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1998 DIGILAW 579 (PAT)

Vishwa Bhudhist Parishad v. Union of India

1998-08-18

SUDHANSU JYOTI MUKHOPADHAYA

body1998
JUDGMENT S.J. MUKHOPADHAYA, J. :- This application has been filed on behalf of writ petitioners-Vishwa Budhist Parishad and another for review/modification of common order and judgment dated 26.2.1998 passed in C.W.J.C. no 2298/97 [1999 (1) PLJR 11] so far it related to certain observations made in the second part of para-12 of the judgment aforesaid relating to grant of permission of State Government and affiliation by the University. 2. The writ petition C.W.J.C. no. 2298/97 was preferred by writ petitioners against certain orders. Therein the writ petitioners took a definite stand that the institution in question was established before 1.6.1992 and as such the amended provisions of Dentist (Amendment) Act, 1993 will not apply in the case of the institution. This Court by its order and judgment dated 26.2.1998 in C.W.J.C. no. 2298/ 97 [1999 (1) PLJR 11] allowed the said writ petition and held that the institute in question was established prior to 1.6.1992, thereby the provisions of Dentist (Amendment) Act, 1993 will not apply in the case of such institution. No prior permission of State Government or affiliation of an University was required for its recognition by the Dental Council of India. While recording such finding, at para-12 of the impugned judgment, this Court further made the following observation: "However, such grant of permission/recognition by the Dental Council/Government of India will not amount to automatic permission to establish the Institution by the State Government, or affiliation by the University, which is required to be obtained thereafter by the petitioners' Institution from the State Government and the Magadh University." Against the aforesaid portion of the observation, in fact, the present application for review has been preferred. 3. According to the counsel for the petitioners, it is only in terms with Dentist (Amendment) Act, 1993 prior permission of the State Government and affiliation of the University was made mandatory. Such Amending Act of 1993 was not applicable in cases where the institutions were established prior to 1.6.1992, as decided in the case under review and other cases. By the judgment under review, while this court held that the Petitioners institution established prior to 1.6.1992 and thereby provision of Amending Act, 1993, followed by new regulation "Establishment of New Regular Dental Colleges Regulation, 1993" (1993 Regulation for short) not applicable, there was no occasion to obtain further permission from the State of Bihar and affiliation from an University as observed above. The aforesaid observation is inconsistent with the rest paras of the judgment under review, which left the writ petitioners with no option but to file the review application for .review/modification of the impugned judgment. It was submitted that the petitioners' institution having been held to be established prior to 1.6.1992, the State Government and the University have absolutely no positive role to play in the matter of Institution, muchless with regard to grant of permission for establishment and affiliation. 4. On the other hand, the counsel appearing on behalf of the State and the University reiterated their submission as was advanced before this Court in the writ petition. According to the counsel for the University, the Institution cannot run without its affiliation with an University, otherwise its students car r at be allowed to appear in the examination. According to the counsel for the State, the permission of the State Government, even with respect to an Institution established prior to 1.6.1992, not only required in terms with Bihar Medical Educational Institution (Control and Regulation) Act, 1981 (Act 23 of 1982), approval of State Government is also required for affiliation of college in accordance with proviso to sub-section 2 (d) of Section 21 of Bihar State Universities Act, 1976. 5. In the main writ petition (C.W.J.C. no. 2298/97), one of the main question involved was whether the Amending Act, 1993 read with 1993 Regulation was applicable in the case of the petitioners' Institution or not, which was established prior to 1.6.1992. By the judgment under review, it has been held that such provision of Amending Act, 1993, followed by Regulation, 1993 is not applicable in the case of petitioner's Institution and thereby prior permission of State Government or affiliation by University was not required for grant of recognition by the Dental Council. This part of the finding given by this Court is not under review. In the present case, none of the parties have raised any question in this respect. 6. In the present application for review, the questions arise for determination are: (i) Whether the State Government and the University have any role to play in the matter of permission of affiliation with respect to Dental Institutions established prior to 1.6.1992. In the present case, none of the parties have raised any question in this respect. 6. In the present application for review, the questions arise for determination are: (i) Whether the State Government and the University have any role to play in the matter of permission of affiliation with respect to Dental Institutions established prior to 1.6.1992. (ii) If any or it (State Government or University) or both have any role to play in this respect (in the matter of permission or affilliation) then – (a) to what extent they can play such role, and (b) at which stage. 