Governing Body Of Budha Institute Of Dental Sciences And Hospital v. Union Of India
2000-04-26
SHIVA KIRTI SINGH
body2000
DigiLaw.ai
Judgment Shiva Kirti Singh, J. 1. The Governing Body of Budha Institute of Dental Sciences and Hospitals has filed this writ application raising two fold grievances. The first and foremost grievance of the petitioner is against alleged wrong publication of its admission intake capacity through a notice circulated by the Secretary of the Dental Council of India (hereinafter referred to as the Council) dated 9.4.1994 as contained in Annexure-2 which in turn has led to a letter dated 1.2.1997 (Annexure-9) issued from the office of Governor, Bihar to the Vice Chancellor, Magadh University (hereinafter referred to as the University) containing a direction for appropriate action in the matter of admission/examination at Budha Institute of Dental Sciences and the ultimate action by the University through letter dated 3.7.1997 (Annexure-10) by which the Director of the petitioner-Institute was informed regarding Annexure-9 and was directed to admit only 40 students in the Institute per year. The other grievance of the petitioner, according to the original writ petition, was against inaction of the Council over petitioners application for grant of recognition for Post Graduate course i.e. MDS in certain subjects for which inspection and recommendation by an expert team had already been made. However, from subsequent pleadings, it is now clear that the second grievance of the petitioner stands redressed as the Council has already communicated a favourable decision in the matter to the Director of the Institute through a letter dated 25.1:2000 (Annexure-15). 2. Most of the relevant facts in this case are admitted. The Petitioner-Institute is the only recognised Institute affiliated to Magadh University imparting education in Bachelor of Dental Surgery (BDS) course and Master in Dental Surgery (MDS) course. It was established with due permission of the Council as per provisions of the Dentists Act, 1948 . The provisional permission granted in June 1985 mentioned the facts that the Institute was to be affiliated to Magadh University and the permission was for BDS course with minimum admission and it may be reinspected after a reasonable period by the Councils Inspectors. Subsequently, the Council regularised the said permission on permanent footing vide its general body resolution dated 26/27th.11.1985.
The provisional permission granted in June 1985 mentioned the facts that the Institute was to be affiliated to Magadh University and the permission was for BDS course with minimum admission and it may be reinspected after a reasonable period by the Councils Inspectors. Subsequently, the Council regularised the said permission on permanent footing vide its general body resolution dated 26/27th.11.1985. The subsequent details as to how and when the petitioner was granted affiliation by the University have not been given in this writ petition because it is admitted that the University granted provisional affiliation which was later made permanent after due enquiry and inspection at the level of the Council as well as the University level. 3. The affiliation granted to the Institute by the Magadh University was sought to be cancelled and was actually cancelled in the year 1991 which led to filing of a writ petition bearing CWJC No. 3582 of 1991 before this Court by the petitioner. This Court quashed the order withdrawing affiliation and the writ petition was finally allowed by a Division Bench of this Court on 10.11.1994 and the said judgment is reported in AIR 1995 Patna 35 : 1995 (1) PLJR 623. By the said judgment this Court held that the State government had no power or role in the matter. In that case on behalf of the State Government a reliance was placed upon sections 10(A) to 10(C) which were brought on the statute book as a result of amendment of the Dentists Act, 1948 by the Dentists (Amendment) Ordinance 1992. The Division Bench of this Court repelled the contention in paragraph 14 of the judgment by holding as under : "From a perusal of the provisions of the amended sections of the said Act, it appears that the same had no application to the facts of the present case, in as much as, Section 10 (C) will apply only to an institute established between 1.6.1992 and before commencement of the Ordinance which is 27th August, 1992.
