2007 & M.P. No.1 of 2007 J.K.K. Nataraja Dental College & Hospital230 v. 1 The Union of Indiarepresented by Secretary to GovernmentMinistry of Health & Anr.
Case at a glance
Outcome
Allowed
In fine, the writ petition is allowed in part with the abovedirections
Provisions considered
- Constitution of India art. 226
- Aof the Dentists Act, 1948 s. 10
Key paragraphs
- Para 1212. It may also be useful to have a glance of the various dates fromthe following tabular column on which the parties to this petition haveperformed various tasks required to be completed at various stages:S.No.Action to be performed bypartiesDate on which parties haveperformed action1Submission of…
- Para 1515. It is to be noted that pursuant to the second respondent'sproceedings dated 29.05.2007 pointing out various deficiencies, thepetitioner has sent its compliance report on 04.06.2007 on or before whichdate it was required to furnish the same explaining compliance of each andevery deficiency pointed out…
- Para 1616. Therefore, on an overall consideration of the facts andcircumstances of the case, since this Court feels that the case of thepetitioner deserves a re-look, the second respondent is directed toreconsider the petitioner's case afresh in the light of the compliancereport submitted by the petitioner…
Judgment
IN THE HIGH COURT OF JUDICATURE AT MADRASDated:17.08.2007Coram: The Honourable Mr. Justice V. DHANAPALANW.P. No.25908 of 2007 & M.P. No.1 of 2007J.K.K. Nataraja Dental College & Hospital230, Salem Main RoadKomarapalayam 638 183Namakkal DistrictTamil NaduPetitionervs.1The Union of Indiarepresented by Secretary to GovernmentMinistry of Health & Family WelfareNirman BhavanNew Delhi2Dental Council of Indiarepresented by its SecretaryKotla RoadTemple LaneNew Delhi 110 002RespondentsWrit Petition filed under Article 226 of the Constitution of Indiapraying for a writ of certiorarified mandamus as stated therein. For petitionerMr. Mr. R. Muthukumarasamy, S.C.For Mr. A. JenasenanFor 1st respondentMr. V.T. GopalanAddl. Solicitor General of Indiaassisted by Mr. P. WilsonAssistant Solicitor General of IndiaFor 2nd respondentMr. P. Chandrasekaran, ORDERThe petitioner has filed this petition seeking a writ ofcertiorarified mandamus calling for the proceedings of the firstrespondent made in F.No.V.12017/2006-DE dated 23.07.2007 and the decisionof the second respondent dated 09.07.2007 made in DE.3(36)-2007 B-7230 and https://hcservices.ecourts.gov.in/hcservices/ quash the said proceedings of respondents 1 and 2 respectively andconsequently direct the respondents to accord permission to thepetitioners' college for the increase in the intake of students from 40 to100 in the B.D.S. from the academic year 2007-2008 .
The case of the petitioner in a nutshell, is as under: The petitioner which is a Dental College and Hospitalwas established in the year 1987 with an intake of 40students and is affiliated to Dr. MGR Medical University. Desirous of increasing its intake to 100 students for theB.D.S. Course, the petitioner submitted an application in September 2006 to the first respondent enclosingEssentiality Certificate issued by the State Government. Inspection was carried out on 16 & 17.05.2007 by a teamdeputed by the second respondent. Despite the direction ofthe inspection team to consider the petitioner's applicationfor additional intake, the second respondent, vide itsletter dated 29.05.2007 addressed to the petitioner, statedthat it is not recommending to the Central Government andfurther directed the petitioner to furnish compliance reportin respect of certain deficiencies on or before 04.06.2007.The petitioner too, having rectified the said deficiencies, submitted its compliance report on 04.06.2007 to the secondrespondent and requested for passing of appropriate orders. Since no response was forthcoming from the secondrespondent, the petitioner, vide its letter dated 09.07.2007drew the attention of the second respondent with regard tothe pendency of its claim pursuant to which, the secondrespondent, by its letter dated 13.07.2007, informed that ithas forwarded the petitioner's request to the firstrespondent. Subsequent thereto, the first respondent passedan order dated 23.07.2007 stating that it has decided not togrant permission for increase in intake for the academicyear 2007-2008 based on the second respondent's letter dated09.07.2007. Calling in question the legality of this orderof the first respondent, the present writ petition.
The second respondent has filed its counter contending that thepetitioner submitted its application to the first respondent on 30.09.2007who in turn forwarded the same to it on 22.01.2007 as against the deadlineof 31.12.2006 and it has sent a letter on 24.04.2007 to the petitionerproposing to conduct inspection in the first week of May 2007 and it wasonly the petitioner which sought postponement of the inspection due toroad expansion work undertaken by the National Highways Authority of India. The second respondent has further contended that the petitioner'srequest for postponement of inspection was acceded to and inspection wasconducted on 16th & 17th May 2007 and it has sent its recommendation to thefirst respondent on 15.06.2007 (adhering to the time-frame) expressing itsdisapproval of the petitioner's application based on the inspection report https://hcservices.ecourts.gov.in/hcservices/ submitted by the inspection team and the failure on the part of thepetitioner to rectify the deficiencies.
Heard Mr. R. Muthukumarasamy, learned Senior Counsel appearingfor the petitioner, Mr. V.T. Gopalan, learned Additional Solicitor Generalof India appearing for the first respondent and Mr. P. Chandrasekaran, learned Standing Counsel for the second respondent.
