose scheme has not been approved to submit a fresh scheme and the provisions of this section shall apply to such scheme, as if such scheme has been submitted for the first time under sub-section (2).
...............
...............
...............
(7) The Council, while making its recommendations under clause (b) of sub-section (3) and the Central Government, while passing an order either approving or disapproving the scheme under sub-section (4), shall have due regard to the following factors, namely:--
(a) whether the proposed authority or institution for grant of recognized dental qualification or the existing ::: Downloaded on - 27/08/2013 21:10:59 ::: WP 2471/13 8 Judgment/Order authority or institution seeking to open a new or higher course of study or training, would be in a position to offer the minimum standards of dental education in conformity with the requirements referred to in Section 16A and the regulations made under sub-section (1) of section 20;
(b) whether the person seeking to establish an authority or institution or the existing authority or institution seeking to open a new or higher course of study or training or to increase its admission capacity has adequate resources;
(c) whether necessary facilities in respect of staff, equipment, accommodation, training and other facilities to ensure proper functioning of the authority or institution or conducting the new course of study or training or accommodating the increased admission capacity have been provided or would be provided within the time-limit specified in the scheme;
(d) whether adequate hospital facilities, having regard to the number of students likely to attend such authority or institution or course of study or training or as a result of the increased admission capacity have been provided or would be provided within the time-limit specified in the scheme;
(e) whether any arrangement has been made or programme drawn to impart proper training to students likely to attend such authority or institution or course of study or training by persons having the recognized dental qualifications;::: Downloaded on - 27/08/2013 21:10:59 :::
WP 2471/13 9 Judgment/Order
(f) the requirement of manpower in the field of practice of dentistry; and
(g) any other factors as may be prescribed.
(8) Where the Central Government passes an order either approving or disapproving a scheme under this section, a copy of the order shall be communicated to the person, authority or institution concerned ."
4. Respondent nos.1 and 2 referred to section 10(B) of the Dentists (Amendment) Act, 1993 in above quoted correspondences. The relevant extract of the Section 10(B) is as under:
"10B Non recognition of dental qualifications in certain cases-(1) Where any authority or institution is established for grant of recognized dental qualification 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 authority or institution shall be a recognized dental qualification for the purposes of this Act.
(2) Where any authority orinsitution granting recognized dental qualification opens a new or higher course of study or training (including a post-graduate course of study or training) except with the previous permission of the Central Government in accordance with ::: Downloaded on - 27/08/2013 21:10:59 ::: WP 2471/13 10 Judgment/Order the provisions of section 10A, no dental qualification granted to any student of such authority or institution on the basis of such study or training shall be a recognized dental qualification for the purposes of this Act.
(3) Where any authority or institution granting recognized dental qualification increases 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 in accordance with the provisions of section 10A, no dental qualification granted to any student of such authority or institution on the basis of the increase in its admission capacity shall be a recognized dental qualification for the purposes of this Act.
Explanation- For the purposes of this section, the criteria for identifying a student who has been granted a dental qualification on the basis of such increase in the admission capacity shall be such as may be prescribed. "
5. The D.C.I., pursuant to Section 10A read with Section 20 of the Dentists Act, 1948 (16 of 1948), has framed Rules called as "Dental Council of India (Establishment of New Dental Colleges, Opening of New or Higher Course of Study or Training and Increase of Admission Capacity in Dental Colleges) Regulations, 2006 (the regulation) which deals with various aspects concerning infrastructure, rules, regulations, curriculum ::: Downloaded on - 27/08/2013 21:10:59 ::: WP 2471/13 11 Judgment/Order and related issues for the study and for higher specialized degree courses including the O.M.F.S.
6. The regulations are also made in view of Section 10A read with Section 20 of the Act for the regulation of Dental Council which are amended from time to time. There is no dispute that for any establishment of the Dental College and/or for higher studies, the requisite permission from the Union of India ((hereinafter referred to as 'The U.O.I.' for the sake of brevity) is required and so also for the higher specialized courses. The permission even if so granted by issuing a letter of intent, it is always subject to regular inspection and control by the Dental Council of India (hereinafter referred to as 'The DCI.' for the sake of brevity). It is always subject to final decision of the respondent. There is no dispute that they are the competent and the final authority to consider and evaluate every aspect of permitting new college for higher courses. It is also not in dispute that the petitioner is required to submit the compliances and the same are always subject to inspection and the regular reports to continue with the college/higher courses.
