DENTAL COUNCIL OF INDIA versus BIYANI SHIKSHAN SAMITI & ANR.
[2022] 13 S.C.R. 635, Supreme Court of India, 2022
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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   [2022] 12 S.C.R. 635
635
DENTAL COUNCIL OF INDIA
v.
BIYANI SHIKSHAN SAMITI & ANR.
(Civil Appeal No. 2912 of 2022)
APRIL 12, 2022
[L. NAGESWARA RAO AND B. R. GAVAI, JJ.]
Dentists Act, 1948 – ss. 10A & 20 – Dental Council of India
(Establishment of New Dental Colleges, Opening of New or Higher
Course of Study or Training and Increase of Admission Capacity in
Dental Colleges) Regulations, 2006 – r. 6(2)(h) – Power to make
regulations – Permission for establishment of dental college was
denied to the respondent no.1 – Respondent no. 1 submitted fresh
application which was returned by the respondent no. 2 on the
grounds that the application was not in compliance with the amended
Regulation 6(2)(h) of the Regulations – Single Bench of the High
Court dismissed the writ petition filed by the respondent no. 1
challenging the rejection order of its application – However, Division
Bench of High Court allowed the writ petition by striking down the
impugned notification dated 21 May, 2012 amending regulation
6(2)(h) and directed the respondent no. 2 to reconsider the
application of respondent no. 1 – The impugned notification was,
inter-alia, quashed on the ground that it is beyond the scope of the
powers of the Council to make delegated legislation as provided
under sub-section (7) of section 10A of the Act – Held: It is settled
that subordinate legislation may be questioned on the ground of
unreasonableness, such unreasonableness should not be in the sense
of not
being reasonable, but should be in the sense that it is
manifestly arbitrary – In the instant case, the Division Bench of the
High Court has failed to take into consideration clause (g) of
subsection (7) of s. 10A of the Act – Whereas clauses (a) to (f) of
subsection (7) of s. 10A of the said Act deal with various factors,
clause (g) thereof, which can be said to be a residual clause, enables
the Council to take into consideration also any other factor as may
be prescribed – Conjoint reading of ss. 10A(7)(g) and 20(2)(fb) of
the Act would reveal that it is within the competence of the Council
to make Regulations prescribing any other conditions, which are
otherwise not found in clauses (a) to (f) of sub-section (7) of Section
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10A of the said Act – Challenge to the same would be permissible
only on the ground of manifest arbitrariness – Respondent no.1
failed to discharge burden that impugned notification suffered from
manifest arbitrariness – Subordinate legislation.
Constitution of India – Art. 14 – Dental Council of India
(Establishment of New Dental Colleges, Opening of New or Higher
Course of Study or Training and Increase of Admission Capacity in
Dental Colleges) Regulations, 2006 – r. 6(2)(h) – Whether the
impugned Notification dated 21 May, 2012 amending r. 6(2) (h)
was violative of Article 14 of the Constitution? – Held: Tests of
arbitrary action which apply to executive actions do not necessarily
apply to delegated legislation – In order that delegated legislation
can be struck down, such legislation must be manifestly arbitrary;
a law which could not be reasonably expected to emanate from an
authority delegated with the lawmaking power – Colleges established
prior to the impugned Notification and the Colleges established/to
be established after the impugned Notification would form two
separate classes – The differential treatment for different classes
would not be hit by Article 14 of the Constitution of India – Factors
taken into consideration by the Council, while amending Regulation
6(2)(h) of the Regulations are relevant factors – The factors have a
nexus with the object sought to be achieved which is to provide
adequate
teaching and training facilities to the students – Amended
Regulation 6(2)(h) has a direct nexus with the object to be achieved,
i.e., providing adequate teaching and training facilities to the
students and it is not violative of art. 14 of the Constitution.
Constitution of India – Art. 19 (1)(g) – Dental Council of
India (Establishment of New Dental Colleges, Opening of New or
Higher Course of Study or Training and Increase of Admission
Capacity in Dental Colleges) Regulations, 2006 – r. 6(2)(h) – Whether
the impugned Notification dated 21 May, 2012 amending r. 6(2) (h)
was violative of Art. 19(1)(g) of the Constitution? – Right to establish
an educational institution can be regulated – Such regulatory
measures must, in general, be to ensure the maintenance of proper
academic standards, atmosphere and infrastructure and the
prevention of maladministration – Impugned Notification is made
in order to ensure the maintenance of proper academic standards
and infrastructure – Impugned notification is not violative of art.
19(1) (g).
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Court practice and procedures – Judicial Propriety – Prayer
for reconsideration of the proposal submitted by the respondent
No.1, which was already rejected by the single judge of the High
Court, was renewed in the fresh writ petition filed and granted by
the Division Bench of the High Court – On the ground of judicial
propriety also the Division Bench of the High Court ought not to
have entertained the writ petition for a prayer, which already stood
rejected.
Allowing the appeal, the Court
HELD:
1. This Court finds that the Division Bench has failed to
take into consideration clause (g) of sub-section (7) of Section
10A of the said Act. It is to be noted that whereas clauses (a) to
(f) of subsection (7) of Section 10A of the said Act deal with various
factors, clause (g) thereof, which can be said to be a residual
clause, enables the Council to take into consideration also any
other factor as may be prescribed. [Para 29][653-B-C]
2. This Court further finds that the Division Bench of the
High Court has also failed to take into consideration clause (fb)
of subsection (2) of Section 20 of the said Act. A conjoint reading
of these provisions would reveal that the Council is also
empowered to take into consideration any other factor as may be
prescribed and also to make a Regulation with regard to any other
factor under clause (g) of sub-section (7) of Section 10A of the
said Act. It could thus be seen that it is within the competence of
the Council to make
Regulations prescribing any other conditions,
which are otherwise not found in clauses (a) to (f) of sub-section
(7) of Section 10A of the said Act. Challenge to the same would
be permissible only on the ground of manifest arbitrariness. It is
also equally settled that the presumption is always with regard to
the validity of a provision. The burden is on the party who
challenges the validity of such provision. This Court finds that
the respondent No.1 has failed to discharge the burden to show
that the impugned Notification suffers from manifest arbitrariness.
