IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 22.09.2010 CORAM THE HONOURABLE MR. JUSTICE V.DHANAPALAN W.P.No.19580 of 2010 Madha Dental College & Hospital, rep. by its Chairman, Dr.S.Peter, Soosaiya Peter Educational Trust, No.15, Vargheese Avenue, Ashok Nagar, Chennai 600 083. ... Petitioner vs. 1. The Union of India, rep. by its Secretary to GOI, Ministry of Health and Family Welfare, Department of Health (DE Section), Nirman Bhavan, Moulana Azad Road, New Delhi – 110 011. 2. Dental Council of India, rep. by its President, Aiwan-E-Ghalib Marg, Kotla Road, New Delhi 110 002. 3. The Director of Medical Education, rep. by its Director, 151, Periyar EVR Road, Kilpauk, Chennai 600 010. 4. Tamil Nadu Dr. MGR Medical University, rep. by its Vice Chancellor, No.69, Anna Salai, Guindy, Chennai 600 032. ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of declaration. For Petitioner : Mr.K.M.Vijayan, Senior Counsel M/s.K.M.Vijayan Associates https://hcservices.ecourts.gov.in/hcservices/ For Respondents: Mr.J.Ravindran, for R1 Assistant Solicitor General Mr.P.Chandrasekar, for R2 O R D E R By consent, the writ petition itself is taken up for Disposal. This writ petition is filed for declaring the recommendations of the 2nd respondent, in their Letter No.DE-3(266)-2010/A1805 dated 10.08.2010 addressed to the 1st respondent, pursuant to an inspection conducted on 02.08.2010 on the petitioner college as biased, malafide, arbitrary, discriminatory and unsustainable in law and consequently direct the 1st respondent to renew the permission for 3rd year BDS course and to allow admissions in fresh batch of students in BDS course for the academic year 2010-11. 2. The brief facts relating to this writ petition are as follows : (i) The petitioner College is run by Soosaiya Peter Educational Trust, Chennai, which is a Christian Minority Trust. The Trust owns institutions such as Madha Engineering College, Madha Institute of Management Studies, Madha Institute of Computer Applications, Madha College of Nursing, Madha College of Physiotherapy, Madha College of Education, Madha Dental College & Hospital, Madha Teacher Training Institute and Madha Matriculation School, which are duly approved by Governments at Central and State as well as its affiliating bodies. The Government of India, vide its Letter No.V/12017/75/2006-DE dated 13.07.2007 gave formal permission of the Central Government under Section 10A(4) of the Dentists (Amendment) Act, 1993, for establishment of a new Dental College for the year 2007-2008, with an annual intake of 100 students in I BDS Degree Course from the academic year 2007-2008. The University vide its order Proc.No.Affln.I (2)/34144/2006 dated 10.08.2007 granted provisional Affiliation to the petitioner college for starting I BDS Degree course with an annual intake of 100 students from the academic year 2007-2008. The University conducted the first inspection of the college during February 2008 and the DCI conducted the first inspection during April 2008 for grant of 2nd year BDS affiliation. On 03.12.2008, the University vide its order Proc.No.Affln.IV (3)/9637/2008 granted continuance of the provisional affiliation for the academic year 2008-2009. (ii) The Dental Council of India has inspected the petitioner's college on 06.04.2010 to verify the achievement of the annual target for renewal of Central Government permission for the 3rd year BDS course with 100 seats for the academic session 2010- 2011. The DCI, vide its letter No.DE-3(266)-2010/A1363 dated 06.05.2010 directed the petitioner to make good the deficiencies pointed out and to furnish the compliance report. https://hcservices.ecourts.gov.in/hcservices/ (iii) The petitioner duly complied with all the defects and sent the compliance report to the Secretary DCI by their Letter No.MDCH/DCI/Compliance/756/10 dated 10.05.2010 and further on by their letter No.MDCH/DCI/Compliance/781/10 dated 11.06.2010. The petitioner requested the 2nd respondent to consider the compliance report favourably and pass appropriate orders recommending to the 1st respondent for renewal of permission for continuing the 3rd year and admission to the 1st year BDS course in the petitioner College. However, on the basis of the minutes of the DCI circulated in their official website, it is observed that the Executive Committee has recommended not to renew its permission for the 3rd year BDS Course and not to allow admissions in the 1st year BDS course for the academic session 2010-2011. (iv) Pursuant thereto, the Executive Committee recommended to the Central Government not to renew its permission for the 3rd year BDS course and not to allow admissions in BDS course with 100 seats for the academic session 2010-2011, due to the following reasons: Designation Required Availabl e Deficienc y Remarks Professor 6* 6 Nil No deficiency Reader 13 12 1 There is deficiency of one Reader in the Department of periodontics since Kalpana Santhosh shown as Reader is not accepted as she was not present on the day of inspection 40 MDS-12 BDS-28 Nil No deficiency * Including Principal MEDICAL Designation Required Availabl e Deficienc y Remarks Reader 9 9 Nil No deficiency Lecturer 22 22 Nil No deficiency INFRASTRUCTURE : 1. The College has an attachment with Government General Hospital, 12 kms from the College. 