Dental Council Of India vs Biyani Shikshan Samiti

CIVIL APPEAL NO. 2912 OF 2022 [Arising out of Special Leave Petition (Civil) No.26855 of 2018]

DENTAL COUNCIL OF INDIA ...APPELLANT(S)

VERSUS BIYANI SHIKSHAN SAMITI & ANR. ...RESPONDENT(S)

JUDGMENT

B.R. GAVAI, J.

1. Leave granted.

2. The present appeal challenges the judgment and order of

the Division Bench of the High Court of Judicature for

Rajasthan, Bench at Jaipur, dated 24th April, 2018, passed in

D.B. Civil Writ Petition No. 3260 of 2017, thereby allowing the

writ petition filed on behalf of the respondent No.1­Biyani

1 Shikshan Samiti (hereinafter referred to as “the respondent

No.1”) and striking down the Notification dated 21 st May, 2012

(hereinafter referred to as “the impugned Notification”), vide

which the appellant­Dental Council of India (hereinafter

referred to as “the Council”), had substituted Regulation 6(2)(h)

of the Dental Council of India (Establishment of New Dental

Colleges, Opening of New or Higher Course of Studies or

Training and Increase of Admission Capacity in Dental Colleges)

Regulations, 2006 (hereinafter referred to as “the Regulations”),

on the ground of the same being inconsistent with the

provisions of the Dentists Act, 1948 (hereinafter referred to as

“the said Act”) and also being violative of Articles 14 and 19(1)

(g) of the Constitution of India.

3. The facts in the present case are not in dispute.

4. The respondent No. 1 had submitted an application to the

Government of India for grant of permission for establishment

of dental college from academic year 2012­2013 on 24 th

2 September, 2011. This was after the Letter of Intent was issued

by the State Government on 23rd September, 2011. The

respondent No. 2 – Union of India, through Secretary, Ministry

of Health and Family Welfare (Dental Education Section)

[hereinafter referred to as “the respondent No.2”), noticed

certain deficiencies in the proposal of the respondent No.1 and

vide its letter dated 7th October, 2011, required the respondent

No.1 to cure the said deficiencies.

5. After exchange of certain communications, on 6 th January,

2012, the respondent No.2, returned the application of the

respondent No.1 along with demand draft of Rs.6 lakh, on the

ground that deficiencies pointed out were not cured prior to 31 st

December, 2011, i.e., the last date for curing the deficiencies.

6. In the meantime, the Government of Rajasthan issued

Essentiality Certificate to the respondent No.1 on 11 th January,

2012. However, on 17th February, 2012, the respondent No.2

declined to reconsider the application/request of the

3 respondent No.1, on the grounds stated in its earlier letter,

dated 6th January, 2012. As such, the request of the

respondent No.1 for reconsideration of its proposal came to be

rejected by the respondent No.2, vide its communication dated

17th February, 2012.

7. In the meantime, vide the impugned Notification, existing

Regulation 6(2)(h) of the Regulations was substituted by

amended Regulation 6(2)(h) on 21st May, 2012. Respondent

No.1 again submitted its fresh application on 28 th September,

2012 for academic year 2013­2014. The same was returned by

the respondent No.2 vide its order dated 31 st December, 2012,

on the ground that the proposal/application was not in

compliance with the amended Regulation 6(2)(h) of the

Regulations. On 23rd January, 2013, the respondent No.1

thereafter wrote a letter to the respondent No.2, stating therein

that since Essentiality Certificate was issued to it on 11 th

January, 2012, the impugned Notification was not applicable to

4 it and requested for reconsideration of its application under the

unamended Regulation 6(2)(h) of the Regulations. The

respondent No.2 rejected the application of the respondent No.1

vide its order dated 5th March, 2013.