THE PERMISSION FOR ENTIRE DURATION OF THE COURSE
7. As noted above, the orders/communications so received by ::: Downloaded on - 27/08/2013 21:10:59 ::: WP 2471/13 12 Judgment/Order the petitioner are based upon their proposals and applications which they made from time to time. An extract of Clause 17 Sub Clause 3 as amended is reproduced as below.
"...............
................
17(3) :The permission granted under this regulation for starting a new or higher course of study or training will be valid for the entire duration of the course till the first batch of students appears in the final examination.
.................
................."
REGULATION 11:
11. Renewal of Permission:-
(1) Admissions of the next batches shall not be made by the dental college unless the permission granted under regulation 10 has been renewed by the Central Government.
(2) the application for renewal of permission shall be submitted to the Council, with a copy to the Central Government, six months prior to the expiry of the current academic session. The recommendation of the Council in ::: Downloaded on - 27/08/2013 21:11:00 ::: WP 2471/13 13 Judgment/Order all cases of renewal shall be made by 15th June and the Central Government shall issue final orders regarding renewal of permission by 15th July of each year.
Provided that the process of renewal of permission will not be applicable after the completion of phased expansion of the infrastructure facilities and teaching faculty as per norms laid down by the Council and the final batch of students take the final year examinations.
THE RELEVANT PROVISIONS OF DENTISTS (AMENDMENT) ACT, 1993, RELEVANT REGULATIONS AND EVENTS
8. The petitioner, pursuant to the due permission from the competent authority, started Under Graduation Course of Bachelor of Dental Surgery (B.D.S.) in the year 1989. The recognition has been granted to their course on 06.12.1995. The petitioner applied for a Master of Dental Surgery course (Higher Course) to the competent authorities in the year 2010. The D.C.I. inspected the petitioner for grant of permission sometime in February-2011. On 29.04.2011, the Government of India, Ministry of Health and Family Welfare (Dental Education Section) (hereinafter referred to as 'The G.O.I.' for the sake of brevity) granted permission as follows:
::: Downloaded on - 27/08/2013 21:11:00 :::WP 2471/13 14 Judgment/Order "I am directed to refer to your letter dated 25th April, 2011 accepting the terms and conditions contained in this Ministry's letter of even number dated 31.03.2011 and furnishing therewith a Performance Bank Guarantee No.674 dated 25.04.2011 for Rs.120 lakhs issued by The Akola Urban Co-Op. Bank Ltd., Branch Jaistambh Chowk, Amravati, Maharashtra, and to convey the formal permission of the Central Government under Section 10A (4) of the Dentists (Amendment) Act, 1993 to Vidarbha Youth Welfare Society's Dental College & Hospital, Amravati, Maharashtra, for starting of MDS course in the specialities of (I) Picsthodontics and Crown & Bridge-2 seats (ii) Oral & Maxillofacial Surgery-2 seats at their dental college from the academic session 2011-12.
2. The admission of next batch of students in MDS course in the above specialties for the academic year 2012- 13 will be made only after obtaining the renewal permission from the Central Government.
3. In case any admissions are made in violation of the above condition will be treated as irregular and action under Section 10B of the Dentists (Amendment) Act, 1993 will be initiated.
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9. The first batch accordingly got admission in three years course of both the subjects viz. I) Prosthodontics and Crown & Bridge and II) Oral & Maxillofacial Surgery (O.M.F.S.). On 16.03.2012, the Government of India granted permission for the 2nd batch of M.D.S. Course in both the subjects for the academic year 2012-13. The relevant contents of the letter are as under:
"In continuation of this Ministry's letter of even number dated 29.04.2011, I am directed to convey the approval of the Central Government for renewal of 2nd year MDS course in the specialities of (i)Oral & Maxillofacial Surgery-2 seats (ii)Prosthodontics and Crown & Bridge-2 seats at Vidarbha Youth Welfare Society's Dental College & Hospital, Amravati, Maharashtra, for the academic year 2012-13.
2. The admission of next batch of students in MDS course in the above specialities for the academic year 2013- 14 will be made only after obtaining the renewal permission from the Central Government.
3. Admissions made in violation of the above stipulations will attract the provisions of Section 10B of the Dentists (Amendment) Act, 1993."
As a result, second batch also got admitted and the students started prosecuting their studies in M.D.S. Course.
