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2001 DIGILAW 1427 (PNJ)

Bunny v. Union Of India

2001-12-21

JAWAHAR LAL GUPTA, MEHTAB S.GILL

body2001
Judgment JAWAHARLAL GUPTA, J. 1. The petitioners in these three cases have passed the B.D.S. examination from the Punjabi University, Patiala. They claim to have completed the internship. They pray that a writ of Mandamus be issued directing the Punjab Dental Council to include their names in Part-A of the register maintained in terms of Sec. 31 of the Dentists Act, 1948 . 2. The respondents contest the petitioners claim on the ground that they have not studied in an institution which may have been opened "with the previous permission of the Central Government" as contemplated under Sec. 10-A. Thus, the degree awarded to the petitioners is not a recognised dental qualification. Consequently, the petitioners are not entitled to the inclusion of their names in the register maintained under Sec. 31. 3. The short question that arises for consideration is - Do the petitioners possess a recognised dental qualification so as to be eligible for the inclusion of their names in Part-A of the register as contemplated under Sec. 31 of the 1948 Act? 4. Learned Counsel for the parties have referred to the facts in C.W.P. No. 16365 of 2001. These may be briefly noticed. The petitioner had applied for admission to the course leading to the degree of Bachelor of Dental Surgery in August, 1995. She had appeared in the examinations conducted by the Punjabi University, Patiala. She had passed the final professional examination held in the year 1999. Thereafter, she had completed the internship at the Christian Dental College, Ludhiana and the Government Dental College, Patiala. As an intern she was registered with the Punjab Dental Council vide registration No. PROV. 935/95. On 7/12/2000 the petitioner was awarded the degree of Bachelor of Dental Surgery by the Punjabi University, Patiala. 5. The petitioner had studied at the Khalsa Dental College and Hospital, Nangal Kalan, District Mansa. The College had applied for requisite permission in the year 1994. Vide letter dated 18/04/1994 the Government of Punjab had issued a No Objection Certificate in favour of the College. A copy of this Certificate has been prouduced as Annexure P-2 with the writ petition. The College was, however, directed to ensure provision of all the facilities and fulfilment of the prescribed norms. Thereafter, in December, 1994 a team of experts deputed by the Punjabi University, Patiala, had inspected the College. A copy of this Certificate has been prouduced as Annexure P-2 with the writ petition. The College was, however, directed to ensure provision of all the facilities and fulfilment of the prescribed norms. Thereafter, in December, 1994 a team of experts deputed by the Punjabi University, Patiala, had inspected the College. It had submitted a report on 9/12/1994 recommending that the affiliation be granted. On 25/07/1995 the University had informed the Director of the College that the Vice-Chancellor had "granted temporary affiliation ...... for one year to admit 60 students to the B.D.S. Part-I from the year 1995-96 in view of the report of the Inspection Comittee (dated 9-12-1994) and in anticipation of the approval of the Academic Council and ...... of the fulfilment of report submitted by the Inspection Committee". 6. The provisional affiliation having been granted by the University, the College applied for permission to the Union of India for establishment of the Dental College from the Session 1995-96. On 26/09/1995 the Government of India forwarded the scheme of the College to the Dental Council of India for evaluation and recommendation. On October, 9/10, 1995 the visitor appointed by the Dental Council of India inspected the College and submitted the report. This report was considered by the Council. The Inspection Report was accepted. The case of the College was recommended to the Union of India for grant of permission. On 7/05/1996 the Central Government had issued a Letter of Intent to the Society for establishment of a new Dental College for the Academic Session 1995-96. A copy of this communication is on record as Annexure P-4. It was inter alia provided that two Readers shall be appointed; a time-bound programme to provide additional equipment and infrastructural facilities shall be ensured and that "the Performance Guarantee of Rs. 120 lacs in favour of Dental Council of India" shall be provided. In para 4 of this communication it was further provided that "formal permission will be granted after the above conditions are accepted" by the Society "and the Performance Bank Guarantee is received ......". 7. The petitioner alleges that the College fulfilled the prescribed conditions. On 4/08/1996 an Inspection Committee of the Punjabi University, Patiala, made a recommendation that the affiliation be extended for the year 1996-97. In November, 1996 the Government of Punjab recommended that the College be permitted to admit 100 students. 8. 