Priya Darshni Dental College & Hospl vs Union Of India & Ors

UNION OF INDIA & ORS ... Respondents

WITH

W.P(C) NO. 322 of 2010 W.P(C) NO. 333 of 2010

W.P(C) NO. 323 of 2010 W.P(C) NO. 334 of 2010

W.P(C) NO. 324 of 2010 W.P(C) NO. 337 of 2010

W.P(C) NO. 330 of 2010 W.P(C) NO. 339 of 2010

W.P(C) NO. 332 of 2010 W.P(C) NO. 345 of 2010

O R D E R

R.V. RAVEENDRAN J.

Issue rule nisi. Heard finally by consent. As these cases involve a

similar issue, they are disposed of by this common order. For convenience we

will refer to the facts from the lead matter [W.P.(C)No.319 of 2010].

2. The Central Government, by order dated 12.7.2007, granted

permission to the petitioner college, under Section 10A(4) of the Dentists

Act, 1948 ('Act' for short) for establishing a new Dental College with an

intake of 100 students, commencing from the academic year 2007-08.

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Thereafter, by orders dated 18.8.2008 and 23.6.2009, the Central Government

granted renewal of permission for the academic years 2008-09 and 2009-10.

3. For the academic year 2010-2011, the petitioner made an application

for fourth year renewal permission, to the Dental Council of India (`DCI' for

short) on 24.2.2010 enclosing therewith a form containing the particulars of

teaching staff, infrastructure etc. as also a demand draft for Rupees one lakh

towards the inspection fees. In pursuance of it, the DCI Inspectors carried

out an inspection on 26.4.2010 and submitted a Joint Inspection Report to

DCI. Based on the said report, the DCI by communication dated 17.5.2010

informed the petitioner college about the deficiencies in faculty,

equipments/instruments and library, with reference to the DCI Norms, and

called upon the college to rectify the deficiencies and furnish a compliance

report within five days.

4. The petitioner college sent a Compliance Report dated 19.5.2010 to

DCI informing them about the action taken to rectify the deficiencies and

also giving certain clarifications to show that some of the deficiencies

pointed out were not deficiencies at all. DCI considered the said reply of the

petitioner College and made a recommendation dated 12.6.2010 to the

Central Government not to renew the permission for the fourth year of the

BDS Course for the academic year 2010-2011, in view of the deficiencies

noted therein.

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5. The central government, sent a general circular dated 21.6.2010 to all

Dental Colleges in whose cases the DCI had recommended that permission

should not be renewed, including the petitioner college, informing that a

three-member Committee under the Chairmanship of the Director General of

Health Services will give a personal hearing to them, as required under the

first proviso to Section 10A (4) of the Act to consider the proposal for

renewal of permission for the BDS Course for the academic year 2010-2011,

on 23rd, 24th and 25th June, 2010. The said letter was dispatched on 22.6.2010

and reached the petitioner college on 25.6.2010, making it impossible for the

petitioner college situated at Chennai (Tamil Nadu) to send its

Principal/Representative for the personal hearing. In the circumstances, the

petitioner college by letter dated 25.6.2010, requested for such hearing.

However, such hearing was not granted. By communication dated 15.7.2010,

the Central Government communicated its decision not to grant renewal

permission to the Dental College for the academic year 2010-11. A

consequential direction was issued to the college not to admit students for the

academic year 2010-11.

6. Feeling aggrieved, the petitioner approached the Madras High Court by

filing a writ petition on 19.7.2010 praying that the order of rejection dated

15.7.2010 be quashed and seeking a direction to the Central Government to

permit the College to admit fresh students for BDS course for the academic

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year 2010-11 and also seeking a direction to the Central Government to grant