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10. The DCI issued proposed schedule of B.D.S. and M.D.S. Inspections for session 2013-14, by communication dated 27.09.2012, the dates were 01.10.2012 to 15.02.2013. The DCI carried out the inspection on 21.12.2012. By a communication dated 15.01.2013, the DCI informed five deficiencies to the petitioner for subject - Oral & Maxillofacial Surgery (O.M.F.S.) only. We are concerned with this subject only and the deficiencies so referred in that regard. This position is not in dispute.
ig THE DEFICIENCIES
11. The petitioner as alleged submitted the compliances to the DCI on 21.02.2013. It was verified on 27.02.2013 and on 28.02.2013, a report was submitted by the DCI to the GOI and pointed out eight deficiencies. The relevant extract of letter dated 28.02.2013 is as follows:
"Oral & Maxillofacial Surgery with 2 seats The Executive Committee recommends to the Central Government not to renew its permission for 2nd year MDS Course and not to allow admissions in the speciality of Oral & Maxillofacial Surgery with 2 seats at Vidarbha Youth Welfare Society's Dental College & Hospital, Amravati for the academic session 2013-14 due to the following reasons.
1. Clinical Material-There is deficiency of Clinical material and Patients for the existing number of P.G's in the department.::: Downloaded on - 27/08/2013 21:11:00 :::
WP 2471/13 17 Judgment/Order
2. The number of minor surgeries carried out in the department is not fulfilling the DCI's Recruitment.
3. There is deficiency of various equipment viz. minor surgery kit, Bone Grafting kit, Osteotomy kit, Formalin Chamber, Fibre Optic Light.
4. There was no internet access to E-Journals.
5. Library-There is deficiency of Journals in the speciality.
6. Back Volumes of most of the Journals were not present.
7. There is deficiency of Infrastructure and Books in the Library.
8. There is deficiency of Publication of Dr.M.V. Naphade, Professor & HOD has only 15 points."
THE IMPUGNED ORDER
12. Respondent nos.1 and 2 issued impugned communication dated 30.03.2013, which was received by the petitioner on 09.04.2013.
The relevant extract of the impugned order is as under:
"Subject : Renewal/Non-renewal of permission for 3rd year MDS courses at Vidarbha Youth Welfare Society's Dental College & Hospital, Amravati, for the academic session 2013-14-reg.::: Downloaded on - 27/08/2013 21:11:00 :::
WP 2471/13 18 Judgment/Order
Sir,
In continuation of this Ministry's letter of even number dated 16.3.2012, I am directed to convey the approval of the Central Government not to renew the permission for 3rd year MDS course and not to allow admissions in the speciality of Oral & Maxillofacial Surgery with 3 seats at Vidarbha Youth Welfare Society's Dental College & Hospital, Amravati for the academic sessions 2013-14 due to certain deficiencies. The Central Government has accepted the recommendation of DCI and decided not to renew the permission for 3rd year MDS course and not to allow admissions in the speciality of Oral & Maxillofacial Surgery with 2 seats for the academic sessions 2013-14. You are therefore, directed NOT to admit any students in the specialty of Oral & Maxillofacial Surgery for the academic session 2013-14.
The admissions of next batch of students in MDS course for increase of seats in the above specialities for the academic session 2014-15 will be made only after recognition of MDS degree by the Central Government.
In case any admissions are made in violation of above conditions will be treated as irregular and action under Section 10B of the Dentists (Amendment) Act, 1993 would be initiated."
13. It is clear from the above facts that the UOI have accepted the recommendation of the DCI and decided not to renew the permission for 3rd year MDS Course and not to allow admission in the specialty of ::: Downloaded on - 27/08/2013 21:11:00 ::: WP 2471/13 19 Judgment/Order O.M.F.S. with two seats from academic session 2013-14 thereby directing the petitioner not to admit any student in the O.M.F.S. in the year 2013-14. However, it is certified that admission of the next batch of students in MDS Course for increase of seats in the above specialties for the academic session 2014-15 would only after recognition of MDS degree by the Central Government. With this, respondents have decided that no next batch of the students in the year 2014-15 should be admitted unless MDS degree by the Central Government is recognized. Again, reference is made to Section 10(B) of the Dentists (Amendment) Act, 1993. Therefore, this petition.
