EFORE THE PETITIONER HON’BLE HIGH COURT OF CHATTISGARH AT BILASPUR w. P. 1C) N0. QB g} l 2011 Maitri College of Dentistry & Research Centre, through the Administrative Officer Shri Rajesh Sharma, fS/o Shri N.L. Sharma, Aged about 38 years, R/o G.E. Road, Anjora, Durg C.G.) VERSUS RESPONDENTS : 1) Union of India, through the Secretary, Ministry of Health 85 Family Welfare (Dental Education Section), LNirman Bhawan, New Delhi. Dental Council of India, through the Secretary, Aiwan-E-Galib Marg, TenifSle Lane, Kotla Road, New Delhi—1 10002 State of Chhattisgarh, through the Secretary, Department of Health 8r, Family Welfare, D.K.S. Bhawan, GE. Raod, Raipur RIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA WM f? M HIGH COURT OF CHHATTISGARH BILASPUR S.B :M HON’BLE SHRI MANINDRA MOHAN SHRIVASTAVA J. W.P. ‘Cl No.2057 of 2011 PETITIONER Majtri College Research Centre of Dentistry 8r, Versus RESPONDENTS Union of India and others ORDER g+ .PosT ONI SEPTEMBER, 2011 Sdl- Manindra Mohan Shrivastava Judge 4 HIGH COURT OF CHHATTISGARH : B SPUR SINGLE BENCH : HON’BLE SHRI MANINDRA MOHAN SHRIVASTAVA,J. w.P. (C) No.2057 of 2011 PETITIONER Maitri College of Dentistry 8a Research Centre Versus fV RESPONDENTS Union of India and others Appearance: Shri Prateek Shanna, counsel for the petitioner. Smt. Fouzia Mirza, Asst. Solicitor General for the Union of India/respondents No. 1 8a 2. Shri N. Naha Roy, Panel Lawyer for the State/respondent No.3. O R D E R (Passed on l .09.201 1) 1. By this petition, the petitioner has assailed legality and validity of k order dated 315t March, 2011 (Anneggure P.~16) passed by the respondent-Union of India, by which the Govt. has decided not to grant permission for starting M.D.S. courses in specified ' specialities in the dental college of the petitioner for the academic year 2011-12. ‘ 2. Relevant and necessary factual matrix for adjudication of the controversy involved in the writ petition are that a dental college has been established by a Society, known as Maitri Educational Society, registered as such by the Registrar of Societies, ) Chhattisgarh. The Society 1's already running a bachelor degree dental educational course i.e. B.D.S. since 2004 after having obtained necessaly permission and approval required under the Dentists Act, 1948 (hereinafter referred to as “the Dentists Act”. . The petitioner—Institution and Society intended to open masters degree course known as MDS. The petitioner obtained an Essentiality 85 Desirability Certificate from the State of Chhattisgarh in order to enable it to apply for sanction to establish a post graduate course -MDS for the specialities in as many as 8 subjects. After having obtained Essentiality Certificate, the affiliated university namely Chhattisgarh Ayush and Health Sciences University granted “No Objection Certificate” to the petitioner vide Annexure P—5. Having obtained the aforesaid certificates and NOC, the petitioner then proceeded to submit application before the regulatory body i.e the Dental Council of India (for short “DCI"), established under the Dentists Act for necessary sanction and permission for running new courses of study. As the provisions contained in the Dentists Act and Regulations framed thereunder known as Revised MDS Course Regulations, 2007 (as modified upto 12.10.2007) required the application to be submitted in prescribed proforma along with the self assessment reports, documents, the petitioner also submitted the application form along with self assessment report, seeking permission to start MDS courses in the specialities of 8 subjects. Those 8 subjects have been enumerated by the petitioner in "e- paragraph 8.6 of his petition. The petitioner also paid required fee by way of demand draft of R527 lacs. . On 25.9.2010, an inspection of the petitioner’s establishment was conducted by the inspection team of the respondent No.2/DCI. It is the case of the petitioner that Vide letter dated 20th October, 2010 (Annexure P-7), the petitioner was required to furnish a consolidated list of teaching staff in order to verify the status of the faculties in the petitioner’s institution for teaching in the proposed MDS courses. in response, the petitioner submitted list of teaching staff said to be approved by the inspection team. Further case of the petitioner is that on the date the inspection was held i.e. 25.9.2010, the affidavits of the teaching faculties of the petitioner’s institution were taken by the inspection team showing their designation and status being full time working faculty of the petitioner’s institution. The affidavits have been placed on record as Annexure P—8 collectively. According to the petitioner, the petitioner’s institution duly appointed those readers and professors as full time faculty. Letters of appointment along with bank statements and proof of address etc. have been placed on record as Annex'ure P-9 collectively. .Another inspection was carried out and conducted by the s inspection team of respondent No.2/DCI during the period from . 