HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 27318 OF 2010 . DATED 30th April, 2011 BETWEEN Kotti Shirisha and ors …Petitioners And Government of Andhra Pradesh, Rep. by its Principal Secretary to Government, Health, Medical & Family Welfare (E1) Department, Secretariat, Hyderbad and ors. ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA WRIT PETITION No. 27318 of 2010 ORDER: The petitioners, who are 43 in numbers and are prosecuting their first year B.D.S. Course in Meghana Institute of Dental Sciences, Nizamabad, the third respondent, challenge the action of Dr.N.T.R. University of Health Sciences, Vijayawada, Krishna District, the second respondent, in issuing the impugned letters of even reference No.06/MBBS/BDS/EA1/2009-10 dated 09.06.2010, 14.06.2010 and 16.06.2010. They seek a consequential direction to the respondents to permit the petitioners to continue and allow them to complete B.D.S. Course in the third respondent college by approving their admissions in the third respondent college. It is the case of the petitioners that they were duly admitted to B.D.S Course in the third respondent college after undergoing the necessary process therefor during the academic year 2009-10 and that they are prosecuting their first year course. However, their admissions have not been approved by the second respondent University on the premise that they are not eligible candidates under ‘A’& ‘B’ categories under the impugned letters dated 09.06.2010, 14.06.2010 and 16.06.2010. The petitioners therefore approached this Court by way of Writ Petition No.13944 of 2010. This Court granted interim order on 18.06.2010 inter alia to the effect that the petitioners be permitted to write first year B.D.S. Course examinations taking into consideration the submission that the petitioners have completed their one year course. Accordingly they appeared for the same. Thereafter, it appears that they made a representation to the first respondent Government seeking regularization of their admissions. They made a representation before this Court to that effect and sought the permission of this Court to withdraw the said writ petition. This Court accordingly dismissed the said writ petition reserving liberty to the petitioner to approach this Court in the event of adverse orders are passed on their representation. As no action was taken on their representation by the first respondent and the results of the first year course were also not declared by the second respondent University, the petitioners approached this Court once again by way of the present writ petition seeking the aforestated reliefs. The learned Government Pleader for Medical and Health appearing for the first respondent Government submitted that it has notified rules from time to time for admissions of students to B.D.S. course into minority Dental Colleges in the State of Andhra Pradesh and the latest rules governing the same were notified in G.O.Ms.No.182, HM & FW (E1) Department, dated 21.05.2008 which shall be followed by the third respondent college also. The second respondent University filed its counter denying the averments made in the affidavit filed in support of the writ petition. It is stated that the admissions of the petitioners to B.D.S. course in the third respondent college during academic year 2009-10 were made in violation of the Dental Council of India Revised BDS Course Regulations, 2007 (for short ‘Regulations of 2007’); the Rules framed by the first respondent Government and also the Admission Regulations for B.D.S. Course of the second respondent University. It is pointed out that out of 60 candidates admitted under ‘A’ category 40 candidates are not eligible and out of 40 candidates admitted under ‘B’ category 3 candidates are not eligible. The second respondent University therefore communicated a list of approved/not approved/not eligible candidates to the third respondent College under the impugned letters. In the counter filed by the third respondent college, it is inter alia stated that it is only a Christian Minority Dental College in the State of Andhra Pradesh having been established in the year 2006 and that the admissions of the petitioners in its college during the academic year 2009-10 for B.D.S. Course was done strictly as per the eligibility criteria prescribed therefor including the ranking obtained by the candidates in EAMCET examination, 2009. The proceedings dated 23.09.2009 of the Dental Council of India are applicable for the admission made for the academic session 2009-10. It is mentioned that although list of candidates admitted by the third respondent college was forwarded to the second respondent University for approval, the same were kept pending and just before the examinations the third respondent college was informed that the admissions of 43 students, who are the petitioners herein, are not approved on the premise that they have not scored 50% or 40% of marks, as the case may be, aggregate marks in EAMCET examination, 2009. It therefore prayed that the admissions of the petitioners made by the third respondent college may be regularized as the petitioners had completed one year B.D.S. course, appeared for the examinations and the results thereof were declared. The Dental Council of India, New Delhi (DCI), which was impleaded as the fourth respondent by order dated 23.11.2010 passed in WPMP No.36516 of 2010 filed by the petitioners, filed its counter denying the averments and contentions made in the affidavit filed in support of the writ petition. It is inter alia stated that the third respondent college has admitted the petitioners who have obtained below the minimum marks in EAMCET Examination, 2009 as prescribed in violation of the provisions of the Regulations of 2007 and therefore the third respondent college has to be proceeded with the de-recognition process as per the procedure contemplated under Section 16-A of the Dentists Act, 1948 (for short ‘the Act of 1948’). The fourth respondent therefore sustained the action initiated by the second respondent University in directing the third respondent college to discharge the petitioners as indicated in the impugned letters. Heard Sri K.G.K.Prasad, learned counsel for the petitioners; the learned