IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.09.2010 Coram: THE HONOURABLE Mr.JUSTICE R.SUDHAKAR W.P NO.17666 OF 2010 Asan Memorial Association (regd.) Represented by its General Secretary, "Cochin House", No.1, Anderson Road, Chennai – 600 006. … Petitioner Vs 1.Government of India rep. By its Secretary, Ministry of Health and Family Welfare (Dental Educational Section), Nirman Bhavan, Moulana Asad Road, New Delhi. 2.The Dental Council of India rep.by its Secretary, Aiwan-E-Galib Marg, Kotla Road, Temple Lane, New Delhi – 110 002. 3.Tamil Nadu Medical Admission Committee rep. By its Secretary, Kilpauk, Chennai – 600 010. … Respondents Prayer:- Writ petition filed under Article 226 of the Constitution of India praying for a writ of Certiorarified Mandamus calling for the records comprised in Proc.F.No.V 12017/5/2010-DE on the file of the first respondent dated 15.07.2010 and to quash the same and consequently direct the respondents to grant permission for starting of the new Dental College by the Petitioner under the name and style of 'Asan Memorial Dental College and Hospital' at Keerapakkam, Kancheepuram District. For Petitioner : Mr.R.Krishnamoorthy, Senior Counsel for Mr.V.Ayyadurai For Respondents : Mr.J.Ravindran, Asst.Solicitor General of India for R1 Mr.P.Chandrasekaran for R2 https://hcservices.ecourts.gov.in/hcservices/ O R D E R This writ petition is filed to call for the records comprised in Proc.F.No.V 12017/5/2010-DE on the file of the first respondent dated 15.07.2010 and to quash the same and consequently direct the respondents to grant permission for starting of the new Dental College by the Petitioner under the name and style of 'Asan Memorial Dental College and Hospital' at Keerapakkam, Kancheepuram District. 2. The petitioner society has already established and are administering several educational institutions. The petitioner applied to the respondents to set up a Dental College. Petitioner submitted an application dated 17.09.2007 as per the Dental Council of India Regulations 2006 framed in terms of Section 10A r/w 20 of the Dentist Act 1948. The competent authority to inspect and recommend the case is the Dental Council of India. The approval has to be given by the Ministry of Health and Family Welfare (Dental Education Section), New Delhi based on the recommendation of the Dental Council of India. The petitioner has been pursuing his application for quite some time. 3. For the disposal of the present writ petition, this Court is not going into the various events from the date of application except the relevant details which are as follows - [a] The petitioner after substantial compliance, submitted the third application on 24.09.2009. It had also established a Dental Hospital as per the requirements. The several correspondences were exchanged between the petitioners and the Dental Council of India in order to show compliance with the requirements of the law for granting approval for starting a Dental College. [b] After substantial compliance, the Dental Council of India carried out inspection on 11.05.2010 and pointed out certain deficiencies by communication dated 17.05.2010. The petitioner partially complied with the deficiencies and submitted a report on 21.05.2010. Thereafter, the petitioner fully complied with all the deficiencies pointed out and submitted a compliance report dated 02.06.2010. In the meanwhile, the second respondents, Dental Council of India (DCI) met on 03.06.2010 at New Delhi to consider the claim of all the Dental Colleges based on the inspection reports furnished to them. The compliance report furnished by the petitioner on 02.06.2010 was received at the office of the second respondent, Dental Council of India 04.06.2010, one day after the meeting. In effect, on the date when all the applications of the Dental Colleges were considered, https://hcservices.ecourts.gov.in/hcservices/ the full compliance report dated 02.06.2010 submitted by the petitioner was not on file. The second respondent considered all the claims and forwarded the files to the first respondent vide proceedings No.DE 22(356)-2010/698 dated 12.06.2010. [c] While forwarding the report, the Dental Council of India considered the petitioner's letter dated 21.05.2010 alone and did not forward the full compliance report dated 02.06.2010. The first respondent, Ministry of Health and Family Welfare (Dental Education Section) passed the impugned order on 15.07.2010. It is pertinent to point out that before passing the impugned order, the first respondent gave an opportunity to the petitioner Dental College a personal hearing. The Petitioner society appeared before the first respondent during the personal hearing and claimed that they have submitted the entire report to establish their case of full compliance on the deficiencies pointed out. Petitioner prayed that the proposal should be approved. [d] In the present case, the first respondent, based on the recommendation of the Dental Council of India and taking note of the deficiency pointed out, disapproved the scheme for establishment of new Dental College for the academic year 2010 – 2011. Challenging the same, the writ petition has been filed. 