IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH CWP. No. 1554 of 2010 Date of Decision: 16.3.2010. Swami Devi Dyal Hi Tech. Education Academy. --Petitioner Versus Union of India and others --Respondents CORAM:- HON'BLE MR.JUSTICE PERMOD KOHLI. Present:- Mr. Rajiv Atma Ram, Sr. Advocate with Mr. Arjun Partap Atma Ram & Mr. Vikas Kuthiala, Advocates for the petitioner. Ms. Amarpreet Sandhu, C.G.S.C for respondents. *** PERMOD KOHLI.J (ORAL) Alleging inaction on the part of the Union of India on the application of the petitioner for grant of consent/approval for commencing Post Graduation Course in dental education, the petitioner has approached this Court through the medium of this petition seeking direction for consideration of its application for permission/approval and some other directions. Brief resume of the facts is noticed hereunder:- The petitioner is a registered society running a dental college under the name of Swami Devi Dyal Hospital and Dental College, Village Goalpura Tehsil Barwala, District Panchkula. The college was established in the year 2004 with intake capacity of 100 seats with the prior approval of Dental Council of India and Govt. of India as required under the Dentist Act, 1948. The college was initially affiliated with the Kurukshetra University, Kurukshetra. Later it became affiliated to Pt. B.D. Sharma University of Health Sciences, Rohtak. On being permitted to commence the B.D.S Course, the college admitted the first batch of students in the year CWP. No. 1554 of 2010 -2- 2005. It is stated that the college wanted to start M.D.S. Course (Post Graduation) in 9 specialities with intake capacity of five students in each speciality. Commencement of all new courses is governed and regulated by the provisions of the Dentist Act, 1948 and the regulations framed thereunder. Section 10-A of the Dentist Act dealing with the procedure for permission to establish a new dental college or new course for study and the relevant regulations necessary for the purpose of this petition are extracted hereunder:- “ 10 A. 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 postgraduate course of study or training) for grant of recognized dental qualification shall-(1) open a new or 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 Govt. 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 does not include the Central Govt.. Explanation 2- For the purposes of this section, “admission capacity” in CWP. No. 1554 of 2010 -3- relation to any course of study or training (including a post-graduate course of study or training) in an authority or institution granting recognized dental 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 Govt. a scheme in accordance with the provisions of clause (b) and the Central Govt. 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 recognized 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 Govt. (4) The Central Govt. may, after considering the scheme and the recommendations of the council under subsection (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 CWP. No. 1554 of 2010 -4- 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 a permission under subsection. (1): Provided that no scheme shall be disapproved by the Central Govt. 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).” Regulation 4 of the Regulations reads as under:- “ 4. Proposals or schemes for establishing a new dental college, or opening a new or higher course of study or training or increasing the admission capacity, in the dental college:- 1. The proposals or schemes for establishing a new dental college or opening a new or higher course of study or training or increasing the admission capacity, in the dental college, as the case may be, shall be made or submitted to the Central Govt. for obtaining its permission under the Act in the Form 1, Form 2 and Form 3 respectively, annexed to these regulations. 2. The scheme or the proposal under sub regulation (1) and processing thereof shall be submitted within the time schedule as provided in the Schedule annexed to these regulations.” Time schedule referred to in regulation 4(2) is also reproduced hereunder:- “ SCHEDULE (See Regulation 4 (2) CWP. No. 1554 of 2010 -5- Schedule for receipt of applications for establishment of New Dental Colleges, Opening of Higher Course of Study & increase of admission capacity in the recognized Dental Colleges and process of the applications by the Central Govt. and the Dental Council of India. Sr.No. State of Processing Time Schedule for BDS Time Schedule for MDS. 1 Receipt of applications by the Central Govt. XXX From 1st May to 30th June (both days inclusive) of any year. 2 Forwarding of applications by the Central Govt. to the Dental Council of India for technical scrutiny. XXX Up to 31st July 3 Recommendations of DCI to Central Govt. XXX Up to 28th February. 4 Issue of Letter of Permission by Central Govt. XXX Up to 31st March. Note: (1) If any clarification is sought by the Central Govt. on the recommendation of the Council, the same will be furnished by the Council forthwith, if necessary, after conducting inspection. (2) The time schedule indicated above may be modified by the Central Govt. for reasons to be recorded in writing, in respect of any class or category of applications.” The petitioner made an application dated 26.6.2009 to the State Govt. for grant of essentiality/no objection certificate for starting the Post Graduation Course in the following nine disciplines:- 1. Prosthodontics and Crown & Bridge. 