14. It is clear that once the permission is granted by the competent authority subject to the compliances and the fulfillment of the conditions so published, the management is under obligation to follow it and to see that the study, career and the curriculum of the students, who are taking such higher studies, are not suffered. That is the whole intention and purpose even of this Act and certainly of the controlling authority in question. No one can dispute that. Their control and supervision is a must. The question is to what extent. Respondent nos.1 and 2 have permitted the first batch in the year 2011-12, second batch in 2012-13 based upon the infrastructure and material available and after due inspections at the relevant time. The deficiencies so referred above ::: Downloaded on - 27/08/2013 21:11:00 ::: WP 2471/13 20 Judgment/Order was for the O.M.F.S. Admittedly, there is no objection whatsoever with regard to the other subjects. The management and the college is also the same. The students of first batch who joined the course in the year 2011-12 are now in the third and final year of the course (2013-14). The second batch is in 2nd year of the course. The facilities and the infrastructure for the students pursuing M.D.S. in O.M.F.S. must be the same. The facilities cannot be separated for first batch and second batch or for 'A' student and/or 'B' student. If the requirement is that the student must get a particular facility and the management must provide the same for higher courses, in case of failure of the management to provide the same, the said deficiency cannot be restricted for first batch or second batch specially in view of amended Clause 17(3). The management is required to comply with the deficiency. The situation in the present case as per respondent nos.1 and 2 is such that the management has failed to remove those deficiencies before the prescribed period. It was informed to them by communication dated 15.01.2013. According to the petitioner, they have complied with the same. Respondent nos.1 and 2 dispute it and pointed out eight deficiencies in February-2013.
Respondent nos.1 and 2 if says that there is a non-compliance, it is difficult for management to clarify the position and/or justify that there are no deficiencies. After going through the impugned order, it is clear that the UOI accepted the recommendation of the DCI and they ::: Downloaded on - 27/08/2013 21:11:00 ::: WP 2471/13 21 Judgment/Order accordingly decided not to renew the permission in the third year M.D.S. course and not to allow the fresh admission. The purpose of inspection was with an intention to direct and/or compel the management to remove the deficiency only. They cannot take such a drastic action which was never intended at any point of time, even when they took inspection.
Admittedly, they also did not issue any specific show cause notice in prior point of time, before taking such action, the effect of which is to close the college for one year.
15. Respondent nos.1 and 2 have also decided without giving any hearing to the petitioner, that for Academic Session 2014-15, the permission would be granted to next batch only after recognition of the M.D.S. degree by the UOI. This was the stage admittedly where the petitioner, for want of first batch final year examination could not have even applied for recognition of the M.D.S. degree to the UOI. Not even that, they further referred to Section 10(B) of the Act thereby again intimating that "if any admissions are made in violation of above conditions, those will be treated as irregular and action for non-
compliance will be taken".
16. It is relevant to note that Regulation 17 of the Regulations provides that "this process of renewal of permission will continue till the ::: Downloaded on - 27/08/2013 21:11:00 ::: WP 2471/13 22 Judgment/Order first batch of students appears in the final examination". The same is the tone of Regulation 11 (Renewal of Permission). Therefore, we are inclined to observe that the constant inspection and continued supervision is in no way sufficient for them to take such a drastic action, which is affecting the students' rights to continue to pursue their higher studies and it definitely affects the right of the management/college to whom a direction is given not to admit the students of next batch. The impugned order nowhere provides any detail reasons for taking such drastic action.
This is also for the reason that this not a case for grant of permission for the first time but, this is the case where they admittedly granted permission for first batch and second batch based upon the same material/infrastructure available.
THE STAND DILUTED
17. The learned Assistant Solicitor General of India appearing for respondent nos.1 and 2, on instructions, during the arguments, on instructions states that they have no objection for the first batch, as well as, the second batch to continue their further studies as they have already been admitted in the respective batches/years. If this batch can continue and permitted to continue their studies and/or practical training, though there are deficiencies pointed out, we have to test their action in this ::: Downloaded on - 27/08/2013 21:11:00 ::: WP 2471/13 23 Judgment/Order background but, not in isolation by reviewing the impugned order only.
THE EXPERT BODY - DISCRETIONARY POWER AND JURISDICTION
18. We are not anyway challenging the power and jurisdiction of the authority to take appropriate action and/or insistence for particular compliance. This is a competent and expert body. Their interest is definitely to see that the students are getting update knowledge and material for higher studies. This stand while taking action of not permitting further studies in Academic Session 2013-14 in our view is quite shaky and feeble. If deficiencies are there, they were for the first batch and for the second batch also. If there are the deficiencies, which according to them are so serious then there was no reason for them to grant permission even for first or second batch. The point is that they themselves are aware and know the scheme and purpose of inspection and/or aspect of renewal every year. We are inclined to observe that the nature of deficiencies is a material factor which is required to be considered by any authority, who grants permission and/or renewal. We are inclined to observe that there should be a clear distinction between major and minor deficiencies. The DCI must make out a case that these are major deficiencies and those will hamper the career of the students in pursuing higher studies. The instructions so given constantly and ::: Downloaded on - 27/08/2013 21:11:00 ::: WP 2471/13 24 Judgment/Order consistently and in spite of this, if management fails to comply with the major deficiencies, it will be difficult for the Court to grant any relief to such a management. But, if the deficiencies are minor in nature, the non-
grant of permission and/or non-renewal of permission in our view certainly need to be decided on the foundation of purpose and object of inspection. It is not the case that they have already declared and pointed out what are the major deficiencies. The submissions that deficiencies are deficiencies whether minor or major is not acceptable for the reason that once the permission is granted subject to certain conditions with clear direction to comply with the same and based upon the permission, students are admitted and started pursuing their studies, creating such obstacle by stopping the management to proceed further, definitely will again hamper the authority's control and purpose. We are inclined to observe that a balance needs to be struck before taking such action.