2. The clinical material needs to be improved in view of students joining. https://hcservices.ecourts.gov.in/hcservices/ 3. The College needs to procure specialized equipments in different subjects. (v) The EC of the 2nd respondent deliberately with an arbitral attitude had recommended not renewing permission on filthy grounds such as that the Reader Dr.Kalpana who went on maternity leave is not present and the distance of the Hospital is 12 kms from the College. The distance factor is very much in existence on the previous occasions also, when the very same DCI had considered, and approved and the petitioner College was allowed to take admissions of students. The distance is not a changing factor for this year alone. As per the DCI Regulations, the applicant should have its own and manage a 100 bedded General Hospital in the campus or is attached with Government Medical College or a Medical College recognized by the MCI or tied up with at least for 5 years with a Government General Hospital having a provision of at least 100 beds and located within a radius of 10km. The present tied up Hospital is situate in the radius of about 6 km which is very much well within norms stipulated by the DCI Regulations. (vi) The 2nd respondent, in their website circulated their decision on the petitioner's compliance report in the form of minutes. It has been observed from the minutes that the petitioner's college was recommended for not renewing the permission for the academic session 2010-2011 and thus injury caused to the petitioner. Some of the Colleges which had not complied with deficiencies were permitted to admit students while discriminately overlooking the petitioner's college alone without any sustainable reason of non-compliance. At this stage, the petitioner approached this court for a declaration against the arbitral attitude of the 2nd respondent in W.P.No.12753 of 2010. This court, by its order dated 22.06.2010 has given the following directions: "In view of the above submissions made by the learned counsel on either side and considering the plea of the petitioner that the compliance report submitted by them on 11.06.2010 to the 2nd respondent and also taking note of the schedule of admission for the Institution and the counselling date, this court without expressing any opinion on the merits of the case and considering the urgency involved in the case of Medical admission, directs the 2nd respondent to consider the compliance report, take a decision and forward the recommendations to the 1st respondent within a period of one (1) week from the date of receipt of a copy of this order and thereafter, on receipt of such report, the 1st respondent is directed to take a decision within a period of one (1) week. It is made clear that the parties to the proceedings shall strictly adhere to the time schedule in medical admission cases." https://hcservices.ecourts.gov.in/hcservices/ (vii) In order to comply with the directions of this court, the 2nd respondent has deliberately chosen the date declared as Holiday for the College, i.e. on 02.07.2010 on account of the petitioner's daughter's marriage, for the second inspection with an ulterior motive of not to recommend for renewal. If the petitioner's college is inspected in a working day, it will be evident that none of the deficiencies mentioned are factually in existence. It is only failure to exercise such unbiased inspection, on the basis of which the petitioner is facing the present grievance. (viii) The cursory perusal of the Inspection Report dated 05.07.2010 as set out below, itself would speak that the intention of the 2nd respondent as biased, arbitrary and discriminatory with the petitioner's Institution : DENTAL: Designation Required Availabl e Deficienc y Remarks Professor 6* Nil 6 There is deficiency of 6 Professors since all professors were absent as the college was closed on the day of inspection. Reader 13 Nil 13 There is deficiency of 13 Readers since all Readers were absent as the college was closed on the day of inspection Lecturer 40 3 37 There is deficiency of 37 Lecturers since all lecturers including Tutors were absent as the college was closed on the day of inspection. https://hcservices.ecourts.gov.in/hcservices/ MEDICAL : Designation Required Availabl e Deficienc y Remarks Reader 9 Nil 9 There is deficiency of 9 Readers since all Readers were absent as the College was closed on the day of inspection Lecturer 22 Nil 22 There is deficiency of 22 Lecturers since all Lecturers were absent as the college was closed on the day of inspection. INFRASTRUCURE : 1. The distance between the Dental College and attached Government General Hospital, is 12km, which is not accepted as per DCI norms. 