2. Periodontology. 3. Oral and Maxillofacial Surgery 4. Conservative Dentistry and Endontics 5. Orthodontics and Dento-facial Orthopedics CWP. No. 1554 of 2010 -6- 6. Oral Pathology and Microbiology 7. Public Health Dentistry 8. Pedodontics and Preventive Dentistry 9. Oral Medicine and Radiology.” Another application was forwarded to the Secretary, Health, Ministry of Family Welfare and Health on 29.6.2009, within the prescribed date of 30.6.2009 under the schedule referred to above. Petitioner was communicated following two deficiencies in the application by the Govt. of India vide its letter dated 17.7.2009: “ (i) Essentiality Certificate issued by the State govt. for starting the MDS Courses. (ii) Consent of University Affiliation for starting the MDS Courses for the academic year 2010-11.” The petitioner communicated the consent for affiliation from the affiliating university vide its letter dated 29.7.2009 (Annexure P-4). The petitioner had already applied for Essentiality/No Objection Certificate from the State Govt., however, the State Govt. did not grant it. The petitioner was informed certain deficiencies by the State Govt. on the basis of the inspection conducted by the State Govt. vide its letter dated 12.11.2009. The petitioner claims to have removed all such deficiencies and informed the State Govt. vide its letter dated 20.11.2009 (Annexure P-7). It is alleged that despite removal of the deficiencies, the State Govt. did not issue the Essentiality Certificate forcing the petitioner to approach this Court. CWP No. 19676 of 2009 came to be filed before this Court alleging inaction on the part of the State Govt. This writ petition was disposed of vide order dated 18.12.2009 with the following directions:- CWP. No. 1554 of 2010 -7- “ Keeping in view the controversy involved, this petition is disposed of on its motion stage. State Govt. is directed to decide Annexure P-7 filed by the petitioner for grant of NOC/Essentiality /Feasibility Certificate within two seeks from the date of receipt of certified copy of this order.” Pursuant to the directions of this Court, the State Govt. carried out another inspection and on the basis of the inspection report granted Essentiality/No Objection Certificate vide its memo dated 21.12.2009 (Annexure P-9) with the following conclusion:- “ 1. The college possesses adequate teaching faculty, infrastructure and equipment to start MDS with three seats each in nine specialities i.e. Oral Surgery, Orthodontics, Conservative Dentistry, Prosthodontics, Periodontics, Oral Diagnosis, Oral Pathology, Pedodontics & Community Dentistry. 2. As regards the Dental Hygienist and Dental Technician course the college has sufficient infrastructure and teaching facility to begin the course.” The State Govt., however, recommended the grant of permission for three seats in each discipline instead of five as communicated to the petitioner vide memo dated 12.1.2010 (Annexure P- 10). On being granted the Essentiality Certificate, the petitioner informed the Govt. of India vide its letter dated 14.1.2010 and a copy of the order passed by the State Govt. was also communicated. Govt. of India vide its impugned letter dated 3/ 4.7.2009 (Annexure P-12) rejected the application of the petitioner for grant of permission for MDS Courses for the academic year 2010-2011 on the ground that the deficient documents were not CWP. No. 1554 of 2010 -8- furnished by 31.7.2009. The fee of Rs. 30 lacs paid by the petitioner has also been returned and petitioner has been advised to submit the application afresh in the year 2010. When this petition was filed, on consideration of the facts on record, this court vide its interlocutory order dated 29.1.2010 asked the Govt. of India to forward the application of the petitioner to the D.C.I. Despite above directions, Govt. of India has failed to forward the application of the petitioner to DCI for consideration. In its disclaimer to the writ petition filed on behalf of respondent no.1, the only plea raised is non-observance of the requisite formalities by the petitioner. It is stated that petitioner's application is incomplete and the Union of India is not obliged to send the same to the D.C.I. The two deficiencies pointed out are the Essentiality Certificate and university affiliation. It is relevant to notice that reply was filed on 24.2.2010, whereas consent for affiliation was forwarded to the Union of India vide letter dated 29.7.2009 (Annexure P-4) and the Essentiality Certificate vide letter dated 12.1.2010 (Annexure P-10) but no reference is given of these two documents in the reply. Since despite interim order dated 29.1.2010 the Union of India did not forward the application of the petitioner to the D.C.I the petitioner made C.M. No. 2432 of 2010 seeking a direction to D.C.I to forward its recommendations to the Govt. of India on or before 28.2.2010 as per the requirement of the schedule annexed to the regulation 4. Union of India was asked to submit reply to this application. In the