Soham Mayankkumar Vyas & Ors vs Union Of India & Ors

SOHAM MAYANKKUMAR VYAS & ORS. Petitioners

VERSUS

UNION OF INDIA & ORS. Respondents

WITH

W.P(C) NO. 202 of 2010

MAURAS COLLEGE OF DENTISTRY, HOSPITAL & ORAL RESEARCH INSTITUTE & ANR. Petitioners

VERSUS

UNION OF INDIA & ORS. Respondents

O R D E R

R.V. RAVEENDRAN J.

Counter of first respondent-Union of India filed in

court. Heard.

2. The petitioners in W.P. [C] No.172 of 2010 are the

students admitted in the year 2006-07 to BDS course conducted

by the "Mauras College of Dentistry, Hospital and Oral

Research Institute" situated at Mauritius (for short "Mauras 2

College"). The said Mauras College is the first petitioner and

one of its students admitted to BDS course in 2005-06 is the

second petitioner in W.P.(C)No.202/2010. Mauras College is

affiliated to Bhavnagar University, Gujarat (for short `the

University').

3. The brief facts leading to these writ petitions are as

under:

3.1) Mauras College sought affiliation with Bhavnagar

University. The Government of Gujarat and the Dental Council

of India had initially some reservation about a college

situated in a foreign country seeking affiliation with the

Bhavnagar University in India. Subsequently, however, the

Government of Gujarat granted a `No Objection Certificate' on

18.2.2003 for setting up the Mauras College affiliated to the

said University, subject to prior permission from Dental

Council of India and Ministry of External Affairs. The

Ministry of External Affairs, Government of India, granted the

necessary clearance for setting up the college on 28.8.2003.

3.2) The representatives of the Dental Council of India and

the Bhavnagar University visited the Mauras College at

Mauritius and satisfied themselves that the College met with

the infrastructural and other requirements prescribed by 3

Dental Council of India for grant of permission to establish

the Dental College and for grant of affiliation. The Dental

Council of India recommended to the Government of India, that

Mauras College be approved. On the recommendation of the

Academic Council and Executive Council of the University, the

Government of Gujarat granted affiliation of Mauras College to

the Bhavnagar University for the academic year 2004-05 and

renewed the affiliation for 2004-05 and 2005-06.

3.3) The Mauras College follows the syllabus and the method of

teaching prescribed by the Bhavnagar University consistent

with the guidelines and regulations of Dental Council of

India. The examinations for the BDS course of Mauras College

are conducted in Mauritius, by the examiners from the

Bhavnagar University deputed from India, exactly at the same

time as examinations held in respect of the other Dental

College/s in India affiliated to the University.

3.4) The State of Gujarat issued a show cause notice dated

7.1.2006 to the University as to why the affiliation granted

to the Mauras College should not be cancelled. The Mauras

College filed a Writ Petition [W.P.(Civil) No.57 of 2006] in

this court, praying for a direction that its affiliation to

the Bhavnagar University shall not be cancelled by the State 4

of Gujarat. During the hearing of the said writ petition by

this court, the Union of India and Bhavnagar University

confirmed that the statutory inspections of Mauras College at

Mauritius had already been conducted and the College was found

to be running with requisite infrastructure and facilities,

and therefore the recognition and affiliation could be

granted. In view of it, this Court allowed the writ petition

by order dated 13.7.2009 and directed that the Mauras College

shall be taken as affiliated to Bhavnagar University. In

pursuance of it the State of Gujarat and the University

proceeded on the basis that the Mauras College was affiliated

to the University.

4. The Dentists Act, 1948 (`Act' for short) was enacted with

the object of regulating the profession of dentistry and for

that purpose to constitute the Dental Councils. The Act vests

in the Central Government, the power to recognize dental

qualifications. The Act also requires prior permission of the

Central Government for establishing any new dental college.

Section 2(j) defines `recognized dental qualification' as any

of the qualifications included in the Schedule to the Act.