8. The respondent No.1 challenged the order passed by the

respondent No.2 rejecting the request for reconsideration of its

application before the learned single judge of the High Court of

Judicature for Rajasthan, Bench at Jaipur, by way of S.B. Civil

Writ Petition No.15090 of 2016. The respondent No.1 further

sought a direction to reconsider the application submitted by it

on 24th September, 2011 for establishment of a new dental

college for academic session 2017­2018. The learned single

judge of the High Court, vide judgment and order dated 3 rd

November, 2016, finding no merit in the writ petition,

dismissed the same. The respondent No.1 thereafter filed a writ

petition before the Division Bench being D.B. Civil Writ Petition

No. 3260 of 2017, challenging the impugned Notification

5 amending Regulation 6(2)(h) of the Regulations. The

respondent No.1 also sought a prayer for direction to the

respondent No.2, for reconsidering its application, dated 28 th

September, 2012, for establishment of a new Dental College for

academic session 2018­2019 and for subsequent academic

sessions. By the impugned judgment and order dated 24 th April,

2018, the Division Bench of the High Court allowed the said

writ petition by striking down the impugned Notification and

directed the respondent No. 2 to reconsider the case of the

respondent No.1 in the light of the observations made in the

impugned judgment and order. Being aggrieved thereby, the

present appeal has been preferred by the Council.

9. We have heard Shri Gaurav Sharma, learned counsel

appearing on behalf of the Council, Ms. Aishwarya Bhati,

learned Additional Solicitor General (“ASG” for short) appearing

on behalf of the respondent No.2 and Ms. Shobha Gupta,

learned counsel appearing on behalf of the respondent No.1.

6

10. Shri Gaurav Sharma, learned counsel, would submit that

the Division Bench of the High Court has grossly erred in

allowing the writ petition. He submits that the Council is an

expert statutory body duly constituted under the said Act. He

submits that the said Act empowers the Council to make

Regulations for various aspects concerned with Dental

Education, including prescribing requirement of minimum

standards. He submits that the Council, after examining

various aspects, had found it necessary to amend Regulation

6(2)(h) of the Regulations. He submits that this was done for

providing better teaching facilities to the students and for

improving the standards of education. He submits that the

Division Bench has grossly erred in holding that it was beyond

the powers of the Council to make delegated legislation. He

submits that, in any case, the finding of the High Court that

the impugned Notification was violative of Articles 14 and 19(1)

(g) of the Constitution of India, is totally erroneous.

7

11. Ms. Aishwarya Bhati, learned ASG also supports the

submission made on behalf of the Council. Relying on the

judgment of this Court in the case of Dental Council of India

vs. Subharti K.K.B. Charitable Trust and Another1, she

submits that the High Court ought not to have interfered with

the impugned Notification, since the Regulations were made by

the expert body in accordance with the provisions of the said

Act.

12. Ms. Shobha Gupta, learned counsel appearing on behalf

of the respondent No.1, on the contrary, would submit that the

High Court has rightly quashed the impugned Notification. She

submits that the impugned Notification has no nexus with the

object sought to be achieved. She submits that there is a huge

shortage of Dentists in the country and therefore, the object of

the legislation should be to encourage establishment of more

Dental Colleges rather than providing a requirement which will

1 (2001) 5 SCC 486

8 restrict the number of new Dental Colleges. On facts, she

submits that there is no medical college within the vicinity of

100 kms. from the place at which the respondent No.1 proposes

to start a new Dental College. She submits that the impugned

Notification, therefore, violates the fundamental rights of the

students to take dental education as well as the fundamental

right of the respondent No.1 to establish an educational

institution under Article 19(1)(g) of the Constitution of India.

13. For considering the rival submissions, it will be

appropriate to refer to certain provisions of the said Act.

Section 3 of the said Act requires the Central Government to

constitute a Council consisting of members named therein.

