Punjab-Haryana High Court
Bhagwan Dass & Another vs The Union Of India And Others on 8 December, 2010
Author: Ranjit Singh
Bench: Ranjit Singh
Civil Writ Petition No.8929 of 2010
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Civil Writ Petition No.8929 of 2010
DATE OF DECISION: December 8, 2010
Bhagwan Dass & another .....Petitioners
VERSUS
The Union of India and others
....Respondents
CORAM: HON'BLE MR. JUSTICE RANJIT SINGH
Present: Mr. Ashwani Chopra, Sr. Advocate with
Mr. G.S. Sullar, Advocate,
for the petitioners.
Mr. B.S. Kanwar, Advocate,
for respondent No. 1.
Mr. Gurminder Singh, Advocate,
for respondent No.2.
Mr. Arvind Mittal, Addl. A.G., Punjab,
for the State.
*****
RANJIT SINGH, J.
Aggrieved against the action of the respondent-Union of India, the petitioners have filed this writ petition praying for quashing order dated 31.3.2010 (Annexure P-14), whereby permission to admit students in Master of Dental Surgery(MDS) course in the specialty of Oral and Maxillofacial Surgery is denied to the petitioner- institute. The petitioners would pray for mandamus directing the respondents to grant permission to admit the students in Masters Course of the said specialty.
Civil Writ Petition No.8929 of 2010 -2- The petitioner-institution was granted permission to run Dental College in the year 1997 with a capacity of 60 seats for a period of one year. The permission was to be renewed on yearly basis and could be renewed after verification of the achievements of the annual target. The petitioner-institution had furnished the bank guarantee of Rs.120.00 lakhs. The permission for Bachelor of Dental Surgery (BDS) Course was renewed in June, 1999, April, 2000 and June 2001 year after year. The petitioner-institution has since been recognized for running BDS Course since December, 2001.
On a prayer of the petitioners, the respondents also conveyed formal permission of the Central Government to start MDS courses in four specialties with annual intake different capacities as indicated against each specialty.
i) Periodontics 3 seats
ii) Orthodontics 2 seats
iii) Oral Medicine and Radiology 2 seats
iv) Conservative Dentistry 2 seats
The petitioner-institution was also allowed to run three seats in Oral and Maxillofacial Surgery i.e. in issue in the present writ petition. Initially, the permission was granted on 4.5.2006 for the year 2006-2007. This permission was renewed for the year 2007-2008 on 28.3.2007 (Annexure P-4). Vide Annexure P-5, similar permission was granted for the year 2008-2009 on 26.4.2008.
Inspection of the petitioner-institution was apparently Civil Writ Petition No.8929 of 2010 -3- carried out again and on the basis thereof, the Dental Council of India (DCI) issued Annexure P-7 pointing out certain deficiencies. As per this communication, the college authorities were asked to fulfill the deficiencies and furnish compliance report for recognition of MDS degree awardable by Baba Farid University of Health Sciences, Fridkot, in the specialty of oral and Maxillofacial Surgery. The deficiencies as pointed out were as under:-
"1. Hospital: the first floor requires final furnishing and furnishing. Blood bank, CT, MRI facility not available. Only one functional OT.
2. In last one year the department performed 85 major cases under L.A. and only 11 major cases under G.A."
The petitioner-institution would join issue with the observation made by DCI by submitting that there is no Rule requiring blood Bank, CT and MRI facility. According to the petitioner, the need as per the Rule only is for imaging technology. The counsel would also submit that as per the Regulation, two surgeries per week is the requirement and there cannot be distinction made whether these be under L.A. or under G.A. Accordingly the petitioner would contest the observation that requirement of 104 surgeries as deficiency. As per the compliance report, the details of surgeries performed were also listed to show that the deficiencies as pointed out, were really not made out.
