IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Special Appeal No. 140 of 2010 1. Narayan Swami Hospital and Dental College through its Managing Director Sri. Manish Verma, Narayan Swami Estate, Aamwala Road, P.O. Chandanwadi, Nanda Ki Chauki, Prem Nagar, Dehradun-248007. 2. Sri.Sri.108 Narayan Swami Charitable Trust, Narayan Swami Estate, Aamwala Road, P.O. Chandanwadi, Nanda Ki Chauki, Prem Nagar, Dehradun-248007. 3. The Managing Trustee, Sri.Sri.108 Narayan Swami Charitable Trust, Narayan Swami Estate, Aamwala Road, P.O. Chandanwadi, Nanda Ki Chauki, Prem Nagar, Dehradun-248007. .…..…… Appellants Versus 1. Union of India through Secretary, Department of Health (D.E. Section)Ministry of Health and Family Welfare, Government of India, Nirman Bhawan, Maulana Azad Road, New Delhi-110011. 2. Dental Council of India through its Secretary (Constituted under the Dentists Act, 1948) Aiwan-E-Ghalib Marg, New Delhi. 3. Dr. Devinder Choudhary, Professor. M.M. College of Dental Sciences & Research, Mullana-133203 (Ambala), Haryana. 4. H.N.B. University, through its Vice Chancellor, Srinagar, Pauri Garhwal. 5. State of Uttarakhand through its Principal Secretary, Secretariat, Dehradun. ....……… Respondents Coram:- Hon’ble J.S. Khehar, Chief Justice Hon’ble Sudhanshu Dhulia, Judge Present: Mr. A. Rab, Advocate for the appellants. Mr. B.P.S. Mer, Advocate for respondent No.1. Ms. Anjali Bhargava, Advocate for respondent No.2. Mr. L.P. Naithani, Senior Advocate with Mr. J.P. Joshi, Advocate for respondent No.4. Mr. K.P. Upadhyay, Advocate for respondent No.5. Date of Decision: 26.07.2010 J.S. Khehar, C. J. (Oral) The instant special appeal has been preferred by the Narayan Swami Hospital and Dental College so as to assail an order dated 12.07.2010 passed by a learned Single Judge of this Court 2 declining interim relief to the appellants herein. It was the desire of the appellants, that the Narayan Swami Hospital and Dental College should be permitted to run the Dental College, pending the final disposal of the main writ petition (Writ Petition (M/S) No. 1341 of 2009). 2. Keeping in view the factual position depicted in the pleadings of the writ petition, and also, emerging out of the different motion Bench orders passed from time to time (in Writ Petition (M/S) No. 1341 of 2009), we repeatedly advised learned counsel for the appellants, that we were inclined to direct the learned Single Judge to expedite the disposal of the writ petition. He, however, insisted that the instant Special Appeal should be decided on merits. 3. It is in the aforesaid background, that it is essential to notice, certain salient facts before recording any finding. The Narayan Swami Hospital and Dental College was set up by the appellants in 2007. The appellants admitted 100 students in its first academic session 2007-2008. On account of deficiencies in the institution set up by the appellants, the seats for admission at the Narayan Swami Hospital and Dental College were reduced from 100 to 50 for the academic session 2008-2009. On 20.03.2009, a team of inspectors were appointed to inspect the Dental College. The aforestated inspectors submitted their report on 05.06.2009. In the aforesaid report, the inspectors pointed out a number of deficiencies, which were placed before the Executive Committee of the Dental Council of India in its meeting held on 14/15.5.2009. The joint inspection report of the inspectors pointed out the following deficiencies:- “1. There is deficiency of two Readers in the departments of Community Dentistry-1, Periodontics-1. 2. The classes are not being conducted as per the time-table. The class attendance register was not available. The strength in the class room (theory Physiology on 9.4.2009) was less than 50%, so was the same in the II BDS pre-clinical Prosthetics. 3. The following faculty has been shown to be residing in the college staff quarters, however on physically inspection, the faculty members are not staying there. Moreover, staff quarters available there are for paramedical staff. (i) Dr. Puneet Kathuria, Professor, Prosthodontics (ii) Dr. Swen Kathuria, Professor, Conservative Dentistry (iii) Dr. Chetan, Reader, Prosthodontics (iv) Dr. Jagdish 3 (v) Dr. Rupa, Professor, Periodontics (vi) Dr. Masroor Mohamed, Reader, Oral Surgery (Also shown by Uttaranchal Dental College & M.R., Dehradun where he was also absent) (vii) Dr. Manoj Balani, Reader, Oral Surgery (viii) Dr. Ajit Kadam, Professor, Oral Pathology (ix) Dr. S. C. Bajpai, Professor, Periodontics (x) Dr. Vanchan Shetty, Reader Conservative Dentistry. 4. Dr. Vachan Shetty, Reader in Conservative Dentistry is not accepted as he had submitted an affidavit in previous institution i.e. Vananchal Dental College, Jharkhand that he will serve the institution for next 5 years, but he resigned and joined the present institution. Moreover his name is also shown in Maitri College of Dental Sciences, Durg. 5. The medical OPD attendance was very poor with only 29 patients reported on the day of inspection. 6. The IPD was 3 patients on the day of inspection.” Based on the aforesaid deficiencies, the Executive Committee of the Dental Council of India recommended to the Central Government not to allow admission to the institution run by the appellants for the BDS course during the academic session 2009-2010. 4. The Dental Council of India addressed a letter dated 24.06.2009 to the Principal of the Narayan Swami Hospital & Dental College, Dehradun. A response in the nature of a compliance report was sought by 27.06.2009. In furtherance of the receipt of the letter dated 24.06.2009, the Principal, Narayan Swami Hospital & Dental College, submitted a response dated 27.06.2009, wherein while repudiating the deficiencies pointed out in the joint inspection report, it was submitted that none of the deficiencies could be treated as deficiencies, except the one depicted at serial number 1 (in the joint inspection report). In order to give the benefit of the doubt to the institution, another inspection team was deputed to inspect the College. The report of the second inspection carried out on 30.06.2009 was submitted to the Dental Council of India, on the same day. The narration of the Inspector in the aforesaid report affords an interesting reading and is accordingly being extracted hereunder:- “Respected Sir, I would like to take this opportunity to express my sincere gratitude for appointing me as Council’s Inspector to conduct the above said inspection. 