Section 10 of the said Act deals with recognition of dental

qualifications. Section 10A of the said Act deals with

permission for establishment of new dental college, new courses

of study, etc. Sub­section (1) of Section 10A of the said Act

puts restriction on the establishment of an authority or

9 institution for a course of study or training which would enable

a student of such course or training to qualify himself for the

grant of recognized dental qualification; it also imposes a

restriction on opening a new or higher course of study or

training, or increase the admission capacity in any course of

study or training, including a post­graduate course of study or

training. It is provided that no person can establish an

authority or institution for dental education and that no

authority or institution can open a new or higher course of

study or training, including a post­graduate course of study or

training, or increase its admission capacity without the prior

permission of the Central Government. Sub­sections (2) to (4)

of Section 10A of the said Act deal with the procedure to be

followed for making an application for permission to start a new

or higher course of study or training or increase of intake

capacity in any course of study or training. Sub­section (5) of

Section 10A of the said Act is a deeming provision, which

10 provides that if the Central Government fails to pass an order

on the scheme/application submitted by the applicant within a

period of one year from the date of submitting the

scheme/application, such scheme/application shall be deemed

to have been approved by the Central Government in the form

in which it was submitted. It also provides that the permission

of the Central Government required under sub­section (1) shall

also be deemed to have been granted. Sub­section (6) of Section

10A of the said Act provides for extension of the period provided

in sub­section (5) by entitling an applicant for the extension of

the period for furnishing the particulars called for by the

Council or by the Central Government.

14. It will be apposite to reproduce sub­section (7) of Section

10A of the said Act, since the same fell for consideration before

the Division Bench of the High Court while allowing the writ

petition. It reads thus:

11

“10A. Permission for establishment of new dental college, new courses of study, etc.—(1) ………………………… (2)……………………………………………… xxx (7) The Council, while making its recommendations under clause (b) of sub­section (3) and the Central Government, while passing an order either approving or disapproving the scheme under sub­section (4), shall have due regard to the following factors, namely:—

(a) whether the proposed authority or institution for grant of recognised dental qualification or the existing authority or institution seeking to open a new or higher course of study or training, would be in a position to offer the minimum standards of dental education in conformity with the requirements referred to in Section 16­A and the regulations made under sub­ section (1) of Section 20;

(b) whether the person seeking to establish an authority or institution or the existing authority or institution seeking to open a new or higher course of study or training or to increase

12 its admission capacity has adequate resources;

(c) whether necessary facilities in respect of staff, equipment, accommodation, training and other facilities to ensure proper functioning of the authority or institution or conducting the new course of study or training or accommodating the increased admission capacity have been provided or would be provided within the time­limit specified in the scheme;

(d) whether adequate hospital facilities, having regard to the number of students likely to attend such authority or institution or course of study or training or as a result of the increased admission capacity have been provided or would be provided within the time­limit specified in the scheme;

(e) whether any arrangement has been made or programme drawn to impart proper training to students likely to attend such authority or institution or course of study or training by persons having the recognised dental qualifications;

13 (f) the requirement of manpower in the field of practice of dentistry; and

(g) any other factors as may be prescribed.”

15. It could thus be seen that the Council, while making its

recommendations and the Central Government, while passing

an order, are required to take into consideration various factors

as are enumerated in clauses (a) to (g) of sub­section (7) of

Section 10A of the said Act.

16. Section 20 of the said Act empowers the Council, with the

approval of the Central Government, to make Regulations. It

will be apposite to refer to the relevant part of Section 20 of the

said Act, which reads thus:

“20. Power to make regulations.­(1) The Council may, with the approval of the Central Government, by notification in the Official Gazette, make regulations not inconsistent with the provisions of this Act to carry out the purposes of this Chapter.

14 (2) In particular and without prejudice to the generality of the foregoing power such regulations may­

(a) ……………………………………………

(b) …………………………………………… xxx xxx xxx (fb) prescribe any other factors under clause (g) of sub­section (7) of section 10A”

17. It could thus be seen from the conjoint reading of clause

(g) of sub­section (7) of Section 10A and clause (fb) of sub­

section (2) of Section 20 of the said Act that the Council is also

empowered to take into consideration any other factors as may

be prescribed and also entitled to make Regulations for

prescribing any other factor under clause (g) of sub­section (7)

of Section 10A.

18. It will also be relevant to refer to the provision of

Regulation 6(2)(h) as it existed prior to the impugned

Notification and the amended provision after the impugned

Notification was given effect to. They read thus:

15 “Regulation 6(2)(h) prior to impugned Notification dated 21st May, 2012

6. Eligibility and qualifying criteria.­

(1) …………………………………………..