[Para 30][653-C-F]
3. Secondly, the Division Bench of the High Court found
the impugned Notification dated 21st May, 2012 to be violative
DENTAL COUNCIL OF INDIA v. BIYANI SHIKSHAN SAMITI
& ANR.
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of Article 14 of the Constitution, on the ground that the Dental
Colleges established prior to impugned Notification would not
be required to be attached with the Medical Colleges, whereas,
the Dental Colleges, established after the impugned Notification,
will be compelled to be attached to such Medical Colleges. We
are of the considered view that the Colleges established prior to
the impugned Notification and the Colleges established/to be
established after the impugned Notification would form two
separate classes. The differential treatment for different classes
would not be hit by Article 14 of the Constitution of India. The
only requirement would be, as to whether such a classification
has a nexus with the object sought to be achieved by the Act. For
the reasons given hereinafter, we find that the factors taken into
consideration by the Council, while amending Regulation 6(2)(h)
of the Regulations are relevant factors. The factors have a nexus
with the object sought to be achieved. It has been submitted on
behalf of the Council that the amended Regulation 6(2)(h) of the
Regulations was brought into effect so that it would facilitate
training to the students of the proposed Dental Colleges as per
the syllabus/course curriculum prescribed. It, therefore, cannot
be said that the Council has taken into consideration the factors,
which are not relevant or germane for the purpose to be achieved.
The object to be
achieved is to provide adequate teaching and
training facilities to the students. If in the wisdom of the expert
body, this can be done by attaching a Dental College to the already
existing Medical College, it cannot be faulted with. [Para 31][653-
F-H; A-E]
4. The amended Regulation cannot be said to be one, which
is manifestly arbitrary, so as to permit the Court to interfere with
it. On the contrary, this Court finds that the amended Regulation
6(2)(h) has a direct nexus with the object to be achieved, i.e.,
providing adequate teaching and training facilities to the students.
[Para 33][654-G-H; 655-A]
5. That leaves with the finding of the Division Bench of the
High Court that the amended Regulation is violative of Article
19(1)(g) of the Constitution. The Constitution Bench itself has
held that the right to establish an educational institution can be
regulated. However, such regulatory measures must, in general,
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be to ensure the maintenance of proper academic standards,
atmosphere and infrastructure and the prevention of
maladministration. [Paras 40 and 41][657-C, F-G]
6. Impugned judgment of the Division Bench of the High
Court is also not sustainable on the ground of judicial propriety.
In writ petition filed before division bench, the prayer was for
challenging the validity of the impugned Notification and for a
direction to reconsider the proposal of the respondent No.1. The
impugned Notification could have very well been challenged in
the earlier writ petition, which was filed in the year 2016 before
the learned single judge of the High Court. However, having failed
in that writ petition before the learned single judge, the
respondent No.1 filed another writ petition before the Division
Bench of the High Court. Though one of the prayers challenges
the validity of the impugned Notification, another prayer claims
for reconsideration of its proposal. It could thus be seen that the
prayer for reconsideration of the proposal submitted by the
respondent No.1, which was already rejected by the learned single
judge of the High Court has been renewed in the fresh writ
petition filed in the year 2017 and granted by the Division Bench
of the High Court. Therefore, on the ground of judicial propriety
also the Division Bench of the High Court ought not to have
entertained the writ petition for a prayer, which already stood
rejected. In that view of the matter, the
impugned judgment and
order dated 24th April, 2018 passed by the Division Bench of the
High Court is not sustainable. [ Paras 43 and 44][658-A-B; D-H]
Dental Council of India vs. Subharti K.K.B. Charitable
Trust and Another (2001) 5 SCC 486 : [2001] 3 SCR
149; Maharashtra State Board of Secondary and
Higher Secondary Education and another vs. Paritosh
Bhupeshkumar Sheth and others (1984) 4 SCC 27 :
[1985] 1 SCR 29; India Council for Technical Education
vs. Surinder Kumar Dhawan and others (2009) 11 SCC
726 : [2009] 3 SCR 859; Indian Express Newspapers
Bombay) Private Ltd. and others vs. Union of India and
others (1985) 1 SCC 641 : [1985] 2 SCR 287 Khoday
Distilleries Ltd. and others vs. State of Karnataka and
others (1996) 10 SCC 304 : [1995] 6 Suppl. SCR 759;
DENTAL COUNCIL OF INDIA v. BIYANI SHIKSHAN SAMITI
& ANR.
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State of T.N. and another vs. P. Krishnamurthy and
others (2006) 4 SCC 517 : [2006] 3 SCR 396; Supreme
Court Employees’ Welfare Association. vs. Union of
India and another (1989) 4 SCC 187 : [1989] 3 SCR
488; Shri Sitaram Sugar Company Limited and another
vs. Union of India and others (1990) 3 SCC 223 : [1990]
1 SCR 909; St. Johns Teachers Training Institute vs.
Regional Director, National Council for Teacher
Education and another (2003) 3 SCC 321 : [2003] 1
SCR 975; Rameshchandra Kachardas Porwal and
others vs. State of Maharashtra and other (1981) 2 SCC
722 : [1981] 2 SCR 866 ; Union of India and another
vs. Cynamide India Ltd. and another (1987) 2 SCC 720
: [1987] 2 SCR 841 ; State of Haryana vs. Ram Kishan
and others (1988) 3 SCC 416; T.M.A. Pai Foundation
and others vs. State of Karnataka and others (2002) 8
SCC 481 : [2002] 3 Suppl. SCR 587 – referred to.