7. The petitioner alleges that the College fulfilled the prescribed conditions. On 4/08/1996 an Inspection Committee of the Punjabi University, Patiala, made a recommendation that the affiliation be extended for the year 1996-97. In November, 1996 the Government of Punjab recommended that the College be permitted to admit 100 students. 8. In September, 1997 the Secretary, Dental Council of India, presided over the Prize Distribution Function of the College. On 3/11/1997 the University informed the College that in anticipation of the approval of the appropriate bodies the Vice-Chancellor had "extended provisional affiliation of the College to B.D.S. First Professional for 1996-97 and to B.D.S. 2nd Professional w.e.f. 1996-97 and B.D.S. IIIrd Professional w.e.f. 1997-98 Session". The College was warned that "the Inspection Committee shall visit the College" and that it "would abide by all the conditions imposed by the Inspection Committee in a time bound manner". A copy of this communication is at Annexure P-8 with the writ petition. 9. On 30/07/1998 the Principal Secretary, Department of Medical Education and Research, informed the College that the Government had no objection regarding admission of "girls only in B.D.S. during the Session 1998-99 ......". 10. After a lapse of three years the Government of India also chose to rise from its slumber. Vide letter dated 17/08/1998 it conveyed to the Director "the formal permission of the Central Government under Sec. 10-A(4) of the Dentists Act, 1948 to start a new Dental College in the name of Khalsa Dental College and Hospital at Nangal Kalan. Mansa (Punjab) with annual 60 (Sixty) admissions with prospective effect". It was further provided that the College shall be entitled to admit only one batch of students. The permission was subject to the condition that the Society would provide the necessary facilities. A copy of this letter is on record as Annexure P-10. 11. On 13/05/1999 the Punjabi University, Patiala, informed the College that the Academic Council had approved the increase of intake of students from 60 to 100. This was, however, subject to the conditions mentioned in the report submitted by the Inspection Committee. It was further stated that this increase had been allowed "on receipt of NOC (No Objection Certificate) issued by Punjab Government vide letter ....... dated 18-3-98". The University also informed the College that it had "further granted permission to B.D.S. Final Year 1998-99 Session". 12. It was further stated that this increase had been allowed "on receipt of NOC (No Objection Certificate) issued by Punjab Government vide letter ....... dated 18-3-98". The University also informed the College that it had "further granted permission to B.D.S. Final Year 1998-99 Session". 12. In view of the abovenoted sequence of events the petitioners maintain that they had studied in a College which had been duly established. They have appeared in the examination conducted by the Punjabi University, Patiala. They have also completed the internship etc. They were duly registered for the completion of internship by the Punjab Dental Council. They possess a qualification "included in Part-I of the Schedule" to the Dentists Act, 1948 . Thus, they are entitled to be registered with the Council as they are "persons possessing recognised dental qualifications". On these premises, the petitioners pray that the action of the respondent-authorities in refusing to register their names and in rejecting their applications to be set aside. 13. A written statement has been filed on behalf of respondents Nos. 2 and 3 viz. the Dental Council of India and the Punjab Dental Council by the Registrar, Punjab Dental Council. It has been inter alia averred that after the judgment of their Lordships of the Supreme Court in the case of Unnikrishnan an amendment was made in the Dentists Act, 1948 . Sections 10-A, 10-B and 10-C were incorporated. Under the said provisions "only those Colleges are permitted by the Dental Council who upon submission of the scheme would be entitled to establish a Dental College or increasing the intake capacity and any degree awarded by any such College established without such permission would not be a recognised degree for the purposes of the Act". Still further, Regulations were framed which provide for the submission of a scheme to the Council. In this scheme a complete project report indicating the "entire programme for achieving all the targets within the stipulated total period of 4 years" is to be furnished. On receipt of the scheme the Council evaluates and verifies the factual position by "conducting physical inspection". Thereafter, the Council makes a recommendation to the Central Government for grant of permission. After the permission has been granted the College is required" to obtain the final recognition under Sec. 10(2) of the Act". On receipt of the scheme the Council evaluates and verifies the factual position by "conducting physical inspection". Thereafter, the Council makes a recommendation to the Central Government for grant of permission. After the permission has been granted the College is required" to obtain the final recognition under Sec. 10(2) of the Act". It is only "after a College is granted final recognition