4. The first respondent has filed a written submission through Assistant Solicitor General of India Sri. J.Ravindran and the Dental Council of India has filed its counter. Heard the learned Senior Counsel Mr.R.Krishnamoorthy appearing for the petitioner, the Assistant Solicitor General Mr.J.Ravindran appearing for the first respondent and Sri P.Chandrasekaran appearing for the second respondent, Dental Council of India. 5. The short question that arises for consideration is whether the first respondent while rejecting the scheme, has taken into consideration the full compliance report submitted by the petitioner and whether the rejection of the scheme is justified in the facts of the present case. 6. According to the petitioner, partial compliance of the deficiency pointed out has been made and a report was submitted on 21.05.2010. Full compliance has been made and submitted by report dt. 02.06.2010. Both the compliance reports have been submitted to the second respondent, DCI and that is not in dispute. It is also not in dispute that the first respondent has given personal hearing to the petitioner on 25.06.2010. The first respondent is the competent authority and the highest body to grant approval of the scheme based on the available records. 7. The DCI has forwarded the partial compliance report dated 21.05.2010 along with its report dated 12.06.2010. On that date, https://hcservices.ecourts.gov.in/hcservices/ the petitioner has already submitted a full compliance report dated 02.06.2010. It is the case of the petitioner that on 25.06.2010 they have submitted the entire records alongwith compliance report during the personal hearing. The second respondent, DCI while forwarding the proposal to the first respondent should not have withheld the compliance report dated 02.06.2010. If the DCI had submitted the further report dt.02.06.2010 then the deciding authority would have considered the issue differently and in other cases would have called upon M/s.DCI to re-inspect. 8. The DCI, as a recommending body is bound to forward the entire file to the first respondent before a final decision is taken. What is relevant material to be considered for approval is for the approving authority to decide. Sri Chandrasekar, learned counsel for the second respondent, however, points out that the reason for not submitting the compliance report dated 02.06.2010 is because the DCI appointed committee while assessing the compliance reports of several other colleges did not have the full compliance report of the petitioner society, hence the difficulty. Therefore, DCI did not forward the full compliance report received subsequently to the first respondent. This explanation of DCI can be accepted so long as the second respondent DCI is the deciding authority. In this case, the 1st respondent, the approving authority did not take a final decision at that time. The process of verification was going on in respect of one or other college. M/s.DCI could have forward the report dt.02.06.2010 with or without remarks. 9. In the present case, the approval of the scheme is vested with the first respondent and they alone have to decide the claim of the petitioner if the petitioner fully complies with the legal requirement for grant of approval. In this case, it is emphatically stated by the petitioners that the petitioner have fully complied with the deficiencies pointed out and it is stated that the deficiencies pointed out is trivial. In such view of the matter, the first respondent authority which has to take into consideration all relevant material for grant or refusal of the approval was not made aware of the full compliance report submitted by the petitioner, though received by the second respondent well before the final decision was taken. The full compliance report is on record even before the return of the approval. 