Case Law Reference
[2001] 3 SCR 149
referred to
Para 11
[1985] 2 SCR 287
referred to
Para 22
[1995] 6 Suppl. SCR 759
referred to
Para 25
[2006] 3 SCR 396
referred to
Para 26
[1989] 3 SCR 488
referred to
Para 26
[1990] 1 SCR 909
referred to
Para 26
[2003] 1 SCR 975
referred to
Para 26
[1981] 2 SCR 866
referred to
Para 26
[1987] 2 SCR 841
referred to
Para 26
(1988) 3 SCC 416
referred to
Para 26
[1985] 1 SCR 29
referred to
Para 35
[2009] 3 SCR 859
referred to
Para 38
[2002] 3 Suppl. SCR 587
referred to
Para 40
CIVIL APPELLATE JURISDICTION : Civil Appeal No.2912
of 2022.
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From the Judgment and Order dated 24.04.2018 of the High Court
of Judicature for Rajasthan, Bench at Jaipur in D.B. Civil Writs No.3260
of 2017.
Vikas Singh, Sr. Adv., Gaurav Sharma, Dhawal Mohan, Prateek
Bhatia, Advs. for the Appellant.
Ms. Aishwarya Bhati, ASG, Ms. Shobha Gupta, Rajendra Kumar
Panigrahi, Ms. Jessy Kurien, Nishant Bahuguna, Vidit Agarwal, Shubham
Jalan, Ms. Prachi Sharma, Ms. Sakshi Tiwari, Gurmeet Singh Makker,
Ms. Ruchi Kohli, Shailesh Madiyal, Digvijay Dam, Bhuvan Kapoor,
Himanshu Satija, Ms. Shristi Misra, Ms. Poornima Singh, Advs. for the
Respondents.
The Judgment of the Court was delivered by
B. R. GAVAI, J.
1. Leave granted.
2. The present appeal challenges the judgment and order of the
Division Bench of the High Court of Judicature for Rajasthan, Bench at
Jaipur, dated 24th April, 2018, passed in D.B. Civil Writ Petition No.
3260 of 2017, thereby allowing the writ petition filed on behalf of the
respondent No.1-Biyani Shikshan Samiti (hereinafter referred to as “the
respondent No.1”) and striking down the Notification dated 21st May,
2012 (hereinafter referred to as “the impugned Notification”), vide which
the appellant-Dental Council of India (hereinafter referred to as “the
Council”), had substituted Regulation 6(2)(h) of the Dental Council of
India (Establishment of New Dental Colleges, Opening of New or Higher
Course of Studies or Training and Increase of Admission Capacity in
Dental Colleges) Regulations, 2006 (hereinafter
referred to as “the
Regulations”), on the ground of the same being inconsistent with the
provisions of the Dentists Act, 1948 (hereinafter referred to as “the said
Act”) and also being violative of Articles 14 and 19(1)(g) of the
Constitution of India.
3. The facts in the present case are not in dispute.
4. The respondent No. 1 had submitted an application to the
Government of India for grant of permission for establishment of dental
college from academic year 2012-2013 on 24th September, 2011. This
was after the Letter of Intent was issued by the State Government on
23rd September, 2011. The respondent No. 2 – Union of India, through
DENTAL COUNCIL OF INDIA v. BIYANI SHIKSHAN SAMITI
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Secretary, Ministry of Health and Family Welfare (Dental Education
Section) [hereinafter referred to as “the respondent No.2”), noticed
certain deficiencies in the proposal of the respondent No.1 and vide its
letter dated 7th October, 2011, required the respondent No.1 to cure the
said deficiencies.
5. After exchange of certain communications, on 6th January, 2012,
the respondent No.2, returned the application of the respondent No.1
along with demand draft of Rs.6 lakh, on the ground that deficiencies
pointed out were not cured prior to 31st December, 2011, i.e., the last
date for curing the deficiencies.
6. In the meantime, the Government of Rajasthan issued
Essentiality Certificate to the respondent No.1 on 11th January, 2012.
However, on 17th February, 2012, the respondent No.2 declined to
reconsider the application/request of the respondent No.1, on the grounds
stated in its earlier letter, dated 6th January, 2012. As such, the request
of the respondent No.1 for reconsideration of its proposal came to be
rejected by the respondent No.2, vide its communication dated 17th
February, 2012.
7. In the meantime, vide the impugned Notification, existing
Regulation 6(2)(h) of the Regulations was substituted by amended
Regulation 6(2)(h) on 21st May, 2012. Respondent No.1 again submitted
its fresh application on 28th September, 2012 for academic year 2013-
2014. The same was returned by the respondent No.2 vide its order
dated 31st December, 2012, on the ground that the proposal/application
was not in compliance with the amended Regulation 6(2)(h) of the
Regulations. On 23rd January, 2013, the respondent No.1 thereafter wrote
a letter to the respondent No.2, stating therein that since Essentiality
Certificate was issued to it on 11th January, 2012, the impugned
Notification was not applicable to it and requested for reconsideration of
its application under the unamended Regulation 6(2)(h) of the Regulations.
The respondent No.2 rejected the application of the respondent No.1
vide its order dated 5th March, 2013.