by the Central Government by issuance of a statutory notification in the Official Gazette that the name of the College gets entered in the First Schedule to the Act which contains the list of the recognised Dental College/courses". The Council has to carry out the physical inspection every year "so as to verify that the applicant is fulfilling all the requirements and targets which it is required to meet every year towards the upgradation of the teaching hospital and providing complete infrastructure in the Dental College". In para 13, the categorical case pleaded by the respondents is that only a qualification from a recognised Dental College which is "included in Part-I of the Schedule to the Act, is ..... considered to be a recognised dental qualification and only those possessing such a recognised qualification are entitled to permanent registration on the State Register". 14. On facts it has been averred that the question of granting recognition to the 4th respondent has been considered from time to time. The College does not fulfil the requirements "for being granted permission to admit students and the question of recognition of degrees of those who passed out from respondent No. 4-College will be decided after the decision for recognition is taken for the 1998-99 batch which passes out into 2002-2003. Since the respondent No. 4-College was granted only annual provisional permission on 19/08/1998 from prospective effect to admit 16 (should be 60) students, the question of admitting students by the College from 1995-96 did not arise .....". On these premises the respondents pray that the writ petition be dismissed. 15. It may be noticed that no written statement has been filed on behalf of the Union of India. It is only while we were in the process of dictating the order in open Court that a request was made for permission to place on record an explanation for the delay in deciding the application of the College for grant of permission. It is only while we were in the process of dictating the order in open Court that a request was made for permission to place on record an explanation for the delay in deciding the application of the College for grant of permission. The explanation, even if taken on record would not improve the matter on merits. It may have even delayed the decision. Thus, we have not taken it on record at this stage. The Govt. had failed to reply despite the fact that it had sufficient time. 16. Learned Counsel for the parties have been heard. Mr. S. S. Saron contended that the petitioners are duly qualified for registration. The action of the respondents in refusing to include their names in Part-A of the Register maintained under Sec. 31 is arbitrary, illegal, unjust and unfair. On the other hand, it was contended by the counsel for the respondents that the petitioners do not possess a recognised qualification. Thus, they are not entitled to the relief as prayed for by them. Both sides have referred to various decisions. 17. In view of the contentions raised by the counsel for the parties the short question that arises for consideration is - "Do the petitioners possess a recognised qualification so as to be entitled to claim registration in Part-A of the Register maintained under Sec. 31 by the State Council"? 18. The provision of the Dentists Act, 1948 governs the matter. Sec. 2 provides the definitions. Clause j defines a recognised dental qualification to mean "any of the qualifications included in the Schedule". Chapter-II deals with the constitution and composition of Council etc. Sec. 10 provides for the recognition of dental qualifications. Clause-1 is relevant. It reads as under :- "(1) The dental qualifications, granted by any authority or institution in India, which are included in Part-I of the Schedule shall be recognised dental qualifications for the purposes of this Act." 19. A perusal of the above provision shows that any qualification which is included in Part-I of the Schedule is a recognised qualification. So far as the institutions or authorities granting qualifications which are not included in Schedule-I are concerned, the provision for them is made in Clause 2. It has been provided that an application shall be submitted. A perusal of the above provision shows that any qualification which is included in Part-I of the Schedule is a recognised qualification. So far as the institutions or authorities granting qualifications which are not included in Schedule-I are concerned, the provision for them is made in Clause 2. It has been provided that an application shall be submitted. It shall be considered by the Central Government in consultation with the Council and after enquiry the qualification may be included in Part-I of the Schedule by proper amendment etc. 20. It is in the light of the aforesaid provision that the question as framed above has to be considered. 