4.1) Section 10 of the Act deals with recognition of dental

qualifications. Sub-Section (1) provides that the dental 5

qualifications granted by any authority or institution in

India, which are included in Part I of the Schedule shall be

recognised dental qualifications for the purpose of the

Dentists Act. Sub-section (2) of Section 10 of the Act relates

to amendment of Part I of the Schedule and it is extracted

below:

"(2) Any authority or institution in India which grants a dental qualification not included in Part I of the Schedule may apply to the Central Government to have such qualifica-

tion recognised and included in that Part, and the Central Government, after consulting the Council, and after such inquiry, if any, as it may think fit for the purpose, may, by notification in the Official Gazette, amend Part I of the Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in Part I of Schedule against such dental qualification declaring that it shall be a recognised den- tal qualification only when granted after a specified date".

4.2) Sub-Section (3) of Section 10 of the Act provides that

the dental qualifications, granted by any authority or

institution outside India, which are included in Part II of

the Schedule shall be recognised dental qualifications only

for the purposes of the registration of citizens of India when

the register is first prepared under Dentists Act. Sub-section

(4) of section 10 provides that the dental qualifications

granted by any authority or institution outside India, which

are included in Part III of the Schedule shall be recognised

dental qualifications for the purposes of the Dentists Act,

but no person possessing any such qualification, shall be 6

entitled for registration unless he is a citizen of India.

Sub-section (5) of Section 10 authorizes the Dental Council to

enter into schemes of reciprocity for recognition of dental

qualifications awarded by authorities/institutions in other

countries and declaration thereof by the Central Government as

recognized dental qualifications.

4.3) Section 10A deals with permission for establishment of

new dental college, new courses of study etc. Section 10B

relates to non-recognition of dental qualifications in certain

cases and Sub-Section (1) thereof is extracted below:

"10B(1) Where any authority or institution is established for grant of recognized dental qualification except with the previous permission of the Central Government in accordance with the provisions of section 10A, no dental qualification granted to any student of such authority or institution shall be a recognized dental qualification for the purposes of this Act."

4.4) Section 31 of the Act requires the State Government to

prepare a Register of dentists for the State. Sub-section (3)

of Section 31 provides that the Register of Dentists shall be

maintained in two parts A and B, persons possessing recognized

dental qualifications being registered in Part A and persons

not possessing such qualifications being registered in Part B.

4.5) Section 33 of the Act prescribes a `recognized dental

qualification' as the qualification for entering a person's 7

name entered in the Register when it was first prepared.

Section 34 of the Act prescribes the qualification for

subsequent registration. Section 34(1) of the Act relevant for

our purpose is extracted below:

"34. Qualification for subsequent registration. (1) After the date appointed under sub-section (2) of section 32 a person shall, on payment of the prescribed fee, be entitled to have his name entered on the register of dentists, if he resides or carries on the profession of dentistry in the State and if he-

(i) holds a recognised dental qualification, or

(ii) does not hold such a qualification but, being a [citizen of India], has been engaged in practice as a dentist as his principal means of livelihood for a period of not less than two years before the date appointed under sub-section (2) of section 32 and has passed, within a period of [ten years after the said date], an examination recognised for this purpose by the Central Government:

Provided that no person other than a citizen of India shall be entitled to registration by virtue of a qualification:

(a) specified in Part I of the Schedule unless by the law and practice of the State or country to which such person belongs persons of Indian origin holding dental qualifications registrable in that State or country are permitted to enter and practice the profession of dentistry in such State or country, or

(b) recognised in pursuance of a scheme of reciprocity, under sub-section (5) of section 10:

Provided further that a person registered in Part B of the register shall be entitled to be registered in Part A thereof, if within a period of ten years after the date of his registration in Part B he passes an examination recognised for the purpose by the Central Government.

5. The government of India issued a notification

(S.O.No.73/2004 Gazetted on 8.1.2004) in exercise of its power

under Section 10(1) and (2) of the Act and added the following 8

as Sl.No.62 in Part I of the Schedule to the Act:

Authority or Recognised dental qualification Abbreviation Institution for registration

62. 1. Manubhai Patel Dental College BDS, Bhavnagar & Hospital, Vadodara, Gujarat (Bhavnagar) University, Bhavnagar, (i) Bachelor of Dental Surgery (when granted on or after 3.7.2004)

The Government of India by another notification dated 6.3.2009

(Gazetted on 21.3.2009) issued in exercise of its power under

Section 10(4)(b) of the Act added the following as Sl.No.96 in

Part III of the Schedule to the Act:

Authority or Recognised dental qualification Abbreviation Institution for registration

96. Mauras College of Dentistry, BDS, Bhavnagar Mauritius Bhavnagarar University, University, Bhavnagar, (i) Bachelor of Dental Surgery Bhavnagar Gujarat (If granted to Indian students of the first and second batches, i.e., the Indian students who were admitted during the academic sessions 2003-04 and 2004-05 respectively only).