Apart from that the authority under the said Ordinance is the Central Government and not the State Government." After setting aside the show cause notices challenged in that case, the Division Bench of the Court in paragraph 33 of the judgment granted a further declaration in the following terms : "It is further declared that the said Institute will continue as an Institute of Dental Science and can hold examination in respect to BDS course as long as it is recognised by the Dental Council of India." 4. So far as the present case is concerned, the only controversy relates to the admission capacity of the Institute and on this aspect of the matter, the petitioners case is that there was no statutory provision for fixing the admission capacity of a permitted or recognised institution under the provisions of amended Dentists Act, 1948. The Council was aware of such legal position and, therefore, provisional permissions with conditions were changed into permanent permission in November 1985. At around the same time, in response to a query by the University, the President of the Council vide letter dated 3.12.1985 as contained in Annexure-1 informed the Registrar of the University not only about the regularisation of permission or recognition on permanent basis but regarding admission capacity also clearly mentioning the following : "As regards admission any Dental Institute can admit upto 100 students depending upon space, equipment and other facilities as per Dental Council of India regulation." 5. Petitioners case is that since it has/had the necessary infrastructure hence since 1985 itself admission capacity has been 100 students per year to the knowledge of the Council and the University. According to the petitioner, the Council has information of this fact through results, registration and inspection reports available to it from time to time and the Council has never objected to such admission capacity of the petitioner on any ground much less on the ground of lack of infrastructure.
According to the petitioner, the Council has information of this fact through results, registration and inspection reports available to it from time to time and the Council has never objected to such admission capacity of the petitioner on any ground much less on the ground of lack of infrastructure. According to petitioner, the University which was holding examinations for the students of the petitioner-Institute always accepted its admission capacity as 100 per year and till the impugned order contained in Annexure 9 and 10 it always gave out petitioners admission capacity as 100 which would be evident from a letter of the Registrar of the University dated 4.4.1996 (Annexure-H at page 151 of the paper book) addressed to the Educational Advisor to Governor, Raj Bhavan, Patna. 6. For the purpose of showing that the petitioner-Institute has necessary infrastructure for admission capacity of 100, reiiance was placed by learned counsel for the petitioner upon an inspection report by Inspectors of the Council dated 4.10.1996 (Anneuxre-5) which mentions that in the college section of the petitioner-Institute, various departments are there to teach the basic sciences with facilities for training of 100 BDS students as recommended by the Dental Council of India. Thereafter, it is mentioned that the Institute is located in the centre of the town at Gandhi Nagar, Kankarbagh and having its own four storied building with approx. constructed area of 1,44,000 sq. ft. costing approx. 5.6 cores. Four storied building has been completed and furnished with administrative rooms, class rooms etc. On the basis of report contained in Annexure-5, the Secretary of the Council by a letter dated 19.4.1997 (Annexure- 14) informed the Principal of the Institute to furnish proof of qualification and teaching experience of the teaching staff of a department in which Post Graduate course was proposed to be started and further the college authorities were asked to furnish a clarification with regard to admission capacity of 100 BDS students as per report of the Councils Inspectors. By another letter dated 25.1.2000 (Annexure-15) the Secretary of the Council informed the Director of the petitioner- Institute that the compliance report furnished by the Institute with regard to inspection report of Councils Inspectors had been accepted by the general body of the Council which had also recommended for grant of permission to start a Post Graduate course in the Institute.
Learned counsel for the petitioner referred to the pleadings of the parties to show that the respondents have not denied the fact that petitioner-Institute had been enjoying admission capacity of 100 students per year for the BDS course since the very inception of the college/Institute. The result of all the students was also sent to the Council time to time. 7. On the other hand, learned counsel for the Council submitted on the basis of pleadings that the petitioner had not given details as to when and how the results of all the students were communicated to the Council and it has not shown in the writ application that it had ever sought prior permission of the Council for increasing its admission capacity from minimum capacity (which is said to be equivalent to 40 students per year) to 100 students per year when as per Annexure-R/1, BDS course regulations, the prior permission of the Dental Council of India should invariably be obtained by concerned Dental institution for increasing number of admission. 8. On behalf of the Council, there is no denial to the claim of the petitioner regarding existence of adequate infrastructure but a comment was made that the inspection report relied upon by the petitioner and as contained in An-nexure-5 is of the year 1996. It is further stand of the Council that the Council on the request of the petitioner, considered the present controversy relating to its admission capacity, on 26/77.12.1995 and accepted the recommendation of the Executive Committee to satisfy itself through inspection or otherwise that the minimum requirement in respect of teaching staff, equipment etc. have been fully provided for such BDS admission capacity. The Council, however, took a further view that the college authorities are required to apply to the Central Government under the provisions of the Dentists (amendment) Act 1993. However, the Council did not take any final decision in the matter on the ground that the dispute was sub-judice before this Court.