Government Pleader for Medical and Health for the first respondent Government; Sri Duba V.Nagarjuna Babu, learned standing counsel for the second respondent University; Sri O.Manohar Reddy, learned counsel for the third respondent College and Sri S.Niranjan Reddy, learned standing counsel for the fourth respondent DCI. Perused the case file and the material placed on record. Admittedly, the DCI has been constituted under the provisions of the Act of 1948 with an avowed object of maintaining highest standards in imparting dental education by the Dental Colleges/Institutions in the country. It is under the statutory obligation to take all necessary steps which are required from time to time for ensuring the maintenance of the said object. Prior to 1993, any person can establish a Dental College without seeking permission from any State or Central Authority. However, with a view to checking the unregulated, uncontrolled and mushrooming growth of Dental Colleges/Institutions in the country, the legislature deemed it fit in its wisdom to effect necessary amendments to the Act of 1948 and accordingly incorporated new provisions, namely Sections 10-A, 10-B and 10-C to the Act of 1948 by way of Dentists (Amendment) Act, 1993. Under the amended provisions, it was made mandatory and obligatory for any person desirous of establishing a dental college to obtain a prior permission from the Central Government in accordance with the provisions of Section 10-A of the Act of 1948. Therefore, any institution which makes admission or increases intake capacity of seats or starts higher courses of study/training without the prior permission of the Central Government in violation of provisions of Section 10-A of the Act of 1948, such admission or increase in intake capacity of seats would be hit by the provisions of Section 10-B thereof. Further, in exercise of powers conferred by Section 20 of the Act of 1948, the DCI framed the Regulations of 2007 which came into force on and from 10.09.2007, with the prior sanction of the Central Government. Regulations of 2007 postulates the eligibility criteria for admission to BDS Course, procedure for selection of students and duration of such course, etc. As per the provisions of Section 10(2) of the Act of 1948, if any Dental College recognized thereunder violates the conditions of admissions, de-recognition proceedings may be initiated against such erring college in accordance with the procedure contemplated under Section 16-A of the Act of 1948. Further, as it had come to the notice of the DCI that admissions to BDS Course in some Dental Institutions in the country are being made on the basis of marks obtained by the students in qualifying examination in violation of the Regulations of 2007 thereby putting the academic career of the students concerned at stake, the DCI issued a general circular bearing proceedings dated 23.09.2009 reiterating only the Clauses I and II of the Regulations of 2007, which deal with the admission to the dental courses-eligibility criteria and selection of students, for ready reference of the Dental Colleges in the country so as to enable them to follow the same strictly while making admissions to B.D.S. course. In the light of this backdrop of the legal position holding the field, it is to be seen whether the third respondent college has violated the provisions of the Act of 1948, the Regulations of 2007 and the Rules framed by the first respondent Government in this regard. The third respondent college was in fact established as per the provisions of Section 10-A of the Act of 1948 and the Regulations made thereunder during the academic year 2006-07 with an intake capacity of 100 seats. Thereafter, the third respondent college was given renewal permissions for the academic years 2007-08 to 2010-11. It is now recognized and a notification dated 01.12.2010 was issued to that effect. Regulations of 2007 were issued inter alia with a view to follow the eligibility criteria for admission to B.D.S. Course and selection of students in respect thereof by all the Dental Colleges including the third respondent college. Any violation thereof by the colleges will entail legal action that shall be initiated by the DCI in accordance with the provisions of the Act of 1948 and the Regulations framed thereunder. The petitioners were admitted to B.D.S. Course during the academic year 2009-10 by third respondent college under A & B categories although they have obtained less marks than the required percentage of marks in the EAMCET Examination 2009. The Regulations of 2007 prescribes the eligibility criteria and selection of students under Clauses-I and II. However, the third respondent college misconstrued the Regulations of 2007 and relied upon Clause-II(1) and (5)(i) instead of Clause-II(3) and (5)(ii) thereof. It is the contention of the third respondent college that it was the only Christian minority dental college in the State of Andhra Pradesh and therefore Clause-II(1) and (5) (i) of the Regulation of 2007 is relevant which reads as under: “II. Selection of Students: The selection of students to dental college shall be based solely on merit of the candidate and for determining merit, the following criteria shall be adopted uniformly throughout the country: 1. In states having only one Dental College and one University board/examining body conducting the qualifying examination, the marks obtained at such qualifying examination may be taken into consideration. ……… 5. Procedure for selection to BDS course shall be as follows: (i) In case of admission on the basis of qualifying examination under clause (1) based on merit, candidate for admission to BDS course must have passed in the subjects of Physics, Chemistry, Biology & English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology at the qualifying examination. In respect of candidates belonging to Scheduled Castes, Scheduled Tribes, or Other Backward Classes, the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination be 40% instead of 50% as above and must have passing marks in English.” [Emphasis added] Admittedly, in the State of Andhra Pradesh more number of Dental Colleges are established and functioning. The words “one Dental College” appearing in Clause-II(1) does