renewal permission to conduct the fourth year of the BDS course during the

academic year 2010-11. The said writ petition was allowed by the Madras

High Court by order dated 29.7.2010. The High court held that dispatch of

the letter dated 21.6.2010 on 22.6.2010 fixing the personal hearing on 23rd,

24th and 25th June, 2010, did not amount to grant of a hearing at all, if the

letter reached the College on 25.6.2010, after the time fixed for hearing. It,

therefore, held that the mandatory requirement of reasonable opportunity of

being heard, required under the proviso to Section 10A (4) of the Act was not

complied with. As a consequence, the High Court remitted the petitioner's

application for renewal of permission for 2010-2011, for re-consideration by

the Central Government, by giving a due hearing to the petitioner. The High

Court also directed the three-member Committee constituted by the Central

Government to hear the petitioner on 6.8.2010, consider the documents

furnished by it and pass final orders. It also reserved liberty to DCI, if

necessary, to make further inspection to verify the correctness of the

compliance report submitted by the petitioner college and send a further

report so as to reach the three-member Committee of the Central Government

before 6.8.2010.

7. In pursuance of the said order, the three-member Committee gave a

hearing to the petitioner college on 6.8.2010. Thereafter, the Committee

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recommended the renewal of permission for the fourth year of BDS Course

for the academic year 2010-11. Accepting the recommendation, the Central

Government sent a communication dated 17.8.2010 to the petitioner college

granting renewal of permission subject to a condition. We extract below the

relevant portion of the said order:

"The Central Government has accepted the above recommendation of the

Committee and the permission of the Central Government is granted to

Priyadarshini Dental College and Hospital, Thiruvallur Taluk & Dist.

Tamil Nadu, for admission of 100 students in the 4th year of BDS course

for the academic year 2010-11. However, since the last date of grant of

such permission has already expired on 15.7.2010, the above Central

Government permission to the institute is subject to the condition that the

institute obtains the orders of Supreme Court to the effect that such

permission would not violate the earlier order of the Hon'ble Supreme

Court to the effect that 15th July would be last date for grant such

permission in the relevant academic year."

(emphasis supplied)

The DCI also sent a communication dated 23.8.2010 to the petitioner

requiring compliance with the communication dated 17.8.2010 sent by the

Central Government.

8. In compliance with the direction of the Central Government, the

petitioner college has approached this Court by filing this writ petition,

seeking a direction that the conditional permission granted to it by the

Central Government on 17.8.2010 under Section 10A(4) of the Act for the

academic year 2010-11, be made "absolute" by declaring that such

permission granted by the Central Government, did not violate the order of

this court in Mridul Dhar vs. Union of India -- 2005(2) SCC 65 (which

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according to the Central Government, directed that 15th July should be the

last date for grant of such permission). While issuing notice on the writ

petition, this Court granted interim stay of the said condition requiring the

`approval' of this Court.

9. Learned Additional Solicitor General appearing for the Central

Government and the learned counsel appearing for DCI submitted that the

High Court, in a writ petition filed by the petitioner, had held that there was

a violation of the first proviso to Section 10A(4) of the Act by the Central

Government failing to provide a hearing to the petitioner before refusing to

renew the permission; that as a consequence, the High Court directed the

Central Government to give a fresh opportunity of hearing to the petitioner

college; that such a direction was issued on 29.7.2010, after the last date (15th

July) for grant of permissions had expired; that the Central Government gave

a hearing as directed by the High Court and being satisfied that the petitioner

had complied with the requirements, promptly took a decision reversing the

earlier decision and granted the renewal of permission; and that as the Central

Government felt that its order granting permission in August may violate the

requirement in Mridul Dhar that the last date for issue of permission should

be 15th July, the Central Government imposed the condition that its

permission was subject to the Dental College obtaining an order from this

Court, approving the grant of permission beyond 15th July. It was submitted

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by the Central Government in its counter affidavit dated 10.12.2010 filed in

this writ petition that as the Ministry did not want to violate the order of this

Court in Mridul Dhar, by granting any permission after 15th July, it had

"incorporated the condition in the letters of permissions issued after

15.7.2010 but before 30.9.2010". It was submitted that the delay was not

attributable either to the petitioner college or DCI or the Central Government;

and that on the facts and circumstances of the case, the Central Government

and the DCI have no objection for grant of the relief prayed by the petitioner.

