Kerala High Court
Noorul Islam Educational Trust vs Union Of India on 16 January, 2006
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY, THE 8TH DAY OF FEBRUARY 2013/19TH MAGHA 1934
WP(C).No. 29049 of 2012 (E)
---------------------------
PETITIONER(S):
--------------------------
NOORUL ISLAM EDUCATIONAL TRUST,
NICE GARDEN, ARALUMMOODU, NEYYATTINKARA,
THIRUVANANTHAPURAM DIST.-695 123,
REP. BY ITS CHAIRMAN A.P.MAJEED KHAN.
BY ADV. SRI.ANIL K.NARENDRAN
RESPONDENT(S):
----------------------------
1. UNION OF INDIA,
REP. BY THE SECRETARY TO GOVERNMENT,
MINISTRY OF HEALTH AND FAMILY WELFARE,
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
(DENTAL EDUCATION SECTION), NIRMAN BHAVAN,
NEW DELHI - 110 011.
2. THE DENTAL COUNCIL OF INDIA,
AIWAN-E-GALIB MARG, KOTLA ROAD, NEW DELHI - 110 002,
REP. BY ITS SECRETARY.
R1 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA
R2 BY ADV. SRI.ALEXANDER THOMAS, SC,DENTAL COUNCIL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 08-02-2013, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
sts
WP(C)NO.29049/2012
APPENDIX
PETITIONER(S) EXHIBITS
EXHIBIT P1. TRUE COPY OF NOTIFICATION NO.DE-22-2005 DATED 16.01.2006 ISSUED
BY THE 2ND RESPONDENT.
EXHIBIT P2. TRUE COPY OF COVERING LETTER DATED 29.05.2012 OF THE
PETITIONER, FORWARDING APPLICATIONS FOR PROVISIONAL
AFFILIATION TO THE KERALA UNIVERSITY OF HEALTH SCIENCES.
EXHIBIT P3. TRUE COPY OF NOTIFICATION NO.DE-22-2012 DATED 21.05.2012,
PUBLISHED BY THE 2ND RESPONDENT IN THE GAZETTE OF INDIA.
EXHIBIT P4. TRUE PRINTOUT OF THE WEBPAGE IN www.dciindia.org, PUBLISHING
THE ANNOUNCEMENT REGARDING THE AMENDMENT OF THE
REGULATIONS, AS NEWS ITEM DATED 19.06.2012.
EXHIBIT P5. TRUE COPY OF THE REPRESENTATION DATED 27.06.2012, SUBMITTED
BY THE PETITIONER BEFORE THE KERALA UNIVERSITY OF HEALTH
SCIENCES.
EXHIBIT P6. TRUE COPY OF CONSENT OF AFFILIATION DATED 09.07.2012, ISSUED BY
THE KERALA UNIVERSITY OF HEALTH SCIENCES.
EXHIBIT P7. TRUE COPY OF COVERING LETTER DATED 29.06.2012 SUBMITTED BY
THE PETITIONER BEFORE THE 1ST RESPONDENT, ALONG WITH THE
APPLICATIONS FOR STARTING MDS COURSE IN THE SPECIALITIES OF (I)
PROSTHODONTICS AND CROWN & BRIDGE, (ii) ORTHODONTICS &
DENTOFACIAL ORTHOPEDICS, AND (iii) CONSERVATIVE AND
ENDODONTICS, AND DEMAND DRAFT FOR RS.9,00,000/-.
EXHIBIT P8. TRUE COPY OF LETTER DATED 17.07.2012 OF THE 1ST RESPONDENT.
EXHIBIT P9. TRUE COPY OF LETTER DATED 06.08.2012 OF THE 1ST RESPONDENT.
EXHIBIT P10. TRUE COPY OF PETITIONER'S REPRESENTATION DATED 18.08.2012,
SUBMITTED BEFORE THE 1ST RESPONDENT.
EXHIBIT P11. TRUE COPY OF CONSENT OF AFFILIATION DATED 13.08.2012, GRANTED
BY THE KERALA UNIVERSITY OF HEALTH SCIENCES.
EXHIBIT P12. TRUE COPY OF PETITIONER'S LETTER DATED 18.08.2012 FORWARDING
EXHIBIT P11 CONSENT OF AFFILIATION TO THE 1ST RESPONDENT.
EXHIBIT P13. TRUE COPY OF COMMUNICATION DATED 10.09.2012 ISSUED BY THE 1ST
RESPONDENT.
EXHIBIT P14. TRUE COPY OF JUDGMENT DATED 12.10.2012 OF THIS HONOURABLE
COURT IN W.P.(C) NO.22268 OF 2012 (G).
sts 2/-
-2-
WP(C)NO.29049/2012
EXHIBIT P15. TRUE COPY OF REPRESENTATION DATED 19.10.2012 SUBMITTED BY THE
PETITIONER BEFORFE THE 1ST RESPONDENT.