have been fully provided for such BDS admission capacity. The Council, however, took a further view that the college authorities are required to apply to the Central Government under the provisions of the Dentists (amendment) Act 1993. However, the Council did not take any final decision in the matter on the ground that the dispute was sub-judice before this Court. In fact in paragraph 15 of their counter affidavit, the Council appears to be awaiting for final direction of this Court mainly on the question as to whether, in the facts of the case, the increased admission capacity of the petitioner is to be approved or ratified by Council or an application is required to be made to the Central Government under the Dentists (amendment) Act, 1993 or whether this Court would approve/ratify the increased admission capacity. 9. Learned counsel for the Magadh University submitted on the basis of pleadings of the University that the action of the Chancellor in the form of letter contained in Annexure-9 was based upon a letter by the Secretary of the Council dated 5.3.1997 (at page 158 of the paper book) and the correct date of Annexure-9 should be 1.7.1997 and not 11.1.1997. Learned counsel for the University referred to sections 9 and 10 of the Inter Universities Act to submit that the Chancellor and the Vice Chancellor have necessary power to issue direction and take action in the present matter in order to secure compliance with the approved admission capacity as fixed by the Council for the petitioner-Institute. On facts, their stand was similar to that of the Council in highlighting that the petitioner-Institute had never obtained prior approval for increasing its admission capacity. 10. On behalf of the petitioner it was first contended that prior to Dentists Ordinance 1992 which was later replaced by Dentists (amendment) Act 1993 there was no law regulating the admission capacity of a Dental college/ institution recognised by the Council. This legal position, according to learned counsel for the petitioner, is supported by a clear statement to this effect contained in statements of objects and reasons for the Amendment Act 1993.
This legal position, according to learned counsel for the petitioner, is supported by a clear statement to this effect contained in statements of objects and reasons for the Amendment Act 1993. With regard to regulation annexed as Annexure-R/1 with the counter affidavit on behalf of the Council, it was submitted that the preface does not mention that these regulations have been framed in exercise of statutory power under section 20 of the Dentists Act 1948 which requires such statutory regulation to be notified in the official gazette. It was next contended that even if the regulation be accepted as valid and statutory, the relevant clause which mentions that prior permission of the Council should be obtained by the concerned Dental institution for increasing the number of admission should not be accepted as mandatory because the wordings used are not injunctive but merely suggestive and no consequence of any infraction of such provision is provided either in the Act or in the so called regulation. Hence, according to the learned counsel for the petitioner, a substantial compliance with the aforesaid provision in so called regulation should be accepted as sufficient and the implied permission of the Council should be inferred from the fact that the Council has so far never objected to the admission capacity of the petitioner which has been at 100 per year since more than 10 years. According to petitioner, the Council and other respondents are now estopped from denying the admission capacity of the petitioner as 100 because of their conduct and because the same was never in violation of any law as it stood prior to amendment of the Act in 1992. It was next contended in the alternative to the aforesaid contentions that the Council has already formulated a policy through its resolution dated 26/27.12.1995 that the case of any increased admission capacity in BDS course in any Dental college made prior to Dentists (Amendment) Ordinance 1992 may be regularised/ ratified by the Council after satisfying itself through inspection or otherwise that the minimum requirements in respect of teaching staff, equipment etc. have been fully provided for such BDS admission capacity. According to petitioner, its case is, in any view of the matter, covered by the aforesaid policy decision and hence, a direction be issued to the Council to act in accordance with the said policy decision and ratify/regularise the admission capacity of the petitioner-Institute.
