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Madhya Pradesh High Court · body

2015 DIGILAW 172 (MP)

Rahul Bhartia v. Dental Council of India

2015-02-09

RAJENDRA MENON, S.K.GANGELE

body2015
ORDER : ” The petitioners in this writ petition sought relief that the respondents be directed to pay stipend to them at par with the stipend paid to the students studying in Government Colleges. 2. The petitioners are students of Peoples College of Dental Science and Research Center, Bhanpur, Bhopal. They have been pursuing Post Graduate Course of MDS. Madhya Pradesh Professional Examination Board conducted an examination for selection of students to the course of MDS. It is an admitted fact that the respondent No.4' College is a Private College and the petitioners are selected for pursuing their studies of MDS course in a private college. The fees which is payable by the petitioners had been fixed by the Statutory authority under the provisions of Madhya Pradesh Niji Vyavasayik Shikhan Sanstha (Pravesh Ka Viniyaman avam Shulk Ka Nirdharan) Adhiniyam 2007 (hereinafter in short ' Regulation 2007” ). Each of the petitioner has to pay tuition fees of Rs.3,35,000/- for a period of one year. The petitioners pleaded in this petition that they are entitled to get stipend at par with the junior doctors and senior residents, who have been working in a Government Dental and Medical Colleges in regard to payment of stipend to the students, who have been pursuing post graduate course. The Health Education Department issued a circular dated 29.10.2009. As per aforesaid circular, the post graduate students of first year are entitled to get stipend of Rs.22,000/- per month and second year students are entitled to get stipend at the rate of Rs.23,000/- per month. Copy of the circular has been filed as (Annexure-P-2). 3. The respondent No.1 Dental Council of India, in its reply to the petition submitted that the petitioners are governed in accordance with the provisions of MDS Regulation 2007. There is no provision of payment of stipend to the students of post graduate course in the Regulation 2007, hence the petitioners are not eligible to get the stipend. 4. The respondent No.4-College in its reply pleaded that MDS course is governed by the rules and regulations framed by the respondent No.1 Dental Council of India, and there is no provision of payment of stipend in the Regulation 2007. The petitioners had taken admission in the respondent No.4 College on their own. 4. The respondent No.4-College in its reply pleaded that MDS course is governed by the rules and regulations framed by the respondent No.1 Dental Council of India, and there is no provision of payment of stipend in the Regulation 2007. The petitioners had taken admission in the respondent No.4 College on their own. The fees which is to be charged by the College has been fixed by the statutory authority, hence, the College is not in a capacity to pay any stipend to the petitioners. The Circular Annexure-P-2, issued by the State Government is applicable to the post graduate students, who are pursuing their studies in a Medical and Dental Colleges run by the State Government. The Circular Annexure-P-2, is not applicable to the Unaided Private Dental and Medical Colleges in the State of M.P. 5. Learned counsel appearing on behalf of the petitioners vehemently argued that non-payment of stipend to the petitioners at par with the post graduate students, who have been pursuing their studies in a Government Dental College is arbitrary, illegal and violative of Article 14 of the Constitution. In support of his submissions he relied on the following judgments. (1) Unnikrishnan, J.P. v. State of AP, AIR 1993 SC 2178 . (2) Jatya Pal Singh v. Union of India (2013) 6 SCC 452 : (AIR 2013 SC (Supp) 298). (3) Ramesh Ahluwalia v. State of Punjab and Ors., 2012 (12) SCC 331. (4) Anirudh Dwivedi v. State Chief Commissioner, Bharat Scout and Guide, 2009 2 MPLJ 166 : (2009 Lab IC 1527 (MP)). 6. The respondent No.1-Dental Council of India, has framed the regulation named as Dental Council Rules of MDS Course Regulation 2007 in exercise of powers conferred by Section 20 of Dentists Act. The Regulation 2007, has statutory force of law. Section 1 of Regulation 2007, prescribes regulation for MDS degree and thereafter selection for the post graduate students. The procedure of selection is as under: ' Selection of Postgraduate Students: (1) Students for postgraduate dental courses (MDS) shall be selected strictly on the basis of their academic merit. The Regulation 2007, has statutory force of law. Section 1 of Regulation 2007, prescribes regulation for MDS degree and thereafter selection for the post graduate students. The procedure of selection is as under: ' Selection