6. The Dental Council of India framed the "Dental Council

of India Screening Test Regulations 2009" (`Regulations' for

short) in exercise of power conferred by section 20 read with

section 10(4)/(5) of the Act, providing for conduct of a

screening test to determine the eligibility of candidates for 9

registration with any State Dental Council or any other

purpose. The said Regulations are applicable only to those

Indian citizens possessing a primary dental qualification/PG

Diploma/Post Graduate Dental qualification, awarded by any

dental institution outside India, who are desirous of getting

registration with any State Dental Council or of any other

purpose as specified by the Dental Council of India from time

to time; and on or after the date of publication of the said

Regulations in the official gazette, they shall have to

qualify in a screening test conducted by the prescribed

authority for that purpose, as per the provisions of section

10(4) or 10(5) of the Act, as the case may be. The first

proviso to Regulation (4) provide that all Indian Students who

have passed and possessed a dental qualification/degree, which

has not been recognized or who have taken admission abroad on

or before the date of publication of the Regulations, shall

also be eligible to appear in the screening test.

7. The Government of India (Ministry of Health & Family

Welfare, Dental Education Section) required the students of

Mauras College who had secured BDS degrees from Bhavnagar

University to appear for the screening test as per the DCI

Screening Test Regulations, 2009, for recognition of their

degrees in India (vide letter dated 16.2.2010 and other 10

similar letters addressed to the students of Mauras College).

8. The petitioners in these two writ petitions have sought

(i) quashing the notification dated 6.3.2009 adding Entry

No.96 in Part III of the Schedule to the Act; (ii) a

declaration that the communications of the Government of India

requiring the students of the Mauras College to appear in the

screening test is illegal and contrary to Article 14 of the

Constitution of India and that the DCI Screening Test

Regulations, 2009 are inapplicable to students who have been

conferred BDS degree by Bhavnagar University; (iii) a

declaration that the BDS degree granted by the Bhavnagar

University to the students of Mauras College, Mauritius shall

not be considered as a degree granted by a foreign University

but shall be considered as a BDS Degree granted by Bhavnagar

University in India; and (iv) a declaration that there is no

difference between students who were admitted in 2003-04 and

2004-05, and those who were admitted thereafter with a

mandamus to Government of India to recognize the degree

granted by Bhavnagar University to the students of Mauras

College during 2005-06 and thereafter, for the purposes of the

Act.

9. The respondents have resisted the petitions by contending 11

that the dental qualifications possessed by the Indian

students of Mauras College, Mauritius are `foreign dental

qualifications obtained by citizens of India' and they are

therefore required to undergo a screening test as provided by

the DCI Screening Test Regulations, 2009.

10. On the contentions raised by the writ petitioners (Mauras

College and its students), following two questions arise for

our consideration:

(i) Whether the notification dated 6.3.2009 issued under Section 10(4)(b) of the Act entering the Maruas College, Mauritius and its BDS degree, at Sl.No.96 in the III Schedule to the Act is valid?

(ii) Whether the BDS graduates from Mauras College affiliated to Bhavnagar University, Gujarat have to take the screening test under the DCI Screening Regulations, 2009, for recognition of their BDS degrees in India?