8. The respondent No.1 challenged the order passed by the
respondent No.2 rejecting the request for reconsideration of its application
before the learned single judge of the High Court of Judicature for
Rajasthan, Bench at Jaipur, by way of S.B. Civil Writ Petition No.15090
of 2016. The respondent No.1 further sought a direction to reconsider
the application submitted by it on 24th September, 2011 for establishment
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of a new dental college for academic session 2017-2018. The learned
single judge of the High Court, vide judgment and order dated 3rd
November, 2016, finding no merit in the writ petition, dismissed the same.
The respondent No.1 thereafter filed a writ petition before the Division
Bench being D.B. Civil Writ Petition No. 3260 of 2017, challenging the
impugned Notification amending Regulation 6(2)(h) of the Regulations.
The respondent No.1 also sought a prayer for direction to the respondent
No.2, for reconsidering its application, dated 28th September, 2012, for
establishment of a new Dental College for academic session 2018-2019
and for subsequent academic sessions. By the impugned judgment and
order dated 24th April, 2018, the Division Bench of the High Court allowed
the said writ petition by striking down the impugned Notification and
directed the respondent No. 2 to reconsider the case of the respondent
No.1 in the light of the observations made in the impugned judgment and
order. Being aggrieved thereby, the present appeal has been preferred
by the Council.
9. We have heard Shri Gaurav Sharma, learned counsel appearing
on behalf of the Council, Ms. Aishwarya Bhati, learned Additional Solicitor
General (“ASG” for short) appearing on behalf of the respondent No.2
and Ms. Shobha Gupta, learned counsel appearing on behalf of the
respondent No.1.
10. Shri Gaurav Sharma, learned counsel, would submit that the
Division Bench of the High Court has grossly
erred in allowing the writ
petition. He submits that the Council is an expert statutory body duly
constituted under the said Act. He submits that the said Act empowers
the Council to make Regulations for various aspects concerned with
Dental Education, including prescribing requirement of minimum
standards. He submits that the Council, after examining various aspects,
had found it necessary to amend Regulation 6(2)(h) of the Regulations.
He submits that this was done for providing better teaching facilities to
the students and for improving the standards of education. He submits
that the Division Bench has grossly erred in holding that it was beyond
the powers of the Council to make delegated legislation. He submits
that, in any case, the finding of the High Court that the impugned
Notification was violative of Articles 14 and 19(1)(g) of the Constitution
of India, is totally erroneous.
11. Ms. Aishwarya Bhati, learned ASG also supports the
submission made on behalf of the Council. Relying on the judgment of
DENTAL COUNCIL OF INDIA v. BIYANI SHIKSHAN SAMITI
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this Court in the case of Dental Council of India vs. Subharti K.K.B.
Charitable Trust and Another1,she submits that the High Court ought
not to have interfered with the impugned Notification, since the
Regulations were made by the expert body in accordance with the
provisions of the said Act.
12. Ms. Shobha Gupta, learned counsel appearing on behalf of
the respondent No.1, on the contrary, would submit that the High Court
has rightly quashed the impugned Notification. She submits that the
impugned Notification has no nexus with the object sought to be achieved.
She submits that there is a huge shortage of Dentists in the country and
therefore, the object of the legislation should be to encourage establishment
of more Dental Colleges rather than providing a requirement which will
restrict the number of new Dental Colleges. On facts, she submits that
there is no medical college within the vicinity of 100 kms. from the place
at which the respondent No.1 proposes to start a new Dental College.
She submits that the impugned Notification, therefore, violates the
fundamental rights of the students to take dental education as well as
the fundamental right of the respondent No.1 to establish an educational
institution under Article 19(1)(g) of the Constitution of India.
13. For considering the rival submissions, it will be appropriate to
refer to certain provisions of the said Act. Section 3 of the said Act
requires the
Central Government to constitute a Council consisting of
members named therein. Section 10 of the said Act deals with recognition
of dental qualifications. Section 10A of the said Act deals with permission
for establishment of new dental college, new courses of study, etc. Sub-
section (1) of Section 10A of the said Act puts restriction on the
establishment of an authority or institution for a 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; it also imposes a restriction
on opening a new or higher course of study or training, or increase the
admission capacity in any course of study or training, including a post-
graduate course of study or training. It is provided that no person can
establish an authority or institution for dental education and that no
authority or institution can open a new or higher course of study or
training, including a post-graduate course of study or training, or increase
its admission capacity without the prior permission of the Central
Government. Sub-sections (2) to (4) of Section 10A of the said Act deal
1 (2001) 5 SCC 486
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with the procedure to be followed for making an application for permission
to start a new or higher course of study or training or increase of intake
capacity in any course of study or training. Sub-section (5) of Section
10A of the said Act is a deeming provision, which provides that if the
Central Government fails to pass an order on the scheme/application
submitted by the applicant within a period of one year from the date of
submitting the scheme/application, such scheme/application shall be
deemed to have been approved by the Central Government in the form
in which it was submitted. It also provides that the permission of the
Central Government required under sub-section (1) shall also be deemed
to have been granted. Sub-section (6) of Section 10A of the said Act
provides for extension of the period provided in sub-section (5) by entitling
an applicant for the extension of the period for furnishing the particulars
called for by the Council or by the Central Government.
14. It will be apposite to reproduce sub-section (7) of Section 10A
of the said Act, since the same fell for consideration before the Division
Bench of the High Court while allowing the writ petition. It reads thus:
 “10A. Permission for establishment of new dental
college, new courses of study, etc.—(1)
…………………………
(2)………………………………………………
xxx
(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 recognised 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
16-A and the regulations made under sub-section (1) of
Section 20;
DENTAL COUNCIL OF INDIA v. BIYANI SHIKSHAN SAMITI
& ANR. [B. R. GAVAI, J.]
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(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 recognised dental
qualifications;
(f)
the requirement of manpower in the field of practice of
dentistry; and
(g)
any other factors as may be prescribed.”