Issue of Propriety

10. But the question that arises for consideration is, whether on such

concession, or by mutual consent, the relief sought in the petition should be

granted. The matter involves issues of propriety and violation of the

constitutional scheme relating to separation of powers and independence of

judiciary. First is whether it was proper for the Ministry to issue an order

granting renewal of permission with a condition that petitioner should seek

approval of its order from this Court, so as to `regularize' its order. Second is

whether it would be proper for this court to `approve' the Central

Government's order granting renewal of permission, as a part of the `decision

making process' so as to `regularize' the delay in making the order. The

executive power of the Central Government to grant permission or renewal of

permission under section 10A of the Act, is not subject to the control or

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supervision of this Court, nor subject to confirmation or approval by this

Court. The Central Government is bound to consider and pass orders granting

or refusing permission in terms of section 10A of the Act, taking note of the

recommendations of DCI, by following the procedure prescribed by the Act

and DCI regulations. Neither this court, nor any other court, has any role to

play in the decision making process relating to grant or refusal of permission

under the Act, by the Central Government.

11. A stipulation by an authority entrusted with the power to consider and

grant permissions/recognitions, while granting such permission/recognition,

that the applicant should seek and obtain an order from a court, approving the

grant of such permission/recognition, as a condition precedent to give effect

to such grant, would be improper and irregular. It amounts to failure to take

responsibility or shirking the responsibility in exercising the power in

accordance with the Act and the Regulations. Further, such a requirement by

the executive, amounts to attempting to make the judiciary a part of the

decision making process by the executive. Judiciary has no role to play under

the Act or Rules in granting permission or renewal of permission. The power

of judicial review is not intended to be exercised to grant `advance rulings of

administrative approvals' to validate executive orders. Neither Central

Government, nor the DCI, can shift the onus of decision making to the courts,

blurring and obliterating the line of separation between the executive and the

9

judiciary. Any attempt by the executive authority to provide itself a protective

cover against challenges or criticism to its action, by `passing the buck' to the

Judiciary in regard to final decisions, should be resisted and avoided. The

orders of the Central Government granting or refusing permission are subject

to judicial review at the instance of any affected party, and the same cannot

be pre-empted by making the Supreme Court a party to the decision making

process of the executive. We are therefore of the view that it was not proper

for the Ministry of Health and Family Welfare (Dental Education Section),

Government of India, (for short `the Ministry') to stipulate a condition while

granting renewal of permission for the BDS Course, that the "order is subject

to the condition that the institute obtains the orders of Supreme Court to the

effect that such permission would not violate the earlier order of the Hon'ble

Supreme Court to the effect that 15th July would be last date for grant of such

permission in the relevant academic year." Such a condition requiring

approval of this Court is liable to be quashed.

On merits

12. It is necessary to refer to certain aspects of grant of permissions to

avoid confusion, unnecessary delays and litigation. In Mridul Dhar, this

Court primarily dealt with the time schedule for completion of admission

process for medical and dental colleges. Mridul Dhar did not provide any

10

time schedule, much less 15th July as the last date, for issue of letters of

permissions or renewal of permissions by Central Government to Dental

Colleges. Para 28 of the decision in Mridul Dhar referring to a time schedule

stipulating 15th July as the last date for issue of letters of permission by

Central Government does not relate to dental colleges nor to

permissions/renewal of permissions to dental colleges. The said time

schedule is not even a direction of this Court, but is only an extract from the

Medical Council of India Establishment of Medical College Regulations,

1999 applicable only to medical colleges. This Court in Mridul Dhar

however clearly directed that the Central Government should strictly adhere

to the time schedule wherever provided for. This Court stated :

"Having regard to the professional courses, it deserves to be emphasized

that all concerned including Governments, State and Central both,

MCI/DCI, colleges - new or old, students, Boards, universities, examining

authorities, etc., are required to strictly adhere to the time schedule

wherever provided for; there should not be midstream admissions;

admissions should not be in excess of sanctioned intake capacity or in

excess of quota of anyone, whether State or management. The carrying

forward of any unfilled seats of one academic year to next academic year

is also no permissible."