10. Mr.J.Ravindran, Assistant Solicitor General produced the records of proceedings held. The reason for rejection of the petitioner's claim is based only on the deficiencies pointed out by DCI in their letter dated 12.06.2010. There is no reference to the compliance report submitted by the petitioner on 02.06.2010 which has been received by the second respondent, DCI https://hcservices.ecourts.gov.in/hcservices/ on 04.06.2010 and said to have been submitted at the time of personal hearing before the 1st respondent. If the case of the petitioner was considered based on the compliance report dated 02.06.2010, the first respondent probably would have viewed the matter differently as in the case of other colleges who were similarly placed. 11. In this regard, it would be relevant to point out that on 30.06.2010 the first respondent, after considering the claim of 52 Dental Colleges and based on the recommendations of the committee directed the re-consider of 15 colleges for the academic year 2010 – 2011. It ordered re-inspection fixing a time frame. This order was passed based on the deficiencies pointed out by the DCI. The letter of the first respondent, Ministry of Health and Family Welfare (Dental Education Section) dated 30.06.2010 addressed to the second respondent (DCI) which will be appropriate for the present case is extracted here under - "A number of recommendations have been received from DCI for Establishment of new dental colleges/increase of seats in BDS course in existing dental colleges and non-renewal of permission in existing Dental Colleges for the academic year 2010- 11. Consequently, any stoppage of admissions of new batches in existing dental colleges can lead to dental manpower loss and under utilization of financial / non-financial resources in both government & private sectors. 2. With the approval of the competent authority in the Ministry, a Committee has been constituted under the Chairmanship of DGHS with the Members from AIIMS, New Delhi and PGIME&R, Chandigarh. Accordingly, the dental colleges were informed to attend the personal hearing on 23rd, 24th and 25th June, 2010. Fifty two dental colleges attended the personal hearing. The Committee gave the personal hearing to all the 52 dental colleges. After taking into account the submissions made by the dental colleges, the Committee recommended the following 15 cases to Central Government for re-consideration by DCI for the academic year 2010-11 :- (i)Assam Dental College, Assam-Establishment of new Dental College (ii)Rayat Bahra Dental College, Mohali – Establishment of new Dental College (iii)ESIC Dental College, Rohini - Establishment of https://hcservices.ecourts.gov.in/hcservices/ new Dental College (iv) Government Dental College, Jaipur – Increase of seats from 40 to 50 (v) Farooqla Dental College & Hospital, Mysore – Increase of seats from 40 to 50 (vi) Maharashtra Institute of Dental Sciences and Research, Latur -5th batch with 100 (vii)Awadh Dental College, Jamshedput - 4th year renewal with 50 seats, 3rd year renewal for restoration of seats from 50 to 100 (viii)Dental College, Azamgath – Next batch with 100 seats (ix) Maratha Mandal's Dental College & Research Centre, Belgaum - 2nd year renewal from 40 to 50 seats (x) AMC Dental College, Ahmedabad, Gujarat - 2nd year renewal with 100 seats (xi) Krishna Dental College, Ghaziabad – Next batch with 100 seats (xii)G.Pulla Reddy Dental College & Hospital, Kumool – Next batch with 50 seats (xiii)Government Dental College & Hospital, Jamnagar - 2nd year renewal for 40 to 100 seats (xiv) Government Dental College, Jammu - 4th year renewal with 50 seats (xv) Faculty of Dentistry, Jamia Millia Islamla, New Delhi - 2nd year renewal with 50 seats 3. Keeping in view of the fact that there is a severe shortage of dental personnel in the country and the time constraint in re-inspection of these colleges, it has been decided by the competent authority in the Ministry that DCI may re-inspect the above dental colleges/obtain and verify compliance reports where Council has given negative recommendations for establishment of new dental colleges/increase of seats in existing dental https://hcservices.ecourts.gov.in/hcservices/ colleges / non-renewal where DCI has recommended the Central Government to disapprove the scheme. The recommendations sent to this Ministry by DCI for this purpose may please be forwarded to the respective dental colleges by the Council with the request to submit a rectification report on the deficiencies pointed out by DCI and the revised recommendations of the Council should reach this Ministry by 12.07.2010 positively. The Ministry, will, however, take a final decision on the revised recommendations by 15.07.2010 which is the last date for grant of permission. 4. This issue with the approval of Secretary (H&FW). 