This meeting was held on 19/20 December, 2009. The DCI recommended the recognition of MDS degree authorized by Civil Writ Petition No.8929 of 2010 -4- Baba Farid University of Health Sciences in specialty of Oral and Maxillofacial Surgery with three seats in respect of petitioner- Institution, with the condition that this is to be granted on or after 23.6.2009. Minutes of this meeting are annexed with the petition as Annexure P-9. On the basis of this report, the Government of India issued a notification on 24.2.2010. By virtue of powers conferred in sub-Section 2 of Section 10 of the Dentists Act, 1948, the Central Government after the consultation with the DCI makes an entry of the petitioner-institution for grant of degree of MDS (Oral Surgery). The relevant extract of the same is as under:-
"In the existing entries of column 2 & 3 against V of Serial No.53, in respect of Guru Nank Dev Dental College & Research Institute, Sunam, Punjab in Part-I of the Schedule to the Dentists Act, 1948 (16 of 1948) pertaining to recognition of dental degrees by Baba Farid University of Health Sciences, Faridkot, Punjab, the following entries shall be inserted thereunder:-
"(vii) Oral & Maxillofacial surgery MDS (Oral Surgery), (if granted on or after 23.6.2009) Baba Farid University of Health Sciences, Fardikot, Punjab."
The grievance of the petitioners is that despite this sanction, which was equally applicable to the year 2010-2011 and 2011-2012, the council still initiated a process of fresh inspection. Counsel for the petitioners, however, submits that the letter dated 2.3.2010 was addressed to the Principal of all concerned Dental Colleges and was not meant to apply to the case of the Civil Writ Petition No.8929 of 2010 -5- petitioners, whereby a copy of DCI recommendations was forwarded and point wise compliance report was sought. Submitting compliance report, on 9.11.2009, another inspection report was sent pointing out the deficiencies in the petitioner-institution. This was also replied by the petitioner-institution on 5.3.2010. It was, thereafter, that communication dated 31.3.2010 was issued to deny the admission to the next semester students in the specialty of Oral and Maxillofacial Surgery for the academic session 2010-2011.
The petitioners, accordingly, have impugned this action of the DCI through the present writ petition. This writ petition was filed in May, 2010 and came up for hearing before this Court on 14.5.2010. Notice was issued to the respondents and counsel appeared for DCI as well as for the State before the Court to accept notice for the same date. The respondent/University could not be served and hence, the case was adjourned on few occasions. Despite repeated opportunities, no reply was filed on behalf of the Union of India. Still the adjournment was granted subject to payment of some costs. The case could not be taken up for hearing as the copy of the reply had not been placed on record. The case was adjourned on different dates either because of counsel for the parties and ultimately, has now been argued.
DCI, which is the contesting respondent, has filed reply. After making reference to the prayer made and the purpose for which the permission is required, it is stated that the DCI had conducted inspection of the first batch in the year 2006-2007. After evaluating the standard, the MDS examination conducted by the Civil Writ Petition No.8929 of 2010 -6- Baba Farid University of Health Sciences in the specialty of Oral and Maxillofacial Surgery and for this purpose recognition was granted. It is stated that regardless of the recognition, the petitioner Dental college was well aware of the deficiencies and the existing shortcomings in terms of the non-availability of the facilities of blood bank, CT scan, MRI. Whereas the petitioner-Institution is a recognized institute with 100 BDS seats and is running MDS courses in the said specialties.
The reference is made to the meeting held on 19/20.12.2009 for considering the compliance report submitted by the petitioner-institution. The petitioner-institution was required to improve the hospital facilities and also blood bank, CT, MRI facilities, which were not available. The deficiencies were accordingly communicated to the Central Government on 23.12.2009. It is then pointed out that the Central Government vide its letter dated 25.2.2010 requested DCI to send the negative recommendations about the respective dental college with the direction to submit a rectification report on the deficiencies pointed out by the DCI. DCI, accordingly, sent a letter dated 2.3.2010 to the petitioner-college to send the compliance report by 9.3.2010. The petitioner-college submitted the compliance report on 5.3.2010. It was then observed that the facilities like CT Scan, MRI were dependent on Harbans Ultrasound & CT Scan Centre Sangrur, owned by Dr. Harbans Singh and Delta CT Scan & MRI Centre, Patiala, owned by Dr. Jatain Garg. The petitioner-institution statedly has admitted that no facilities of blood bank were available Civil Writ Petition No.8929 of 2010 -7- at own hospital and for this, it was dependent on Civil Hospitals. It is on this basis, stated that the deficiencies had not been rectified and so the Executive Committee on 11.3.2010 recommended that the College authorities and the competent authorities be directed not to allow the petitioner-institution to admit any student in the MDS course in the specialty of Oral & Maxillofacial Surgery. Thus, the impugned order is being justified in law on these grounds.