[emphasis supplied]

13. In view of the directions in Mridul Dhar, DCI in consultation with the

Central Government, provided a time schedule, while making the Dental

Colleges of India (Establishment of New Dental Colleges, Opening of New or

Higher Course of Study or Training and Increase of Admission Capacity in

Dental Colleges) Regulations, 2006 (for short `DCI Regulations'). As per the

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DCI Regulations, the last date for grant of permissions and renewal of

permissions by Central Government is 15th July. We may refer to relevant

provisions of the DCI Regulations.

13.1) Regulation 4 of DCI Regulations relates to submission of

proposals/schemes for establishing new dental colleges and it is extracted

below:

"4. Proposals or schemes for establishing a new dental college, or

opening a new or higher course of study or training or increasing the

admission capacity, in the dental college:-

(1) The proposals or schemes for establishing a new dental college, or

opening a new or higher course of study or training or increasing the ad-

mission capacity, in the dental college, as the case may be, shall be made

or submitted to the Central Government for obtaining its permission under

the Act in the Form. I, Form 2 and Form 3, respectively, annexed to these

regulations.

(2) The scheme or the proposal under sub-regulation (1) and, processing

thereof shall be submitted within the time- schedule as provided in the

Schedule annexed to these regulations."

The schedule annexed to the regulations, referred to in Regulation 4(2) pre-

scribing the time schedule for grant of permissions, is extracted below:

SCHEDULE

[(see regulation 4(2)]

Schedule for Receipt of Applications for Establishment of New Dental Colleges,

Opening of Higher Courses of Study & Increase of admission capacity in the rec-

ognized Dental Colleges and processing of the applications by the Central Govern-

ment and the Dental Council of India.

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S.No. Stage of Process- Time Schedule Time Schedule

ing for BDS for MDS

1 Receipt of applications From 1st Aug. to 30th From 1st May to 30th

by the Central Govt September (both days June (both days inclu-

inclusive) of any year sive) of any year

2 Forwarding of applica-

tions by the Central Upto 31st December Upto 31st July

Government to the Den-

tal Council of India for

technical scrutiny

3 Recommendation of Upto 15th June Upto 28th February

DCI to the Central Govern-

ment

4 Issue of Letter of Upto 15th July Upto 31st March

Permission by Central

Government

Note: (1) : If any clarification is sought by the Central Government on the recom-

mendation of the Council, the same will be furnished by the Council forthwith, if

necessary, after conducting inspection.

(2) The time-schedule indicated above may be modified by the Central Govern-

ment, for reasons to be recorded in writing, in respect of any class or category of

applications."

13.2) Rule 10 relating to grant of permission to establish a dental college

and Rule 11 relating to renewal of permission to a dental college, are extract-

ed below :

"10. Grant of Permission to establish a dental college:

(1) The Central Government may, after considering the scheme submitted

under regulation 7 in terms of Section 10A of the Act and the recommen-

dations of the Council thereon, issue a Letter of Intent to grant permission

to establish a dental college subject to such conditions or modifications in

the original proposal as it may consider necessary. The formal permission

will be granted by the Central Government after the conditions stipulated

and the modifications suggested are accepted by the applicant and a per-

formance bank guarantee from a Scheduled Commercial bank valid for the

entire duration of the course in favour of the Council is furnished as fol-

lows x x x x x

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(3) The formal permission will include conditions for fulfillment of a time

bound programme and achieving of annual targets commensurate with the

initial intake of students for the establishment of a dental college.

(4) The permission under sub-regulation (1) to establish a new dental col-

lege will be granted for a period of one year and will be renewed on yearly

basis subject to verification of the achievement of annual targets and

revalidation, if necessary, of the performance bank guarantee."

11. Renewal of Permission

(1) Admissions of the next batches shall not be made by the dental

college unless the permission granted under regulation 10 has been

renewed by the Central Government.

(2)The application for renewal of permission shall be submitted to the Council, with a copy to the Central Government, six months prior to

the expiry of the current academic session. The recommendation of

the Council in all cases of renewal shall be made by 15th June and the

Central Government shall issue final orders regarding renewal of

permission by 15th July of each year.