12. In the present case, if the full compliance report submitted by the petitioner been considered by the DCI and forwarded to the first respondent or if the first respondent had considered the same at the time of personal hearing, the petitioner's claim for approval would gave been considered on merits or the 1st respondent would have ordered for re-inspection so as to satisfy whether the petitioner has fully satisfied the deficiencies pointed out. 13. The case of the petitioner should have been considered similar to that of the 15 colleges where the first respondent had directed re-inspection by the DCI to report full compliance, as pleaded. In the present case, the petitioner has given full compliance report dated 02.06.2010 and submitted the same to the DCI on 04.06.2010. It is also stated in the Affidavit before this Court that during the personal hearing they have submitted the full compliance report to the first respondent on 24/25.06.2010 which is not denied. It is accepted that the second respondent has received the full compliance report. The petitioner prima facie have placed on record material to establish that they have complied with the requirements as per the Dentist Act 1948. They have also submitted the full compliance report dated 02.06.2010 which fact is not disputed by the 2nd respondent. In the light of the above, the first respondent authority should have considered the plea for approval on merits or directed the 2nd respondent to verify and report as in other cases referred to above. 14. In the impugned order dated 15.07.2010, there is no reference to the submissions made by the petitioner at the time of personal hearing. All that has been referred to in the impugned proceedings is the recommendation of the DCI and the https://hcservices.ecourts.gov.in/hcservices/ nature of the deficiencies pointed out. It is evident that the full compliance report dated 02.06.2010 has not been considered by the first respondent. The petitioner has been put to prejudice as relevant material to establish full compliance has not been considered by the competent authority. The Ministry's letter dated 30.06.2010 emphasis the need to establish good Dental Colleges considering the need for a large number of Dentists. 15. In such view of the matter, this court is of the considered view that the second respondent should re-inspect the petitioner college based on the report/memorandum dated 02.06.2010 and forward his report to the first respondent so that they can re-consider the claim for approval for the academic year 2010 – 2011. 16. In the result, the impugned order dt.15.07.2010 passed by the first respondent rejecting the scheme is set aside and the matter is remitted to the respondents authority for re- consideration of the petitioner's claim for approval of the scheme for starting the Dental College. 17. At the first instance, to verify the compliance of the defects pointed out, the second respondent (DCI) shall constitute an inspection team to verify the compliance report dated 02.06.2010 submitted by the petitioner. The inspection team shall submit the inspection report to the second respondent on or before 17.09.2010 so as to enable the DCI to consider the issue on 20.09.2010 by its duly approved committee. 18. The second respondent (DCI) after considering the petitioner's claim, shall forward its recommendation/opinion to the first respondent on 20.09.2010 for its consideration. 19. The first respondent, Ministry of Health & Family Welfare (Dental Education) is directed to consider the proposals sent by the second respondent (DCI) on or before 24.09.2010. No adverse orders shall be passed against the petitioner without affording them an opportunity of personal hearing. If a personal hearing is required as above, the petitioner shall be heard on 24.09.2010. 20. The learned Senior Counsel for the petitioner states that no separate notice is required to be issued to the petitioner for the personal hearing and they will appear before the first respondent appointed committee on 24.09.2010 at 11.00 a.m. for hearing with all records. https://hcservices.ecourts.gov.in/hcservices/ 21. The writ petition is ordered by way of remand as above. No costs. Consequently, connected Miscellaneous Petition is also closed. rgr Sd/- Asst. Registrar //True Copy// Sub Asst. Registrar To 1.The Secretary, Ministry of Health and Family Welfare (Dental Educational Section), Nirman Bhavan, Moulana Asad Road, New Delhi. 2.The Secretary, Dental Council of India, Aiwan-E-Galib Marg, Kotla Road, Temple Lane, New Delhi – 110 002. 3.The Secretary, Tamil Nadu Medical Admission Committee, Kilpauk, Chennai – 600 010. + 2 ccs to Mr. Ayya Durai, Advocate SR No.67622 + 1 cc to Mr. J. Ravindran, Advocate SR No.68302 + 1 cc to Mr. P. Chandrasekaran, Advocate SR No.67661 NSM(CO) SR/8.11.2010 W.P NO.17666 OF 2010 https://hcservices.ecourts.gov.in/hcservices/