Mr. Ashwani Chopra, learned Senior counsel appearing for the petitioner would point out that after conducting the inspection, the deficiencies were pointed out by the respondent-DCI through its letter 7.8.2009 (Annexure P-7). The petitioner-institution, accordingly submitted the compliance report to respondent No.2 on 9.11.2009. It is thereafter that the DCI held meeting on 19/20.12.2009 and recommended the case of the petitioner- institution to Central Government to recognize for the MDS degree in the specialty of Oral and Maxillofacial Surgery with three seats. Thereafter, the Government of India issued notification on 24.2.2010, copy of which is annexed as Annexure P-10. From this, the counsel submits that once notification was issued and entry was made in the Gazette, the process was complete and thereafter, DCI was not justified in reversing the decision to deny the permission to the petitioner to continue the MDS course.
During the course of arguments, Mr. Chopra has placed before the Court a letter dated 1.7.2009 written by Government of India to the Principal of the petitioner-institution. A copy of this letter Civil Writ Petition No.8929 of 2010 -8- was also supplied to the counsel for the DCI. In para 2 of this letter, which is taken on record, it is stated that next batch of the students in MDS course in the above specialty for academic year 2011-2011 will be made only after recognition of the MDS degree by the Central Government. From this, the counsel would urge that once the permission/recognition has been granted by the Central Government vide Annexure P-10, then there would be no need for another permission to start next MDS course and this would stand granted.
There was rather serious debate on this issue and also on the issue whether the DCI had justified in carrying out a subsequent inspection on the basis of communication dated 2.3.2010. The counsel for the petitioner would maintain that this communication was not meant for the petitioner-College and is being wrongly applied to it. This submission by the counsel would appear to be justified. The DCI would have to explain the decision conveyed in meeting held on 19/20.12.2009, when it was decided to recommend to the Central Government to recognize this MDS degree course being run by the petitioner-institution, then where was the need to ask for another inspection, which led to pointing out of certain deficiencies through letter dated 23.12.2009. The deficiencies had been explained by the petitioner-institution through its communication dated 9.12.2009 and thereafter, the decision was taken to recommend the case for recognition, but without justification, the DCI appears to have decided to either hold an another inspection and to raise the deficiencies on 23.12.2009. Civil Writ Petition No.8929 of 2010 -9- This is really not understood. In this regard, the counsel for the petitioner would make reference to an information obtained under the RTI. It is stated therein that the Government had not received communication dated 2.3.2010 from the DCI, which is the basis made by the DCI to conduct another inspection and to point out the deficiencies. Even the deficiencies as pointed out by the DCI through its communication dated 23.12.2009 were statedly not received by the Ministry as is revealed from the communication Annexure P-18. It is also stated that the Ministry has recognized the MDS degree in the specialty of Oral & Maxillofacial Surgery on the basis of meeting held by the DCI on 17.7.2009. It is again reiterated that the letter initiated by the DCI on 23.12.2009 was not received in the Ministry.
The counsel makes reference to the reply given in response to query nos. 2 and 3, where it is categorically admitted that as per Section 10 (1) of the Dentists Act, 1948, the Dental qualifications granted by any authority or institution in India, which are included in para I of the Schedule shall be recognized dental qualification. As per Section 11(2) of the Dental Council Regulation, 2006, process of renewal permission will not be applicable after the completion of phased expansion of the infrastructure facilities and teaching faculty as per the norms laid down by the Council and the first batch students take the final year examination.
This information obtained is linked and read with the notification issued by the Central Government mentioning the date 23.6.2009. It is this date on which the first batch admitted in the Civil Writ Petition No.8929 of 2010 -10- MDS course of Oral & Maxillofacial Surgery was to pass out. Accordingly, counsel would urge that there was no requirement of renewal once the first batch of students had taken their final examination and that is the significance of the date in the Government notification.