(2) The organizations under sub­ regulation (1) shall qualify to apply for permission to establish a dental college if the following conditions are fulfilled:­

(a) …………………………………………..

(b) …………………………………………..

xxx

(h) the applicant owns and manages a General Hospital of not less than 100 beds as per Annexure I with necessary infrastructure facilities including teaching pre­clinical, para­clinical and allied medical sciences in the campus of the proposed dental college, or the proposed dental college is located in the proximity of a Government Medical College or a Medical College recognised by the Medical Council of India and an undertaking of the said Medical College to the effect that it would facilitate training to the students of the proposed dental college in the subjects of Medicine,

16 Surgery and Allied Medical Sciences has been obtained, or where no Medical College is available in the proximity of the proposed dental college, the proposed dental college gets itself tied up at least for 5 years with a Government General Hospital having a provision of at least 100 beds and located within a radius of 10 K.M. of the proposed dental college and the tie­up is extendable till it has its own 100 bedded hospital in the same premises. In such cases, the applicant shall produce evidence that necessary infrastructure facilities including teaching pre­clinical, para­clinical and allied medical sciences are owned by the proposed dental college itself;

Regulation 6(2)(h) after the impugned Notification dated 21st May, 2012

6. Eligibility and qualifying criteria.­ (1) …………………………………………..

(2) The organizations under sub­ regulation (1) shall qualify to apply for permission to establish a dental college if the following conditions are fulfilled:­

(a) …………………………………………..

17

(b) …………………………………………..

xxx

(h) the applicant shall attach its proposed dental college with a Government/Private Medical College approved/recognised by the Medical Council of India which is located at the distance of 10 kms. by road from the proposed dental college and produce evidence of the said Medical College to the effect that it would facilitate training to the students of the proposed dental college as per syllabus/course curriculum prescribed in respective undergraduate and post graduate dental course regulations as amended from time to time:­ Provided that not more than one dental college shall be attached with the medical college.”

19. It could thus be seen that the change that has been

brought by the impugned Notification is that, though under the

unamended Regulation 6(2)(h), an applicant was entitled to

apply if he/she/it owned and managed a General Hospital of

not less than 100 beds; by the impugned Notification, it has

been made mandatory that the applicant has to attach its

18 proposed Dental College with the Government/Private Medical

College, approved/recognized by the Medical Council of India,

which is located at a distance of 10 kilometers by road from the

proposed Dental College. The distance of 10 kilometers has

now been increased to 30 kilometers, vide amendment dated 5 th

July, 2017.

20. The Division Bench of the High Court vide the impugned

judgment and order dated 24th April, 2018, has allowed the writ

petition and quashed the impugned Notification on three

grounds, viz.,

(i) that it is violative of Article 19(1)(g) of the Constitution

of India;

(ii) that it is beyond the scope of the powers of the Council

to make delegated legislation as provided under sub­

section (7) of Section 10A of the said Act; and

(iii) that it is violative of Article 14 of the Constitution of

India, inasmuch as the Dental Colleges established

19 prior to impugned Notification would be permitted to

run without attachment with Medical Colleges,

whereas, the Dental Colleges established after the

impugned Notification will be compelled to have such

an attachment with the Medical Colleges.

21. We find that the learned judges of the Division Bench have

erred on all counts.

22. It will be relevant to refer to the following observations of

this Court in the case of Indian Express Newspapers

(Bombay) Private Ltd. and others vs. Union of India and

others2.

“75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent Legislature. Subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition it may also be questioned on the ground that it does not conform to the statute under which it

2 (1985) 1 SCC 641

20 is made. It may further be questioned on the ground that it is contrary to some other statute. That is because subordinate legislation must yield to plenary legislation. It may also be questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary.”

23. It could thus be seen that this Court has held that the

subordinate legislation may be questioned on any of the

grounds on which plenary legislation is questioned. In

addition, it may also be questioned on the ground that it does

not conform to the statute under which it is made. It may

further be questioned on the ground that it is contrary to some

other statute. Though it may also be questioned on the ground

of unreasonableness, such unreasonableness should not be in

the sense of not being reasonable, but should be in the sense

that it is manifestly arbitrary.