2. The clinical material needs to be improved in view of students joining. All the departments were closed except department of Oral Surgery. The main register counter was closed to inspect patients OPD records. There was no register in the department of Oral Surgery to verify any patient records. So the clinical material could not be verified. 3. As the college was closed, specialized equipments in different subjects could not be verified. (ix) The petitioner, at this stage, approached this court for the second time on the same issue for a declaration against the arbitral attitude of the 2nd respondent, in W.P.No.15709 of 2010. This court, in its order dated 28.07.2010 issued the following directions to respondents 1 and 2. "Without expressing any opinion on the merits of the case and considering the circumstances, the 2nd respondent is directed to conduct re-inspection and take a decision and forward the recommendations to the 1st respondent immediately preferably within a period of ten days from the date of receipt of a copy of this order, thereafter, on receipt of such report, the 1st respondent is directed to take a decision within a period of one (1) week. https://hcservices.ecourts.gov.in/hcservices/ (x) The petitioner further sated that as per the directions of this court, the 2nd respondent conducted inspections for the third time on 02.08.2010, and submitted the inspection report dated 10.08.2010 as set out below. DENTAL: Designation Required Availabl e Deficienc y Remarks Professor 6* 6 1 No deficiency Reader 13 12 1 There is deficiency of one Reader in the Department of Oral & Maxitloecial Surgery, since Dr.V.Arumugam shown as Professor is not accepted as he was also present in the inspection of the proposed Asan Memorial Dental College & Hospital, Kancheepuram in the same academic session, i.e. 2010- 2011. Lecturer 40 MDS-12 BDS-28 Nil No deficiency. Dr.Rajani Iyer shown as MDS Lecturer in Oral Surgery is not accepted as she was also present in the inspection of proposed Asan Memorial Dental College & Hospital & Hospital, Kancheepuram in the same academic session i.e., 2010- 2011 https://hcservices.ecourts.gov.in/hcservices/ MEDICAL : Designation Required Availabl e Deficienc y Remarks Reader 9 9 Nil No deficiency Lecturer 22 19 3 There is deficiency of 3 Lecturers in the department of Pharmacology since the following staff does not have requisite qualification as per DCI norms and are M.Pharma : (i) Mr.M.Nandagopal (ii) Mr.P.Karthik (iii) Mr.H.Mohanarangan INFRASTRUCTURE : 1. The distance between the dental college and attached Government General Hospital is 12km. 2. The average OPD of the Dental Institute stands about 100 to 110 patients per day which includes old and new cases. However, after going through stock register of consumables and non- consumable ledgers, it is difficult to assess actual OPD and patient treated records, as the registers have not been maintained properly. 3. The instruments and equipments are grossly inadequate as per DCI norms. 4. Concept of sterilization is inadequate in all the departments. 5. BARC norms are not followed in Radiology Department. (xi) According to the petitioner, the fresh deficiency included in the third report is the deficiency of one Reader in the Department of Oral & Maxitloecial Surgery, since Dr.V.Arumugam shown as Professor is not accepted as he was also present in the inspection of proposed Asan Memorial Dental College & Hospital and Hospital, Kancheepuram in the same academic sessions, i.e. 2010- 2011. https://hcservices.ecourts.gov.in/hcservices/ (xii) The petitioner further states that Dr.V.Arumugam is under the roll of the petitioner's college for the past three years and he is receiving the salary from the petitioner. No application for resignation was received from the concerned faculty and no relief was given to him for joining the proposed Dental College. In case, the concerned faculty appears and present in the inspections of both the colleges, the 2nd respondent has to initiate disciplinary proceedings as per the Dentists Act against the concerned faculty only. Instead, DCI punishes the petitioner who is not at fault and having no knowledge of the misconduct of the faculty, appearing in the inspections of two colleges simultaneously. (xiii) The petitioner would also state that the other deficiency of 3 Lecturers, who are having M.Pharm qualifications, instead of M.B.B.S. is against the DCI Regulations. This is a new deficiency and after thought inclusion, incorporated in third Inspection Report, solely for the purpose of denying renewal to the petitioner's college. The alleged deficiency is not figured in both the 1st and 2nd Inspection Reports, despite the very same faculties are present in all the three inspections. Having no other efficacious alternative remedy, the petitioner is before this court. 