Re : Question (i)

11. Though Mauras College is situated outside India, the BDS

students of the Mauras College who successfully complete the

course of study and pass the examination conducted by the

Bhavnagar University possess the dental qualifications awarded

by an authority in India (namely Bhavnagar University). They 12

do not possess any dental qualification awarded by an

authority or institution outside India. The notification dated

6.3.2009 which places Mauras College in Part III of the

Schedule to the Act proceeds on the basis that BDS degrees

granted by Bhavnagar University to the students who have

undergone the course of study at Mauras College, Mauritius,

are dental qualifications granted by an institution/authority

outside India, even though the degree (dental qualification)

is granted by a University in India. The notification further

restricts the recognition only to the BDS degrees of the batch

of Indian students admitted to academic sessions 2003-04 and

2004-05 in Mauras College but not the degrees granted during

subsequent batches.

12. Section 10(4) of the Act will apply only if the dental

qualification is granted by an authority or institution

outside India, and as a consequence, such qualification will

have to be listed under Part III of the Schedule to the Act.

The respondents do not dispute the fact that the BDS

examinations for the students of Mauras College are held by

Bhavnagar University and the degrees are also granted by

Bhavnagar University and not by any authority or institution

outside India. So long as the Mauras College is affiliated to

Bhavnagar University and the said University is the examining 13

body and is the authority which grants the BDS degree dental

qualification to the students of Mauras College, Section 10(4)

and Part-III of the Schedule to the Act will not apply. As

Bhavnagar University is not an authority outside India, the

dental qualifications granted by it cannot be included in Part

III of the Schedule to the Act even if the college/institution

affiliated to the said University is outside India. Therefore

the notification dated 6.3.2009 is illegal being contrary to

and violative of section 10(1) and (4) of the Act and liable

to be struck down.

Re : Question (ii)

13. A `recognized dental qualification' could be either (i)

a dental qualification granted on completion of a course of

study in an institution (University or deemed University)

whose dental qualification is recognized by the Central

Government; or (ii) a dental qualification granted by an

authority (whose dental qualifications are recognized by the

Central Government) to those who undergo a course of study in

an affiliated dental college/institution, which was

established with the previous permission of the Central

Government. Thus where the dental qualification is granted by

an authority (that is, a University in India) to which several 14

dental colleges are affiliated, the term "recognized dental

qualification" refers to the dental qualification granted by a

University (whose dental qualifications are recognized by the

Central Government) by undergoing a course of study in an

affiliated college or institution established with the prior

permission of the Central Government.

14. Recognized dental qualifications granted by authorities

or institutions in India are enumerated in Part I of the

Schedule to the Act; the recognized dental qualifications

granted by authorities or institutions outside India (only for

the purpose of registration of Indian citizens when the

Register is first prepared under the Act) are enumerated in

Part II of the Schedule to the Act; and the recognised dental

qualifications granted by any authorities or institutions

outside India only when granted to citizens of India, are

enumerated in Part III of the Schedule. Having regard to the

provision of sub-sections (1) and (4) of Section 10 of the

Act, if a dental college is situated outside India but the

authority which grants the dental qualification in regard to

students of that College is in India, recognition of the

dental qualifications will be governed by Section 10(1) and

will have to be enumerated in Part I of the Schedule. For this

purpose, the dental qualifications granted by the Authority 15

should be recognized by the Central Government and the

Institution/College where the course of study is conducted

should have the prior permission of the Central Government for

offering such course of study. Such recognition and

permission, when granted to the University and College

respectively results in the University (Authority) and the

affiliated College (institutions) being included in Part-I of

the Schedule to the Act.

15. If the dental qualification is not being granted by any

authority or institution in India, then the dental

qualification will not be recognized under section 10(1) or

(2) of the Act and consequently will not be included under

Part-I of the Schedule to the Act. If the dental qualification

is granted by an authority or institution outside India is

recognized under section 10(4) and is included in Part-III of

the Schedule, a citizen of India possessing such qualification

shall be entitled to registration under the Dentists Act.

16. The dental qualification granted by the Bhavanagar

University, that is, Bachelor of Dental Surgery - shown by the

abbreviation "BDS (Bhavnagar)", granted on or after 3.7.2004,

in regard to its affiliated College - Manubhai Patel Dental

College and Hospital, Vadodara, Gujarat is a recognized dental 16

qualification by virtue of the said University and College

being shown at Sl.No.62 in Part I of the Schedule to the Act.