19. For two years, there was no objection and in a way, respondent nos.1 and 2 permitted the management to continue the curriculum. Though the petitioner is pointing out that there are no deficiencies but, the decision so taken without calling any explanation and/or giving opportunity to the petitioner, resulted into submission of recommendation by the DCI and the UOI accepted the recommendation without giving hearing to the petitioner. Even otherwise, the act and the ::: Downloaded on - 27/08/2013 21:11:00 ::: WP 2471/13 25 Judgment/Order regulation empower the authorities to extend the date also, if case is made out. There is no total bar.
20. The Dentists Act permits them to do so and, therefore, according to submission of learned Assistant Solicitor General of India, the grant of renewal includes a refusal of permission though not specifically provided in any provisions of the Act or in the regulations.
Even assuming for the moment that they have power but, this is the area where according to us, it is necessary that before taking any drastic action, hearing and opportunity needs to be given with clear notice of the effect of non-compliance of such deficiencies. The deficiencies, if any, are continued since long and are not complied with by the petitioner, as alleged by them. This in our view should not be sufficient for us to accept their case whereby they admittedly accepted the recommendation and unilaterally taken the decision.
THERE IS NO BAR TO INTERFERE IN EXPERT BODY'S DECISION
21. The learned Assistant Solicitor General of India has cited number of judgments and pointed out that this Court under Article 226 of the Constitution of India should not interfere with the expert decision/action. There is no question of granting any relief in favour of ::: Downloaded on - 27/08/2013 21:11:00 ::: WP 2471/13 26 Judgment/Order the petitioner which admittedly had not complied with the deficiencies when the impugned action was taken. The last date for such admission as initially declared was 31.05.2013. The Supreme Court by order dated 28.05.2013 in passed in I.A. Nos.27-28 in Writ Petition (Civil) NO(s).306 of 2004 extended the period for admission to the M.D.S. course upto 31.07.2013. There is no dispute on this issue also.
22. Admittedly, both the parties took steps based upon the earlier dates of examination. In April itself, they communicated their decision based upon the communication of February-2013. The petitioner as noted above claiming to have complied with the same. However, the UOI took the decision on the recommendation of the DCI.
REPRESENTATION PENDING - NOW NO DEFICIENCIES
23. On 18.04.2013, the petitioner submitted representation and sought for reconsideration of renewal for the year 2013-14. The averments are made again that the petitioner has complied with all the deficiencies and they can at any time take the inspection as required to complete the process. The circumstances, which are referred above and basically the date of extension by the Supreme Court has been extended up to 31.07.2013, certainly is an important development which is ::: Downloaded on - 27/08/2013 21:11:00 ::: WP 2471/13 27 Judgment/Order nowhere dealt with and/or considered by the Courts in any matter. We are not here to grant any sort of relief and/or indulgence to the management when it comes to the compliances of the deficiencies so referred and/or directed to be complied with by the authorities but, if there is dispute with regard to the compliance and/or non-compliance, this Court for the first time under Article 226 of the Constitution of India just cannot sit over and/or decide the disputed questions of facts.
24. There is no appeal provided against the decision taken by the UOI/the DCI. The unilateral power provided under the Act need to be respected but, in situation like this where the positive case is of compliance and there is provision of regular inspection by the officers, that process itself means no say of petitioner and/or similarly placed persons, for want of provisions, even at the time of preparing the report by DCI and even at the time of taking decision by the UOI while passing the order, certainly affects the legal rights of the petitioner and the present and future students of the courses.
25. There was no response on the representation made by the petitioner. Therefore, the petitioner filed present petition on 30.04.2013.