3. The 2nd respondent Dental Council of India filed counter affidavit, wherein, it is stated as follows : (i) The petitioner Dental College was established with the prior permission of the Central Government under Section 10-A of the Dentists (Amendment) Act, 1993 from the academic session 2007- 2008 with 100 admissions. It was granted 1st year renewal permission for the academic session 2008-2009. Due to gross deficiencies noticed in the petitioner Dental College, no permission was granted to the petitioner Dental College for the academic session 2009-2010. In order to consider the case of the petitioner Dental college for renewal of Central Government permission for 3rd year BDS course for the academic session 2010- 2011, the DCI deputed its statutory inspectors, namely, Dr.Ramakrishna Shenoi of Nagpur and Dr.Jyoti Undanwade of Mumbai to verify the achievement of the annual target in terms of infrastructural facilities including teaching faculty, clinical material, equipments, etc. The said DCI statutory Inspectors conducted the inspection of the petitioner Dental College on 06.04.2010 and submitted their Joint Inspection Report to the DCI. (ii) The Executive committee of the DCI in its meeting held on 26.04.2010 considered the aforesaid Joint Inspection Reports of the DCI's statutory Inspectors, namely, Dr.Ramakrishna Shenoi of Nagpur and Dr.Jyoti Undanwade of Mumbai and after discussion and deliberation noticed deficiencies in the petitioner Dental College and also decided that the petitioner Dental College be requested to https://hcservices.ecourts.gov.in/hcservices/ furnish the Compliance Report within 5 days in respect of the deficiencies noticed. The deficiencies that were so noticed by the Executive Committee of the DCI are reproduced below : The college authorities be asked to make good the following deficiencies and furnish the Compliance Report within 5 days for 3rd year BDS course at Madha Dental College & Hospital, Chennai with 100 seats for the academic session 2010-2011 :- 1. The college has an attachment with Government General Hospital, 12 kms from the College. 2. There is deficiency of one Reader in the department of Oral Surgery since Dr.V.Arumugam shown as Professor is not accepted as he has not furnished the relieving order from the previous institute. 3. There is deficiency of one Reader in the Department of Periodontics since Kalpana Santhosh shown as Reader is not accepted as she was not present on the day of inspection. 4. There is deficiency of one Reader in the Department of Pharmacology. 5. There is deficiency of one Reader in the Department of Orthodontics since Dr.R.S.Senkutuvan shown as Prof. & Head is not accepted as he has not obtained NOC from DCI as per GOI letter No.V.12012/3/2009-DE dated 03.12.2009, informed to all colleges vide DCI letter No.DE-Comp/2009A-7959, dated 15.12.2009. 6. There is deficiency of one Reader in the Department of Pedodontics since Dr.R.Venkatasubramaniam is not accepted as he has not obtained NOC from DCI as per GOI letter No.V.12012/3/2009-DE dated 03.12.2009, informed to all colleges vide DCI letter No.DE-Comp/2009A-7959 dated 15.12.2009. 7. There is deficiency of one Reader in the department of Community Dentistry since T.Sriram is not accepted as he has not obtained NOC from DCI as per GOI letter No.V.12012/3/2009-DE dated 03.12.2009, informed to all colleges vide DCI letter No.DE- Comp/2009A-7959 dated 15.12.2009. 8. There is deficiency of one Reader in the department of Prosdhodontics since Dr.Pavan Kumar Bohra is not accepted as he has not obtained NOC from DCI as per GOI letter No.V.12012/3/2009-DE dated https://hcservices.ecourts.gov.in/hcservices/ 03.12.2009, informed to all colleges vide DCI letter No.DE-Comp/2009A-7959 dated 15.12.2009. 9. The clinical material needs to be improved in view of students joining. 10. The college needs to procure specialized equipments in different subjects. (iii) That the aforesaid deficiencies were communicated to the petitioner Dental College vide DCI's letter dated 06.05.2010 with the request to furnish the Compliance Report in respect thereof by 11.05.2010 positively. The petitioner Dental College vide its letter dated 11.05.2010 submitted the Compliance Report. The Executive Committee of the DCI in its meeting held on 15.05.2010 considered the Compliance Report dated 11.05.2010 from the petitioner Dental College and after discussion and deliberation decided not to renew its permission for 3rd year BDS course and not to allow admissions in BDS course at the petitioner Dental College with 100 seats for the academic session 2010-2011 due to deficiency in teaching faculty, clinical material and also the petitioner Dental College needs to procure specialized equipments in different subjects/Departments. Moreover, it has also been decided that the petitioner Dental College has an attachment with Government General Hospital which is at a distance of 12 kms from the College as against the prescribed distance of 10 kms as per Regulation No.2(h) of the DCI Regulations 2006. The deficiencies so noticed by the Executive Committee are reproduced below. The Executive Committee recommends to the Central Government not to renew its permission for 3rd year BDS course and not to allow admissions in BDS course at Madha Dental College & Hospital, Chennai with 100 seats for the academic session 2010-2011, due to the following reasons : DENTAL : Designation Required Availabl e Deficienc y Remarks Professor 6* 6 Nil No deficiency https://hcservices.ecourts.gov.in/hcservices/ Designation Required Availabl e Deficienc y Remarks Reader 13 12 1 There is deficiency of a Reader in the department Periodontics since Kalpana Santhosh shown as Reader is not accepted as she was not present on the date of inspection. Lecturer 40 MDS-12 BDS-28 Nil No deficiency * Including Principal MEDICAL Designation Required Availabl e Deficienc y Remarks Reader 9 9 Nil No deficiency Lecturer 22 22 Nil No deficiency INFRASTRUCTURE : 1. The College has an attachment with Government General Hospital, 12 kms from the College. 