of Postgraduate Students: (1) Students for postgraduate dental courses (MDS) shall be selected strictly on the basis of their academic merit. (2) For determining the academic merit, the university/institution may adopt any one of the following procedures both for P.G. Diploma and MDS degree courses: (i) On the basis of merit as determined by a competitive test conducted by the State Government or by the competent authority appointed by the State Government or by the University/group of universities in the same State; or (ii) On the basis of merit as determined by a centralized competitive test held at the national level; or (iii) On the basis of the individual cumulative performance at the first, second, third & Final B.D.S. examinations, if such examinations have been passed from the same university; or (iv) Combination of (i) and (iii); Provided that wherever entrance test for Postgraduate admissions is held by a State Government or a university or any other authorized examining body, the minimum percentage of marks for eligibility for admission to postgraduate dental courses shall be 50% for general category candidates and 40% for the candidates belonging to Scheduled Castes and Scheduled Tribes. Provided further that in non-Governmental institutions fifty per cent. of the total seats shall be filled by the competent authority and the remaining fifty per cent. by the management of the institution on the basis of merit.' 7. The Regulation 2007, also prescribes syllabus and Pattern of education and also examination. There is no provision in the Regulation 2007 for payment of stipend to the MDS students. The fees which is payable by a post graduate students who admitted in Unaided Private Medical College to MDS course has been fixed by the Fees Regulatory Committee in accordance with the provision of Adhiniyam 2007. The private Colleges cannot charge extra fees except fees fixed by the statutory authority under the provisions of aforesaid Adhiniyam 2007. As per petitioners, they have paid tuition fees of Rs. The private Colleges cannot charge extra fees except fees fixed by the statutory authority under the provisions of aforesaid Adhiniyam 2007. As per petitioners, they have paid tuition fees of Rs. 3,35,000/- to the College and if the direction is issued in favour of the petitioners for payment of stipend by the respondent No.4-College at the rate of Rs.22,000/- per month, then the College has to pay an amount of Rs. 2,64,000/- per year to the students of MDS first year and to the second year students Rs.23,000/- per month, then the College has to pay an amount of Rs.2,76,000/-. It means that College would get only an amount of Rs.71,000/- and Rs.59,000/- respectively, per year from each of the students of MDS course as tuition fees. 8. From the aforesaid fact it is clear that it is not possible for the College to impart education to the post graduate students of MDS course on a meagre amount of Rs.71,000/- and Rs.59,000/- respectively after payment of stipend. There is also no provision of payment of stipend in the Regulation 2007 framed by the respondent No.1, as the Regulation 2007, has statutory force of law. If this Court issue a direction in favour of the petitioners then, it would amount to an act of Legislation which is beyond the scope of jurisdiction of this Court. 9. Learned counsel appearing on behalf of the petitioners has strongly argued that the action of the authorities in regard to not-making provision for payment of stipend to the post graduate students, who have been pursuing their studies in a Private College, is arbitrary and violative of Article 14 of the Constitution because the students, who have been pursuing their studies in a Government College are eligible to get stipend. In our opinion, the arguments advanced by the learned counsel for the petitioners cannot be accepted because it is well settled principle of law that Article 14 of the Constitution prohibits Class Legislation, however, it permits reasonable classification. The Constitution Bench of the Supreme Court in the case of Subramanian Swamy v. Director, Central Bureau of Investigation and another (2014) 8 SCC 682 : (AIR 2014 SC 2140), has held in regard to limits of classification permissible to the State. The Constitution Bench of the Supreme Court in the case of Subramanian Swamy v. Director, Central Bureau of Investigation and another (2014) 8 SCC 682 : (AIR 2014 SC 2140), has held in regard to limits of classification permissible to the State. ' The Constitution permits the State to determine, by the process of classification, what should be regarded as a class for purposes of legislation and in relation to law enacted on a particular subject. There is bound to be some degree of inequality when there