have been fully provided for such BDS admission capacity. According to petitioner, its case is, in any view of the matter, covered by the aforesaid policy decision and hence, a direction be issued to the Council to act in accordance with the said policy decision and ratify/regularise the admission capacity of the petitioner-Institute. On behalf of the petitioner, the public notice contained in Annexure-2 was challeged on the grounds that the Secretary of the Council who had issued the said notice had no jurisdiction to decide the admision capacity of any college and further in the case of the petitioner-Institute the same had been shown without any relevant material or basis and, therefore, it was non est in the eyes of law. The impugned decisions contained in Annexures 9 and 10 being consequential in nature were also challenged on the same grounds and lastly, it was contended that even if Annexure-2 is presumed to be correct, the authorities of the University had no authority of law to issue the directions contained in Annexure-9 and 10 with regard to a Dental College/institute which is governed by a special Act in such matters and for whom the lawful and final authority according to the Act is the Council and not the State Government or the University. 11. Before considering the merits of rival contentions, it is pertinent to take note of the relevant law with regard to matter in controvery. The Dentists Act, 1948 was enacted to constitute an Indian Dental Council empowered to lay down minimum standards of training in dentistry and to make provisions for maintaining registers of persons entitled to practice dentistry. Chapter I of the Act mainly contains the definition clauses which interaiia define Recognised Dental Qualification to mean any of the qualifications included in the schedule of the Act. Chapter II, earlier to introduction of sections 10A to 10C vide Dentists (Amendment) Act, 1993, provided for constitution and composition of Dental Council of India. In the same chapter, section 10 is for recognition of dental qualification.
Chapter II, earlier to introduction of sections 10A to 10C vide Dentists (Amendment) Act, 1993, provided for constitution and composition of Dental Council of India. In the same chapter, section 10 is for recognition of dental qualification. Section 14 creates an obligation upon every authority in a State which grants any recognised Dental qualification to furnish such information as the Council may from time to time require as to the courses of study and training and examinations to be undergone to obtain such qualification, as to the ages at which such courses of study and examinations are required to be undergone and generally as to the requisites for obtaining such qualification. Sections 15 and 15A provide for appointments of Inspectors and Visitors by the Council for the purposes of attending at any examinations which lead to grant of recognised dental qualifications or to inspect any institution recognised as a training institution and to submit their reports to the Council. Sections 16 and 16A contain provisions for withdrawal of recognition of any recognised Dental hygiene qualifications and of recognised dental qualification respectively. Section 20 vests the Council with power to make regulation with the approval of the Central Government and by notification in the official gazette to carry out the purposes of Chapter II in general and in particular the regulation may provide things and objects mentioned in sub-section(2)-of Section 20. Chapters III, IV and V deal with matters which are not relevant for the purpose of this case. 12. A perusal of the Act shows that prior to Dentists (Amendment) Act, 1993, there were no provisions in the Act to control establishment of a new Dental college or for adding a new courses of study or Post Graduate course or for increasing capacity of students in any existing colleges. It was to meet this inadequacy in the Act that sections 10A to 10C were inserted in the Act first by Dentists (Amendment) Ordinance, 1992 promulgated on the 27.8.1992 and later by Dentists (Amendment) Act, 1993. The aforesaid amendment Act 1993 also inserted clauses (fa) to (fc) in sections 20(2) of the Act for carrying out the purposes of section 10A to 10C.
The aforesaid amendment Act 1993 also inserted clauses (fa) to (fc) in sections 20(2) of the Act for carrying out the purposes of section 10A to 10C. As a result of insertion of Section 10A to 10C in the Act now it is essential for any person to take previous permission of the Central Government for establishemnt of new Dental college, new courses of study etc. and even an authority or institution which is already conducting a course of study or training for grant of recognised dental qualification, it is prohibited from opening a new or higher course of study including a Post Graduate course or from increasing its admission capacity in any course of study or training including a Post Graduate course. Explanation 2 to section 10A defines admission capacity to mean the maximum number of students that may be fixed by the Council for time to time for being admitted to a particular course or training. Section 10B is penal in nature and provides for consequences of non-recognition of dental qualifications in case covered by section 10A. Section 1OC provides the time for seeking permission from the Central Government for certain existing authority or institution established for grant of recognised dental qualification. It is useful to reproduce the provisions of Section 10C and the Section 20(1) of the Act which are as hereunder: "10C. Time for seeking permission for certain existing authorities. (1) If, after the 1st day of June, 1992 and on and before the commencement of the Dentists (Amendment) Act, 1993 any person has established an authority or institution granting recognised dental qualification has opened a new or higher course of study or training (including a post graduate course of study or training) or increased its admission capacity, such person, authority or institution, as the case may be, shall seek, within a period of one year from the commencement of the Dentists (Amendment) Act, 1993 the permission of the Central Government in accordance with the provisions of Section 10A. (2) If any person or, as the case may be, any authority or institution granting recognised dental qualification fails to seek the permission under subsection (1), the provisions of Section 10B shall apply, so far, as may be, as if permission of the Central Government under section 10A has been refused." "20. Power to make regulations.