24. It has further been held by this Court in the said case that

for challenging the subordinate legislation on the ground of

21 arbitrariness, it can only be done when it is found that it is not

in conformity with the statute or that it offends Article 14 of the

Constitution. It has further been held that it cannot be done

merely on the ground that it is not reasonable or that it has not

taken into account relevant circumstances which the Court

considers relevant.

25. The judgment of this Court in the case of Indian Express

Newspapers (Bombay) Private Ltd. (supra) has been followed

by a three­judge Bench of this Court in the case of Khoday

Distilleries Ltd. and others vs. State of Karnataka and

others3. It will be apposite to refer to the following

observations of this Court in the said case:

“13. It is next submitted before us that the amended Rules are arbitrary, unreasonable and cause undue hardship and, therefore, violate Article 14 of the Constitution. Although the protection of Article 19(1)(g) may not be available to the appellants, the rules must, undoubtedly, satisfy the test of Article 14, 3 (1996) 10 SCC 304

22 which is a guarantee against arbitrary action. However, one must bear in mind that what is being challenged here under Article 14 is not executive action but delegated legislation. The tests of arbitrary action which apply to executive actions do not necessarily apply to delegated legislation. In order that delegated legislation can be struck down, such legislation must be manifestly arbitrary; a law which could not be reasonably expected to emanate from an authority delegated with the law­making power. In the case of Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [(1985) 1 SCC 641 : 1985 SCC (Tax) 121 : (1985) 2 SCR 287] (SCR at p. 243) this Court said that a piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent legislature. A subordinate legislation may be questioned under Article 14 on the ground that it is unreasonable; “unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary”.

Drawing a comparison between the law in England and in India, the Court further observed that in England the Judges would say, “Parliament never intended the authority to make such Rules; they are unreasonable and ultra vires”. In India, arbitrariness is not a separate

23 ground since it will come within the embargo of Article 14 of the Constitution. But subordinate legislation must be so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution.”

26. In the case of State of T.N. and another vs. P.

Krishnamurthy and others4 after considering the law laid

down by this Court earlier in the cases of Indian Express

Newspapers (Bombay) Private Ltd. (supra), Supreme Court

Employees’ Welfare Association. vs. Union of India and

another5, Shri Sitaram Sugar Company Limited and

another vs. Union of India and others6, St. Johns Teachers

Training Institute vs. Regional Director, National Council

for Teacher Education and another7, Rameshchandra

Kachardas Porwal and others vs. State of Maharashtra

4 (2006) 4 SCC 517 5 (1989) 4 SCC 187 6 (1990) 3 SCC 223 7 (2003) 3 SCC 321

24 and others 8, Union of India and another vs. Cynamide

India Ltd. and another9 and State of Haryana vs. Ram

Kishan and others10, this Court has laid down certain

grounds, on which the subordinate legislation can be

challenged, which are as under:

“Whether the rule is valid in its entirety?

15. There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognised that a subordinate legislation can be challenged under any of the following grounds:

(a) Lack of legislative competence to make the subordinate legislation.

(b) Violation of fundamental rights guaranteed under the Constitution of India.

(c) Violation of any provision of the Constitution of India.

(d) Failure to conform to the statute under which it is made or exceeding the limits of authority conferred by the enabling Act.

8 (1981) 2 SCC 722 9 (1987) 2 SCC 720 10 (1988) 3 SCC 416

25

(e) Repugnancy to the laws of the land, that is, any enactment.

(f) Manifest arbitrariness/ unreasonableness (to an extent where the court might well say that the legislature never intended to give authority to make such rules).”

27. In the light of these guiding principles, we will have to

examine the correctness of the findings of the learned judges of

the Division Bench in the impugned judgment and order.

