IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10.08.2010 CORAM: THE HONOURABLE MR. JUSTICE V. DHANAPALAN WRIT PETITION No.16057 of 2010 RVS Dental College & Hospitals Kannanpalayam, Sulur, Coimbatore – 641 402. Rep. by its Chairman Mr. K.V. Kuppusamy ..Petitioner -vs- 1. The Dental Council of India Rep. by its Secretary, Aiwan – E – Galib Marg, Kotla Road, New Delhi – 2. 2. The Technical Review Committee, Dental Council of India, Rep. by its Chairman, R.K. Srivatsava 3. The Ministry of Health & Family Welfare, Rep. by its Secretary to the Government of India, Nirman Bhavan, New Delhi. 4. The Tamil Nadu Dr. M.G.R. Medical University, Rep. by its Registrar, Guindy, Chennai. ..Respondents Writ petition under Article 226 of Constitution of India for issuance of writ of certiorari to call for the records of the 1st respondent dated 15.05.2010 and quash the same so far as it relates to the reduction in intake of students from 100 to 50 for admission in the academic year 2010-2011 in the Petitioner's college and the consequential proceeding of the third respondent dated 29.06.2010. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.Murali Kumaran, for M/s.Mcgan Law Firm For R1 & R2 : Mr. P.Chandrasekaran For R3 : Mr. J.Ravindran Asst. Solicitor General For R4 : Mr. A.Saravanan O R D E R By consent of the learned counsel on either side, this writ petition is taken up for final disposal. 2. In this writ petition, the petitioner challenges the order passed by the first respondent dated 15.05.2010 seeking to quash the same so far as it relates to the reduction in intake of students from 100 to 50 for admission in the academic year 2010 – 2011 in the petitioner's college and the consequential proceeding of the third respondent dated 29.06.2010. 3. The petitioner is the Chairman of the Trust namely RVS Educational Trust, hereinafter referred to as the 'Trust'. He is also the Chairman of RVS Dental College and Hospitals, which was established by the Trust. The 1st and 3rd respondents granted permission to the Trust to establish the Dental College to impart education leading to grant of Degree of Bachelor of Dental Surgery with an intake of 100 students from the academic year 2008–09. Respondents 1 and 3 duly recommended the same number of intake of students for the academic year 2009–10 and extended the approval. For the academic year 2010-11, for the purpose of extending permission, an inspection was conducted on 29.04.2010 as per the norms of the 1st respondent, which was a surprise inspection without prior intimation. After the inspection, the 1st respondent, in its communication dated 07.05.2010, observed five deficiencies and requested compliance of the same within five days. The following are the deficiencies pointed out by the 1st respondent : "(1) Clinical material is inadequate. Only 45 patients/day in Dental College Hospital and only 12-15 IOPA x-rays are taken per week. (2) There is deficiency of one Professor in the department of Oral surgery since, (i) Dr. Sudhama.V, Professor in Oral Surgery is not accepted since he has not obtained NOC from DCI as per GOI letter No.V.12012/3/2009-E dated 03.12.2009, informed to all colleges vide DCI letter No.DE-Comp/2009A-7959 dated 15.12.2009 and https://hcservices.ecourts.gov.in/hcservices/ (ii) Dr. Sivaramulu, Professor is not accepted as he is over aged. (3) There is deficiency of one Professor in the department of Oral Pathology since Dr.M.Vidya, Professor in Oral Pathology is not accepted as she 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. (4) There is deficiency of one Reader in the department of Oral Pathology since Dr. Syed Rafiuddeen, Professor in Oral Pathology 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. (5) There is deficiency of one Reader in the department of Pharmacology since Dr.Jagdeesh, Professor is not accepted as he was absent on the day of inspection." 3a. On receipt of the above communication, the petitioner made a reply on 10.05.2010 by complying the above deficiencies. But, the Executive Committee of the 1st respondent, without applying its mind, in a mechanical manner, recommended for reduction in the intake of admission from 100 to 50 students in the petitioner college for the academic year 2010-11 by observing three of the deficiencies out of five pointed out in its communication dated 07.05.2010, which are as follows: i)Clinical material is inadequate. Only 45 patients/day in Dental College Hospital and only 12- 15 IOPA X-Rays are taken per week. ii)There is deficiency of one Reader in the department of Pharmacology since Dr.Jagdeesh, Professor is not accepted as he was absent on the day of inspection. iii)Dr. Sivaramulu, Professor in the department of Oral & Maxillofacial Surgery is not accepted as he is over aged. 3b. The said recommendation was only posted in the website of the 1st respondent. Since the recommendation of the 1st respondent is factually incorrect, the petitioner made a representation on 10.06.2010 pointing out that the observations are contrary to the regulations of the 1st respondent. Thereafter, the petitioner received a communication on 17.06.2010 from the 1st respondent stating that https://hcservices.ecourts.gov.in/hcservices/ they have recommended for renewal of permission to the petitioner for the academic year 2010-11 with an intake of 100 seats. 