7.2.2011 to 24.2.2011 to verify the details submitted by the petitioner earlier. For that purpose, the DCI issued various letters filed collectively as Annexure P—lO, appointed professors and staff of other institution constituting them as Inspection Team for different specialities with necessary instructions in the matter for inspection. Followed by the aforesaid inspection which were held on 7.2.2011 and subsequent thereto, the respondent — DCI issued letter dated 18.2.2011 (Annexure P-ll) to the petitioner to fulfill the deficiencies in the matter of full time teaching staff in the institution, in so far as MDS course of specialities in subject — Conservative Dentistry 8a Endodontics as also Public Health Dentistry is concerned. The petitioner responded to the same by giving reply dated 21.2.2011 seeking to clarify that faculties indicated are full time teachers. . However, thereafter the respondent —DCI vide its letter No. A/2513 dated 9th March, 201 1, No. A/2590 dated 10th March, 2011, No. B— 3891 dated 10th March, 2011, No. A/2598 dated 10th March, 2011 filed as Annexure P—13 collectively, forwarded to the Central Govt. its recommendations to reject the proposal of the petitioner — institution in all the subjects of specialities, except in respect of MDS courses of the subjects of Prosthodontics 85 Crown and Bridge and Oral Pathologi 8n Microbiologi. Thereafter, the petitioner submitted letters/representations filed collectively as Annexure P—14 before the respondent -DCI as also to the Union of India to satisfy and clarify that all the faculties which have been shown to be visiting and one of them shown to be on paper are in fact, full time faculties working in the institution. However, the Govt, accepting and acting upon the recommendations made by the DCI, vide letters dated 31.3.2011 (Annexure P—15 85 16 M nrm. respectively) rejected proposal for opening MDS course in respect of specialities of 6 subjects and granted permission only in respect of two subjects of specialities i.e. Prosthodontics 8a Crown and Bridge with 3 seats and Oral Pathology 8L Microbiology with 3 seats. .Learned counsel for the petitioner would submit that the recommendations of the DCI are illegal and arbitrary. It is contended that the petitioner’s institution has developed necessary infrastructure‘ including the teaching faculty as per the norms and standards, strictly in accordance with the regulation as prescribed by the Regulation of 2007. The petitioner while submitting its application along with the self assessment report categorically stated regarding full time faculties as per requirement of law and also submitted necessary documents relating to appointments of those teachers With other details, which was followed by an inspection conducted by the inspection team on 25.9.2010. Learned counsel for the petitoinr submits that though, the inspection team carried out thorough inspection of the entire infrastructure and faculties and after inspection, was dully satisfied that the petitioner~ institution has fulfilled all the required and specified norms for running MDS course in specialities of 8 subjects, the inspection report did not contain anything to even remotely suggest that the faculties which were stated to be visiting in the rejection letter were not full time or that the inspection team entertained any doubt with regard to those being full time faculty. Even on the date when the surprise 1K/ ”a inspection was made i.e 25.9.2010, the faculties were found to be very much present and their affidavits were also submitted to satisfy all, including inspection team of the DCI that they are appointed as full time faculties in the institution. It is also submitted that even in the subsequent inspection which was carried out after 7.2.2011 on various dates, which has now been filed as Annexure A-D/l along with the application for taking documents on record, there is nothing to show that the inspection team recorded any satisfaction that any of the faculties, which are stated to be visiting in the rejection letters, were not full time faculties but were visiting. He submits that on both the occasions, when inspection reports were submitted, there was nothing suggested, much less reported by the inspection team that the faculties were visiting and not full time, but even then the DCI without any basis at all, started issuing letters that the faculties is visiting and not full time in respect 6 out of 8 specialities courses. Time and again, the petitioner responded to various queries and number of documents which included appointment orders, affidavit and proof of address were repeatedly submitted, even then, the DCI recommended rejection of applilcation for grant of permission in respect of 6 out of 8 specialities courses applied for by the petitioner. Learned counsel for the petitioner further argued that the respondent never disclosed any material basis to form such an opinion regarding specified faculty being visiting and