Gujarat High Court
Ahmedabad vs Gujarat on 6 May, 2011
Author: S.J.Mukhopadhaya
Bench: S.J. Mukhopadhaya
Gujarat High Court Case Information System
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SCA/4693/2011 10 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4693 of 2011
And
SPECIAL
CIVIL APPLICATION No. 4849 of 2011
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
AND
HONOURABLE
MR.JUSTICE J.B.PARDIWALA
=================================================
1
Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ================================================= AHMEDABAD DENTAL COLLEGE AND HOSPITAL - Petitioner(s) Versus GUJARAT UNIVERSITY - Respondent(s) ================================================= Appearance :
MR DC DAVE for Petitioner(s) : 1, MR SN SHELAT, SR. ADVOCATE WITH MRS VD NANAVATI for Respondent(s) :
1, ================================================= CORAM :
HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 06/05/2011 COMMON CAV JUDGMENT (Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) As similar prayer has been made and common question of law is involved, both the petitioners were heard together and disposed of by this common judgment.
The writ petition (SCA No. 4693 of 2011) has been preferred by Ahmedabad Dental College and Hospital, Ahmedabad and the writ petition (SCA No. 4849 of 2011) has been preferred by Karnavati School of Dentistry, Uvarsad, District Gandhinagar, for a direction on the Gujarat University not to fill up seats in the set of the petitioner - institution at the level of the post graduation for the academic year 2011-12, save and except the seats, as per the specialties wise allocation.
2. The petitioner - institutions are self-financing institution imparting education in the discipline of Dentistry both at the level of graduation and post-graduations i.e. BDS and MDS courses. They are run by public trusts, viz. Mahadevia Charitable Trust and Karnavati Medical and Educational Trust respectively. With effect from the academic year 2009-10, the petitioner - institutions were granted approval for commencing post-graduate course in various specialties in the discipline of Dentistry by the Dental Council of India and the Central Government in accordance with the Dentist Act, 1948. Such permission was granted to Ahmedabad Dental College and Hospital for the academic year 2009-10 for commencement of post-graduation courses in -
(i) Preventive Dentistry 3 seats
(ii) Periodontology 3 seats
(iii) Oral Pathology & Microbiology 3 seats
(iv) Oral Medicine & Radiology 3 seats
(v) Oral & Maxiliofacial Surgery 2 seats
(vi) Conservative Dentistry and Endodontics 3 seats
(vii) Orthodontis & Dentofacial Orthopedics 3 seats
(viii) Prosthodontics and Crown & Bridge 3 seats Since 2009-10, the petitioner - Ahmedabad Dental College and Hospital became functional for imparting education at the post-graduation MDS level.
Such permission was granted to Karnavati School of Dentistry for the academic year 2010-11 for commencement of post-graduation courses in
-
(i) Periodontology 3 seats
(ii) Oral Medicine & Radiology 3 seats
(iii) Prosthodontics and Crown & Bridge 3 seats Since 2010-11, the petitioner - Karnavati School of Dentistry became functional for imparting education at the post-graduation MDS level.
The grievance of the petitioners is that for the session 2011-12, the respondent - Gujarat University allowed the petitioners to fill up only 25% seats out of the management quota and the University wants to fill up the rest 75% quota from their list. Out of them, 15% of the seats are to be left for Non-Resident Indians.
3. The learned counsel for the petitioners would contend that after the decision of the Supreme Court in the case of PA Inamdar vs State of Maharashtra, reported in (2005) 6 SCC 537 and the decision in the case of Islamic Academy of Education vs. State of Karnataka, reported in (2003) 6 SCC 697, the Dental Council of India has framed "Dental Council of India Revised MDS Course Regulations, 2007". Thereunder, while it is stipulated that 50% seats shall be filled up by the competent authority and the remaining 50% by the management quota of the institution on the basis of merit.
He would submit that the management of the petitioner - institutions have already issued an advertisement for selecting the seats, but the University has informed that they want to fill up 75% of the seats leaving the remaining 25% to be filled up by the management of the institutions. He would further contend that the aforesaid action on the part of the University is against the Dental Council of India Revised MDS Course Regulations, 2007 and, therefore, the University should be prohibited from filling up 75% of the seats. At the best, they can fill up 50% seats of MDS course of the petitioner - institutions.