2. The clinical material needs to be improved in view of students joining. 3. The college needs to procure specialized equipments in different subjects. Accordingly, DCI vide its letter dated 19.05.2010 sent to the Central Government the aforesaid recommendations of the Executive Committee of the DCI for further necessary action in the matter. (iv) Pursuant thereto, the petitioner Dental College filed a writ petition in W.P.No.12753 of 2010 before this court and this court vide its order dated 22.06.2010 disposed of the same with a direction to the 2nd respondent to consider the compliance report, take a decision and forward the recommendations to the 1st respondent within a period of one (1) week from the date of receipt of a copy of this order and thereafter, on receipt of such report, the 1st respondent was directed to take a decision within a period of one (1) week. It was made clear that the parties to the proceedings shall strictly adhere to the time schedule in medical admission cases. https://hcservices.ecourts.gov.in/hcservices/ (v) In order to comply with the aforesaid direction passed by this court, the DCI deputed its statutory Inspector, Professor Dr.Arun Dodamani of Dhule to verify the Compliance Report/letter dated 11.06.2010 from the petitioner Dental College on the Joint Inspection Report of the DCI Inspectors Dr.Ramakrishna Shenoi of Nagpur and Dr.Jyoti Udarwade of Mumbai to verify the achievement of the annual target for renewal of Central Government permission for 3rd year BDS course at the petitioner's Dental College with 100 seats for academic session 2010-2011. The requisite Inspection was conducted on 02.07.2010 by Professor Dr.Arun Dodamani of Dhule, who submitted his report which was received in the office of the DCI on 05.07.2010. (vi) Regarding the distance from the petitioner Dental College to its attached Government General Hospital is concerned, the DCI Inspector Dr.Arun Dodamani in his Inspection Report dated 02.07.2010, has inter alia observed as under : "2. The College has attachment with Government General Hospital, Chromepet, 12 kms from the College. Observation : Dr.A.R.Lakshmanan, Sr.Lecturer, Dept. of Oral Surgery, accompanied us in our vehicle the meter of the vehicle was set to Zero in front of him and as per his guidance, we reached the Government General Hospital, Chromepet. The meter reading showed 12 kms and the same was noted and duly signed by Dr.Lakshmanan and the Vice- Principal Dr.Satish Kumar (who came at 12 pm). The Vice-Principal endorsed the same. Annexure 1B reads as under : "On the instruction by the Inspector (DCI), I accompanied him to the General Hospital (Govt.) in a taxi, the meter reading was started from the gate of the Dental College, vehicle started from 0 (zero) and we went to the General Hospital, the meter reading showed 12 kms (12). I accompanied the Inspector for inspection of the Hospital. I, Dr.M.Satish Kumar (V.P.) of Madha Dental College came here and met the Inspector at 12.05 pm and accompanying him for the inspection of General Hospital and also, I have seen the meter reading which came to 12 km. " (vii) The Executive Committee of DCI considered, by circulation on 05.07.2010, the above Inspection Report dated 02.07.2010 of the DCI Inspector, Dr.Dodamani of Dhule, pursuant to/in compliance with the order dated 22.06.2010 passed by this court in W.P.No.12753 of 2010 and decided as under : https://hcservices.ecourts.gov.in/hcservices/ The Executive Committee recommends to the Central Government not to renew its permission for 3rd year BDS course and not to allow admissions in BDS course at Madha Dental College & Hospital, Chennai with 100 seats for the academic session 2010-2011, due to the following reasons : "Observations of the Council's Inspector : The Council's Inspector reached the Dental College and visited the Principal's Office at 10.45am. As noted, the College was closed and the watchman informed that the College was closed on the eve of Chairman's daughter's marriage. The Council's Inspector insisted the watchman that he want to see the college. As he entered the college, he saw one Department opened (Oral & Maxillofacial Surgery). Further, inspection of the college was done, all the departments including clinical and non-clinical, except Oral Surgery was closed. But, the Registration counter was closed, so verification of clinical material, i.e. patients record could not be verified. " DENTAL Designation Required Availabl e Deficienc y Remarks Professor 6*