EXHIBIT P16. TRUE COPY OF COMMUNICATION DATED 07.11.2012 ISSUED BY THE 1ST
RESPONDENT.
EXHIBIT P17. TRUE COPY OF REPRESENTATION DATED 21.11.2012 SUBMITTED BY THE
PETITIONER BEFORE THE 1ST RESPONDENT.
EXHIBIT P18. TRUE COPY OF THE ORDER DATED 14/12/2012 IN WP(C)NO.29049 OF 2012
EXHIBIT P19. TRUE COPY OF THE REPRESENTATION DATED 15/12/2012 SUBMITTED BY
THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXHIBIT P20. TRUE COPY OF THE COMMUNICATION DATED 31/12/2012 ISSUED BY THE
1ST RESPONDENT.
RESPONDENTS' EXHIBITS : NIL
/TRUE COPY/
P.S.TO.JUDGE
sts
A.M.SHAFFIQUE, J.
----------------------------------------------------
W.P.(C) No. 29049 of 2012- E
---------------------------------------------------
Dated this the 8th February, 2013
J U D G M E N T
The petitioner Trust, running a BDS college, has applied for starting MDS Course in three specialities, which was originally rejected by DCI on account of the fact that the Kerala University of Health Science had given affiliation only by Ext.P11 dated 13.8.2012. This matter came to be challenged before this Court and by Ext.P14 judgment dated 12.10.2012, this Court relying upon the Priyadarshini Dental College's case (2011) 4 SCC 623) and also judgment of this Court in W.P.(C) No. 10188/2012 directed reconsideration of the matter.
2. However, even after reconsidering the matter, the Government by Ext.16 considered the application only in respect of two specialities i.e. (i) Prosthodontics and Crown & Bridge and (ii) Conservative and Endodontics for the academic year 2013-14 whereas they decided to return Rs.3,00 lakh in respect of the application for the speciality of Orthodontics & Dentofacial Orthopaedics. W.P.(C) No. 29049 of 2012- E -2- After giving representation Ext.P17, the petitioner had approached this Court and by an interim order dated 14.12.2012, this Court further directed the Central Government to consider the application of the petitioner in respect of the speciality for Orthodontics & Dentofacial Orthopedics also. But again the same came to be rejected as per Ext.P20 which reads as under:
"It has been observed that the Consent of Affiliation has been issued by the Kerala University of Health Sciences, Thrissur only on 13.8.2012 i.e. after the last date ((31st July 2012) of forwarding the MDS applications to Dental Council of India for the academic year 2013-14. Hence it would not be feasible for the Central Government to consider the application for starting of MDS course in Orthodontics from the academic year 2013-14 at Noorul Islam College of Dental Sciences, Thiruvananthapuram, Kerala at this stage".
3. The learned Assistant Solicitor General, on instructions, would submit that the Central Government had already considered the question as to whether the W.P.(C) No. 29049 of 2012- E -3- time as stipulated in Ext.P1 can be extended. According to the Central Government, the time fixed cannot be changed on the whims and fancies of the applicant. When it is an admitted position that the consent of affiliation was issued by the Kerala University of Health Science only on 13.8.2012, when the last date of application was on 31.7.2012, by exercising the discretion vested with the Central Government, the speciality with respect of two of the items were received. The petitioner cannot insist that his change of stand for choosing Orthodontics & Dentofacial Orthopaedics also should be considered for the same academic year.
4. The main complaint of the petitioner is that by a gazette notification dated 21.5.2012, the requirements of starting MDS course had been amended by DCI by making modifications to the 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 W.P.(C) No. 29049 of 2012- E -4- 2006. In the proviso to Clause (hh) it is inter alia indicated that "no permission for starting MDS Course in the speciality of Oral and Maxillofacial Surgery shall be granted by the Central Government under S.10A of the Dentist (Amendment) Act, 1993, unless and until the desirous existing college is attached with a Government/Private medical college approved/recognized by Medical Council of India located at the distance of 10 K.Mtrs by road". This amendment, according to the petitioner, they were not aware until it was notified in the website on 19.6.2012. That apart, when this Court had directed consideration of the matter on account of special circumstances in Ext.P14 judgment, instead of granting permission for all the three specialities, one speciality was excluded. This according to the petitioner is arbitrary and illegal.
5. Heard the learned counsel for the petitioner, learned Assistant Solicitor General and the learned counsel for the Dental Council of India. W.P.(C) No. 29049 of 2012- E -5-
6. Having regard to the factual circumstances, the learned counsel for the Dental Council of India submits that notification had been issued on 21.5.2012 and it has been gazetted on 22.5.2012. The petitioner originally applied for Oral and Maxillofacial Surgery which could not have been granted in terms of the amended provision. Thereafter the petitioner had chosen to substitute Orthodontics as a speciality in the place of Oral and Maxillofacial Surgery. This change in attitude of the petitioner caused the delay which cannot be attributed to the Central Government or to the DCI.