7. To determine the aforesaid issues, it is necessary to discuss certain provisions as laid down under different Acts/Regulations. The first and foremost law in this respect was laid down under the Dentist Act, 1948, wherein recognition of Dental qualification by Dental Council was made mandatory under Section 10(2) of the said Act, 1948. Since then none of the authorities or institutions in India can grant any Dental qualification, without recognition of such qualifications by Dental Council. The other law which is required to be followed, in this respect, is the Magadh Universities Act, 1961 (Bihar Act 4 of 1962)" now repealed by "The Bihar State Universities Act, 1976" (Bihar Act 23 of 1976), whereas to obtain a degree of University an Institution is required to be affiliated with the University. However, according to the counsel for the State, there is another law, namely, Bihar Medical Educational Institution (Control and Regulation) Act, 1981 (Act 23 of 1982), which is applicable in the present case. Recognition of an authority/Institution by the Dental Council/Central Government under Dentist Act, 1948 is mandatory and such proposition is not under dispute. Under the said Act of 1948, there is no provision to obtain permission/approval by the State Government. Therein under Part-I of the Schedule (to the Dentist Act, 1948), the names of 'authorities' or 'Institutions'/Universities in India have been mentioned which are only recognised by Dental Council to grant recognised Dental qualification. At serial 37 of Part-I of the said Schedule, the Magadh University has been shown as one of the University recognised by the Dental Council to grant recognised Dental qualification of Bachelor of Dental Surgery (B.D.S.). At serial 37 of Part-I of the said Schedule, the Magadh University has been shown as one of the University recognised by the Dental Council to grant recognised Dental qualification of Bachelor of Dental Surgery (B.D.S.). From the aforesaid provisions of Dentist Act, 1948, it is clear that the Magadh University is one of the University recognised to hold examination and grant certificate (degree) of recognised Dental qualification. Thereby, even if a Dental Institution is recognised by Dental Council to impart teaching to its students, but to allow such students to obtain a recognised, Dental certificate/degree, an Institution is required to approach the University. Based on aforesaid Schedule of the Act of 1948, it can be safely said that an University recognised by the Dental Council, which grants racognised Dental qualification has a role to play even with respect to an Institution recognised by Dental Council, which merely imparts teaching but does not grant any recognised degree. The other provision is the relevant Universities Act, which is applicable to such an Institution situated within the territorial jurisdiction of an individual University. In the present case, it is the territorial jurisdiction of the Magadh University, which is guided by "The Bihar State Universities Act, 1976". In this respect, Section 21 of the Universities Act, 1976 is relevant, wherein the power and duties of the Senate of the University has been laid down, including power of superintendence and affiliation of a college/institution, the relevant part of which reads as follows: "Section 21. Powers and duties of the Senate: - (1) x x x (2) x x x (a) x x x (b) x x x (c) x x x (d) of exercising the powers for the purpose of control in College and Tols, and of superintendence which include affiliation and disaffiliation of colleges: Provided that affiliation or disaffiliation of Colleges or Tols shall not take effect, unless it is approved by the State Government: Provided further that no medical college shall be affiliated except without the prior approval of the State Government. Before granting such an approval, the State Government shall consider the financial viability of the College, the nature and form of the proposed management of the College, the viability of the academic standard and all other conditions which are likely to have adverse effect on the interests of students admitted to such a College; (e) of instituting and conferring such degrees, titles, diplomas and other academic distinctions as may be prescribed by the Statutes; and (f) of exercising such other powers and of performing such other duties as are conferred or imposed upon it by this Act or the Statutes." 8. From a bare perusal of sub-section 2(d) of Section 21, it will be evident that it is the University (its Senate), which is only competent to grant affiliation to any Institution/College. Under this provision also, the University has a specific role to play i.e. to grant affiliation to an Institution. So far as the role of State Government is concerned, as stated above, there was no role to play under the Dentist Act, 1948, till the Amending Act, 1993, followed by regulation, 1993 came in force. The role of State in this respect, to some extent has been laid down under provision to sub-section 2(d) of Section 21 of Universities Act, 1976, as quoted above, Therein it is stipulated that an affiliation granted by the University shall not take effect, unless it is approved by the State Government. So far as prior approval of the State Government with respect to affiliation of a medical college as laid down under Section 21 proviso therein is concerned, the same fell for consideration before this Court in the case of The Governing Body of the Buddha Institute of Dental Science, through Sri Ramakant Singh vs. The State of Bihar through the Secretary to the Government, in the Department of Health, Education and Family Welfare and others (1995 (1) P.L.J.R. 623). In the said case, this Court held that the requirement of prior approval of the State Government about affiliation of a medical college in the State of Bihar under the proviso to subsection (2) of Section 21 of the State Act is a provision repugnant to the Central Law. In the said case, this Court held that the requirement of prior approval of the State Government about affiliation of a medical college in the State of Bihar under the proviso to subsection (2) of Section 21 of the State Act is a provision repugnant to the Central Law. In the aforesaid case, the learned Advocate General on behalf of the State Government accepted before the Court that once the Council, namely, Dental Council of India recognises an institute permanently, the State has nothing further to do with the matter. Taking into consideration the aforesaid submission and other aspect, in the said case of the Governing Body of the Buddha Institute of Dental Science, this court held as follows: "That being the position in law, the right and the authority of the State Government to interfere, on the basis of later state legislation, with the grant of recognition of the said institute when the qualification granted by it enjoys the status of recognised Dental qualification granted by the recognised authorities and forms part of the Schedule of the Central Act, becomes highly questionable and suspect." 