3c. According to the petitioner, they received a communication from the 3rd respondent constituting a Committee under the Chairmanship of the Health Secretary to consider the proposals for establishment of new Dental Colleges / increase of seats in existing Dental Colleges / Renewal etc. for the academic year 2010-11, which committee is understood and functioned as an Appellate Review Committee. The said communication of the 3rd respondent dated 21.06.2010 gave the date of hearing as 23rd, 24th and 25th of June 2010 and the same reached the petitioner College only on 28.06.2010. In view of the World Tamil Conference held at Coimbatore, the Government declared holidays from 23.06.2010 to 27.06.2010 and practically and factually, no activities took place during the above period in the entire District of Coimbatore. The petitioner College has also to be necessarily closed down from 23.06.2010 to 27.06.2010. Immediately, on receipt of the communication dated 21.06.2010, the petitioner made a representation on 02.07.2010 to the 2nd respondent. In the meantime, the petitioner received a communication from the 3rd respondent dated 29.06.2010 reducing the intake from 100 to 50 seats for the year 2010-11 in the petitioner College. 3d. Therefore, aggrieved by the recommendation of the 1st respondent dated 15.05.2010 and the consequent proceedings of the 3rd respondent dated 29.06.2010 reducing the intake in their College from 100 to 50 seats from the academic year 2010-11, the petitioner has filed the present writ petition challenging the above said proceedings on the ground that the order is passed by arbitrary exercise of power and that it suffers from the vice of selective discrimination and therefore, is violative of Article 14 of the Constitution of India. 3e. It is also the petitioner's case that the impugned order has been passed without affording an opportunity of presenting their case before the 2nd respondent, which was available to other similarly placed persons and that the compliance report was not properly considered by the respondents and thus, the order passed is with total non-application of mind and hence, cannot be sustained. 4. Respondents 1 and 2 have filed counter, wherein it is stated that for the purpose of maintaining highest standard in imparting dental education by the dental colleges / institutions in the country, the Dental Council of India, hereinafter referred to as 'DCI', was constituted under the provisions of the Dentists Act, 1948. It is the statutory and bounden duty of the DCI to take all such steps which are required to be taken for ensuring the maintenance of highest standards in dental education in the country. Before 1993, it was possible for any person to establish a dental college without seeking permission from any State or Central https://hcservices.ecourts.gov.in/hcservices/ Authority. Over a period of time, it was consistently observed that most of the dental colleges and institutions were not able to provide all the necessary infrastructure and facilities for imparting dental education of the requisite standards. Therefore, with a view to check the unregulated, uncontrolled, mushrooming growth of dental colleges / institutions, the legislature made amendments in the Act called Dentists (Amendment) Act 1993, hereinafter referred to as the 'Act', and incorporated new provisions of 10-A, 10-B and 10-C, thereby making it absolutely mandatory and obligatory for any person desirous of establishing a dental college to obtain prior permission from the Central Government in accordance with the provisions of Section 10-A of the Act. 4a. In the counter, it is further stated that the petitioner Dental College was established during the year 2008–2009 with an intake capacity of 100 seats in accordance with the provisions of the Act and the DCI Regulations 2006, hereinafter referred to as the 'Regulations', and the College has been granted renewal permission for the 2nd year BDS Course for the academic session 2009–2010. The petitioner Dental College is now in the third year of its running namely 2010-2011. In order to consider the case for renewal of permission for 3rd year/batch of the petitioner College for the academic session 2010-2011, the petitioner College was inspected on 19.04.2010 by DCI's Inspectors, namely, Dr. Sharat Chandra and Dr. H.Murali. Thereafter, the Executive Committee of the DCI in its meeting held on 29.04.2010 considered the Joint Inspection Report of the DCI Inspectors and, after discussion and deliberation, noticed that deficiencies existed in the petitioner College and therefore, decided that the deficiencies so noticed be communicated to the petitioner and the petitioner college was asked to submit their Compliance Report within five days. Accordingly, the deficiencies were communicated to the College vide DCI's letter dated 07.05.2010. The college submitted the Compliance Report vide its letter dated 12.05.2010. 