is segregation of one class from the other. However, such segregation must be rational and not artificial or evasive. In other words, the classification must not only be based on some qualities or characteristics, which are to be found in all persons grouped together and not in others who are left out but those qualities or characteristics must have a reasonable relation to the object of the legislation. Differentia which is the basis of classification must be sound and must have reasonable relation to the object of the legislation. If the object itself is discriminatory, then an explanation that classification is reasonable having rational relation to the object sought to be achieved is immaterial.' In the present case, the benefit of stipend has been given to the students who have been pursuing their studies in a Government College but the benefit has not been accorded to the students who have been pursuing their studies in a Private College. The criteria for admission in the Private College and Government College is quite different. In such circumstances, it cannot be said that the Classification is reasonable and it is against the Article 14 of the Constitution. 10. In the present case, the petitioners cannot be compared with the students, who have been pursuing their studies in a Government College because in accordance with the procedure prescribed for selection the students of higher percentage of marks are being allotted the Government College and the students who are having lesser percentage of marks, are being allotted to Private Colleges. The structure of fee payable by a student, who gets admission in a private Colleges is also different and it is being regulated by an authority hence, it cannot be said that the petitioners are entitled to the benefit of Article 14 of the Constitution. The structure of fee payable by a student, who gets admission in a private Colleges is also different and it is being regulated by an authority hence, it cannot be said that the petitioners are entitled to the benefit of Article 14 of the Constitution. The judgments relied by the counsel for the petitioners in this regard are distinguishable. Learned counsel for the petitioners has also relied on a judgment of the Hon” ble Supreme Court reported in the case of Unnikrishnan, J.P., AIR 1993 SC 2178 (supra). However, this judgment is quite distinguishable. 11. The Supreme Court in the case of Satimbla Sharma and others v. St. Paul” s Senior Secondary School (2011) 13 SCC 760 : ( AIR 2011 SC 2926 ) has held that writ of mandamus cannot be issued to a Private Unaided School to pay salary and allowances equal to the salary and allowances payable to the teachers of Government School. The findings of the Supreme Court in this regard are as under: ' 23. We also do not think that the Court could issue a mandamus to a private unaided school to pay the salary and allowances equal to the salary and allowances payable to teachers of Government schools or Government-aided schools. This is because the salary and allowances of teachers of a private unaided school is a matter of contract between the school and the teacher and is not within the domain of public law.' 12. The Supreme Court in the case of T.M.A. Pai Foundation and Ors. v. State of Karnataka (2002) 8 SCC 481 : ( AIR 2003 SC 355 ) has held that right to establish and run an educational institution is an occupation within the meaning of Article 19(1) (9) of the Constitution. 13. In the present case, the respondent No.4 has been running an Institute within the statutory framework. It has also right to recover the fees from the students in accordance with the Provision of Adhiniyam 2007. If the direction is issued against the respondent No.4 to pay stipend, then the right to establish and run the educational Institute, which has been held by the Supreme Court as fundamental right, would be adversely affected and it would be contrary to the dictum of the Supreme Court. 14. If the direction is issued against the respondent No.4 to pay stipend, then the right to establish and run the educational Institute, which has been held by the Supreme Court as fundamental right, would be adversely affected and it would be contrary to the dictum of the Supreme Court. 14. The counsel for the petitioner has also argued that writ petition is maintainable against the Private Institute performing the public duties. If that argument is accepted, then also, in our opinion, we cannot issue any direction against the respondent No.4 in regard to payment of stipend to the petitioners who are student of MDS course. 15. On the basis of above discussion, we do not find any merit in this writ petition. Consequently, it is hereby dismissed. No order as to the costs. Order accordingly.