15. It could thus be seen that the Council, while making its
recommendations and the Central Government, while passing an order,
are required to take into consideration various factors as are
enumerated
in clauses (a) to (g) of sub-section (7) of Section 10A of the said Act.
16. Section 20 of the said Act empowers the Council, with the
approval of the Central Government, to make Regulations. It will be
apposite to refer to the relevant part of Section 20 of the said Act, which
reads thus:
“20. Power to make regulations.-(1) The Council may, with
the approval of the Central Government, by notification in the
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Official Gazette, make regulations not inconsistent with the
provisions of this Act to carry out the purposes of this Chapter.
(2) In particular and without prejudice to the generality of the
foregoing power such regulations may-
(a)
……………………………………………
(b)
……………………………………………
xxx
xxx
xxx
(fb)
prescribe any other factors under clause (g) of sub-section
(7) of section 10A”
17. It could thus be seen from the conjoint reading of clause (g) of
sub-section (7) of Section 10A and clause (fb) of sub-section (2) of
Section 20 of the said Act that the Council is also empowered to take
into consideration any other factors as may be prescribed and also entitled
to make Regulations for prescribing any other factor under clause (g) of
sub-section (7) of Section 10A.
18. It will also be relevant to refer to the provision of Regulation
6(2)(h) as it existed prior to the impugned Notification and the amended
provision after the impugned Notification was given effect to. They read
thus:
“Regulation 6(2)(h) prior to impugned Notification dated
21st May, 2012
6. Eligibility and qualifying criteria.-
(1) …………………………………………..
(2) The organizations under sub-regulation (1) shall qualify to apply
for permission to establish a dental college if the following
conditions are fulfilled:-
(a)
…………………………………………..
(b)
…………………………………………..
xxx
(h) the applicant owns and manages a General Hospital of not
less than 100 beds as per Annexure I with necessary infrastructure
facilities including
teaching pre-clinical, para-clinical and allied
medical sciences in the campus of the proposed dental college,
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or
the proposed dental college is located in the proximity of a
Government Medical College or a Medical College recognised by
the Medical Council of India and an undertaking of the said Medical
College to the effect that it would facilitate training to the students
of the proposed dental college in the subjects of Medicine, Surgery
and Allied Medical Sciences has been obtained,
or
where no Medical College is available in the proximity of the
proposed dental college, the proposed dental college gets itself
tied up at least for 5 years with a Government General Hospital
having a provision of at least 100 beds and located within a radius
of 10 K.M. of the proposed dental college and the tie-up is
extendable till it has its own 100 bedded hospital in the same
premises. In such cases, the applicant shall produce evidence that
necessary infrastructure facilities including teaching pre-clinical,
para-clinical and allied medical sciences are owned by the proposed
dental college itself;
Regulation 6(2)(h) after the impugned Notification dated
21st May, 2012
6. Eligibility and qualifying criteria.-
(1) …………………………………………..
(2) The organizations under sub-regulation (1) shall qualify to apply
for permission to establish a dental college if the following
conditions are fulfilled:-
(a)
…………………………………………..
(b)
…………………………………………..
xxx
(h) the applicant shall attach its proposed dental college with a
Government/Private Medical College
approved/recognised by the
Medical Council of India which is located at the distance of 10
kms. by road from the proposed dental college and produce
evidence of the said Medical College to the effect that it would
facilitate training to the students of the proposed dental college as
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per syllabus/course curriculum prescribed in respective
undergraduate and post graduate dental course regulations as
amended from time to time:-
Provided that not more than one dental college shall be attached
with the medical college.”
19. It could thus be seen that the change that has been brought by
the impugned Notification is that, though under the unamended Regulation
6(2)(h), an applicant was entitled to apply if he/she/it owned and managed
a General Hospital of not less than 100 beds; by the impugned Notification,
it has been made mandatory that the applicant has to attach its proposed
Dental College with the Government/Private Medical College, approved/
recognized by the Medical Council of India, which is located at a distance
of 10 kilometers by road from the proposed Dental College. The distance
of 10 kilometers has now been increased to 30 kilometers, vide
amendment dated 5th July, 2017.
20. The Division Bench of the High Court vide the impugned
judgment and order dated 24th April, 2018, has allowed the writ petition
and quashed the impugned Notification on three grounds, viz.,
(i)
that it is violative of Article 19(1)(g) of the Constitution of
India;
(ii)
that it is beyond the scope of the powers of the Council to
make delegated legislation as provided under sub-section
(7) of Section 10A of the said Act; and
(iii)
that it is violative of Article 14 of the Constitution of India,
inasmuch as the Dental Colleges established prior to
impugned
Notification would be permitted to run without
attachment with Medical Colleges, whereas, the Dental
Colleges established after the impugned Notification will
be compelled to have such an attachment with the Medical
Colleges.
21. We find that the learned judges of the Division Bench have
erred on all counts.
22. It will be relevant to refer to the following observations of this
Court in the case of Indian Express Newspapers (Bombay) Private
Ltd. and others vs. Union of India and others2.
2 (1985) 1 SCC 641
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“75. A piece of subordinate legislation does not carry the same
degree of immunity which is enjoyed by a statute passed by a
competent Legislature. Subordinate legislation may be questioned
on any of the grounds on which plenary legislation is questioned.
In addition it may also be questioned on the ground that it does not
conform to the statute under which it is made. It may further be
questioned on the ground that it is contrary to some other statute.
That is because subordinate legislation must yield to plenary
legislation. It may also be questioned on the ground that it is
unreasonable, unreasonable not in the sense of not being reasonable,
but in the sense that it is manifestly arbitrary.”
