IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) MONDAY, THE THIRD DAY OF NOVEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO : 3625 of 2008 Between: 1 Dr. B. Jayakrishna, S/o. B. Gangadhar Government Dental College and Hospital, Hyderabad. R/o. Flat No.505/A, Balaji Apartments, Patel Nagar, Nampally, Hyderabad. 2 Dr. M. Dayanandam S/o. M. Shivaramulu Government Dental College and Hospital, Hyderabad R/o. Shadnagar, Mahabubnagar District. ..... PETITIONER(S) AND 1 The Registrar, Dr. N.T.R. / R. University of Health Sciences, Vijayawada, Krishna District. 2 The Vice Chancellor, Dr. N.T.R. / R. University of Health Sciences, Vijayawada, Krishna District. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Aﬃdavit ﬁled herein the High Court will be pleased to to issue a writ, order or direction more in the nature of Mandamus declaring the clause 2 of F.No.1660/A4/90, dated 05.09.2007 issued by the Registrar, Dr. N.T.R. Health University, Vijayawada as illegal and contrary to the notiﬁcation and prospectus and consequently direct the respondents to conduct examinations on completion of 2 1/2 years M.D.S. Course i.e., December, 2008 in terms of Notiﬁcation and Prospectus of 2006-07 Admissions with all consequential beneﬁts and pass such other and further orders Counsel for the Petitioner:MR.D.BALA KISHAN RAO Counsel for the Respondent No.: MR.D.V.NAGARJUNA BABU The Court made the following : O R D E R : 1. The writ petitioners joined in M.D.S. course in Government Dental College, Hyderabad for the academic year 2006-07. According to the notiﬁcation and the prospectus for the academic year 2006-07 the duration of the course is 2 ½ years. The academic year 2006-07 commenced from 16.6.2006 onwards. Dr.NTR University of Health Sciences, Vijayawada-1st respondent issued a Circular No.F.No.1660/A4/1990, dated 5.9.2007 introducing three year program for M.D.S. course from the academic year 2006-07. The said circular is under challenge in this writ petition. 2. It is the contention of the petitioners that they joined the course on 16.6.2006 and as on the date of joining the course the duration of the course was 2 ½ years and any amendment to the course duration subsequent to their joining in the course cannot be given eﬀect to. For better understanding of the grievance of the petitioners I deem it appropriate to refer paras 4 and 5 of the writ affidavit, which read as under: “4. While so, the 1st respondent issued Circular F.No.1660/A4/1990, dated 5.9.2007 that the Academic Senate of the University passed Resolution vide Point No.2 to introduce 3 years programme for MDS course from the academic year 2006-07 and in the same circular it was mentioned that the regulations will come into force with eﬀect from the batch of admissions made for the year 2007-08 for BDS and MDS courses. 5. I submit that admittedly the Prospectus and Notiﬁcation for the academic year 2006-07 clearly mention that the course of duration is 2 ½ years. That apart the present regulations will come prospectively i.e. from the academic years 2007-08. I submit that the accrued rights on the basis of notiﬁcation of 2006-07 cannot be taken by way of passing resolution subsequently and any such resolution is prospective in nature and cannot be retrospective eﬀect. However, the concerned authorities have taken letters from the petitioners and others to the extent that they will undergo the course for 3 years which is clearly contrary to the prospectus and notiﬁcation. I submit that once the resolution passed by the Academic Senate approved by the Executive Council, it will be applicable only for the next academic years and not earlier academic years and as such directing us to prosecute the course for 3 years is unjustified.” 3. When the writ petition came up for admission, Sri.D.Nagarjuna Babu, learned Standing Counsel appearing for University received notice on behalf of R1 and R2. 4. The petitioners ﬁled WPMP.No.26026 of 2008 seeking impleadment of Dental Council of India, New Delhi as a party respondent. The said petition came to be ordered on 23.9.2008. 5. Dr.T.Venugopala Rao, Registrar of R1 University has sworn to the counter aﬃdavit ﬁled on behalf of R1 and R2. It is stated in the counter aﬃdavit that the duration of MDS course came to be revised as three years as per the directions of Supreme Court which has been communicated to the University by Dental Council of India, New Delhi under letter dated 6.12.2006. It is further stated in the counter aﬃdavit that Dental Council of India resolved to introduce 3 years programme for MDS course from the academic year 2006-07 and that the same was approved by the Academic Senate in its meeting held on 28.4.2007 and thereafter by the Executive Council in its meeting held on 29.4.2007. Accordingly all the principals of aﬃliated Dental Colleges were informed of the above resolution for implementation vide letter dated 5.9.2007 wherein some resolutions passed in the BOS were also informed for implementation from the academic year 2007-08. As per the DCI regulations duration of MDS course is three years and the same has been communicated to the petitioners during the course of study. The amended resolution came to be implemented during the ﬁrst year course of study of the petitioners. The petitioners and other agreed and gave letters to the eﬀect that they will undergo the course for three years. 6. R1 and R2 ﬁled additional counter aﬃdavit on 23.10.2008. It is stated in the additional counter aﬃdavit that examinations for the regular batch of students for the academic year 2006-07 are scheduled to be held in the month of April, 2009, i.e. after completion of study period of three years. The notiﬁcation for admission of dissertation is scheduled to be issued in the month of November, 2008. The students have to submit their dissertation after issuing notiﬁcation. Without submission and approval of dissertation, the students are not eligible to write final exams. 7. When the writ petition came up for admission with the consent of learned counsel for the parties the same is taken up for final disposal. 