(2) If any person or, as the case may be, any authority or institution granting recognised dental qualification fails to seek the permission under subsection (1), the provisions of Section 10B shall apply, so far, as may be, as if permission of the Central Government under section 10A has been refused." "20. Power to make regulations. (1) The Council may, with the approval of the Central Government, make regulations not inconsistent with the provisions of this Act to carry out the purposes of this Chapter. (2) In particular and without prejudice to the generality of the foregoing power such regulations may (a) provide for the management of the property of the Council; (b) prescribe the manner in which elections under this Chapter shall be conducted ; (c) provide for the summoning and holding of meetings of the Council and the Executive Committee, the times and places at which such meetings shall be held, the conduct of business thereat and the number of members necessary to constitute a quorum; (d) prescribe the functions of the Executive Committee; (e) prescribe the powers and duties of the President and Vice-President; (f) prescribe the tenure of office and the powers and duties of the Secretary [and other officers and servants of the Council, and Inspectors, and Visitors appointed by the Council]; (fa) prescribe the form of the scheme, the particulars to be given in such scheme, the manner in which the scheme is to be preferred and the fee payable with the scheme under clause (b) of sub-section (2) of Section 10A ; (fb) prescribe any other factors under clause (g) of sub-section (7) of section 10A ; (fc) prescribe the criteria for identifying a student who has been granted a dental qualification referred to in the Explanation to sub-section (3) of Section 10B; (g) prescribe the standard curricula for the training of dentists and dental hygientists, and the conditions for admission to courses of such training; (h) prescribe the standards of examiastions and other requirements to be satisfied to secure for qualifications recognition under this Act; (i) any other matter which is to be or may be prescribed under this Act : Provided that regulations under clauses (g) and (h) shall be made after consultation with [State] Governments. 13.
13. The relevant provision in the regulations annexed as Annexure R-1 at page 256 of the paper book is as follows : "Prior permission of the Dental Council of India for increase in number of admissions.The prior permission of the Dental Council of India should invaribaly be obtained by the concerned Dental institution for increasing the number of admissions." 14. While on relevant law, it is useful to refer to judgment of the Supreme Court in the case of Medical Council of India vs. State of Karnataka [ AIR 1998 SC 2423 : 1999(1) PLJR (SC)10] which has been relied upon and referred to on behalf of petitioner as well as the respondents. In that case section 19A of the Medical Council Act and regulations framed under section 33 of that Act were found to vest power in the Medical Council of India to fix the admission capacity of Medical colleges. Same power was claimed by the State of Karnataka as well as by the University on the basis of State Acts and by virtue of such claim the State of Karnataka and the University permitted the Medical colleges in the State of Karnataka to have admission capacity beyond what was permitted by the Medical Council of India, the Medical colleges concerned or the State Government and the University did not honour the admission capacity determined by the Medical Council. In such circumstances, the Apex Court held that it is the Medical Council which can prescribe the admission capacity for Medical colleges : notwithstanding general provisions in the State Acts, the special provisions in the Medical Council Act and regulations framed thereunder would apply and hence, the admission capacity fixed by the State Government or the University even earlier to the similar amendment by insertion of sections 10A to 10C amounted to an illegality which could not be allowed to be perpetuated and no Medical college could admit any student in excess of its admission capacity fixed by the Medical Council subject to any increase thereof as approved by the Central Government.