The counsel for DCI, however, submits on the basis of number of judgments that inspection is a continuous process and it cannot be said that once the College had been granted permission, the DCI would loose its right to carry out the inspection of the institute, which may then lead to deterioration of the standards.
Be that as it may, counsel was required to explain as to why initially the permission was granted to run specialty in the college in case these facilities were essential and really not available. In response thereto, the counsel for DCI would submit that the College cannot be expected to provide all the facilities on the very inception and that is the reason the permissions are granted while the requirement of completing the facilities to the course were in progress. The counsel, accordingly, submits that finally it is to be seen if within the given time, the college has been in a position to complete the facilities or not. Counsel for the DCI as well as for the Union of India at this stage would also plead that grant of recognition would be independent of the right of DCI to inspect the institution for right of the institution to admit students.
The documents/information available does show that once the first batch passes out recognition may not be needed for future too. Perhaps DCI can carry out inspection for the facilities Civil Writ Petition No.8929 of 2010 -11- available for continued grant of permission to the Institution to admit students. Even if this argument is accepted at the face value, the case of the petitioners for admitting students for academic session 2010-2011 cannot be disputed. In this connection, the contents of para II of communication dated 1.7.2009 referred to above, would acquire relevance. It is clearly stated in this para that the petitioner- institution shall admit the next batch of students in MDS course in the above specialties for academic year 2010-2011 only after recognition of MDS degree by the Central Government. The Central Government, as already noted, has granted recognition. As per the counsel, further sanction would not be needed any further. If that be so, at least the case for right of admission for students in the above specialties for the year 2010-2011 can not be disputed in any manner.
Some of the communications, which are relied upon by the DCI, were not received by the Union of India as is clear from Annexure P-18. Letters dated 23.12.2009 and 2.3.2010 are not received by Union of India. Apparently there is no justification for denying the permission to the petitioner-institution to admit students in the specialty for the year 2010-2011. Record in the form of reply to RTI queries clearly states that process of renewal of permission will not be applicable once the degree in that specialty is recognized.
The next question to be considered, thus, would relate to whether the petitioner-institution now can be granted permission to admit the students for the year 2010-2011. There has been hot Civil Writ Petition No.8929 of 2010 -12- debate in this regard as well.
Mr. Chopra would submit that the petitioner-institution was before the Court much prior to the date and the case could not be heard in time either because of late filing of reply or on some other such reason and for this the petitioner-institution should not be put to prejudice.
Mr. Gurminder Singh, however, on the other hand, would refer to Shikha Aggarwal Versus State of Punjab & others, Civil Appeal No.4329 of 2007, decided on 17.9.2007, to say that as per the direction issued by the Hon'ble Supreme Court, no admissions to the professional courses can be carried out after 31st May of the year concerned.
In response, the counsel for the petitioner points out that all these judgments are under the Medical Council of India Act and not in respect of Regulation governing the Dental Council of India. The counsel would also point out that the DCI Act was legislative subsequent to the observations made by the Hon'ble Supreme Coury in Shikha Aggarwal's case (supra). My attention is also invited to Note 2 in the Schedule attached with the DCI Regulation which provides that time schedule indicated above may be modified by the Central Government for the reasons recorded in writing in respect of any class or category of applications. The counsel, accordingly, pleads that strict time schedule as required to be followed in case of admission to the MBBS Courses is not the requirement under DCI Regulations.