4b. Thereafter, the Executive Committee of the DCI in its meeting held on 15.05.2010 considered the Compliance Report dated 12.05.2010 submitted by the College and, after discussion and deliberation, decided to recommend to the Central Government to renew its permission for 3rd year BDS Course and reduced the number of admissions from 100 to 50 for the academic session 2010–2011 due to the reasons that clinical material was inadequate; there was deficiency of one Reader in the Department of Pharmacology, since Dr. Jagdeesh, Professor was not accepted as he was absent on the day of inspection and Dr.Sivaramulu, Professor in the Department of Oral & Maxillofacial Surgery was not accepted as he was over-aged. Accordingly, the DCI, vide its letter dated 19.05.2010 communicated the aforesaid decision of the Executive Committee of the DCI to the Central Government for further appropriate action in the matter. https://hcservices.ecourts.gov.in/hcservices/ 4c. Accepting the recommendations of the DCI, the Central Government vide its letter dated 29.06.2010 conveyed its approval to renew its permission for 3rd year BDS Course and reduced the number of admissions from 100 to 50 seats for the academic session 2010–2011 with the stipulation that the next batch of students will be admitted in the college only after renewal on Central Government permission for 3rd year BDS Course in the college and admissions made in violation of this condition will be treated as irregular and action under Section 10-B of the Act will be initiated. 4d. It is the stand of respondents 1 and 2 in the counter that on receipt of negative recommendation from Dental Council of India in number of cases, the Central Government constituted a Three-Member Committee under the Chairmanship of Director General of Health Services with members from All India Institute of Medical Science (AIIMS), New Delhi and PGIMER, Chandigarh. Both the institutions are of national repute and are Centres of excellence in Medical and Dental Education, for considering the cases where negative recommendations have been sent by the DCI. The Directorate General of Health Services headed by the Director General, is an Attached Office of the Ministry of Health & Family Welfare of the Government of India and is a Technical Advisory Body for rendering advice on all Health matters including Medical and Dental Education. 4e. The Central Government, for the purpose of affording an opportunity of being heard by way of personal hearing under Section 10-A (4) of the Act to the Dental Colleges, including the petitioner College, vide its letter dated 21.06.2010, informed the College to appear before the aforesaid committee on 23rd, 24th and 25th of June 2010 from 11.00a.m. To 4.00 p.m. in the chamber of the Director General of Health Services, Nirman Bhawan, New Delhi and present their case with all the relevant documents. But, the College did not appear before the said Three Member-Committee and they have stated that their impugned representation dated 02.07.2010 was sent to the R2-Committee, thereby claiming that no deficiencies exit in their dental college. 4f. It is also stated in the counter that after taking into account the submissions made by the Dental colleges, who attended the personal hearing, the Committee recommended 15 cases to Central Government for re-consideration by the DCI for the academic year 2010-2011 and the Central Government, further vide its letter dated 30.06.2010, forwarded to DCI 15 cases, which were recommended by the aforesaid Committee for reconsideration and requested the DCI to re- inspect the 15 colleges, obtain and verify the compliance report and send its revised recommendation by 12.07.2010 positively, for taking a final decision by 15.07.2010, which is the last date for grant of permission as mandated in the Time Schedule annexed to DCI Regulations 2006. But, the petitioner's case did not find place among the 15 cases referred to DCI for reconsideration. https://hcservices.ecourts.gov.in/hcservices/ 4g. Since the Central Government had afforded an opportunity of personal hearing to the petitioner college and since the petitioner did not attend the personal hearing, the Central Government, vide its letter dated 15.07.2010, has informed the petitioner College that keeping in view the recommendations of the DCI contained in its letter dated 19.05.2010 and also the type and nature of deficiencies pointed out by the DCI, it has decided not to grant its renewal permission to the petitioner College for restoration of seats from 50 to 100 for the academic year 2010-2011. Accordingly, the Central Government has also directed the petitioner College not to admit students for the restoration of seats in BDS Course for the academic year 2010–2011 with the stipulation that, in case any admissions are made in violation of this condition, such admissions would be treated as irregular and action under Section 10-B of the Act would be initiated. In view of this and also in view of the fact that the petitioner College was given an opportunity under Section 10-A(4) of the Act and as the petitioner has not availed that opportunity, no indulgence may be shown by this Court to the petitioner College and therefore, the writ petition deserves to be dismissed. 