After hearing both the parties, a single Judge of this Court has passed the interim order dated 24.05.2013 thereby permitting the second batch of ::: Downloaded on - 27/08/2013 21:11:00 ::: WP 2471/13 28 Judgment/Order students of 2012-13 to prosecute their studies. There was no justifiable reason in our view if the case of respondent nos.1 and 2 is that their objection is only to the admission of new batch for the year 2013-14 and there was no objection whatsoever for the students of first batch as well as the second batch to pursue their studies to limit the controversy to the second batch of students of the year 2012-13 as discussed in the order.
THE VAGUE COMPOSITE ORDER
26. The impugned order of the UOI/DCI is a composite one whereby they have not granted permission/renewal for the 3rd year M.D.S. Course and also restricted the new admissions for the two seats for Academic Sessions 2013-14 for the same deficiencies. The impugned order nowhere referred and considered the second batch of the students who have been pursuing their studies. Nothing is noted about the students who have been pursuing the studies since 2011-12 covering first and second batch. We are inclined to observe that there is a clear confusion in every aspect. The renewal if not granted for 3 rd year students for the deficiencies in question and stopping to admit the 3rd batch means they have not prevented the petitioner from proceeding even for approval and/or permission for recognition as required after completion of final examination and specially of first batch itself. As ::: Downloaded on - 27/08/2013 21:11:00 ::: WP 2471/13 29 Judgment/Order recorded, Section 10(B) so referred in the communication permit them not to grant affiliation/recognition if the deficiencies are so serious in nature. By the impugned order, they have in fact prevented the petitioner to proceed even for that without giving any show cause notice and/or specific intention to do so. This definitely affects the rights of everyone apart from college students as well as the patients.
27. In a way, this will also mean refusal of recognition or renewal without following the procedure under Section 10(B) of the Act apart from Section 10A(4) of the Dentists (Amendment) Act, 1993 specifically when there are no reasons provided in the order dealing with every such aspect separately and/or individually. The authority, who takes such action, must support the order/action in all respect by providing reasons. The changed/modified submissions now made on their behalf that they have no objection for the first batch to pursue their study up to final year and/or thereafter, also for the second batch, but, the restriction is only for the new batch i.e. for the Academic Session 2013-14 on the basis of some deficiencies, supports the case of the petitioner for the reliefs so prayed and for consequential order accordingly. We are inclined to set aside the order to give a reasonable opportunity to the petitioner to remove the deficiencies, if any, though the positive statements are made in the Court also, apart from representation ::: Downloaded on - 27/08/2013 21:11:00 ::: WP 2471/13 30 Judgment/Order that there are no deficiencies left. This in our view require reinspection and reconsideration and fresh reasoned order accordingly. The discretionary power may not be utilized to pass such unilateral order.
28. The experts and/or expert body of the institution and their power and authority just cannot be controlled and/or supervised by anyone. However, we are inclined to observe that whenever there is a question of taking drastic decision and/or curtailing the rights of the person/party and it affects their fundamental as well as legal rights to continue with the management, as well as, pursuing their studies which just cannot be taken away by breaching the principle of natural justice.
Everyone is bound by the principle of natural justice whenever there is a question of deciding the rights and/or taking decision for and/or against anyone.
THE INTERIM ORDER MODIFIED/CHANGED
29. Two students of the first batch have filed Civil Application No.1520/2013 for joining them as party respondents and Civil Application No.1521/2013 for modification and vacation of interim order dated 24.05.2013. The relevant operative paragraph of the order dated 24.05.2013 is reproduced as under:
::: Downloaded on - 27/08/2013 21:11:00 :::WP 2471/13 31 Judgment/Order "In view of the aforesaid discussion, it is not possible for this Court to grant the entire relief as claimed at this stage. However, the petitioner-College is at liberty to admit such students in the Second Year MDS Course in the Speciality concerned for the Academic Session 2013-
14. It is made clear that while admitting the students in the Second Year MDS Course in the speciality concerned, the petitioner-College shall make clear to all the students that the admissions given are subject to the further orders to be passed by this Court. It is needless to say that the students shall not claim any equity on the basis of this order."
30. We have noted that by ad-interim order also this Court in vacation did not permit the petitioner to admit students in the first year for the session 2013-14. For 3rd year/final year course, there was no specific submission made. The petitioner though filed the petition on 30.04.2013 i.e. prior to the declaration of the date for admission, no relief was granted to the students of the new batch. We have heard the matter finally, therefore, merely because ad-interim order was not challenged further, cannot be the reason for not granting the reliefs at the final stage after hearing both the parties finally.
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THE CHANGED SITUATIONS
31. It is relevant to note that the line of submission so made at the time of opposing the interim relief with regard to the first and second batch is now diluted by the submissions based upon the oral instructions.