23. It could thus be seen that this Court has held that the
subordinate legislation may be questioned on any of the grounds on which
plenary legislation is questioned. In addition, it may also be questioned
on the ground that it does not conform to the statute under which it is
made. It may further be questioned on the ground that it is contrary to
some other statute. Though it may also be questioned on the ground of
unreasonableness, such unreasonableness should not be in the sense of
not being reasonable, but should be in the sense that it is manifestly
arbitrary.
24. It has further been held by this Court in the said case that for
challenging the subordinate legislation on the ground of arbitrariness, it
can only be done
when it is found that it is not in conformity with the
statute or that it offends Article 14 of the Constitution. It has further
been held that it cannot be done merely on the ground that it is not
reasonable or that it has not taken into account relevant circumstances
which the Court considers relevant.
25. The judgment of this Court in the case of Indian Express
Newspapers (Bombay) Private Ltd. (supra) has been followed by a
three-judge Bench of this Court in the case of Khoday Distilleries Ltd.
and others vs. State of Karnataka and others3. It will be apposite to
refer to the following observations of this Court in the said case:
“13. It is next submitted before us that the amended Rules are
arbitrary, unreasonable and cause undue hardship and, therefore,
violate Article 14 of the Constitution. Although the protection of
Article 19(1)(g) may not be available to the appellants, the rules
3 (1996) 10 SCC 304
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must, undoubtedly, satisfy the test of Article 14, which is a guarantee
against arbitrary action. However, one must bear in mind that
what is being challenged here under Article 14 is not executive
action but delegated legislation. The tests of arbitrary action which
apply to executive actions do not necessarily apply to delegated
legislation. In order that delegated legislation can be struck down,
such legislation must be manifestly arbitrary; a law which could
not be reasonably expected to emanate from an authority delegated
with the law-making power. In the case of Indian Express
Newspapers (Bombay) (P) Ltd. v. Union of India [(1985) 1 SCC
641 : 1985 SCC (Tax) 121 : (1985) 2 SCR 287] (SCR at p. 243)
this Court said that a piece of subordinate legislation does not
carry the same degree of immunity which is enjoyed by a statute
passed by a competent legislature. A subordinate legislation may
be questioned under Article 14 on the ground that it is unreasonable;
“unreasonable not in the sense of not being reasonable, but in the
sense that it is manifestly arbitrary”. Drawing a comparison
between the law in England and in India, the Court further observed
that in England the Judges would say, “Parliament never intended
the authority to make such Rules; they are unreasonable and ultra
vires”. In India, arbitrariness is not a separate ground since it will
come within the embargo of Article 14 of the Constitution. But
subordinate legislation must be so
arbitrary that it could not be
said to be in conformity with the statute or that it offends Article
14 of the Constitution.”
26. In the case of State of T.N. and another vs. P. Krishnamurthy
and others4 after considering the law laid down by this Court earlier in
the cases of Indian Express Newspapers (Bombay) Private Ltd.
(supra), Supreme Court Employees’ Welfare Association. vs. Union
of India and another5, Shri Sitaram Sugar Company Limited and
another vs. Union of India and others6, St. Johns Teachers Training
Institute vs. Regional Director, National Council for Teacher
Education and another7, Rameshchandra Kachardas Porwal and
others vs. State of Maharashtra and others8, Union of India and
4 (2006) 4 SCC 517
5 (1989) 4 SCC 187
6 (1990) 3 SCC 223
7 (2003) 3 SCC 321
8 (1981) 2 SCC 722
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another vs. Cynamide India Ltd. and another9 and State of Haryana
vs. Ram Kishan and others10, this Court has laid down certain grounds,
on which the subordinate legislation can be challenged, which are as
under:
“Whether the rule is valid in its entirety?
15. There is a presumption in favour of constitutionality or
validity of a subordinate legislation and the burden is upon him
who attacks it to show that it is invalid. It is also well recognised
that a subordinate legislation can be challenged under any of the
following grounds:
(a) Lack of legislative competence to make the subordinate
legislation.
(b) Violation of fundamental rights guaranteed under the
Constitution of India.
(c) Violation of any provision of the Constitution of India.
(d) Failure to conform to the statute under which it is made or
exceeding the limits of authority conferred by the enabling Act.
(e) Repugnancy to the laws of the land, that is, any enactment.
(f) Manifest arbitrariness/ unreasonableness (to an extent
where the court might well say that the legislature never intended
to give authority to make such rules).”
27. In the light of these guiding principles, we will have to examine
the correctness of the findings of the learned judges of the Division
Bench in the impugned judgment and order.
28. One of the grounds on which the impugned Notification has
been struck down is that it is beyond the scope of powers of the Council
under Section
10A(7)(d) of the said Act. The Division Bench of the
High Court has relied on clause (d) of sub-section (7) of Section 10A of
the said Act to come to a conclusion that clause (d) refers to adequate
hospital facilities, having regard to the number of students likely to attend
the institution. It has held that a requirement of hospital was already
fulfilled in the pre-amended Regulation 6(2)(h) of the Regulations. It has
further held that clause (d) does not refer to Medical College. It was
9 (1987) 2 SCC 720
10 (1988) 3 SCC 416
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therefore held that the impugned Notification requiring the Dental Colleges
to be attached with the Government/Private Medical College was beyond
the scope of sub-section (7) of Section 10A of the said Act and, therefore,
inconsistent with the said Act.
29. We find that the Division Bench has failed to take into
consideration clause (g) of sub-section (7) of Section 10A of the said
Act. It is to be noted that whereas clauses (a) to (f) of sub-section (7) of
Section 10A of the said Act deal with various factors, clause (g) thereof,
which can be said to be a residual clause, enables the Council to take
into consideration also any other factor as may be prescribed.