Provided that the process of renewal of permission will not be applicable

after the completion of phased expansion of the infrastructure facilities

and teaching faculty as per norms laid down by the Council and the first

batch of students take the final year examinations."

(emphasis supplied)

14. Regulation 11(2) clearly lays down a time schedule for the submission

of applications for renewal of permission (six months prior to the expiry of

the current academic session), for recommendation by DCI (15th June) and for

issue of final orders by Central Government regarding renewal of permission

(15th July). Though, the DCI Regulations provide that the last date for issue of

letter of permission or renewal of permission by the Central Government is

15th July, having regard to the scheme relating to grant of renewal of permis-

sion and note (2) to the schedule, the Central Government has the discretion

14

to modify the time schedule in appropriate cases, for reasons to be recorded,

in respect of any class or category of applications.

15. If the Central Government was of the view that a dental college deserved

renewal of permission in accordance with the Act and Regulations, it should

grant such permission. If it was of the view that the dental college did not

deserve renewal of permission, it should refuse the permission. If the Central

Government felt that the last date for granting renewal of permission was over

and there was no justification for extending the time schedule, it could refuse

the renewal of permission on that ground. On the other hand, if the Central

Government was of the view that the applicant college had complied with the

requirements and was not at fault, and it was not responsible in any manner for

the delay in considering the application, and there were other applicants of

similar nature, it could have recorded those reasons in writing and extended the

time schedule for that category of applicants and then granted the renewal of

permission, provided the last date for admissions had not expired. Note (2) to

the schedule to the DCI Regulations enables the Central Government to modify

the time schedule, for reasons to be recorded in writing, in respect of any class

or category of applications. Applicants for renewal of permission for the fourth

or fifth year, where there is compliance with the requirements relating to

infrastructure, equipment and faculty, could be such a class or category of

applications. Similarly, applications where High Courts have directed

15

consideration beyond 15th July in view of special circumstances, can also

constitute a class or category of applicants.

16. Though we have rejected the prayer for `approval' of the order of the

Central Government, sought in the writ petition, we are of the view that the

petitioner is entitled to a suitably moulded relief. As noticed above, the delay

was beyond the control of DCI and the Central Government. The petitioner

college was also not responsible for the delay in applying for renewal of

permission. The last date for admissions had not yet expired. The order was

passed on the direction of the High Court to reconsider the matter. There

were several other similar cases pending before the Central Government. All

those applications for renewal of permission, which were directed to be

reconsidered by the High Court could be considered to be a special category

of applications where the Central Government had modified the time

schedule for grant of renewal of permissions under Note (2) to the schedule

to the DCI Regulations. By so deeming, the order of the Central Government

dated 17.8.2010 granting renewal of permissions in this case and other

similar cases can be considered as having been validly made.

The connected cases

17. In the connected cases, the Central Government has passed similar

conditional orders granting renewal of permission to other petitioner dental

16

colleges, in regard to either fourth or fifth year of BDS course. The conditional

renewals of permission were granted in September 2010, except in WP(C)

No.334 of 2010 where it was passed on 23.7.2010. The petitioners therein are

entitled to similar relief as in the first matter.

A suggestion for modification of time schedule

18. In all these cases, the petitioners, who were applicants for renewal were

existing dental colleges, were functioning for three or four years and each

college had admitted hundreds of students either directly or through State

Government allotment. The colleges had the benefit of initial permission and

several renewals of permission. Refusal of renewal of permission in such cases

should not be abrupt nor for insignificant or technical violations. Nor should

such applications be dealt in a casual manner, by either granting less than a

week for setting right the `deficiencies' or not granting an effective hearing

before refusal. The entire process of verification and inspection relating to

renewal of permission, should be done well in time so that such existing

colleges have adequate and reasonable time to set right the deficiencies or offer

explanations to the deficiencies. The object of providing for annual renewal of

permissions for four years, is to ensure that the infrastructural and faculty

requirements are fulfilled in a gradual manner, and not to cause disruption.