meantime, the petitioner placed on record copy of a letter dated 4.3.2010 issued by the Deputy Secretary to Govt. of India, Ministry of Health and Family Welfare, CWP. No. 1554 of 2010 -9- whereby application of one Shri Banke Bihari Dental College and Research Centre, Ghaziabad for starting M.D.S course in nine specialities was directed to be reconsidered by the D.C.I along with all cases, where negative recommendations have been communicated by the D.C.I for the academic year 2010-2011 and even date for submission of the report by the D.C.I has been extended to 22.3.2010 instead of last date 28.2.2010 as notified in time schedule annexed to regulation 4. In view of this new development wherein the time schedule prescribed in the schedule was extended by the Govt. of India. Mrs. Sandhu, learned counsel for respondent no.1 was asked to seek fresh instructions. Mrs. Sandhu has placed on record copy of a FAX Message dated 11.3.2010 before this Court. The said letter reads as under:- “ Madam, In continuation of this Ministry's letters of even number dated 10.2.2010 and 23.2.2010 and telephonic discussion you had today, I am directed to say that in pursuance of Hon'ble High Court's Order dated 16.2.2010 in Writ Petition (civil ) No. 13215 of 2009 (enclosed), the scheme/application of Shree Bankey Bihari Dental College & Research Centre, Ghaziabad for starting of MDS course in all nine specialities was forwarded to the Dental Council of India on 24.2.2010 for consideration for the academic year 2009-10 (copy enclosed). 2. In response to the above, the Council vide its letter dated 25.2.2010 has returned the said scheme quoting the Time Schedule and provisions of 13(d) of DCI Regulations, 2006. Further, the Council has stated that since the Central Govt. has not extended the date beyond 28.2.2010 by virtue of Footnote (2) below Time Schedule annexed to DCI CWP. No. 1554 of 2010 -10- Regulations, 2006 for processing and submitting its appropriate recommendation in the case and as such, they are not in a position to process the entire matter within a period of two days. 3. Since the competent authority in the Ministry has extended the last date of 28.2.2010 to 22.3.2010 for submitting the recommendations by DCI to Ministry, the application of Shree Bankey Bihari Dental College & Research Centre, was again forwarded to the Council on 4.3.2010 for consideration along with the cases where the Council has communicated its negative recommendation for the academic year 2010-11 (copy enclosed). 4. In view of above, it is for Hon'ble High Court of Punjab & Haryana to decide the instant matter.” Based upon the aforesaid letter it is sought to be argued by Mrs. Sandhu that the application of Shree Bankey Bihari Dental College & Research Centre, Ghaziabad was forwarded to the D.C.I on 24.2.2010 and Council vide its letter dated 25.2.2010 expressed its inability to examine the scheme within the prescribed time. Accordingly, the Central Govt. by virtue of Footnote (2) below the time schedule annexed to the regulations has extended the last date for recommendation by D.C.I to the Ministry to 22.3.2010. Mrs. Sandhu has further tried to impress upon the Court that this was an isolated case where the Ministry has extended the time under the Court directions. This argument, however, stands belied from the text of the document itself. Time has been extended not only for consideration of the scheme of Shree Bankey Bihari Dental College as is sought to be projected but in respect to all cases, where the negative recommendations have been given by the D.C.I for the academic year 2010-2011. In the aforesaid communication nothing is mentioned about the directions of this Court vide CWP. No. 1554 of 2010 -11- order dated 29.1.2010, whereby the Union of India was asked to forward the application of the petitioner to D.C.I. As a matter of fact the directions of this Court were almost 25 days earlier than the directions of the Court in case of Shree Bankey Bihari Dental College. The Ministry seems to have acted in a most arbitrary manner while obeying directions of one Court in one case and have chosen to defy the directions of this Court without any valid reason. In fact, no reason whatsoever has been mentioned in the letter dated 11.3.2010. Even in the reply filed the only plea is non-production of Essentiality Certificate from the State Govt. and the affiliation from the concerned university. As noticed herein above both these documents were submitted to the Govt. of India by the petitioner on 31.7.2009 and 12.1.2010 respectively. Despite receipt of this document, the Govt. of India in its reply filed after more than one month on 24.2.2010 is still harping on the same deficiencies. It is also pertinent to mention that in the impugned order (Annexure P-12) removal of deficiencies is admitted. The only ground is that the same were not received within the prescribed time. There is another revealing aspect; in the impugned order at the top date mentioned is 3/ 4.7.2009, whereas under the signatures of the Under Secretary namely “R.Sankaran” the date mentioned is 8.9.2009 which clearly demonstrates that the some official in the Ministry seems to have wilfully and intentionally withheld the process in case of the petitioner-college