even in the return, it has not been disclosed as to on what basis, the DCI formed an opinion regarding faculties being visiting and not full time. He submits that the recommendations and the ultimate Microbiology and Prosthodontics 85 Crown and Bridge 1‘s concerned, it fulfilled all the norms and standards and therefore it recommended for grant of permission for starting MDS course in those specialities With 3 seats each in the petitioner’s dental college for the academic session 2011-12, on the basis of which, the Govt. of India granted permission to the petitioner. However, in respect of the remaining 6 specialities, in its various Executive Committee meetings, after considering the inspection report submitted by the experts appointed by it, the DCI formed bona tide opinion that the faculty was visiting and not full time and therefore it was not accepted. In one case i.e. in the subject of Peridontology, the DCI considered the inspection report and noticed that out of three faculties, two faculties i.e. ~ Dr. Padmavathy, Professor and Dr. sachin, Reader were found visiting and one Dr. Farhan was found to have been appointed only on papers. The opinion of the DCI is based on various inspection report and material placed before it. Leamed Asst. Solicitor General further submitted that the DCI not only carried out proper inspection through the team of experts and considered those reports in its Executive Committee meeting held from time to time, but also duly communicated to the petitioner and gave the petitioner an opportunity to remove the deficiencies. It was also contended that as far as subjects - Conservative Dentistry 85 Endodontics apd Public Health Dentistry are concerned, the Executive Committee in its meeting held on 15.2.2011 considered the report and noticed that Dr. Hari Choudhary, Professor 8t HOD is not accepted since he is visiting from Hyderabad and even though there was acute paucity of time the petitioner was afforded one opportunity vide its letter dated 18.2.2011 requiring the petitioner to furnish compliance report positively Within 2 days. The petitioner institution sent its letter on 21.2.2011, received on 26.2.2011. On that date itself, the DCI deputed its statutory inspector Dr. Jitesh. to verify compliance s report dated 21.2.2011 of the petitioner which carried out its inspection on 26.2.2011. Thereafter, the Executive Committee in its meeting held on 1.3.2011, considered the inspection report of Dr. Jitesh Jain , Virajpet, and not satisfied with the report of Dr. Jitesh Jain, it recommended the Central Govt. to disapprove the petitioner application in the concerned subjects on the ground that Dr. Hari Choudhary, professor 8t HOD is not accepted being visiting professor. Therefore, the respondent authority DCI acted bona tide and gave its recommendations after getting conducted various inspections and after going through the reports submitted before it. Similar letter was also issued to the petitioner on 18.2.201 1 to point out deficiencies regarding visiting faculty in the subject of Conservative Dentistry & Endodontics and time was granted to the petitioner to take necessary steps, but the petitioner sent letter on 21.2.2011 received on 22.2.2011 and the DCI deputed its statutory inspector -Dr. Sharad Kamat to verify the compliance report dated 21.2.2011 of the petitioner. The statutory inspector carried out inspection on 27.2.2011 and submitted a report. on 27.2.2001 (Annexure R—2/ 11) which clearly shows that the faculty was visiting. Thereafter, in its Executive Committee meeting held on 1.3.2011 considering report of Dr. Sharad Kamat and not satisfied with the report of Dr. Jitesh Jain, it recommended to disapprove the petitioner application in the concerned subject for the reason that Dr. V.S Mohan Reader, Dr. Kamaljeet Singh Sehdev, Reader and Dr. Bhavsar, Reader are visiting, meaning thereby that they are not full time teachers in the institution. Learned Asst. Solicitor General further stated that the f-’ ,. _k -10- council followed the procedure prescribed in the Act as well as in the Regulations. She further submits that the petitioner was afforded an opportunity of hearing as required under Section 10 A (4) of the Dentists Act, along with other 36 dental colleges, on 17th, 18th 8r. 21st March and finally the application of the petitioner was rejected for just and proper reason based on material available on record in the form of recommendations of the council. Lastly, it has been submitted that as the matter relating to grant of permission relates to determination of standards required to be assessed by the team of educational experts, in the absence of any allegation of mala fide, the recommendation and the decision of the Central Govt. are sacrosanct, warranting no judicial interference of the decision particularly when no procedural illegality or irregularity has been shown so as to vitiate the decision making process. I have considered the rival submissions made by learned counsel for