4 Sir, When I reached the college, I was surprised to see that the College is closed. I enquired about the matter, I was told that Tuesday (Today) is the weekly off as well as the college is observing the summer vacation from 15th June to 30th June 2009. I wanted to meet Principal (Dr. Ibrahim) but I found that he is out of station. Then I tried to meet Chairman (Mr. Manish Verma) but I was given an impression he is also away. I tried to contact him on his mobile but he did not picked up my mobile. Reasons may be many including my surprise visit to the college for inspection purpose. Sir, I happen to meet Ms Bindu Shroff who is working as Director-Administration for the Dental College. I enquired whether the college has, in writing, intimated the university to which it is affiliated and the state government about their decision of closing the college on Tuesdays and in return has received their positive consent ? No letter was made available to me. Sir, To know more about this matter I tried to contact the Registrar of the university (Mr. Thapliyal Sahab Contact no.01346-252143) I was told that he is not in the office. I tried to contact the Controller of the Examination (Prof. M.S. Rothan Mobile no. 094120-37232). His mobile was continuously out of coverage area so could not contact him in this regard. Sir, I asked about intimation to Dental Council of India regarding the Tuesday off and the summer schedule. I was given a letter Dated 5th Feb 09 posted to DCI on 11th Feb 09 in response to DCI letter no.DE-22 2008/A-7643 Dated 6th Jan 09. This letter does not indicate about the summer schedule of 2009 (indicates about 2010). Sir, kindly note this letter has no reference no. and the designation of the person who has signed it (Mr. I.P. Saxena) is not mentioned in the letter. Photocopy attached. Sir, because of the reasons stated above, in-depth evaluation of the college could not be done.” 5. After the aforesaid report was submitted on 30.06.2009 by an order dated 23.07.2009, the Narayan Swami Hospital and Dental College was restrained from admitting students for the academic session 2009-2010. It is in the aforesaid background, that Writ Petition (M/S) No. 1341 of 2009 came to be filed before this Court. During the pendency of the aforesaid writ petition, by a motion Bench order dated 19.08.2009 the Narayan Swami Hospital and Dental College was permitted to conduct counselling for admissions to the academic session 2009-2010. During the course of hearing, learned counsel for the appellants informed us, that only 12 candidates had appeared for counselling. Since no further directions were sought by the petitioners (appellants herein), it is apparent, that the Narayan Swami Hospital and Dental College did not make any admissions for the academic session 2009-2010. 5 6. The state of affairs of the Dental College being run by the Trust apart, it is also necessary to make a reference to certain glaring factual revelations made to this Court in the counter affidavit filed by the State of Uttarakhand (respondent No.5 before the writ Court). Reference may be made to the fact, that the appellant-Trust, which is responsible for running and managing the Narayan Swami Hospital and Dental College, even started a Medical College without permission of the Central Government without obtaining any essentiality certificate, and even without obtaining any no objection certificate of the State Government. Admissions were also made to the Medical College without the receipt of approval at the hands of the Medical Council of India. When the learned counsel for the appellants was confronted with the aforesaid factual position, he acknowledged that a Medical College was started in the same premises as the Narayan Swami Hospital and Dental College and admissions to the same were also granted, however, subsequently the same was closed after the students admitted were duly compensated. The aforesaid acknowledged factual position gives this Court the prima facie impression, that the sole purpose of the Trust running the Narayan Swami Hospital and Dental College was commercial. The appellant-Trust remained oblivious of the responsibilities of providing adequate infrastructure or facilities. Other allegations of charging fees well beyond the fixed norms have also been levelled in the counter affidavit filed by the State of Uttarakhand; it is, however, not necessary to make any further reference to such or other similar allegations made against the appellant-Trust. 7. During the pendency of Writ Petition (M/S) No. 1341 of 2009, an order dated 09.07.2009 came to be passed by the Government of India. By the aforesaid order, the decision of the Central Government for closing of Narayan Swami Hospital & Dental College, Dehradun for the academic session 2010-2011 was communicated to the appellants. By the aforesaid order remedial measures were taken in respect of the students already admitted to the college, inasmuch as, they were to be adjusted in other recognized Dental Colleges in the State of Uttarakhand, as a matter of first preference, and if that was not possible, then to other 6 recognized Dental Colleges outside the State of Uttarakhand. It is against the aforesaid order dated 09.07.2010, that the appellants had sought interim directions. The prayer made by the appellants was, that during the pendency of the proceedings before this Court in Writ Petition (M/S) No. 1341 of 2009, the appellants should be permitted to continue to run the Narayan Swami Hospital and Dental College, failing which the appellants would be subjected to irreparable loss. 8. Having examined the matter, wherein the factual position noticed hereinabove cannot be overlooked, we are of the view, that the learned Single Judge was fully justified in declining the interim directions sought by the appellants. We, therefore, affirm the determination rendered by the learned Single Judge. 9. The instant Special Appeal is accordingly dismissed. (Sudhanshu Dhulia, J.) (J.S. Khehar, C.J.) 26.07.2010 P. Singh