7. Having regard to the contentions urged by the respective parties, it could be seen that the Kerala University of Health Science had already granted consent of affiliation as per Ext.P6 dated 9.7.2012 including three specialities which included Oral and Maxillofacial Surgery. This was based on an application submitted by the petitioner on 29.5.2012. The fact remains that there was a gazette notification on 22.5.2012 making amendments to the criteria for MDS W.P.(C) No. 29049 of 2012- E -6- Course in the Speciality of Oral and Maxillofacial Surgery. According to the petitioner this news item was published in the website only on 19.6.2012. Immediately on knowing the prescribed stipulations for conduct of Oral and Maxillofacial Surgery Course the petitioner approached the Kerala University of Health Science on 27.6.2012 for changing the speciality Oral and Maxillofacial Surgery to Orthodontics and Dentofacial Orthopaedics. But apparently it could be seen from Ext.P6 that the University of Health Science had given consent of affiliation for the subject which the petitioner had originally sought for. The petitioner submitted Ext.P7 request and it was ultimately by Ext.P11 that the University had given necessary consent of affiliation.
8. In the meantime, the request of the petitioner was reconsidered in the light of Ext.P14 judgment in which this Court categorically held as under:
"Thus, it can be seen that the
communication Exts. P9 and P13 lack
application of mind. In Ext.P10 the
petitioner has given detailed reasons in the W.P.(C) No. 29049 of 2012- E -7- matter which can be considered for passing appropriate orders.
Accordingly, Ext.P13 is quashed. There will be a direction to the first respondent to reconsider the matter and pass appropriate orders within a period of one month from the date of receipt of a certified copy of this judgment, in the light of the findings rendered above and in the light of the principles stated in the judgments quoted above. The petitioner will forward a certified copy of this judgment along with a copy of the writ petition to the first respondent ".
9. Once this Court had exercised the jurisdiction to quash Ext.P13 and had directed the Government to reconsider the matter, when the Central Government had relaxed time limit in respect of two specialities, it is not known why the Government could not relax the condition of time limit with reference to the 3rd speciality. It is a fact that the notification came to be published only on 22.5.2012. Sufficient time necessarily ought to have been granted to the colleges who intends W.P.(C) No. 29049 of 2012- E -8- to apply for speciality courses to take their decision. It is a fact that the petitioner had requested for speciality course and sought for affiliation from the Kerala University of Health Science. If the amendment had come into effect much prior to the said date, probably the petitioner could have made alternate arrangements. Though it could be stated that once it is notified in the Gazette, the petitioner should have known about such gazette notification, the fact remains that the news item was published in website only on 19.6.2012 and only then the public will come to know about such formalities. Whatever that may be, in the circumstances, as held in Ext.P14 judgment, Central Government can modify the time schedule as can be seen from Note 2 of Ext.P1. They have in fact exercised their discretion and modified the time schedule with reference to two specialities in the petitioner's college and there is no reason why a different approach is to be taken with reference to another speciality. Even in Ext.P20 other than reiterating the earlier contentions, W.P.(C) No. 29049 of 2012- E -9- no other specific reason had been stated.
10. This Court, while directing the Central Government to consider that the time limit can be modified with reference to the request made by the petitioner, as evident from Ext.P14 judgment, had taken note of the reasons stated by the petitioner for the delay in obtaining the affiliation from Kerala University of Health Science. That being the situation, the Central Government should have considered this matter in its proper perspective and in the light of the powers vested in Note 2 of Ext.P1 notification dated 16.1.2006 of Dental Council of India (Ext.P1).
11. It is submitted by the learned counsel for the petitioner that the first visit for the two speciality courses had already been completed by the Dental Council of India and the second visit is to be conducted soon. It cannot be disputed that the first visit is to verify whether the college has sufficient facility. Therefore even for the three speciality courses, probably the said visit would be sufficient for the DCI to come to W.P.(C) No. 29049 of 2012- E -10- such a conclusion. However, these are all matters to be considered by the DCI and the Central Government. Having exercised the power to modify the time schedule in respect of the petitioner in reference to two specialities, it was all the more required that the Central Government should have exercised the same power to modify the time schedule with reference to another speciality.
12. Under these circumstances, the writ petition is only to be allowed as under:.
(i) Ext.P16 to the extent of rejecting the petitioner's application for starting MDS Course in the specialities in Orthodontics & Dentofacial Orthopaedics for the academic session 2013-14 and Ext.P20 are quashed.
(ii) The 1st respondent is directed to modify the time schedule for the petitioner's college in respect of the speciality course in Orthodontics & Dentofacial Orthopaedics in terms of Note 2 of Ext.P1 notification and pass appropriate orders and forward the same to DCI within a period of one week from the date of W.P.(C) No. 29049 of 2012- E -11- receipt of a copy of this judgment.
A.M.SHAFFIQUE, JUDGE.
rka