21. A reference to Part-I of the Act shows that the recognised dental qualifications have been enumerated. At Sr. No. 12 the following entry exists :- Recognised Dental Qualifications granted by the Authorities or Institutions in India Authority or Institution Recognised dental qualification Abbreviation for registration 1 2 3 12.Punjabi University Bachelor of Dental Surgery B.D.S. Punjabi @@@ 22 The above entry shows that the degree of Bachelor of Dental Surgery awarded by the Punjabi University is a recognised dental qualification under the Act. Thus, the claim of the petitioners that they are entitled to the inclusion of their names in Part-A of the Register appears to be well founded. 23. Mr. Malhotra, appearing for the respondents, has, however, contended that the petitioners in these cases are not entitled to the inclusion of their names as their qualifications do not conform to the requirements embodied in Sections 10-A, 10-B and 10-C of the Act. The counsel contends that a College can be started only with the permission of the Central Government. The students can be admitted only thereafter. It is after the grant of permission that the students are entitled to complete the course of study in the concerned institution. In the present case, the petitioners had joined the course prior to the year 1998. Thus, their admission was irregular. Their continuance in the College was illegal. The degree awarded to them is not a recognised qualification. 24. The contention is misconceived. A perusal of S. 10-A indicates that it is aimed at debarring a person from establishing an institution without the permission of the competent authority. Thus, their admission was irregular. Their continuance in the College was illegal. The degree awarded to them is not a recognised qualification. 24. The contention is misconceived. A perusal of S. 10-A indicates that it is aimed at debarring a person from establishing an institution without the permission of the competent authority. A mechanism has been provided by which the Council and the Central Government have been empowered to ensure that the non-Governmental Colleges provide adequate facilities and that they admit students only when they have the requisite infrastructure. Sec. 10-A clearly postulates that notwithstanding any thing contained in the Act "no person shall establish an authority or institution for a course of study or training .........which would enable a student of such course or taining to qualify himself for the grant of recognised dental qualification" and that "no authority or institution conducting a course of study ..... shall open a new or higher course of study or training ... or increase its admission capacity ..... except with the previous permission of the Central Government obtained in accordance with the provisions of the Section". On a perusal of Clause-1 of S. 10-A it is clear that the embargo is on the person or authority establishing an institution. The provision is not addressed to the student. 25. Mr. Malhotra contends that the College was granted permission by the Central Government in August 1998. It had, however, admitted students from the year 1995 onwards. The admissions were irregular. The attendance of classes by the students was illegal. Thus, the degree obtained by them cannot be valid. 26. The contention cannot be accepted. It is the admitted position that the State Government had granted a No Objection Certificate to the establishment of the institution in the year 1994. The Committee of experts appointed by the Punjabi University had recommended the grant of affiliation on 9/12/1994. Factually, the affiliation had been granted by the Punjabi University in July, 1995. The College had applied for permission to the Union of India in August, 1995. the Dental Council had got the College inspected in October, 1995. It had recommended the case of the College for grant of permission to the Central Government in November, 1995. Can we still say that the College had no facilities so as to be entitled to make admissions? the Dental Council had got the College inspected in October, 1995. It had recommended the case of the College for grant of permission to the Central Government in November, 1995. Can we still say that the College had no facilities so as to be entitled to make admissions? The respondents have placed no material on record which may even remotely suggest that any facility was lacking. They have merely referred to the provisions without providing any data which may indicate the absence of the infrastructure or any other facility contemplated under the Scheme or the Regulations. In fact, it is the admitted position that the College was repeatedly inspected by the Inspection Committee of the University. Yearly extensions of affiliation and permission for admission were granted. Still further, the Secretary of the Dental Council of India had himself visited the College in September, 1997. He had even awarded prizes to the students who were studying there. Photographs indicating the distribution of prizes have been produced on record. A perusal of these photographs indicates that the students had done well in the examination conducted by the University. One of them had stood first in the First professional examination held in September, 1997. Others had also secured distinctions. Despite being asked learned counsel for the respondents have not been able to refer to an iota of evidence to show that the infrastructure or facilities were lacking. In any event, even a communication was never sent to the College informing it that it lacked in essential facilities or that it had failed to comply with the presecribed norms. It is in the background of the factual position that the contention as raised on behalf of the respondents has to be considered. What emerges is that even though the Dental Council of India had recommended the case of the College in the year 1995 to the Central Government for grant of permission, the Union of India had chosen to keep the matter pending till August, 1998. For almost three years there was not a whisper or a communication. Why? There is no explanation. 