8. Heard learned counsel appearing for the petitioners and learned Standing Counsel appearing for R1 and R2 and learned Standing Counsel appearing for R3. 9. Learned counsel appearing for the petitioners submits that by the time the petitioners joined in the course, duration of the course was 2 ½ years and any regulation amending the duration of the course cannot be given eﬀect from the academic year 2006-07 and in which case R1 and R2 are bound to conduct examinations for the petitioners and similarly situated persons who have joined MDS course in 2006-07 by the end of 2 ½ years. A further submission has been made that even if an undertaking is taken from the petitioners the said undertaking does not deprive the right of the petitioners to approach this Court seeking direction to R1 and R2 to conduct examinations of MDS course after completion of 2 ½ years. In support of his submission, reliance has been placed on the decisions of Supreme Court in SECRETARY CUM CHIEF ENGINEER[1] V. HARI OM SHARMA and A.MANOHARAN V. UNION OF INDIA[2]. 10. In the ﬁrst cited decision, the Supreme Court held that the undertaking given by the appellant therein that he would not claim promotion as a right nor would he claim any beneﬁt pertaining to that post would not deprive him to claim his right and the same would be unenforceable in view of S.23 of the Contract Act, 1872. Para 8 of the judgment needs to be noted and it is thus: “ ( 8 ) LEARNED counsel for the appellant attempted to contend that when the respondent was promoted in stop-gap arrangement as Junior Engineer-I, he had given an undertaking to the appellant that on the basis of stop-gap arrangement, he would not claim promotion as of right nor would he claim any beneﬁt pertaining to that post. The argument, to say the least, is preposterous. Apart from the fact that the Government in its capacity as a model employer cannot be permitted to raise such an argument, the undertaking which is said to constitute an agreement between the parties cannot be enforced at law. The respondent being an employee of the appellant had to break his period of stagnation although, as we have found earlier, he was the only person amongst the non-diploma holders available for promotion to the post of Junior Engineer-I and was, therefore, likely to be considered for promotion in his own right. An agreement that if a person is promoted to the higher post or put to oﬃciate on that post or, as in the instant case, a stop-gap arrangement is made to place him on the higher post, he would not claim higher salary or other attendant beneﬁts would be contrary to law and also against public policy. It would, therefore, be unenforceable in view of Section 23 of the Contract Act.” 11. In the second cited decision the Supreme Court held that the amended regulation of Madras Port Trust employees having been amended w.e.f. 11.8.2004 would have only a prospective eﬀect and cannot be applied retrospectively. 12. The decisions on which learned counsel appearing for the petitioners relied are wholly in applicable to the facts and circumstances of this case since the course of study has been re- structured consequent on increase of duration of course from 2 ½ years to 3 years. 13. Learned Standing Counsel appearing for R1 and R2 submits that the duration of course came to be restructured in view of the notiﬁcation issued by DCI, new Delhi which came to be issued pursuant to the judgment of the Supreme Court and the petitioners consented for the revised regulations and have been pursuing the course accordingly and in which case the petitioners are estopped from contending that the duration of the course is 2 ½ years. 14. Learned Standing Counsel appearing for R3 adopted the arguments of learned Standing Counsel appearing for R1 and R2. 15. It is no doubt in the Prospectus for admission for MDS course in Denal Colleges, Hyderabad for the academic year 2006-07 the duration of MDS course is stated as 2 ½ years. Subsequently, the DCI, New Delhi issued revised regulation making the duration of the course as three years pursuant to the decision of Supreme Court. On receipt of the circular from DCI, New Delhi, the Executive Council of R1 University amended the course duration and informed the same to all the Principals of Dental Colleges vide letter dated 5.9.2007. The relevant portion of the text of the letter reads as under: “ In exercise of the powers conferred on it under section 30 in the second schedule under Sub-section 8(2) (a) of the NTR University of Health Sciences, Act 1986 the Executive Council has been pleased to approve the following amendments in respect of Dental 9UG & PG) courses as furnished below: (1)........ (2) To introduce 3 years programme for MDS course from the academic year 2006-07. ...........” 16. The petitioners and others similarly situated persons have consented for the course duration as three years. Accordingly, they have been pursuing MDS course as per the revised regulations. The petitioners having consented for three years duration course cannot be permitted to rely upon the duration of course as mentioned in the Prospectus for admission for the year 2006-07. The University has restructured the course pursuant to the guidelines given by DCI, New Delhi and the petitioners have been pursuing the restructured course. As on this day notiﬁcation for submission of dissertation has not been issued. Candidates will be permitted for ﬁnal examination after acceptance of dissertation. The University is yet to notify the cut oﬀ date for submission of dissertation work. Such is the situation, no direction can be given to R1 and R2 to conduct the examination of MDS course 2006-2007 after completion of 2 ½ years duration. 17. Accordingly, this writ petition fails and the same is dismissed. No order as to costs. 3RD November, 2008. (B.SESHASAYANA REDDY,J) tnb ..... REGISTRAR // TRUE COPY // SECTION OFFICER To 1.2CCs to 2.2CD copies Form-NIC-OGS/WP{MSN} THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY WRIT PETITION NO.3625 OF 2008 3RD NOVEMBER, 2008. [1] )1998) 5 SCC 87 [2] 2008 (4) SCJ 686