the parties and perused the records. ,4- 10. The Dentists act has been enacted to regulate the profession of dentistry. In order to ensure effective regulatory control in the matter of establishment of dental college in the country, extensive amendment was made vide Amendment Act No.30 of 1993 which came into force w.e.f. 27.8.1992, introducing 3 new sections namely Section 10 A, 10 B and 10 C. Section 10 A requires permission to be obtained by the Central Govt. before establishing new dental college or new courses of study in existing dental x§ -11- colleges. Section 10 A (2) requires the intending person, authority or institution to submit scheme in accordance with the provision of clause (b) of sub-section (1) of Section 10 A with the stipulation that the Central Govt. shall refer the said scheme to the DCI for its recommendations of the scheme required to be in the prescribed proforma, containing such particulars and preferred in such manner accompanied with such fee as may be prescribed. In exercise of powers conferred under Section 2O of the Dentists Act, the DCI has farmed regulation known as Revised MDS Course Regulations, 20507, as modified upto 12.10.2007. The regulation elaborately provides for the norms and standards of infrastructure and functional requirements with which the scheme is required to be submitted before the authority. It is not in dispute that the petitioner had submitted its scheme for grant of permission to start MDS courses of study in specialities of 8 subjects. The scheme of the petitioner has been partly accepted. As far as MDS course of study in specialities in respect of Oral Pathology 8a Microbiology and Prosthodontics 8t Crown 85 Bridge are concerned, the petitioner’s institution has been granted permission to the extent of 3 seats in each of the speciality. However, in respect of remaining 6 specialities in the following subjects has been rejected by the Central Govt. (i) Oral Medicine and Radiolog (ii) Periodontics ”P 11. l2. (iii) Paedodontics and Preventive Dentistry (iv) Orthodontics 8a Dentofacial Orthopedics (V) Public Health Dentistry (vi) Conservative Dentistxy and Endodontics 13. The impugned order dated 31st March , 2011 (Annexure P—16) reads that in respect MDS course in the specialities of 6 subjects, the Committee has opined that petitioner’s proposal cannot be considered for the academic session 2011-12 due to type and nature of deficiencies pointed out by the DCI. The rejection letter also shows and it is not disputed that the petitioner was afforded an opportunity of hearing by way of personal hearing by a committee of 3 experts constituted by the Central Govt. Respondent No.1 /U.O.I. has not filed any return nor the minutes‘ . of the-deliberations of the committee have been placed on record either by respondent No.1 or. by respondent No.2/DCI. The reasons, however, as stated in the impugned order dated 31$ March , 2011 clearly shows that the operative reasons and basis for refusing to grant permission to the petitioner in respect of 6 specialities, was the type and nature of deficiencies pointed out by the DCI. This means that the Central Govt. accepted the recommendations of the DCI. The jurisdiction and power to grant or refuse to grant permission to start new course either to establish new Dental College, vests in the Central Govt, as provided under Section 10 A of the Dentists Act. The statutory scheme engrafted in Section 10 A obliges the Central Govt. to refer the scheme to the DCI for its recommendation and the DCI in turn, e er -13- may obtain such other particulars as may be considered necessaly by it from the person, authority or institution concerned and thereafter if the scheme is found defective or lacking in necessary particulars, may give reasonable opportunity to such person for making written representation, making it open to rectify the defect specified and consider the scheme and then submit the scheme together with its recommendations thereon to the Central Govt. The Central Govt. after considering the scheme, may either grant or refuse to grant permission provided that in case where the Central Govt. disapproved, it is required to flrst give a reasonable opportunity of being heard to the applicant. The relevant consideration for the DCI while making recommendations and for the Central Gvot. while passing an order either approving of disapproving a scheme have been broadly outlined in sub-section (7) of Section 10 A of the Dentists Act. 14. While the DCI is required under the statutory scheme to make recommendations to the Central Govt, the ultimate authority vests in the Central Govt. either to accept or not to accept. The aforesaid power of the Central Govt. is qualified with a rider that in case it decides to disapprove any scheme, an opportunity of hearing shall be afforded to the concerned person, authority or institution. . The averments made in the petition as also the documents which have been placed on record along with the petition, namely- self