The Hon'ble Supreme Court in the case of Civil Writ Petition No.8929 of 2010 -13- Medical Council of India Versus Madhu Singh, 2002(0) AIJ-SC 17481, has fairly held that admission to fill up the vacant seats in mid of stream is not proper and accordingly, gave direction to fix the time schedule for duration of course, the date of commencement of course and the last date of admission. This issue was considered by the Division Bench of this Court while deciding LPA 788 of 2010 titled as Medical counsel of India Versus Gold Field and others. The plea raised by the counsel for the appellant to challenge the finding of learned Single Judge of this Court that the time schedule provided by the Medical Council of India is directory and not mandatory, was accordingly dealt with. Reliance in this regard was placed on Mridul Dhar (Minor) and others Versus Union of India and others, JT 2005 (1) SC 346. The Division Bench noticed the observation of the Hon'ble Supreme Court in Mridul Dhar's case where time schedule was mandated in regard to the receipt of applications and processing of applications etc. Ultimately, the Division Bench held that no case for permitting the relaxation of the mandatory schedule approved in Mridul Dhar's case (supra) is made out and this could at all be done by the Hon'ble Supreme Court under Article 142 of the Constitution of India. Relevant observations in this regard are as under:-
"Further more, even if there are certain directions in given cases permitting the relaxation of the said mandatory schedule approved in Mridul Dhar's case (supra) by the Hon'ble Supreme Court, it is not for this Court to relax the mandatory provisions of the scheme as this Court does not have the Civil Writ Petition No.8929 of 2010 -14- powers of the Hon'ble Supreme Court under Article 142 of the Constitution of India. The mandatory directions pursuant to the judgment of the Hon'ble Supreme Court in Mridul's case (supra) cannot be disregarded and the prescribed timeframe has to be followed."
The submission made by the learned counsel for the petitioner that despite direction issued by the Hon'ble Surpeme Court in Mridul Dhar's case (supra), Union of India considered it appropriate to introduce Regulation 4(2) in 2006 where the time schedule could be modified. In support, reference is made to the decision of Delhi High Court in the case of Shree Bankey Bihari Educational Society Versus Union of India and another in Civil Writ Petition No.13215 of 2009 decided on 16.2.2010. No doubt the Delhi High Court in this case has observed that there is no explanation rendered by the counsel as to why after the decision rendered by the Supreme Court in Mridul Dhar's case (supra), the respondents have introduced note 2 to Regulation 4(2) of the Dental Council of India. In that view of the matter, directions were given to consider the request for extension of time. Even if that be so, it would not be convenient or easy to ignore the direction issued by the Hon'ble Supreme Court in Mridul Dhar's case (supra). It is specifically observed that while dealing with the case of time schedule for postgraduate super specialty courses, a specific time schedule is laid down. Last date upto which the students can be admitted against the vacant seats, undoubtful is 31st May of the concerned year for Post Graduate Course in all India quota and in Civil Writ Petition No.8929 of 2010 -15- Super Specialty last date for admission is 30th September of the concerned year. It is also held that having regard to the professional courses, the all concerned including State and Central Government, both MCI & DCI, Colleges new or old students, Boards, Universities, and Examining Authorities are required to strictly adhere to the time schedule, wherever provide for and that there should not be mid-stream admissions. Not only that it is further observed that admission should not be in excess of sanctioned intake capacity or in excess of quota of any one whether State or management. As per the Supreme Court, carrying forward of any unfilled seats for one academic year to next academic year, is also not permissible.
In this view of the categorical direction, it would appear difficult to issue directions granting permission to the petitioners now to admit the students, once the time schedule has gone passed. The request of the petitioners to carry forward of unfilled seats may also not be possible. It is equally true that the petitioners were before this Court much before the date of expiry of time schedule and the case had to be adjourned and could not be decided on account of request for adjournment made by counsel for the respondents and on different dates and some times due to request made by the counsel for the petitioner. Whatever may be the situation, the last date for carrying out admissions has now passed. If the petitioners had legally enforceable right to admit the students for the academic year 2010-11 and they have not been able to carry out the admission and thus, has suffered loss. The Civil Writ Petition No.8929 of 2010 -16- petitioners are at liberty to claim damages. That may be a course open to remedy the situation to an extent. To admit students in mid-stream would not be appropriate when the Hon'ble Supreme Court has been so categorical in this regard. The petitioners would be at liberty to take any appropriate action for claiming damages in case they feel that they have been harmed and put to any prejudice by any wrongful act on the part of the respondents. At this late stage, it would not be appropriate to issue direction for permitting the petitioners to admit students in mid-stream.
The writ petition is, accordingly, disposed of in the above terms.
December 8, 2010 ( RANJIT SINGH ) monika I JUDGE