not mean only one Christian Minority Dental College and thus the contention of the third respondent college to that effect cannot be countenanced. That being so, Clause-II(3) and (5)(ii) is applicable to the case on hand, which reads as under: “II Selection of Students: The selection of students to dental college shall be based solely on merit of the candidate and for determining merit, the following criteria shall be adopted uniformly throughout the country: ……… 3. Where there are more than one college in a State and only one University/board conducting the qualifying examination, then a joint selection board be constituted for all the colleges. ……… 5. Procedure for selection to BDS course shall be as follows: (i) ……… (ii) In case of admission on the basis of competitive entrance examination under clause (2) to (4) of this regulation, a candidate must have passed in the subjects of Physics, Chemistry, Biology and English individually and must have obtained a minimum of 50% marks taken together in Physics, Chemistry and Biology at the qualifying examination and in addition must have come in the merit list prepared as a result of such competitive entrance examination by securing not less that 50% marks in Physics, Chemistry and Biology taken together in the competitive examination. In respect of candidates belonging to Scheduled Castes, Scheduled Tribes or any other categories notified by the Government the marks obtained in Physics, Chemistry and Biology taken together in qualifying examination and competitive entrance examination be 40% instead of 50% as stated above.” [Emphasis added] The first respondent Government also notified Rules in that regard from time to time and the latest being G.O.Ms.No.182, HM & FW (E1) Department, dated 21.05.2008 indicating that in respect of EAMCET based management quota, the candidates should also obtain minimum of 50% marks taken together in Physics, Chemistry and Biology at the common entrance test. From the above, it is clear that the admissions of the petitioners in the first year B.D.S. Course in the third respondent college is in clear violation of the provisions of the Act of 1948, the Regulations of 2007 and the Rules made by the first respondent Government. That apart, the petitioners obtained interim order on 08.06.2010 in WPMP No.17544 of 2010 in Writ Petition No.13944 of 2010 which reads as under: “Sri Duba Nagarjuna Babu, learned counsel takes notice on behalf of R-2 and seeks time for filing counter. “Sri C.V.Mohan Reddy, learned senior counsel appearing for the petitioner submits that the admission of the petitioners have been informed to the second respondent university in the month of September, 2009. But the second respondent university did not raise any objection till 9-06-2010 and it is only on 9-06-2010 the second respondent university issued proceedings disapproving the admissions of the petitioners. A further submission has been made that the petitioners completed their one year course, they also paid examination fee and their examinations are to be scheduled from 21-06- 2010.In such circumstances, I deem it appropriate to permit the petitioners to write first year B.D.S. course examination. However, the petitioners shall not claim any equity in the event of their failure in the writ petition. Post after four (4) weeks.” [Emphasis added] On the basis of the said interim order obtained in the earlier writ petition, in the present writ petition the petitioners obtained another interim order on 14.12.2010 in WPMP No.34898 of 2010 which reads as under: “As the petitioners appeared for the 1st year BDS Examination pursuant to Court orders, this Court is inclined to direct declaration of the results thereof. There shall be interim direction to the respondents 1 and 2 to declare the said results forthwith.” [Emphasis added] A careful reading of the above orders inter alia makes it clear that in the first instance the petitioners were permitted to write first year B.D.S. Course examinations. However, this Court was quick to add caveat that the petitioners shall not claim any equity in the event of their failure in the writ petition. Thereafter this Court granted interim order on 14.12.2010 directing the respondents to declare the result of the petitioners keeping in mind the earlier Court orders which includes the interim order dated 08.06.2010 passed in the earlier writ petition. In view of the specific finding of this Court, the contention of the petitioners that they were allowed to appear for the first year B.D.S. Course examinations; and that their results were also declared by the second respondent University again basing on an interim order passed by this Court on 14.12.2010 in WPMP No.34898 of 2010 filed in the present writ petition and therefore they may be allowed to continue and complete the B.D.S. Course in the third respondent college, cannot be countenanced. That apart, the contention of the third respondent college that it does not know about the ineligible admissions of the petitioners in its college till 09.06.2010 when a communication from the second respondent University was received, cannot also be accepted for the reason that the third respondent college being an educational institution and having been established in the year 2006 and making admissions in its college from the year 2006, should have been wary and cautious in the process of admission of students to B.D.S. Course in its college for the academic year 2009-10 also. Section 10(2) of the Act of 1948 deals with conditions of admissions and de-recognition proceedings to be initiated in case of violation thereof, which reads as under: “10A: Permission for establishment of new dental college, new courses of study etc. (1) Notwithstanding anything contained in this Act or any other law for the time being in force, - (a) no person shall establish an authority or institution for a course of study or training (including a post-graduate course of study or training) which would enable a student of such course or training to qualify himself for the grant of recognized dental qualification; or (b) no authority or institution conducting a course of study or training (including a post- graduate course of study or training) for grant of