4h. As per the Time Schedule annexed to the Regulations, the DCI is mandated to send its appropriate recommendations to the Central Government by 15.06.2010 for the academic session 2010-2011. In view of this, the DCI sent its appropriate recommendation to the Central Government on 15.06.2010 in the case of the petitioner College and the Central Government, in turn, extended this date upto 12.07.2010, but only in respect of those cases, which were referred by them on the recommendations of the aforesaid Three-Member Technical Committee, which is already over. Ultimately, the Central Government was mandated to convey its appropriate decision to the concerned dental colleges by 15.07.2010, which has already been done by the Central Government in the case of the petitioner Dental College. In view of the above facts, the respondents 1 and 2 would state that the prayer of the petitioner cannot be granted and hence, prayed for dismissal of the writ petition. 5. Heard Mr.Muralikumaran, learned counsel for the petitioner, Mr.P.Chandrasekaran, learned counsel appearing for respondents 1 and 2, Mr.J.Ravindran, learned Assistant Solicitor General appearing for the 3rd respondent and Mr.A.Saravanan, learned counsel appearing for the 4th respondent. 6. Learned counsel for the petitioner would strenuously contend that the compliance report of the petitioner College was not considered by the respondents and that there was total non- application of mind. He would submit that after certain deficiencies were pointed out by the 1st respondent, the total compliance by the petitioner College was communicated to the 1st respondent by a letter dated 10.06.2010. He would further contend that the 1st respondent in its communication dated 17.06.2010 intimated to the petitioner that https://hcservices.ecourts.gov.in/hcservices/ there was an appropriate recommendation to the Government for renewal of permission for the academic year 2010-2011 with an intake of 100 seats. But now, a contrary decision has been taken by the respondents which cannot be sustained. 6a. It is also the contention of the learned counsel that the petitioner College is located in Coimbatore in the State of Tamil Nadu and during the period from 23.06.2010 to 27.06.2010, the Government of Tamil Nadu declared holidays including educational institutions, and therefore, the petitioner College had to be necessarily closed down during the above said period and since the communication of the 3rd respondent dated 21.06.2010 for personal appearance of the petitioner was despatched on 22.06.2010 at New Delhi, it reached Coimbatore Sulur Post Office on 25.06.2010 and thereafter, it was delivered to the petitioner only on 28.06.2010. Therefore, it cannot be contended that the petitioner has not availed the opportunity of personal hearing offered by the respondents on 23rd, 24th and 25th of June 2010 and thus, there is non-compliance of provisions under Section 10-A(4) of the Act and there is a clear violation namely, not giving an opportunity of personal hearing to the petitioner. If such an opportunity is given to the petitioner, the compliance would have been reported before the competent authority for consideration and the petitioner college would have received favourable orders, as in the case of 15 other Dental Colleges. 7. Per contra, learned counsel appearing for the Dental Council of India/1st and 2nd respondents herein, would contend that as the deficiencies pointed out by the DCI have not been complied with, the recommendation dated 29.06.2010 was conveyed to the 1st respondent for a decision and the Central Government, after affording an opportunity of being heard by way of personal hearing under Section 10-A (4) of the Act only, has decided to pass the impugned order and therefore, there is no violation of any provisions of the Act or the Regulations. According to him, only in view of the non-compliance of the deficiencies, taking into account the higher standard of Dental Education in the country, the decision to grant renewal permission to the petitioner college by reducing the seats from 100 to 50 for the academic year 2010-2011 was taken. 