In paragraph 29 of the said judgment the Apex Court noticed the provisions in the regulations relating to requirement of adequate infrastructure and further noted that the respondents had not produced any document to show that increase in admission capacity had any relation to the existence of relevant infrastructure in their respective colleges such as increase in number of beds for students in the attached hospitals. The Court thereafter further observed that seats in Medical colleges cannot be increased indiscriminately without regard to proper infrastructure as per regulations of the Medical Council. 15. In one of the appeals decided by the aforesaid judgment there was a challenge by a Dental college to the authority of the Dental Council of India to fix the admission capacity of Dental colleges. Apparently, for the purpose of said controversy only the Supreme Court observed in paragraph 4 of the judgment that the provisions of the Dentists Act, 1948 are in pari materia to that of the Indian Medical Council Act. Thereafter, the judgment did not consider any of the provisions of the Dentists Act, 1948 or of any statutory regulation under that Act but in paragraph 32 of the judgment it is stated in no uncertain terms that the authority of the Medical Council under the Indian Medical Council Act would equally apply to the Dental Council under the Dentists Act. 16. A consideration of aforesaid legal provisions including the law laid down by the Apex Court leaves no doubt that the Dental Council of India has the necessary power by express provisions or by necessary implication flowing from its authority to prescribe the teaching standards and other infrastructure, to fix the admission capacity of a recognised Dental institution/college. The provisions in the regulations creating an obligation upon a Dental institution to seek prior permission, invaribly, for increasing the number of admission is meant to serve a public purpose by ensuring proper standards of teaching and infrastructure in the concerned institution and hence, such a provision, even in absence of any specific clause in the regulation laying down consequences of default, must be held to be mandatory in nature. In matters of such provisions relating to educational institutions imparting higher technical education which has a vital impact upon public health, it is deemed necessary to take a realistic approach than a pedantric one. 17.
In matters of such provisions relating to educational institutions imparting higher technical education which has a vital impact upon public health, it is deemed necessary to take a realistic approach than a pedantric one. 17. The necessary inferences and corollaries from the aforesaid discussion are (1) the Dental Council of India is the apex central authority under a central law in the matters relating to recognition of degrees and institutions in the field of Dental education; (2) the Dental Council of India has legal authority to determine admission capacity of a recognised Dental institution/college and (3) the acts of the State legislature vesting powers in the State Government or the Universities with regard to education in general or even with regard to Dental education must yield in favour of authority of the Dental Council of India in such matters flowing from a Central Act such as the Dentists Act, 1948 . 18. Coming,to the facts of the present case, it is found that the Council initially at the time of permission of establishment, granted a conditional permission to the institute for BOS course. According to the Council, the minimum admission as mentioned in Annexure-A dated 18.6.1985 would mean mimimum admission of 40 Students per year. It is not very clear from this document as to whether the clause minimum admission was a condition to denote the lowest permissible admission capacity or a firm admission capacity of 40 students per year. It is further found from the list of recognised Dental colleges/Institutions (Annexure-C dated 5.7.1997) that some of the recognised institutions have the sanctioned capacity of 20 also. With regard to initial provisional permission for the petitioner-Institute and the condition attached thereto, it appears from Annexure-1 dated 3.12.1985 that the President of the Council clarified the matter to the Magadh University that all provisional and conditional permission and recommendation earlier granted to any Dental institute were found by the Council to be against Dentist Act, 1948 and hence, the General Body of the Council in its meeting dated 26/27.11.1985, decided to regularise ail provisional permission and recommendation on permanent basis. The letter further clarified that as regards admission, a Dental institute can admit upto 100 students depending upon space, equipment and other facilities as per Dental Council of India regulation.
