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2005 DIGILAW 726 (PAT)

Dental College And Hospital v. State Of Bihar

2005-08-16

NARAYAN ROY

body2005
Judgment Narayan Roy, J. 1. Heard Mr. Y. V. Giri, learned Counsel for the petitioner, Mr. S. N. Pathak, learned Counsel for the Union of India, JC to AAG II for the State and also Mr. H. P. Singh learned Counsel, for the University. 2. This writ application is directed against the communique dated 29-12-2000 as contained in Annexure-13 issued by the Ministry of Health & Family Welfare (Department of Health), Govt. of India. 3. It is submitted by Mr. Y. V. Giri, learned Counsel for the petitioner that the dental college in question was established at Rambagh in the district of Purnea after affiliation duly granted by B. N. Mandal University on 29-6-1992. The petitioner thereafter applied before the Central Government for necessary direction to the Dental Council of India to inspect and submit its report and thereafter grant recognition in terms of the provisions of the Dentists (Amendment) Act, 1993. The application filed by the petitioner, though was entertained but certain queries were made by the impugned communique by the Central Government stating therein that the dental college does not fulfil the conditions laid down for exemption of applicability of provision of sec. 10-A of the Dentists (Amendment) Act 1993 and on that ground its representation was rejected. However an option was given to the petitioner to apply afresh before the Central Government for its permission with requisite essentiality certificate and other related documents as per the Dental Council of India Regulation. Mr. Giri, learned Counsel further submitted that under the provisions of sec. 10-A of the Act there is no requirement of essentiality certificate to be obtained from the State Government to which the institute is situated and, therefore, the Central Government was duty-bound to direct the Dental Council of India to inspect the college in question and to grant recognition on the basis of the inspection report. It is also submitted by Mr. Girt that requirement of law as envisaged under the provisions of the Act has already been fulfilled to the extent that the college was already granted affiliation by the University in the year 1992 itself. 4. Mr. It is also submitted by Mr. Girt that requirement of law as envisaged under the provisions of the Act has already been fulfilled to the extent that the college was already granted affiliation by the University in the year 1992 itself. 4. Mr. S. N. Pathak, learned Counsel appearing on behalf of the Union Government on the contrary submitted that under the provisions of the amended Act 1993, the petitioner was required to produce the essentiality certificate granted by the State of Bihar and since the application of the petitioner was not followed by the essentiality certificate, its request has been turned down. Mr. Pathak further submitted that in view of the Regulation for the Establishment of New Dental College Act 1993, essentiality certificate is required in view of amendment of sec. 10-A read with sec. 20 of the Dentists Act, 1948 . 5. From Regulation 1993 it appears that the Dental Council of India in exercise of its power conferred by sec. 10-A read with sec. 20 of the Dentists Act 1948, with previous approval of the Central Government made certain Regulations governing the Dental Colleges. 6. Clause 1 of the Regulation 1993 states that these Regulations may be called the Establishment of New Dental Colleges Regulations, 1993 and they shall come into force on the date of their publication in the official Gazette. 7. Clause 3 of the Regulation 1993, contemplates "that permission/essentiality certificate regarding the desirability and feasibility of having the proposed Dental College at the proposed location has been obtained by the applicant from the respective State Government or the Union Territory Administration. 8. Clause 4 of the Regulations 1993 relates to grant of affiliation by the concerned University. 9. According to the pleadings of the parties, it appears that the college in question was established in 1992 and the concerned University granted affiliation the same year and thereafter the petitioner applies before the Central Government for its recognition etc. Prior to the Regulation 1993 there was no provision u/s. 10-A of the Dentists Act enabling the applicant to obtain essentiality certificate from the concerned State or the Union Territory and obviously, therefore, this Regulation was introduced by way of Regulation of 1993 with specific stipulation under Clauses 3 and 4. 10. Prior to the Regulation 1993 there was no provision u/s. 10-A of the Dentists Act enabling the applicant to obtain essentiality certificate from the concerned State or the Union Territory and obviously, therefore, this Regulation was introduced by way of Regulation of 1993 with specific stipulation under Clauses 3 and 4. 10. It is not in dispute that the college in question was granted affiliation by the university in the year 1992 and thereafter the college applied for recognition by the Central Government as per the provisions of the Dentists Act 1948. 11. I have already noticed above that Regulation 1993 would come into force on the date of its publication in the Official Gazette. 12. There is nothing in Regulation of 1993 to indicate that it will operate retrospectively. The presumption, therefore, would be that it would apply prospectively after its publication in the Official Gazette sometime in 1993. 13. The petitioner-college was established as it appears from the pleadings of the parties in the year 1992 itself and it was granted affiliation by the University in the same year and thereafter necessary application was filed by it before the Central Government for its recognition which has been rejected by the impugned order. 14. In view of the provisions of law, as referred to above, coupled with Regulation of 1993, the Central Government was not correct in rejecting the application of the petitioner for want of essentiality certificate. The application filed by the petitioner was in accordance with law as the law stood prior to the Regulation of 1993 which necessarily, therefore, was required to be disposed of in accordance with law prevailing prior to the Regulation of 1993 and the petitioner, in that view of the matter, should not be asked to furnish the essentiality certificate. 15. Considering the facts and circumstances of the case and for the reasons aforementioned, this writ application is allowed. The communique as contained in Annexure-13 dated 29-12-2000 is set aside. The Central Government is directed to consider the application filed by the petitioner on its own merit and pass necessary orders in accordance with law within a period of three months from the date of receipt/production of a copy of this order.