and even a letter which was prepared on 3/ 4.7.2009 was forwarded in September, 2009 i.e after more than two months. This could be either callousness/negligence on the part of the officials in the Ministry or even a wilful/deliberate act cannot be ruled out. CWP. No. 1554 of 2010 -12- Mrs. Sandhu has argued that the Govt. of India cannot be compelled to forward the incomplete application of the petitioner to the D.C.I and it is the duty of the Union of India to examine the application and if, it is found that it is deficient in any manner not to process the same. This contention on behalf of Govt. of India is totally in contravention to the statutory provisions contained under Section 10-A of the Dentist Act and the regulations framed thereunder. It may be useful to refer to the statutory provisions noticed herein above. Clause 2 of Section 10-A specifically provides that when the scheme is submitted to the Central Govt., the Central Govt. shall refer the said scheme to the Council for its recommendations. Even under clause 3(a) it is directed that if the scheme is defective and does not contain any necessary particulars, the Council shall give opportunity to the person/authority or an institution concerned for making representation and to rectify the defects, if any specified by the Council. From the above provisions, the only inference/conclusion that can be drawn is that it is the D.C.I which is enjoined upon the duty to examine/consider the scheme in all respects and if the Council, an expert body is of the view that the application is deficient in any manner, it may communicate the deficiencies to the concerned institution for rectification. Clause 2 of Section 10-A requires the Central Govt. to simply forward the application to the Council for its recommendations. The entire scheme of Section 10-A provides that the Govt. of India has to depend upon the recommendations of the D.C.I, admittedly an expert body created by the statute to examine the validity of the scheme and all other related factors. The action of the Govt. of India in withholding the application and not forwarding the same to the D.C.I is totally illegal and unwarranted. CWP. No. 1554 of 2010 -13- The other plea raised on behalf of the Union of India that the deficiencies having been removed beyond the time prescribed, the application cannot be processed. The schedule appended to regulation 4 (2) though, prescribes the cut of dates for various stages, however, Note 2 at the foot of the schedule empowers the Central Govt. to relax the time fixed in the schedule for reasons to be recorded in respect of any class or category of application. Since the power to condone the time is prescribed under the regulations itself, the provision is only directory in nature. As noticed above, in case of Shree Bankey Bihari Dental College the Govt. of India has already extended the date for submission of the recommendations by the D.C.I. Why the same yardsticks could not be adopted in the present case has not been disclosed. There is hardly any distinction between the two cases rather the present case is at better footing. Mr. Rajiv Atma Ram, learned senior Advocate appearing for the petitioner has also brought to my notice the judgement of the Hon'ble Delhi High Court in case of Shree Bankey Bihari Educational Society, rendered in W.P. (C) 13215/2009 on 16.2.2010. From the facts of the said case it appears that Shree Bankey Bihari Dental College also applied on the last date i.e. 30.6.2009. The said college also could not produce the Essentiality Certificate and the college requested for extension of time for submitting the two certificates. The Essentiality Certificate was received by the College on 30.9.2009 and the Affiliation Certificate on 1.10.2009. The claim of the college was rejected on the ground of non-production of the documents within the time specified in the schedule. The Hon'ble Delhi High Court is of the view that the time could be extended in terms of the Note 2 to the Regulation 4(2) which is true interpretation and purport of the CWP. No. 1554 of 2010 -14- Note 2 to the Regulation 4(2). It is on that basis the Hon'ble Delhi High Court issued directions to the Union of India for taking the decision. This judgement has been implemented as is evident from the communication dated 11.3.2010. The Union of India cannot take a different stand in case of the petitioner. In view of the above circumstances, this petition is allowed with the following directions:- 1. Letter dated 3/ 4.7.2009 (3.9.2009) Annexure P-12 is hereby quashed. 2. The Union of India is directed to forward the application (scheme) of the petitioner to the D.C.I forthwith. 3. The D.C.I will forward its recommendations on the application of the petitioner by the extended time frame i.e. 22.3.2010 to the Govt. of India along with other cases. The Govt. of India will, accordingly, consider the recommendations of D.C.I and pass the appropriate order in accordance with law within the time specified in schedule to regulation 4 or such extended time as it may consider. Copies of this order be given to both the counsel for the parties under the signatures of Court Secretary. (PERMOD KOHLI) JUDGE 16.3.2010. lucky Whether to be reported to the Reporters? Yes.