9. Now, the question arises as to whether the State Government can play any role in the matter of establishment of a Dental College in terms with the "Bihar Medical Educational Institution (Control and Regulation) Act, 1981" ? The obvious answer is in negative. It will be evident from Section 7 of the aforesaid Bihar Medical Educational Institution (Control and Regulation) Act, 1981 that the said Act is applicable only with respect to Medical Colleges guided by Indian Medical Council Act, 1956. No provision has been laid down therein with respect to any sort of control by the State on a Dental College, which is guided by the Dental Council of India under Dentist Act. 1948. 10. From the observation and finding as given above and the finding given vide judgment under review dated 26.2.98 in C.W.J.C. no. 2298/97, the following fact emerges and I hold accordingly: (a) An institute (Dental College in the present case), established prior to 1.6.1992 is not guided by the "Dentist (Amendment) Act, 1993", nor by new regulation, namely, "Establishment of New Regular Dental College Regulation, 1993". 2298/97, the following fact emerges and I hold accordingly: (a) An institute (Dental College in the present case), established prior to 1.6.1992 is not guided by the "Dentist (Amendment) Act, 1993", nor by new regulation, namely, "Establishment of New Regular Dental College Regulation, 1993". (b) Even with respect to an Institute (like Dental College in question) established prior to 1.6.1992, recognition of Dental Council of India in terms of Dentist Act, 1948 is mandatory before running such institution. In such a case, the Dental Council of India and Union of India cannot ask for prior permission of the State and affiliation by an University as laid down under Amending Act, 1993. (c) To enable the students of such institute (Dental College) to obtain recognised (by Dental Council) degrees, it must affiliate itself with an University. The University under the Bihar State Universities Act, 1976 is to grant affiliation only if recognition is granted by Dental Council of India. (d) For grant of affiliation by an University under Sub-section (2) of Section 21 of Bihar State Universities Act. 1976, the University, nor the Institute (Dental College) is required to obtain any prior permission of the State of Bihar. The University is independent to grant such affiliation, in accordance with law. In fact, the University is only required to find out whether Dental Council of India has granted recognition to the institute and whether the subject/degree of which the institute will impart teaching, such degree has been recognised by a Dental Council in respect to the University concerned or not. If an institute fulfils the aforesaid criteria, an University under the Bihar State Universities Act, 1976 cannot refuse to affiliate such college on any ground, including the standard and management of such college, that is the subject already verified by the Dental Council before grant of recognition. (e) The role of State Government only comes after the affiliation granted by an University under the Bihar State Universities Act, 1976, in terms with first proviso to Sub-section (2) (d) of Section 21 of Universities Act, 1976 for approval of such affiliation, only to give effect to the same. (e) The role of State Government only comes after the affiliation granted by an University under the Bihar State Universities Act, 1976, in terms with first proviso to Sub-section (2) (d) of Section 21 of Universities Act, 1976 for approval of such affiliation, only to give effect to the same. For such approval by the State; it can only look into the fact whether before grant of such affiliation, the university has taken into consideration the facts whether the Dental Council of India has recognised the institute or not and whether such degree of the University is recognised by the Dental Council of India or not. If both the aforesaid criteria are being fulfilled by an institute and the University, the State Government cannot refuse approval on anyone or other ground, including the standard of institute which stands already decided by the Dental Council nor the viability of establishment of such institute, such requirement being laid down by Amending Act, 1993 which is not applicable in the present case. The aforesaid finding is applicable with respect to an institute (like Dental College in question), established prior to 1.6.1992. The other institutes established after 1.6.1992, they will be guided by Dentist (Amendment) Act, 1993 whereby certain more power has been vested with the State and the University. 11. In view of aforesaid position of law, I do not find any reason to review the judgment dated 26.2.98 passed in C.W.J.C. no. 2298/97. The observation made in the last portion of para-12 therein stands clarified/modified to the effect, as held above and therein grant of permission by the State Government should be read as approval of the State Government, on affiliation by the University. 12. The review application is disposed of, with the aforementioned observations.