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19. In the context of what has happened in these cases, it is necessary to

emphasize the distinction between the applications for fresh permissions and

applications for renewal of permissions. They require distinct time schedules.

The process of decision making under the Regulations, for grant of fresh or

initial permission for establishment of new dental colleges is exhaustive and

elaborate, when compared to the process of decision making in regard to grant

of renewal of permission for the four subsequent years. Before grant of initial

grant of permission, the DCI and Central Government are required to consider

the following aspects : whether the institution would be in a position to offer

the minimum standards of dental education in conformity with the Act and the

Regulations; whether the institution has adequate resources; whether the

institution has provided or will provide within the time-limit specified in the

scheme, necessary staff, equipment, accommodation, training and other

facilities to ensure proper functioning of the institution; whether the institution

has provided or would provide within the time-limit specified in the scheme,

adequate hospital facilities; whether faculty having recognized dental

qualifications and personnel in the field of practice of dentistry will be

available to impart proper training for the students; and whether other factors

prescribed by the Regulations have been complied. On the other hand, for the

purpose of grant of renewal of permission, DCI has to make recommendations

by considering only whether the prescribed faculty and infrastructure are

available.

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20. The need for renewal of permission emanates from the fact that a newly

established college is not required to have in place, full complement of the

teaching faculty and complete infrastructure in the first year itself. This is

because, during the first year, the college will be catering only to a limited

number of first year students. During the second, third and fourth and fifth

years, the student strength will increase. If the permitted intake is 100, usually

there will be 100 students in the first year, 200 students in the second year, 300

students in the third year, 400 students in the fourth year and 500 students in

the fifth year. Thereafter, the strength may remain constant. As the strength

increases gradually every year, correspondingly the infrastructure and faculty

will have to be increased. The DCI Regulations contemplate new dental

colleges being established and started with limited infrastructure and faculty,

and making "provision for expansion of teaching staff and infrastructure

facilities in a phased manner as per Annexures III and IV to the regulations"

[vide Regulation 6(j)]. For example, the dental chairs required in a college will

be as under [vide Regulation 6(k)] :

Year Intake Intake

(50) (100)

First Year 20 25

Second Year 50 100

Third Year 100 200

Fourth Year & Internship 125 250

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Similarly, the college is required to increase the faculty strength gradually over

the second and third years so as to achieve the required dental faculty strength

by the third year as under [vide Annexure-III to the DCI Regulations] :

Year Total posts required

Professors Readers Lecturers

100 intake 50 intake 100 intake 50 intake 100 intake 50 intake

First year 2 2 3 2 16 10

Second year 4 3 5 4 30 20

Third year 6 6 13 11 40 30

21. In view of the fact that the inspection and verification in regard to

renewal of permission for the second, third, fourth and fifth years will be

restricted only to the consideration of the additional faculty and additional

infrastructure, it may not be necessary to apply the lengthy time schedule

prescribed for initial permission, to renewal of permissions during the next

four years. The DCI Regulations presently contemplate almost similar time

schedules in regard to applications for establishment of new dental colleges,

for opening of higher courses of study, for increase of admission capacity, and

for renewal of permissions, with 15th July being the last date both for grant of

permission or renewal of permission. DCI and Central Government may

consider amendment to the DCI Regulations suitably to provide for a shorter

and distinct time schedule for renewal of permissions, so that the dental

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colleges could file applications till end of February and the process of grant or

refusal of renewal is completed by 15th of June.

Conclusion

22. In view of the above, these writ petitions are allowed as follows :

(a) The condition imposed by the Central Government (requiring the dental

colleges to secure appropriate orders from this court approving the

renewals of permission) in the letters of renewal of permission issued to

the petitioners in July/August/September, 2010, is quashed;

(b) It is however declared that the renewal of permissions issued by Central

Government to the petitioners for the academic year 2010-2011, are

valid.

.......................................J.

[ R.V. RAVEENDRAN ]

NEW DELHI ................. .....................J.

FEBRUARY 15, 2011 [ A.K. PATNAIK ]