28. One of the grounds on which the impugned Notification

has been struck down is that it is beyond the scope of powers of

the Council under Section 10A(7)(d) of the said Act. The

Division Bench of the High Court has relied on clause (d) of

sub­section (7) of Section 10A of the said Act to come to a

conclusion that clause (d) refers to adequate hospital facilities,

having regard to the number of students likely to attend the

institution. It has held that a requirement of hospital was

already fulfilled in the pre­amended Regulation 6(2)(h) of the

Regulations. It has further held that clause (d) does not refer to

26 Medical College. It was therefore held that the impugned

Notification requiring the Dental Colleges to be attached with

the Government/Private Medical College was beyond the scope

of sub­section (7) of Section 10A of the said Act and, therefore,

inconsistent with the said Act.

29. We find that the Division Bench has failed to take into

consideration clause (g) of sub­section (7) of Section 10A of the

said Act. It is to be noted that whereas clauses (a) to (f) of sub­

section (7) of Section 10A of the said Act deal with various

factors, clause (g) thereof, which can be said to be a residual

clause, enables the Council to take into consideration also any

other factor as may be prescribed.

30. We further find that the Division Bench of the High Court

has also failed to take into consideration clause (fb) of sub­

section (2) of Section 20 of the said Act. A conjoint reading of

these provisions would reveal that the Council is also

empowered to take into consideration any other factor as may

27 be prescribed and also to make a Regulation with regard to any

other factor under clause (g) of sub­section (7) of Section 10A of

the said Act. It could thus be seen that it is within the

competence of the Council to make Regulations prescribing any

other conditions, which are otherwise not found in clauses (a)

to (f) of sub­section (7) of Section 10A of the said Act.

Challenge to the same would be permissible only on the ground

of manifest arbitrariness. It is also equally settled that the

presumption is always with regard to the validity of a provision.

The burden is on the party who challenges the validity of such

provision. We find that the respondent No.1 has failed to

discharge the burden to show that the impugned Notification

suffers from manifest arbitrariness.

31. Secondly, the Division Bench of the High Court found the

impugned Notification dated 21st May, 2012 to be violative of

Article 14 of the Constitution, on the ground that the Dental

Colleges established prior to impugned Notification would not

28 be required to be attached with the Medical Colleges, whereas,

the Dental Colleges, established after the impugned

Notification, will be compelled to be attached to such Medical

Colleges. We are of the considered view that the Colleges

established prior to the impugned Notification and the Colleges

established/to be established after the impugned Notification

would form two separate classes. The differential treatment for

different classes would not be hit by Article 14 of the

Constitution of India. The only requirement would be, as to

whether such a classification has a nexus with the object

sought to be achieved by the Act. For the reasons given

hereinafter, we find that the factors taken into consideration by

the Council, while amending Regulation 6(2)(h) of the

Regulations are relevant factors. The factors have a nexus with

the object sought to be achieved. It has been submitted on

behalf of the Council that the existing recognized Medical

College already has a facility to impart education to about 500­

29 700 students. Such Medical Colleges have a full­fledged

teaching faculty. Such a faculty would enable providing a

proper education to the students of the Dental colleges on

various aspects of pre­clinical, para­clinical and allied

medicine, etc. The Council has also taken into consideration

the fact that the General Hospitals having bed­capacity of 100

beds or more do not have experts on full­time basis. They

usually engage the services of consultant doctors, who visit the

Hospital for a very limited period. The Council has also taken

into consideration the fact that the private hospitals do not

have adequate clinical facilities and/or clinical material and

therefore, it is unlikely that they will be able to impart

education and training to students. It has been submitted on

behalf of the Council that the amended Regulation 6(2)(h) of the

Regulations was brought into effect so that it would facilitate

training to the students of the proposed Dental Colleges as per

the syllabus/course curriculum prescribed. It, therefore,

30 cannot be said that the Council has taken into consideration

the factors, which are not relevant or germane for the purpose

to be achieved. The object to be achieved is to provide adequate

teaching and training facilities to the students. If in the

wisdom of the expert body, this can be done by attaching a

Dental College to the already existing Medical College, it cannot

be faulted with.