The dental qualification of Bachelor of Dental Surgery

obtained by undergoing a course of study at Mauras College is

not listed in Part I against Entry No.62 relating to Bhavnagar

University. Though the recognition of the dental qualification

by the Central Government is with reference to the University

(Authority) which grants it, Part I of the Schedule makes it

clear that in regard to dental qualification granted by an

Indian University, the affiliated College/Institution where

the course of study is undergone should have prior permission

of the Central Government.

17. Though the learned counsel for Union of India had

submitted during the hearing of WP(C) No.57/2006 before this

Court that Mauras College was having the requisite

infrastructure and recognition may be given, the final order

of this Court dated 13.7.2009 contained only a direction in

regard to affiliation to Bhavnagar University. There was no

direction to Central Government to recognize the Mauras

College or treat it as having the `prior permission' of the

Central Government. As BDS degrees granted by the Bhavnagar

University is recognized only with reference to a College in

Gujarat and as Mauras College has not been included in the 17

Second Column of Entry 62 in Part I of the Schedule to the

Act, Mauras College will have to take steps to get its name

entered in Entry 62 of Part I, as an institution affiliated to

Bhavnagar University for getting the benefit of `recognized

dental qualification.'

18. The learned Additional Solicitor General appearing for

the respondents submitted that the dental students have to

undergo a specialized technical course; and that could be done

only if proper infrastructure and equipment facilities are

available in the college and the hospital attached to it, and

the teaching faculty are competent and qualified, so that the

dental graduates coming out of the college will be well-versed

in dental sciences and will be in a position to treat the

citizens in a safe and appropriate manner. He pointed out that

to prevent half-baked dentists treating dental patients,

provisions have been made in the Dentists Act for recognizing

dental qualifications and for holding screening tests for

Indian citizens holding primary dental qualifications awarded

by dental institutions outside India. He submitted that as the

Mauras College is situated outside India in Mauritius and

there is no way of Dental Council and the Central Government

ensuring that they possess and continue to possess the

requisite infrastructure, equipment and faculty, it is 18

necessary that the students of such a dental college will have

to undergo the screening tests. There is no doubt that the

doctors and dentists who are permitted to practice in India

should undergo appropriate courses of study so that they can

efficiently and effectively treat the patients. But the issue

before us is about the status of a dental qualification

granted by a University in India in pursuance of a course of

study undergone in an affiliated college outside India.

19. In view of the above, these writ petitions are allowed in

part as follows:

(i) It is declared that the notification dated 6.3.2009

issued by the Government of India, placing the BDS dental

qualifications granted by the Bhavnagar University in regard

to the students of the Mauras College of Dentistry at

Mauritius, at Entry No.96 of Part III of the Schedule to the

Act, is illegal and violative of sections 10(1) and (4) of the

Act and is hereby quashed.

(ii) It is declared that dental qualification (BDS degree)

granted by Bhavnagar University for the students of Mauras

College of Dentistry shall not be considered to be a degree

granted by a foreign authority or institution. 19

(iii) It is declared that BDS degrees granted by the Bhavnagar

University to the students of Mauras College of Dentistry at

Mauritius shall be treated as a recognized dental

qualification granted by an authority in India governed by

section 10(1) of the Act, if Mauras College, Mauritius is

added by the Central Government as an affiliated institution

under Column (2) of Entry 62 in Part I of the Schedule to the

Act. In such an event, the holders of such degree will be

entitled to all benefits and advantages as persons holding

recognized dental qualifications under section 10(1) of the

Act and need not undergo the screening test under the DCI

Screening Test Regulations 2009.

(iv) The Central Government is directed to consider any

request that may be made by Mauras College of Dentistry,

Mauritius for inclusion of its name in Column (2) of Entry 62

of Part I of the Schedule, in accordance with law.

(v) Unless and until Mauras College is included as an

affiliated institution in Column (2) of Entry 62 in Part-I of

the Schedule to the Act, the Indian students of Mauras College

of Mauritius will have to undergo a screening test as per the

first proviso to Regulation (4) of DCI Screening Test 20

Regulations 2009.

.....................J. ( R.V. RAVEENDRAN )

.....................J. ( H.L. GOKHALE ) NEW DELHI, SEPTEMBER 28, 2010.