He also placed reliance on the Supreme Court decision in the case of Modern Dental College and Research Centre vs. State of MP, reported in AIR 2009 SC 2432, wherein at para 31, the Supreme Court issued following directions :-
"31. We, therefore, direct that the admission in the private unaided medical/dental colleges in the State of Madhya Pradesh will be done by first excluding 15% N.R.I. Seats (which can be filled up by the private institutions as per para 131 of Inamdar's case), and allotting half of the 85% seats for admission to the under-graduate and post-graduate courses to be filled in by an open competitive examination by the State Government, and the remaining half by the Association of the private Medical and Dental Colleges. Both the State Government as well as the Association of Private Medical and Dental college will hold their own separate entrance examination for this purpose. As regards the 'NRI Seats' they will be filled as provided under the Act and Rules, in the matter they were done earlier."
4. Mr SN Shelat, learned senior counsel appearing on behalf of the University referred to the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 (Gujarat Act No. 3 of 2008) [hereinafter referred to as "the Professional Medical Colleges Act, 2007"] and submitted that 75% of the seats of the processional courses of the total approved seats in the unaided colleges or institutions cannot be filled up by the institutions, but can be filled up pursuant to the competitive test as may be held on the recommendations of the Admission Committee constituted under Section 4 of the said Act. Further, according to him, the judgment rendered in the case of Modern Dental College and Research Centre vs. State of MP, reported in AIR 2009 SC 2432 is not applicable in the case of the petitioners.
5. In reply, the learned counsel for the petitioners would contend that the the Professional Medical Colleges Act, 2007 is applicable in the matter of admission to under-graduate course like BDS. The said Act is not applicable for admission in the post-graduation course viz. MDS course.
6. From the letter dated 24.3.2011 issued by the Government of India, we find that the Central Government has permitted the petitioner - institutions for 3rd year MDS Course in the specialties as referred to above. The admission in the next batch of the students of the MDS course in the specialties for the academic sessions 2012-13 will be made only after recognition by MDS degree by the Central Government. The present permission is for the academic year 2011-12.
7. The Dental Council of India Revised MDS Course Regulations, 2007 are framed by the Dental Council of India in exercise of the powers conferred by Section 20 of the Dentists Act, 1948 with the previous sanction of the Central Government. It was published in the Gazette by notification dated 20.11.2007. The said Regulations are known as "The Dental Council of India Revised MDS Course Regulations, 2007", whereunder apart from eligibility of admission to the MDS course, the following stipulation has been made for selection of post graduate students :-
"SELECTION OF POSTGRADUATE STUDENTS :
(1) Students for postgraduate dental courses (MDS) shall be selected strictly on the basis of their academic merit.
(2) For determining the academic merit, the university/institution may adopt any one of the following procedures both for P.G. Diploma and MDS degree courses :
(i) On the basis of merit as determined by a competitive test conducted by the State Government or by the competent authority appointed by the State Government or by the University/group of Universities in the same State; or
(ii) On the basis of merit as determined by a centralized competitive test held at the national level; or
(iii) On the basis of the individual cumulative performance at the first, second, third & Final B.D.S. Examinations, if such examinations have been passed from the same University; or
(iv) Combination of (i) and (ii) Provided that wherever entrance test for Postgraduate admissions is held by a State Government or a University or any other authorized examining body, the minimum percentage of marks for eligibility for admission to postgraduate Dental courses shall be 50% for general category candidates and 40% for the candidates belonging to Schedule Castes and Scheduled Tribes.
Provided further that in non-Governmental institutions fifty percent of the total seats shall be filled by the competent authority and the remaining fifty percent, by the management of the institution on the basis of merit."
It is true that as per the 2nd proviso to Clause 2 of selection of post-graduate students, the management of the institutions are entitled to fill up 50% of the seats, but it should be on the basis of merit. How the merit is to be adjudged has been shown in Clause 2(i), (ii) and (iii) aforesaid.
8. In the present case, with a view to find out whether the petitioner - institutions should be allowed to take admission as per their own selection, we tried to know the procedure followed by the petitioner
- institutions to fill up the management quota.
Ahmedabad Dental College and Hospital has enclosed an advertisement published in the Hindi Newspaper - 'Jan Satta', Ahmedabad edition dated 19.3.2011, which reads as follows :-
AHMEDABAD DENTAL COLLEGE & HOSPITAL Vivekanand Society, Bhadaj-Ranchhodpura Road, Ta.
Kalol, Dist. Gandhinagar .....
Applications in the prescribed form are invited for the admission tot he post graduate dental (M.D.S.) course under MANAGEMENT/NRI quota.
Application forms can be collected from the college during working hours against payment of Rs,25,000 between 19th to 25th March, 2011. Last date of submission of filled up form is 25th March, 2011."