30. We further find that the Division Bench of the High Court has
also failed to take into consideration clause (fb) of sub-section (2) of
Section 20 of the said Act. A conjoint reading of these provisions would
reveal that the Council is also empowered to take into consideration any
other factor as may be prescribed and also to make a Regulation with
regard to any other factor under clause (g) of sub-section (7) of Section
10A of the said Act. It could thus be seen that it is within the competence
of the Council to make Regulations prescribing any other conditions,
which are otherwise not found in clauses (a) to (f) of sub-section (7) of
Section 10A of the said Act. Challenge to the same would be permissible
only on the ground of manifest arbitrariness. It is also equally settled that
the
presumption is always with regard to the validity of a provision. The
burden is on the party who challenges the validity of such provision. We
find that the respondent No.1 has failed to discharge the burden to show
that the impugned Notification suffers from manifest arbitrariness.
31. Secondly, the Division Bench of the High Court found the
impugned Notification dated 21st May, 2012 to be violative of Article 14
of the Constitution, on the ground that the Dental Colleges established
prior to impugned Notification would not be required to be attached with
the Medical Colleges, whereas, the Dental Colleges, established after
the impugned Notification, will be compelled to be attached to such
Medical Colleges. We are of the considered view that the Colleges
established prior to the impugned Notification and the Colleges established/
to be established after the impugned Notification would form two separate
classes. The differential treatment for different classes would not be hit
by Article 14 of the Constitution of India. The only requirement would
be, as to whether such a classification has a nexus with the object sought
to be achieved by the Act. For the reasons given hereinafter, we find
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that the factors taken into consideration by the Council, while amending
Regulation 6(2)(h) of the Regulations are relevant factors. The factors
have a nexus with the object sought to be achieved. It has been submitted
on behalf of the Council that the existing recognized Medical College
already has a facility to impart education to about 500-700 students.
Such Medical Colleges have a full-fledged teaching faculty. Such a faculty
would enable providing a proper education to the students of the Dental
colleges on various aspects of pre-clinical, para-clinical and allied
medicine, etc. The Council has also taken into consideration the fact
that the General Hospitals having bed-capacity of 100 beds or more do
not have experts on full-time basis. They usually engage the services of
consultant doctors, who visit the Hospital for a very limited period. The
Council has also taken into consideration the fact that the private hospitals
do not have adequate clinical facilities and/or clinical material and
therefore, it is unlikely that they will be able to impart education and
training to students. It has been submitted on behalf of the Council that
the amended Regulation 6(2)(h) of the Regulations was brought into
effect so that it would facilitate training to the students of the proposed
Dental Colleges as per the syllabus/course curriculum prescribed. It,
therefore, cannot be said that the Council has taken into
consideration
the factors, which are not relevant or germane for the purpose to be
achieved. The object to be achieved is to provide adequate teaching and
training facilities to the students. If in the wisdom of the expert body, this
can be done by attaching a Dental College to the already existing Medical
College, it cannot be faulted with.
32. The reason given for not permitting more than one Dental
College to be attached to the existing recognized Medical College is that
if one Dental College is permitted to be attached to a recognized Medical
College, which is already having 500-750 students in different semesters
of their 5-year MBBS course, the additional students of the Dental College
may very well be absorbed in the facilities that are already available in
the recognized Medical College. However, if more than one Dental
College is permitted to be attached, it will lead to overcrowding of students
in the Medical College.
33. We are, therefore, of the considered view that the amended
Regulation cannot be said to be one, which is manifestly arbitrary, so as
to permit the Court to interfere with it. On the contrary, we find that the
amended Regulation 6(2)(h) has a direct nexus with the object to be
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achieved, i.e., providing adequate teaching and training facilities to the
students.
34. It will be apposite to refer to the following observations of the
Division Bench of the High Court in the impugned judgment:
“We fail to understand as to how the earlier provisions, in any
manner, were not sufficient for the object sought to be achieved.
A careful reading of the unamended Regulation 6(2)(h) shows
requirement of attachment with General Hospital owned and
managed by the applicant in the campus of the proposed Dental
College. It was with infrastructure facilities including teaching
pre-clinical, para-clinical and allied medical sciences.
If we talk about practical training, it would be more in the
hospital, therefore, the unamended provision of Regulation 6(2)(h)
provided both i.e. attachment with General Hospital or with a
Medical College with required facilities of teaching.”
35. In this respect, we would gainfully refer to the following
observations of this Court in the case of Maharashtra State Board of
Secondary and Higher Secondary Education and another vs.
Paritosh Bhupeshkumar Sheth and others11:
“14. ….. whether a rule or regulation or other type of statutory
instrument — is in excess of the power of subordinate legislation
conferred on the delegate has to be determined with reference
only to the specific provisions contained in the relevant statute
conferring the power to make the rule, regulation, etc. and also
the object and purpose of the
Act as can be gathered from the
various provisions of the enactment. It would be wholly wrong
for the Court to substitute its own opinion for that of the Legislature
or its delegate as to what principle or policy would best serve the
objects and purposes of the Act and to sit in judgment over the
wisdom and effectiveness or otherwise of the policy laid down by
the regulation-making body and declare a regulation to be ultra
vires merely on the ground that, in the view of the Court, the
impugned provisions will not help to serve the object and purpose
of the Act. So long as the body entrusted with the task of framing
the rules or regulations acts within the scope of the authority
11 (1984) 4 SCC 27
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conferred on it, in the sense that the rules or regulations made by
it have a rational nexus with the object and purpose of the statute,
the court should not concern itself with the wisdom or
efficaciousness of such rules or regulations.”