recognized dental qualification shall- (i) open a newer higher course of study or training (including a post-graduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognized dental qualification; or (ii) increase its admission capacity in any course of study or training (including a post-graduate course of study or training). except with the previous permission of the Central Government obtained in accordance with the provisions of this section. Explanation 1 - For the purposes of this section, "person" includes any University or a trust but docs not include the Central Government. Explanation 2 - For the purposes of this section, "admission capacity", in relation to any course of study or training (including a post-graduate course of study or training)in an authority or institution granting recognized denial qualification, means the maximum number of students that may be fixed by the Council from time to time for being admitted to such course or training. (2) (a) Every person, authority or institution granting recognized dental qualification shall, for the purpose of obtaining permission under sub-section (1), submit to the Central Government a scheme in accordance with the provisions of clause (b) and the Central Government shall refer the said scheme to the Council for its recommendations. (b) The scheme referred to in clause (a) shall be in such form and contain such particulars and be preferred in such manner and be accompanied with such fee as may be prescribed. (3) On receipt of a scheme by the Council under sub-section (2), the Council may obtain such other particulars as may be considered necessary by it from the person, authority or institution concerned, granting recognised dental qualification and thereafter, it may.- (a) if the scheme is defective and does not contain any necessary particulars, give a reasonable opportunity to the person, authority or institution concerned for making a written representation and it shall be open to such person, authority or institution to rectify the defects, if any, specified by the Council; (b) consider the scheme, having regard to the factors referred to in sub-section (7), and submit the scheme together with its recommendations thereon to the Central Government, (4) The Central Government may, after considering the scheme and the recommendations of the Council under sub-section (3) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person, authority or institution concerned, and having regard to the factors referred to in sub-section (7), either approve (with such conditions, if any, as it may consider necessary) or disapprove the scheme and any such approval shall be permission under sub-section (1) : Provided that no scheme shall be disapproved by the Central Government except after giving the person, authority or institution concerned granting recognized dental qualification a reasonable opportunity of being heard: Provided further that nothing in this sub-section shall prevent any person, authority or institution whose scheme has not been approved to submit a fresh scheme and the provisions of this section shall apply to such scheme, as if such scheme has been submitted for the first time under sub-section (2). (5) Where within a period of one year from the date of submission of the scheme to the Central Government under sub-section (2), no order passed by the Central Government has been communicated to the person, authority or institution submitting the scheme, such scheme shall be deemed to have been approved by the Central Government in the form in which it had been submitted, and accordingly, the permission of the Central Government required under sub-section (1) shall also be deemed to have been granted. (6) In computing the time-limit specified in sub- section (5), the time taken by the person, authority or institution concerned submitting the scheme in furnishing any particulars called for by the Council or by the Central Government, shall be excluded. (7) The Council, while making its recommendations under clause (b) of sub-section (3) and the Central Government, while passing an order either approving or disapproving the scheme under sub-section (4), shall have due regard to the following factors, namely: - (a) whether the proposed authority or institution for grant of recognized dental qualification or the existing authority or institution seeking to open a new or higher course of study or training, would be in a position to offer the minimum standards of dental education in conformity with the requirements referred to in (section 16A) and the regulations made under sub-section (1) of (section 20) ; (b) whether the person seeking to establish an authority or institution or the existing authority or institution seeking to open a new or higher course of study or training or to increase its admission capacity has adequate resources; (c) whether necessary facilities in respect of staff, equipment, accommodation, training and other facilities to ensure proper functioning of the authority or institution or conducting the new course of study or training or accommodating the increased admission capacity have been provided or would be provided within the time-limit specified in the scheme; (d) whether adequate hospital facilities, having regard to the number of students likely to attend such authority or institution or course of study or training or as a result of the increased admission capacity have been provided or would be provided within the time-limit specified in the scheme; (e) whether any arrangement has been made or programme drawn to impart proper training to students likely to attend such authority or institution or course of study or training by persons having the recognized dental qualifications; (f) the requirement of manpower in the field of practice of dentistry: and (g) any other factors as may be prescribed. (8) Where the Central Government passes an order either approving or disapproving a scheme under this section, a copy of the order shall be communicated to the person, authority or institution concerned.” A reading of the above provision, among other things, shows that if any Dental College violates the conditions of admissions, de-recognition proceedings may be initiated against