assessment report (Annexure P-6), consolidated staff list along with covering letter dated 26th October, 2010 show that the -14- petitioner institution had placed before the respondent DCI material regarding appointment of full time faculty in various specialities applied for. Another fact which has not been disputed is that the inspection team had inspected the institution on 25.9.2010 to flnd out whether its infrastructure, faculties fulfill required norms and standards, staff etc. The petitioner had given details of their appointment, address by way of affidavit collectively placed on record as Annexure P-8. The petitioner has also placed on record, appointment letters of the teaching staff/faculty appointed by §it to teach MDS courses of various specialities filed as Annexure P—9 collectively. The petitioner has very categorically stated in para-8.7 of its pleadings that the list of teaching staff, bearing the signature of inspection officer, was sent to respondent No.2 and the same was approved by the inspection officer himself showing that the faculty/professor were marked and confirmed as full time faculties. The petitioner has also placed on record the inspection report prepared by various inspection teams which carried out inspection of the petitioner institution on and after 7.2.201 1. In so far as inspection reports in respect of MDS course in the specialities of Orthodontics 8L Dentofacial Orthopedics, Oral Medicine 85 Radiologi, Periodontics, Paedodontics & Preventive Dentistry, Public health 85 Dentistry and Conservative Dentistry 8L Endodontics is concerned, list of teaching staff signed by the faculty along with the checklist have been attached with those reports. The verification report taken as a whole, shows that the petitioner appointed full time faculties and there is nothing in the report to show that any of the member or the faculty of any of the -15- (MY /M was found to be visiting and not on full time basis. There is nothing in the report to show that there was any doubt crated by the inspection team regarding full time faculty members in any of the speciality while submitting their reports. It is pertinent to mention here that the inspection was carried out on different dates by different inspection teams, which submitted their respective report in respect of the speciality they inspected. Learned counsel for the respondents could not point out to this Court any adverse comments or material in those inspection reports which would show that the 5inspection team of various specialities raised any doubt with regard to full time faculty. The checklists which have been submitted by the inspection team in respect of each of the specialties also clarify regarding appointment of the faculty on full time basis. 16. In respect of 6 specialities for which permission has not been granted, the letters of recommendations which were sent by the DCI to the Central Govt, placed on record by respondent No.2—DCI as Annexure R—2/4, R—2/5, R-2/6, R-2/7, R—2/9 and R-2/12 in respect of Oral Medicine 8L Radiolog, Periodontics, Paedodontics 8; Preventive Dentistry, Orthodontics & Dentofacial Orthopedics, Public Health Dentistry and Conservative Dentistry and Endodontics , respectively, show that in all the cases, except in the ' case of one Dr. Farhan, the only reason assigned is that the teacher is visiting, mentioning thereby that it has not been accepted as full time faculty. X M -16- 17. In so far as recommendations in respect of speciality in Public Health Dentistly is concerned, it is found that the Executive Committee of DCI in its meeting on 15.2.2011 noticed that Dr. Hari Choudhary, Professor 8L HOD is not accepted on the ground that he is visiting from Hyderaad. The averments made by respondent No.2 in para-16 of its return in that regard show that it considered the inspection report of Dr. S.S. Hiremath, Bangalore and Dr. Pradeep Tangade, Moradabad. However, from any of the inspection reports which have been placed on record by the parties, there is no report by members of the inspection team that the concerned Dr. Hari Choudhary, Professor 85 HOD was found visiting from Hyderabad. No material has been placed by respondent No.1 or respondent No.2 which would form a basis for the DCI to come to such conclusion. A letter was given to the petitioner on 18.2.201 1. In para-17 of the return, it is stated that the petitioner in response, sent letter dated 21.2.2011 furnishing F.I.D. Card and Rashan Card to satisfy that Dr. Hari Choudhary is full time faculty of the college. Thereafter, ,the DCI deputed its statutory inspector Dr. Jitesh Jain, who carried out inspection on 26.2.2011. In para—19 of the return, without any specific details and without placing report of Dr. Jitesh Jain, it has been stated that the DCI was not satisfied with the report of Dr. Jitesh Jain and recommended to the Central Govt. to disapprove the application for starting MDS course in the speciality of Conservative Dentistry & Endodontics. However, a