32. The reason given for not permitting more than one Dental

College to be attached to the existing recognized Medical College

is that if one Dental College is permitted to be attached to a

recognized Medical College, which is already having 500­750

students in different semesters of their 5­year MBBS course,

the additional students of the Dental College may very well be

absorbed in the facilities that are already available in the

recognized Medical College. However, if more than one Dental

College is permitted to be attached, it will lead to overcrowding

of students in the Medical College.

31

33. We are, therefore, of the considered view that the amended

Regulation cannot be said to be one, which is manifestly

arbitrary, so as to permit the Court to interfere with it. On the

contrary, we find that the amended Regulation 6(2)(h) has a

direct nexus with the object to be achieved, i.e., providing

adequate teaching and training facilities to the students.

34. It will be apposite to refer to the following observations of

the Division Bench of the High Court in the impugned

judgment:

“We fail to understand as to how the earlier provisions, in any manner, were not sufficient for the object sought to be achieved. A careful reading of the unamended Regulation 6(2)(h) shows requirement of attachment with General Hospital owned and managed by the applicant in the campus of the proposed Dental College. It was with infrastructure facilities including teaching pre­clinical, para­clinical and allied medical sciences.

If we talk about practical training, it would be more in the hospital, therefore, the unamended provision of Regulation

32 6(2)(h) provided both i.e. attachment with General Hospital or with a Medical College with required facilities of teaching.”

35. In this respect, we would gainfully refer to the following

observations of this Court in the case of Maharashtra State

Board of Secondary and Higher Secondary Education and

another vs. Paritosh Bhupeshkumar Sheth and others11:

“14. ….. whether a rule or regulation or other type of statutory instrument — is in excess of the power of subordinate legislation conferred on the delegate has to be determined with reference only to the specific provisions contained in the relevant statute conferring the power to make the rule, regulation, etc. and also the object and purpose of the Act as can be gathered from the various provisions of the enactment. It would be wholly wrong for the Court to substitute its own opinion for that of the Legislature or its delegate as to what principle or policy would best serve the objects and purposes of the Act and to sit in judgment over the wisdom and effectiveness or otherwise of the policy

11 (1984) 4 SCC 27

33 laid down by the regulation­making body and declare a regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose of the Act. So long as the body entrusted with the task of framing the rules or regulations acts within the scope of the authority conferred on it, in the sense that the rules or regulations made by it have a rational nexus with the object and purpose of the statute, the court should not concern itself with the wisdom or efficaciousness of such rules or regulations.”

36. This Court in unequivocal terms has held that it would be

wholly wrong for the Court to substitute its own opinion for

that of the Legislature or its delegate as to what principle or

policy would best serve the objects and purposes of the Act. It

has been held that it is not permissible for the Court to sit in

judgment over the wisdom and effectiveness or otherwise of the

policy laid down by the regulation­making body and declare a

regulation to be ultra vires merely on the ground that, in the

34 view of the Court, the impugned provisions will not help to

serve the object and purpose of the Act.

37. We find that the observations quoted herein above of the

Division Bench of the High Court are totally contrary to the

view expressed by this Court in the case of Maharashtra

State Board of Secondary and Higher Secondary

Education and another (supra).

38. The Division Bench of the High Court has erred in

substituting its wisdom with that of the rule­making body,

which is an expert body. In this respect, it will also be apposite

to refer to the observations of this Court in the case of All

India Council for Technical Education vs. Surinder Kumar

Dhawan and others12. After considering various judgments

on the issue, this Court observed thus:

“16. The courts are neither equipped nor have the academic or technical

12 (2009) 11 SCC 726

35 background to substitute themselves in place of statutory professional technical bodies and take decisions in academic matters involving standards and quality of technical education. If the courts start entertaining petitions from individual institutions or students to permit courses of their choice, either for their convenience or to alleviate hardship or to provide better opportunities, or because they think that one course is equal to another, without realising the repercussions on the field of technical education in general, it will lead to chaos in education and deterioration in standards of education.

17. The role of statutory expert bodies on education and the role of courts are well defined by a simple rule. If it is a question of educational policy or an issue involving academic matter, the courts keep their hands off.”

