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2001 DIGILAW 325 (JK)

Abida Naseem v. State Of J. &K.

2001-12-10

MUZAFFAR JAN

body2001
1. This writ petition has been filed challenging order No. DRT (S) 61-65 dated: 14-07-2000 whereby the registration of the petitioner as Dental Medical Specialist has been cancelled by Registrar, Dentists Registration Tribunal on the ground of his not possessing the recognised dental qualification. 2. The petitioner submits that she completed her B.D.S. course from Sri Sidhartha Dental College, Tumkur, Karnataka, India. The said College, according to the submission of the petitioner, is affiliated with the Banglore University and duly approved by the Dental Council of India. The Bangalore University in turn is recognised as a statutory body competent to award Degree Certificates. Sri Sidharaths Dental College (hereinafter referred to as the College) does not award Bachelors Degree in Dental Surgery, but only imparts Education and Training in Dentistry. After completing the B.D.S. course, it is submitted that, the petitioner was awarded Degree Certificate by Bangalore University. The petitioner on the basis of a valid Degree Certificate of Bangalore University applied for registration to practice as a Dental Medical Practitioner, which was permitted by respondents vide annexure C to the petition. Respondent No. 3 subsequently without any justification, legally or otherwise, has cancelled the registration certificate of the petitioner in terms of the impugned order. The petitioner submits that the cancellation of the certificate has violated her fundamental rights to earn her livelihood as a Dental Medical Practitioner and as such the same requires to be quashed. 3. The stand taken by the respondents is that the petitioner does not hold a recognised qualification for registration under the Dentist Act because the Sri Sidharatha Dental College, Tumkur, Karnataka, where the petitioner studied and passed her B.D.S. Examination, is not a recognised College by the Medical Council of Dentistry and as provided under Section 35 of the Act of 1948 read with Part 1 of the Schedule of the Dentists Act. The fact that the petitioner has been given a certificate by Bangalore University, which is a recognised University, will not validate the disqualification of the petitioner having studied in an unrecognised College. On these grounds it is submitted that the writ petition deserves to be dismissed as none of the rights of the petitioner have been violated. 4. Heard learned counsel for the parties at length, perused the entire record and considered the rival submissions of learned counsel for the parties. 5. On these grounds it is submitted that the writ petition deserves to be dismissed as none of the rights of the petitioner have been violated. 4. Heard learned counsel for the parties at length, perused the entire record and considered the rival submissions of learned counsel for the parties. 5. The facts which are not denied, but are admitted, are that the petitioner undertook the Dental Medical course in Sri Sidharatha Dental College, Tumkur, Karnataka which College is not a recognised College by the Dental Council of India. It is also admitted that on completion of the course a Degree Certificate was awarded in her favour by Bangalore University. On these admitted facts, the submission of learned counsel for the petitioner is that although the College was not recognised by the Dental Council of India, yet the petitioner is entitled to practice as a Dental Medical Practioner because her Degree has been awarded by Banglore University which is duly recognised and a statutory body. The argument though appears to be attractive, has to be rejected for multiple reasons. 6. It appears that the petitioner on presentation of the BDS certificate issued by Banglore University was registered as a Dental Medical Practioner vide annexure C, but on realising that the College from which the petitioner had received the Dental Medical Education was not a recognised College, the respondents cancelled the registration of the petitioner vide the impugned order. On perusal of the relevant provisions of the Dentists Act, 1948, it is manifestly clear that in order to succeed, petitioner must establish firstly that, if the Dental College was established before 1992 the College was duly approved by the Dental Council of India and secondly that, if the College has been established after 1992 then the College has to be recognised as well as approved by the Dental Council of India and also by the Government of India. Nothing has been submitted to suggest and show that the College has been established before 1992. In this view of the matter, the College falls under the second condition which requires, that the College has to be approved and recognised by the Dental Council of India and the Govt. of India. Nothing has been submitted to suggest and show that the College has been established before 1992. In this view of the matter, the College falls under the second condition which requires, that the College has to be approved and recognised by the Dental Council of India and the Govt. of India. The respondents have submitted that the College is neither notified by the Government of India, nor included in Part-1 of the Schedule of the Act of 1948 and as such the College is not recognised and does not come within the eligibility criteria for registration under the Act of 1948. The petitioner was given opportunity of hearing in compliance with the principles of natural justice and the cancellation of the registration certificate was affected after complying with the established principles of natural justice. 7. Reliance has also been placed on a judgment of a co-ordinate bench of this Court in which a similar matter regarding the same College seems to have been under consideration and the view taken by brother Justice G.D. Sharma-J (as he then was) was that since the College is not recognised, the petitioner has no right to enforce the claim for undergoing training for house-job in Medical College, Srinagar. Again in SWP No. 745/2000 "Khanzad Ishfar vs. State of J&K" the view expressed by brother Goel-J in the aforesaid case squarely covers the present writ petition. In that case also the petitioner had done her B.D.S. from an unrecognised Dental College. In the aforesaid judgment it was held: No direction can be issued by the court to do something which is either not warranted by law and/or is contrary to law. Similarly concept of equity under Article 14 of the Constitution of India is a positive concept, therefore, wrong orders in favour of some respondents as claimed by the petitioners, will not confer any right in them...... What emerges from the aforesaid discussion is that before a student claims a right to undergo internship, the College wherefrom has to be-recognised as well as approved by the Dental Council of India as also by Government of India as the case may be. Therefore, he has to obtain qualification from an authority or institution in India as contained in Schedule Part-1 of the said Act. In case there is any deficiency in afore said, no relief can be claimed by the petitioners. Therefore, he has to obtain qualification from an authority or institution in India as contained in Schedule Part-1 of the said Act. In case there is any deficiency in afore said, no relief can be claimed by the petitioners. I am of the view that no court for that purpose can issue a direction, final or interim, so as to permit a student who is otherwise ineligible to do Intership despite his having not studied in a College duly approved by the Dental Council of India and wherever necessary duly recognised by the Government of India. I have further no hesitation to observe that respondent No. 2 is expected to be in possession of the list of Colleges issued by the Dental Council of India which have been duly approved to impart education as per provisions of Dentists Act, 1948 at the same time of the Colleges which need recognition as well as approved by the Government of India with him. He will be well with in his rights under law to admit such students who fulfill the requisite qualification to undergo the Internship. And in cases where students like the petitioners approach the court to immediately bring to the notice of the court that he is being asked to do something which has to no legal sanction or is contrary to law so that after examination of the whole matter, the court deals with it in accordance with law. This direction is general in nature and would cover cases which come forth before him. For the view that has been taken in this case on the basis of the provisions of law governing it, there is no merit in this writ petition which is, accordingly, dismissed.� The learned counsel for the petitioner has submitted that an equitable view may be taken on the grounds that it is ultimately the petitioner who has to suffer for none of her faults on account of a technical disability and the impugned order may be quashed. The request was considered with open and sympathetic approach, but in view of the law laid down by the Apex Court, the same cannot be permitted. The request was considered with open and sympathetic approach, but in view of the law laid down by the Apex Court, the same cannot be permitted. It is an established position of law that while taking recourse to equity, orders may not be passed to revive an order which would not only amount to granting a relief subversive of law but, in the process would violate equity and natural justice. Reference may be made to 2001 AIR SCW 4577 wherein their lordships have observed that, "if justice became the by product of an erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law. 8. Further, no direction can be given which is against the provisions of substantive law. For the aforesaid reasons, this writ petition is dismissed in limine along with the connected CMPs.