8. Mr.J.Ravindran, learned Assistant Solicitor General appearing for the 3rd respondent, on instructions would submit that the 3rd respondent has taken a decision in accordance with the provisions of the Act only based on the recommendations of the DCI. Therefore, there is no legal infirmity in the order dated 29.06.2010 passed by the 3rd respondent. He has pointed out that the communication of the 3rd respondent, dated 21.06.2010 for personal appearance of the petitioner from 23.06.2010 to 25.06.2010 was despatched on 22.06.2010 at New Delhi, thereby complying with the provision under Section 10-A (4) of the Act. According to the https://hcservices.ecourts.gov.in/hcservices/ learned counsel, the decision of the 3rd respondent cannot be faulted with. 9. I have heard the learned counsel for the parties and perused the relevant materials and analysed the relevant provisions of law. 10. It is seen that the petitioner college was established in the year 2008-2009 with an intake capacity of 100 seats and thereafter, it has been granted renewal permission for the academic session 2009-2010 and for the 3rd year viz., for the academic year 2010-2011, the petitioner applied for renewal. Thereafter, the petitioner college was inspected by the DCI Inspectors on 19.04.2010 and the Executive Committee of the DCI, in its meeting, considered the Joint Inspection Report of the DCI Inspectors and after discussion and deliberation, noticing the existing deficiencies, decided to communicate the same to the petitioner college to enable it to comply with the same within five days. Thereafter, the petitioner college submitted a compliance report on 12.05.2010. 11. After discussion and deliberation, the Executive Committee decided to recommend the case of the petitioner college to the Central Government to renew the permission for 3rd year B.D.S. Course by reducing the intake from 100 to 50 for the reasons that (i) clinical materials were inadequate (ii) there was deficiency of one Reader in the Department of Pharmacology, since Dr. Jagdeesh, Professor was not accepted as he was absent on the day of inspection and (iii) Dr.Sivaramulu, Professor in the Department of Oral and Maxillofacial Surgery, was not accepted as he was over-aged. Therefore, the DCI vide its letter dated 19.05.2010, communicated the aforesaid decision of the Executive Committee to the Central Government and the Central Government, after looking into the matter, vide its letter dated 29.06.2010, conveyed its approval to renew its permission to 3rd year B.D.S. Course and reduced the number of intake from 100 to 50 for the academic year 2010-2011. 12. It appears that on 02.07.2010, the petitioner sent a compliance report of the deficiencies and that was pending consideration. But, in the meanwhile, the 1st respondent conveyed to the petitioner college in its letter dated 21.06.2010, to appear before the Committee constituted by the Central Government on 23rd, 24th and 25th of June 2010 between 11.00 a.m. and 4.00 p.m. at the Chamber of Director General in 446/A Wing, Nirman Bhavan, New Delhi – 110 011, by presenting the petitioner's case with all relevant documents. It is the strong case of the petitioner that if such a communication was received by their college, its legitimate expectation is that, they would have explained their case namely, the compliance of the deficiencies pointed out by the respondents and a decision would have been taken in their favour. https://hcservices.ecourts.gov.in/hcservices/ 13. While examining the records, it is seen that the original document showing the proof of service of the letter sent by the Ministry of Health and Family Welfare (Dental Education Section), Government of India, New Delhi, on 21st June, 2010 was despatched at New Delhi on 22nd June, 2010 and it reached the Sulur Post Office, Coimbatore on 25th June, 2010 and the same was delivered to the petitioner on 28th June, 2010. However, the decision to reduce the intake and grant permission for the 3rd year B.D.S. Course was made by the 2nd respondent on 29.06.2010. 14. It is admitted by both the parties that because of the Tamil Classical Conference held at Coimbatore, the Government of Tamil Nadu has declared holidays from 23.06.2010 to 27.06.2010 and during that period all the educational institutions were closed. It is also seen that the petitioner college was also closed on those days and therefore, the communication dated 21.06.2010, which was despatched at New Delhi on 22.06.2010 and received by Sulur Post Office, Coimbatore on 25.06.2010, was delivered to the petitioner college only on 28.06.2010. Thus, as there was no effective service of the communication, the personal appearance of the petitioner college on 23rd, 24th and 25th June, 2010 at New Delhi before the Committee constituted by the 2nd respondent was not possible. When the date of hearing was fixed from 23.06.2010 to 25.06.2010, the communication was despatched at New Delhi only on 22.06.2010, just a day prior to the date of hearing, thus, making it impossible for the petitioner college to appear before the Committee. The main grievance of the petitioner is that though they made all efforts, the compliance of deficiencies was not taken into consideration by the respondents. 15. The provision of the Act namely, Section 10-A(4) clearly mandates that there