27. Mr. Saron, learned counsel for the petitioner, contends that even under the provisions of S. 10-A(5) the permission shall be deemed to have been granted at the end of one year. 28. The counsel appears to be right. For almost three years there was not a whisper or a communication. Why? There is no explanation. 27. Mr. Saron, learned counsel for the petitioner, contends that even under the provisions of S. 10-A(5) the permission shall be deemed to have been granted at the end of one year. 28. The counsel appears to be right. However, in the circumstances of these cases it seems absolutely reasonable to infer that the college had all the facilities. The Officers of the Council and the University had visited the College. They had found no discrepancy. In such a situation, it cannot be said that the petitioners had studied in a College which was lacking in facilities or that their attendance was irregular and that the Degree awarded by the University cannot be treated as legal. In fact, it appears that the delay caused by the respondents in initially according permission and thereafter in registering the petitioners was wholly arbitrary. 29. It is not disputed that the petitioners had attended the requisite percentage of lectures. They had appeared in the periodical examinations conducted by the University. At the end of four years, they had appeared in the final examination conducted by the Punjabi University, Patiala. They had completed the internship etc. The petitioner in C.W.P. No. 16365 of 2001 was awarded the degree of B.D.S. In case of others, it was withheld only on account of the issue of a certificate by the Principal. In this situation, it cannot be said that they do not possess a qualification as duly mentioned in Part-I of the Schedule or that the said Degree is not a recognised qualification. 30. Mr. Malhotra submits that the students cannot be admitted to an institute till the permission of the Central Government has been obtained. In this context it deserves mention that S. 10-A(5) categorically postulates that where the order passed by the Central Government is not "communicated to the person, authority or institution" within "a period of one year from the date of submission of the scheme....." it shall be "deemed to have been approved by the Central Government in the form in which it had been submitted, and, accordingly, the permission of the Central government required under sub-sec. (1) shall also be deemed to have been granted." It is, thus, clear that one year is the outside limit within which the Central Government is bound to decide the matter. Otherwise, the fiction follows. 31. In the present case, the scheme had been submitted by the college in the year 1995. It had been forwarded by the Central Government to the Dental Council on 26/09/1995. Till September, 1996 no decision had been communicated to the concerned institute. Thus, the permission as contemplated under S. 10-A(1) shall be deemed to have been granted. 32. In C.W.P. Nos. 10613 and 11866 of 2001 the petitioners have made an additional grievance. It has been alleged that the University has not granted the degree as the Certificate regarding completion of internship has been issued by the Managing Director and not by the Principal. The University appears to have taken a hyper-technical view. However, it appears to be appropriate to direct that in case the petitioners have completed the internship the requisite Certificates shall be issued by the Principal of the College. The needful shall be done within one week from the date of receipt of a certified copy of the order. Thereafter, the University shall award the degree and the Dental Council shall consider the cases of the petitioners for the inclusion of their names in Part-A of the Register maintained under S. 31. 33. . Mr. Malhotra submits that the petitioners haverelied upon the decision of this Court in Aarti Aneja V/s. State of Punjab(2001 (2) Serv. LR 785) (C. W. P. No. 2486) of 2000). Actually a S. L.P. is pending against it. It may be so. we have not even referred to the decision while deciding the matter. The contention raised by the counsel is wholly irrelevant. 34. No other point has been raised. In view of the above, the writ petitions are allowed. The respondents are directed to do the needful immediately after the receipt of a certified copy of this order. The pertioners shall also be entitled to their costs. Petition allowed.