The letter further clarified that as regards admission, a Dental institute can admit upto 100 students depending upon space, equipment and other facilities as per Dental Council of India regulation. It is further found in this case that there is no specific and positive order/communication from the Council laying down the admission capacity of the petitioner Institute. Even when degree awarded to the students of the petitioner-Institute was formally recognised bv the Council through gazette notification in 1992, there is no material to indicate that the admission capacity of the petitioner-Institute was fixed at 40 students per year. It is further found that the concerned University which was to grant affiliation to the petitioner Institute as per letter of permission for establishment, accepted the admission capacity to be 100 per year and on that basis, the Institute has been functioning for the last 10 years or so and admittedly, from a time much prior to 1.6.1992, the date mentioned in section 10C of the Act as the cut-off date after which if any institution has increased its admission capacity then it must seek the permission of the Central Government within one year from the commencement of the Dentists (Amendment) Act, 1993 in accordance with provisions of Section 10A. 19. The aforesaid facts lead to a conclusion that although the Council had power to lay down the admission capacity of a Dental institution/college but at least in the case of the petitioner-Institute the said power was never utilised to issue any positive order/direction fixing the admission capacity of the petitioner-Institute. However, since the petitioner-Institute has functioned in all these years as a recognised institute, its admission capacity prior to 1.5.1992 has to be determined in order to set at rest the present controversy between the parties. The facts noted above coupled with the fact that subsequent inspection conducted by the Inspectors of the Council shows that the Institute has the necessary infrastructure for admission capacity of 100 and also the fact that upon necessary clarification with regard to its admission capacity, the Council has granted approval for Post Gradute studies in some subjects in the petitioner-Institute, do not leave much doubt in the matter and it has to be held that in case of the petitioner-Institute, the initial admission capacity itself was accepted by all concerned including the Council to be 100 per year.
In such circumstances, the provision in the regulations relating to taking for prior permission for increasing the admission capacity cannot have any application to the petitioner-Institute. For the same very reason, the provisions of section 10C of the Act will also have no application. 20. In view of the aforesaid findings it has to be held that the admission capacity of the petitioner-Institute as circulated by the Secretary of the Council through the impugned notice contained in Annexure-2 is erroneous in fact as well as in law. The figure of 40 has been mentioned without proper application of mind to all the relevant facts existing with regard to petitioner-Institute. Since the other impugned orders contained in An-nexure-9 and 10 are only as a consequence of the main communication of the Council relating to admission capacity of the petitioner hence, the impugned orders contained in Annexure 9 and 10 are also found to be arbitrary and illegal. The impunged orders are accordingly quashed. 21. Before parting with the judgment, this Court would like to express its concern and anxiety over certain features of this case. It is unfortunate that the Council though had the power, did not issue any clear and positive order fixing the admission capacity of the petitioner-Institute. Such a situation had prevailed for a decade and throughout this period, the students of this institute which has new been recognised for Post Graduate studies also, have taken the BDS examination and their result have been published on the basis of an admission capacity of 100 per year. Although in the facts of the case, this Court has been forced to decide the initial admission capacity of the petitioner-Institute on the basis of all the available materials on record, it is unfortunate that such a situation has arisen only due to lack of clear and proper decision by the Council at the relevant time. The Apex Court in the case of Medical Council of India vs. the State of Karnataka (supra) has clearly emphasised the relevance and significance of adequate infrastructure in the matter of admission capacity in Medical colleges/Dental colleges.
The Apex Court in the case of Medical Council of India vs. the State of Karnataka (supra) has clearly emphasised the relevance and significance of adequate infrastructure in the matter of admission capacity in Medical colleges/Dental colleges. Since in this case there is no positive and conscious decision of the Council relating to admission capacity of the petitioner-Institute on the basis of infrastructure available in the institute hence, even while allowing the writ application on the basis of findings recorded earlier, this Court deems it necessary in larger public interest, to direct the Council to examine the existing infrastructure in the petitioner Institute through inspection or otherwise and if should any shortcoming be found then the Council will have the power to fix a time table and direct the petitioner-Institute to fulfil whatever may be found lacking within the time fixed by the Council and in case of default by the petitioner-Institute, the Council will be at liberty to redetermine the admission capacity of the petitioner-Institute afresh on the basis of the statutory regulations and the existing infrastructure and other relevant materials. 22. it is admitted at the bar that during the pendency of this writ application, the University has published the schedule for taking various examinations for the BDS course. Because of the controversy involved in this case the University had decided to allow only 40 students of the petitioner-Institute to take the concerned examinations. The said examinations have not been held as yet although the last date for submission of fees and forms have expired on 18.4.2000. In such situation, in the interest of justice and in the interest of all concerned, the University is directed to grant minimum necessary extension of time so that the forms and fees of all the eligible students of the petitioner-Institute may be accepted in accordance with law and they may not lose valuable time in their career for no fault of theirs. 23. With the aforesaid observations and direction, this writ application is allowed to the extent indicated above. In the facts of the case, there shall be no order as to costs.