The learned counsel appearing for the students/intervenors, submitted that since the statement/submission that they have no objection for the first year batch to complete the course and no objection for second batch to complete the remaining course and their position is made clear, and therefore, the interim order also needs to be modified. We are inclined to do so apart from the oral submissions made even on merit for the reasons so recorded above.
32. The peculiarity of the fact in the present case which the Court just cannot overlook merely because the impugned decision is taken by the expert body. As noted above, the expert and/or expert body and/or institution and their power just cannot be decided by the Court so far as the matter pertained to and/or related to the students and/or academic sessions. Any Tribunal/body even of experts, if takes certain quasi judicial or administrative decisions by which they take away and/or infringe the rights of any person and/or institution and if there is breach of principles of natural justice, we are inclined to observe that the High ::: Downloaded on - 27/08/2013 21:11:00 ::: WP 2471/13 33 Judgment/Order Court need to test the decision/order if case is made out. There is no bar whatsoever that the decision of the expert body in such a situation cannot be interfered with and/or the High Court has no power to test the decision.
THE ADMISSION DATE IS EXTENDED BY THE SUPREME COURT
33. Once the admission date is extended, we are inclined to observe that the same changes the situation where no harm and/or prejudice will cause to anybody but, it will be in the interest of all that respondent nos.1 and 2 reconsiders and by reinspecting the premises/ college, pass a fresh order. This is also for the reason that the positive averments are made and also the statement made in the Court that they have already complied with all the deficiencies, though late.
34. Normally, there is no reason even to look into the deficiencies but, all the deficiencies which are so referred are not of such serious nature and if statement is made that those deficiencies are removed, there is no reason for denying an opportunity to the management/college. There are reasons which respondent nos.1 and 2 should consider for passing appropriate order granting renewal/approval as required. It is made clear that we are not granting any approval or ::: Downloaded on - 27/08/2013 21:11:00 ::: WP 2471/13 34 Judgment/Order renewal. It is ultimately respondent nos.1 and 2 who will take final decision based upon the material available on record but, here we are inclined to observe that as there is no other procedure and/or scheme or mode available to redress the grievances basically when the decision is taken or required to be taken on the basis of facts, the reasonable opportunity should be given to the concerned even by the expert body.
THE PERSONAL HEARING PERMISSIBLE
35. The learned counsel appearing for the petitioner pointed out the letter/communication dated 14.03.2011 issued by respondent no.1 by which, by invoking Section 10 A(4) of the Act, respondent no.1 called upon the concerned parties for a personal hearing to decide the grant of approval/permission to start the new course of study and/or for increase of seats in the MDS/PG diploma Courses in dental colleges/institutions. This itself means such mode/mechanism of personal hearing is not foreign to the them. The submission that there is no such procedure and/or scheme available under the Act as well as regulation and there is no such reason to grant such personal hearing, therefore, is also unacceptable to us. If case is made out and if action affects the legal rights, principle of natural justice, it just cannot be overlooked.
::: Downloaded on - 27/08/2013 21:11:00 :::WP 2471/13 35 Judgment/Order THE EXPERT BODY TO FOLLOW THE PRINCIPLE OF NATURAL JUSTICE
36. Another facet of principles of natural justice is sufficient and/or substantial reasons, based upon the material available on record, should be reflected in the order by which the authority wants to curtail the right and/or take away rights of the parties. Merely because they are expert bodies, it is not sufficient and/or that itself does not empower them to pass unreasoned and/or unsupportive order, basically when there is nothing on record to show that at any point of time they have given any hearing before submitting the report by the Dental Council of India and/or before taking the final decision by respondent no.1. There is no dispute as recorded above that they have granted permission for first and second batch on the basis of same infrastructure and material but, to curtail such right by without assigning any reasons for such composite action that in our view also reflects that they have taken decision without considering the legal rights of all the concerned parties. The submission now made in the Court that the order is restricted only for 3rd year new batch is a self destructive and self contradictory stand, as the issue with regard to the deficiencies and the action so taken based upon the same deficiencies loses its all importance. Seriousness of the order so sought to be intended is also vanished. The deficiencies are not the reason to discontinue the important final year course of the first batch and the ::: Downloaded on - 27/08/2013 21:11:00 ::: WP 2471/13 36 Judgment/Order second batch. The same reason just cannot be the reason for not admitting the students of 3rd batch. Still, we are not in a position to pass any order as far as that part is concerned but, we are inclined to observe that the case is made out by the petitioner for a direction to respondent nos.1 and 2 to reconsider their action of not granting the approval/permission/renewal, as prayed. The renewal of yearly permission cannot be equated with the fresh or initial permission. Both are distinct and so also their reasons.