9. There is nothing on record to suggest that either of the petitioner -
institutions has taken any decision as to how the merit of the candidates will be determined. The institutions have not adopted any of the procedures prescribed by the Dental Council of India as prescribed under the Dental Council of India Revised MDS Course Regulations, 2007 to determine the merit. Nothing is on the record to suggest that the institutions intend to select post graduate students on the basis of the merit as may be determined under Clause 2(i) aforesaid i.e. by the competitive test conducted by the State Government or by the competent authority appointed by the State Government or by the University/group of Universities in the same State, nor there is anything on record to suggest that they intend to select from the merit list as determined by the centralized competitive test held at the national level as stipulated under Clause 2(ii) or on the basis of the individual cumulative performance at the first, second, third and final BDS examinations, if such examinations have been passed from the same University as stipulated under Clause 2(iii). As the advertisement has been issued calling for application from the candidates passed B.D.S. from any recognized University, Clause 2(iii) will not be attracted in the present case. Therefore, for admission against management quota, the institutions will have to be either dependent on the competitive test conducted by the State Government or by the competent authority appointed by the State Government or by the University/group of Universities in the same State as stipulated under Clause (2)(i) of the selection procedure or they will have to be dependent on the basis of the merit as may be determined by a centralized competitive test held at the national level, as per Clause 2(ii) of the selection procedure or combination of Clause 2(i) and 2(ii). Thus, it is evident that the petitioner - institutions of their own cannot held any test for admission against any of the seats including the management quota, as per the selection procedure prescribed under the Dental Council of India Revised MDS Course Regulations, 2007.
10. The petitioners have not challenged the validity of "The Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007". Under Section 2(g) of the said Act, 'Government seats' have been defined as follows :-
"2(g) "Government seats" means, -
(i) all the seats of the professional courses in the Government colleges or institutions and in the aided colleges or institutions; and
(ii) seventy-five per cent seats of the professional courses of the total approved seats in the unaided colleges or institutions."
Under Section 2(h), 'Management seats' have been defined, which means 25% seats of the professional courses of the total approved seats, as reproduced hereunder :-
"2(h) "Management seats" means twenty-five per cent seats of the professional courses of the total approved seats in the unaided colleges or institutions including fifteen per cent of Non-Resident Indian seats."
11. Under Section 4 of the said Act, for the purpose of admission of the students to the professional educational colleges and institutions, the institutions are required to constitute one or more admission committees. Under Section 6 therein, the management has been allowed to select the management quota in the manner as shown therein, which reads as follows :-
"6. Admission to Government seats and management seats, - The admission of students in the professional educational colleges or institutions shall be given in the following manner, namely :-
(i) all the Government seats shall be filled on the basis of merit list prepared by the Admission Committee; and
(ii) the management seats to be filled by the management or the respective professional educational college or institution shall be on the basis of inter-se merit list of the students to be admitted against the management seats.
Provided that no student shall be admitted against the management seat unless his name appears in the merit list prepared by the Admission Committee;
Provided further that where any Non-Resident Indian seat remains vacant, such seat shall be filled in from the management seats;
Provided also that where any management seat remains vacant, such seat shall be filled in from the Government seats."
12. The Act aforesaid is silent on the question whether it applies to under-graduate course or post-graduate course or both. In absence of any specific bar, the Gujarat Professional Medical Educational Colleges or Institutions (Regulation of Admission and Fixation of Fees) Act, 2007 is applicable both in the case of admission to under-graduate and post-graduate course.
Even if the contention made by the petitioners is accepted that the Professional Medical Colleges Act, 2007 is not applicable for admission to post graduate course of Dental or Medical Colleges, in such case also, the petitioners cannot seek for direct admission of students against their management seats. They can do so only after following the procedure of selection of students of MDS course, as laid down under the Dental Council of India Revised MDS Course Regulations, 2007.
13. So far as the judgment rendered by the Supreme Court in the case of Modern Dental College and Research Centre vs. State of MP, reported in AIR 2009 SC 2432 is concerned, from para 31, it will be evident that it was a suggestion made by the Supreme Court in the particular case and no ratio was laid down by the Supreme Court and will be evident from para 33 of the said judgment, wherein the following observations were made :-
"33. We make it clear that the solution we have arrived at may not be perfect, but we have tried to do our best to find out the best via media. Although this order is only for the academic year 2009-10, we recommend that it may also be considered for future sessions."
Therefore, the petitioners also cannot derive any advantage of the decision of the Supreme Court in Modern Dental College and Research Centre (supra) to fill up the seats of managements quota and bound to follow the procedure prescribed under the law.
14. We find no merit in both the writ petitions. They are accordingly dismissed. No costs.
[S. J.
MUKHOPADHAYA, CJ.] [J. B. PARDIWALA, J.] Sundar/* Top