36. This Court in unequivocal terms has held that it would be
wholly wrong for the Court to substitute its own opinion for that of the
Legislature or its delegate as to what principle or policy would best serve
the objects and purposes of the Act. It has been held that it is not
permissible for the Court to sit in judgment over the wisdom and
effectiveness or otherwise of the policy laid down by the regulation-
making body and declare a regulation to be ultra vires merely on the
ground that, in the view of the Court, the impugned provisions will not
help to serve the object and purpose of the Act.
37. We find that the observations quoted herein above of the
Division Bench of the High Court are totally contrary to the view
expressed by this Court in the case of Maharashtra State Board of
Secondary and Higher Secondary Education and another (supra).
38. The Division Bench of the High Court has erred in substituting
its wisdom with that of the rule-making body, which is an expert body. In
this respect, it will also be apposite to refer to the observations of this
Court in the case of All India Council for Technical Education vs.
Surinder Kumar Dhawan and others12. After considering
various
judgments on the issue, this Court observed thus:
“16. The courts are neither equipped nor have the academic or
technical background to substitute themselves in place of statutory
professional technical bodies and take decisions in academic
matters involving standards and quality of technical education. If
the courts start entertaining petitions from individual institutions
or students to permit courses of their choice, either for their
convenience or to alleviate hardship or to provide better
opportunities, or because they think that one course is equal to
another, without realising the repercussions on the field of technical
education in general, it will lead to chaos in education and
deterioration in standards of education.
12 (2009) 11 SCC 726
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17. The role of statutory expert bodies on education and the role
of courts are well defined by a simple rule. If it is a question of
educational policy or an issue involving academic matter, the courts
keep their hands off.”
39. We are, therefore, of the considered view that it was not
permissible for the Division Bench of the High Court to enter into an
area of experts and hold that the unamended provisions ought to have
been preferred over the amended provisions.
40. That leaves us with the finding of the Division Bench of the
High Court that the amended Regulation is violative of Article 19(1)(g)
of the Constitution. Reliance in this respect is placed on the Eleven-
Judge Constitution Bench judgment of this Court in the case of T.M.A.
Pai Foundation and others vs. State of Karnataka and others13. In
this respect, it will be relevant to refer to the following observations of
the Eleven-Judge Constitution Bench of this Court in the said case:
“54. The right to establish an educational institution can be
regulated; but such regulatory measures must, in general, be to
ensure the maintenance of proper academic standards,
atmosphere and infrastructure (including qualified staff) and the
prevention of maladministration by those in charge of management.
The fixing of a rigid fee structure, dictating the formation and
composition of a governing body, compulsory nomination of
teachers and staff for appointment or nominating students for
admissions would be
unacceptable restrictions.”
41. It can thus clearly be seen that the Constitution Bench itself
has held that the right to establish an educational institution can be
regulated. However, such regulatory measures must, in general, be to
ensure the maintenance of proper academic standards, atmosphere and
infrastructure and the prevention of maladministration.
42. The impugned Notification, undoubtedly, is made in order to
ensure the maintenance of proper academic standards and infrastructure
and as such, the judgment of the Constitution Bench of this Court in the
case of T.M.A. Pai Foundation and others (supra), rather than
supporting the case of the respondent No.1, would support the case of
the Council.
13 (2002) 8 SCC 481
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43. We further find that the impugned judgment of the Division
Bench of the High Court is also not sustainable on the ground of judicial
propriety. The respondent No.1 had already filed a writ petition being
S.B. Civil Writ Petition No. 15090 of 2016, challenging the action of the
Council and the respondent No.2 in returning the application of the
respondent No.1 for grant of recognition to new Dental College and for
a direction to reconsider its application submitted on 24th September,
2011. The said writ petition was filed in the year 2016. The said writ
petition was dismissed by the learned single judge of the High Court by
the judgment and order dated 3rd November, 2016. After the said writ
petition was rejected on 3rd November, 2016, the respondent No.1 filed
the present writ petition being D.B. Civil Writ Petition No.3260 of 2017
before the Division Bench of the High Court on 1st March, 2017. In the
said writ petition, the prayer was for challenging the validity of the
impugned Notification and for a direction to reconsider the proposal of
the respondent No.1. The impugned Notification could have very well
been challenged in the earlier writ petition, which was filed in the year
2016 before the learned single judge of the High Court. However, having
failed in that writ petition before the learned single judge, the respondent
No.1 filed another writ petition before the Division Bench of the High
Court. Though
one of the prayers challenges the validity of the impugned
Notification, another prayer claims for reconsideration of its proposal.
The said prayer has been granted by the Division Bench of the High
Court by its impugned judgment and order dated 24th April, 2018. It
could thus be seen that the prayer for reconsideration of the proposal
submitted by the respondent No.1, which was already rejected by the
learned single judge of the High Court vide order dated 3rd November,
2016 in S.B. Civil Writ Petition No.15090 of 2016, has been renewed in
the fresh writ petition filed in the year 2017 and granted by the Division
Bench of the High Court.
44. We, therefore, find that on the ground of judicial propriety also
the Division Bench of the High Court ought not to have entertained the
writ petition for a prayer, which already stood rejected. In that view of
the matter, the impugned judgment and order dated 24th April, 2018 passed
by the Division Bench of the High Court is not sustainable.
45. In the result, the appeal is allowed. The impugned judgment
and order dated 24th April, 2018 passed by the Division Bench of the
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High Court is quashed and set aside. The D.B. Civil Writ Petition No.3260
of 2017 filed by the respondent No.1 before the Division Bench of the
High Court stands dismissed. No order as to costs.
46. Pending application(s), if any, shall stand disposed of.
Ankit Gyan
Appeal allowed.
(Assisted by : Preetam Bharti, LCRA)
DENTAL COUNCIL OF INDIA v. BIYANI SHIKSHAN SAMITI
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