RE-INSPECTION AND RE-CONSIDERATION
37. The importance of last date is relevant for the admission of new students for the particular academic year. If 31st July is the last date and as noted above, the petitioner has filed the petition in the month of April itself, which is definitely before the closing of the initial date for admission to the current academic session i.e. 31.05.2013. The petitioner could not get the relief so far as new batch admission is concerned and as now we are inclined to interfere with the impugned order/action subject to inspection and rehearing and fresh order. We are also inclined to observe that it will be in the interest of all that the students' forms for this Academic Session if accepted by the college, the College is required to forward those to the University (the respondent no.4) subject to clear rider that the decision of respondent nos.1 and 2 will be binding decision ::: Downloaded on - 27/08/2013 21:11:00 ::: WP 2471/13 37 Judgment/Order for further course of action. It is made clear that it is necessary for the petitioner to publish and follow the procedure for inviting the applications by clearly mentioning about the order passed by this Court and that the new admissions will be provisional and subject to the decision of respondent nos.1 and 2.
38. RESULTANT ORDER
a) The writ petition is partly allowed.
b) The impugned order dated 30.03.2013 is quashed and set aside.
c) The Union of India and the Dental Council of India to consider the representation already filed by the petitioner as early as possible and preferably within a period of four weeks.
d) The Union of India and the Dental Council of India to take all effective steps as required including of fresh inspection and pass order in accordance with law by giving an opportunity to the petitioner.
e) Liberty is granted to the petitioner to file additional/supportive documents, if any.
f) Respondent no.4-University to accept the applications and/or fee, if any, of the students, submitted by the petitioner-College ::: Downloaded on - 27/08/2013 21:11:00 ::: WP 2471/13 38 Judgment/Order for the year 2013-14 for Oral & Maxillofacial Surgery (O.M.F.S.) for a batch of two students.
g) The petitioner to follow all the procedure of law before admitting the students and/or accepting the applications for fresh batch of 2 seats and all related aspects.
h) The parties to act upon the authenticated copy of the order.
i) Rule is made absolute in the aforesaid terms. No costs.
39. Learned Assistant Solicitor General of India appearing for the Union of India and the Dental Council of India submits that the judgment and order may be stayed for a period of six weeks to enable them to challenge the same in the higher Court. He also contends that till this date, the interim order has been in operation.
For the reasons recorded above and also for the fact that we have modified the interim order and as the case pertains to the admission of the students, we decline to grant stay as prayed. The stay is refused accordingly.
(Z.A. HAQ, J.) (ANOOP V. MOHTA, J.)
APTE
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WP 2471/13 39 Judgment/Order
FARAD CONTINUATION SHEET No.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO. 2471/2013
(DENTAL COLLEGE & HOSPITAL OF THE VIDARBHA YOUTH WELFARE SOCIETY, TAPOWAN CAMP, AMRAVATI VERSUS GOVERNMENT OF INDIA, MINISTRY OF HEALTH & FAMILY WELFARE, DENTAL EDUCATION Section, NEW DELHI THROUGH ITS SECRETARY & OTHERS)
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Shri S.G. Jagtap & Shri S.S. Godbole, counsel for the petitioner.
ig Shri S.K. Mishra, Assistant Solicitor General of India, for the R-1 & 2.
Shri A.D. Sonak, A.G.P. for the R-3.
Shri A.L. Deshpande, counsel for the R-4.
Shri A.A. Naik, counsel for the Intervenors.
CORAM : ANOOP V. MOHTA AND Z.A. HAQ, JJ.
DATE : JULY 25
, 2013
.
C.A.W. NO.1520/2013.
The applicants-Students have filed the
instant application for joining them as party-
respondents to the present writ petition.
Taking an overall view of the matter and as the career of the students is involved, the application is allowed also for the reasons recorded in the main judgment and the petitioner is directed to implead the applicants herein as party-respondents to the petition, forthwith.
The application is accordingly disposed of. No costs.
::: Downloaded on - 27/08/2013 21:11:00 :::WP 2471/13 40 Judgment/Order C.A.W. NO.1521/2013.
Heard the learned counsel for the parties.
For the reasons recorded in the judgment dated 25.07.2013 in Writ Petition No.2471/2013, the civil application is partly allowed and disposed of. No costs.
(Z.A. HAQ, J.) (ANOOP V. MOHTA, J.)
APTE
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