39. We are, therefore, of the considered view that it was not

permissible for the Division Bench of the High Court to enter

into an area of experts and hold that the unamended provisions

ought to have been preferred over the amended provisions.

36

40. That leaves us with the finding of the Division Bench of

the High Court that the amended Regulation is violative of

Article 19(1)(g) of the Constitution. Reliance in this respect is

placed on the Eleven­Judge Constitution Bench judgment of

this Court in the case of T.M.A. Pai Foundation and others

vs. State of Karnataka and others13. In this respect, it will

be relevant to refer to the following observations of the Eleven­

Judge Constitution Bench of this Court in the said case:

“54. The right to establish an educational institution can be regulated; but such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure (including qualified staff) and the prevention of maladministration by those in charge of management. The fixing of a rigid fee structure, dictating the formation and composition of a governing body, compulsory nomination of teachers and staff for appointment or nominating students for admissions would be unacceptable restrictions.”

13 (2002) 8 SCC 481

37

41. It can thus clearly be seen that the Constitution Bench

itself has held that the right to establish an educational

institution can be regulated. However, such regulatory

measures must, in general, be to ensure the maintenance of

proper academic standards, atmosphere and infrastructure and

the prevention of maladministration.

42. The impugned Notification, undoubtedly, is made in order

to ensure the maintenance of proper academic standards and

infrastructure and as such, the judgment of the Constitution

Bench of this Court in the case of T.M.A. Pai Foundation and

others (supra), rather than supporting the case of the

respondent No.1, would support the case of the Council.

43. We further find that the impugned judgment of the

Division Bench of the High Court is also not sustainable on the

ground of judicial propriety. The respondent No.1 had already

filed a writ petition being S.B. Civil Writ Petition No. 15090 of

2016, challenging the action of the Council and the respondent

38 No.2 in returning the application of the respondent No.1 for

grant of recognition to new Dental College and for a direction to

reconsider its application submitted on 24 th September, 2011.

The said writ petition was filed in the year 2016. The said writ

petition was dismissed by the learned single judge of the High

Court by the judgment and order dated 3 rd November, 2016.

After the said writ petition was rejected on 3 rd November, 2016,

the respondent No.1 filed the present writ petition being D.B.

Civil Writ Petition No.3260 of 2017 before the Division Bench of

the High Court on 1st March, 2017. In the said writ petition,

the prayer was for challenging the validity of the impugned

Notification and for a direction to reconsider the proposal of the

respondent No.1. The impugned Notification could have very

well been challenged in the earlier writ petition, which was filed

in the year 2016 before the learned single judge of the High

Court. However, having failed in that writ petition before the

learned single judge, the respondent No.1 filed another writ

39 petition before the Division Bench of the High Court. Though

one of the prayers challenges the validity of the impugned

Notification, another prayer claims for reconsideration of its

proposal. The said prayer has been granted by the Division

Bench of the High Court by its impugned judgment and order

dated 24th April, 2018. It could thus be seen that the prayer for

reconsideration of the proposal submitted by the respondent

No.1, which was already rejected by the learned single judge of

the High Court vide order dated 3 rd November, 2016 in S.B.

Civil Writ Petition No.15090 of 2016, has been renewed in the

fresh writ petition filed in the year 2017 and granted by the

Division Bench of the High Court.

44. We, therefore, find that on the ground of judicial propriety

also the Division Bench of the High Court ought not to have

entertained the writ petition for a prayer, which already stood

rejected. In that view of the matter, the impugned judgment

40 and order dated 24th April, 2018 passed by the Division Bench

of the High Court is not sustainable.

45. In the result, the appeal is allowed. The impugned

judgment and order dated 24th April, 2018 passed by the

Division Bench of the High Court is quashed and set aside. The

D.B. Civil Writ Petition No.3260 of 2017 filed by the respondent

No.1 before the Division Bench of the High Court stands

dismissed. No order as to costs.

46. Pending application(s), if any, shall stand disposed of.

…..….......................J. [L. NAGESWARA RAO]

…….........................J. [B.R. GAVAI] NEW DELHI;

APRIL 12, 2022

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