Attacking the reason assigned by the second respondent in itsletter dated 09.07.2007 addressed to the first respondent that the lastdate for submission of its recommendations to the first respondent wasover on 15.06.2007, the learned Senior Counsel has vehemently argued thatthe second respondent has caused inspection belatedly on 16 & 17.05.2007when the petitioner has submitted its application in September 2006itself, i.e. about eight months prior to the date of inspection. Pointingout that the first respondent ought to have forwarded the petitioner'sapplication to the second respondent on or before 31.12.2006 but it hasforwarded the same to the second respondent only on 22.01.2007 therebycausing a delay of about 21 days, the learned Senior Counsel appearing forthe petitioner has contended that the petitioner cannot be made to sufferfor the laches on the part of the respondents 1 and 2. On the point ofdeficiency that one Dr. Sharada was not a Professor in Oral Pathology, thelearned Senior Counsel has contended that on coming to know that there wasimpersonation in this regard, the petitioner has filed a criminalcomplaint before the Komarapalayam Police on 07.06.2007 and has also keptthe second respondent apprised of this in its compliance report and hasreplaced one Dr. Rajeswari in place of Dr. Sharada. As regards thedeficiency pointed out by the second respondent that certain members ofthe faculty were not present on both the days of inspection, the learnedSenior Counsel has contended that this cannot be termed as a deficiencyparticularly when the petitioner has produced enough materials on recordto prove that the said members of the faculty were employed by it.
The learned Senior Counsel appearing for the petitioner, whiledrawing the attention of this Court on the aspect that the petitioner hasproduced 15 batches of B.D.S. students and is equipped with necessaryinfrastructure including the members of faculty, has relied on aGovernment of India letter dated 30.08.2006 to indicate that 5% relaxationfor teaching faculty is allowed in dental colleges. While concluding hisarguments, the learned Senior Counsel appearing for the petitioner haspointed out notwithstanding the recommendations of the second respondent, the first respondent has got ample powers to grant recognition foradditional intake to the petitioner.
Contending contra, the learned Additional Solicitor General of India, at the foremost, has contended that, by the impugned order, thefirst respondent has not rejected the claim of the petitioner in entirety, but, it has rather decided not to grant recognition for the academic year2007-2008 only and the doors are still wide open to the petitioner to getrecognition for the next academic year by rectifying the deficiencies https://hcservices.ecourts.gov.in/hcservices/ pointed out by the second respondent within the specified time. In replyto the contention of the learned Senior Counsel appearing for thepetitioner that the first respondent can grant recognition to thepetitioner even disregarding the deficiencies pointed out by the secondrespondent, it is the earnest submission of the learned AdditionalSolicitor General that the first respondent cannot disregard or bye-passthe recommendations of the second respondent which is a statutoryauthority established for the purpose of monitoring the functioning of Dental Colleges in the country. He has further argued that when the Supreme Court has held at least in more than one case that the CentralGovernment has to strictly adhere to the time schedule prescribed in the Dental Council of India Regulations, 2006, the first respondent hasrightly expressed its inability to consider the case of the petitioner forthe academic year 2006-2007.
On the other hand, the learned Standing Counsel for the secondrespondent has contended that the first respondent, vide its letter dated22.01.2007 forwarded to the second respondent the petitioner's applicationfor increase in intake and the second respondent informed the petitionerthat it would take up the inspection during 03 & 04.05.2007 and that itwas only the petitioner which sought postponement of inspection to thethird week of May 2007. He has further pointed out that a meeting of the Executive Committee was held on 06.05.2007 and had the petitioner agreedfor the inspection on 03 & 04.05.2007, as proposed by the secondrespondent, the Executive Committee would have considered the case of thepetitioner. It is his further contention that not being satisfied withthe report of the inspection team, the second respondent by its letterdated 15.06.2007 to the first respondent, expressed its disapproval torecommend the scheme of the petitioner and based on the letter dated03.07.2007 from the first respondent requesting the second respondent toreconsider its negative recommendations, the latter scrutinised therecords including the compliance report and after discussion anddeliberation, reiterated its earlier recommendation to the firstrespondent, pointing out thereby the deficiencies which still existedbased on which the first respondent came to a conclusion not to considerthe case of the petitioner for the academic year 2007-2008.9In support of his contention that this Court cannot issue a writof mandamus straightaway and this Court can only remit the matter to thesecond respondent for consideration afresh, the learned Standing Counselfor the second respondent has relied on a judgment of the Supreme Courtreported in (2001) 5 SCC 486 in the matter of Dental Council of India vs.
Subharti K.K.B. Charitable Trust and another: (para 8)"At the outset, we would reiterate that under Section 10-Aof the Dentists Act, 1948, it is the function of the CentralGovernment to accord approval for establishing the DentalCollege and the High Court ought not to have passed the orderstraightaway according the approval despite the inspectionreport submitted by the DCI and the order refusing to grant such https://hcservices.ecourts.gov.in/hcservices/ permission passed by the Central Government. In such cases, ifthe High Court finds that the order passed by the CentralGovernment is dehors the statutory provisions or arbitrary forsome reason, the course open to it is to remit the matter to DCIfor reinspection of the establishment and for reconsiderationby the Central Government rather than to issue a writ ofmandamus as quoted above. "But, the learned counsel for the petitioner has contended that the aboveruling of the Supreme Court cannot be made applicable to this case as theabove referred to appeal was filed by the second respondent.
On a perusal of the impugned order 09.07.2007 passed by thesecond respondent, it can be seen that the petitioner's applicationseeking permission for additional intake has not been considered for tworeasons. The first reason is that the last date for submission of thesecond respondent's recommendations to the first respondent i.e.15.06.2007, has expired and the second reason is that the petitioner hasnot rectified the deficiencies despite being afforded reasonableopportunities. Similarly, the impugned order dated 23.07.2007 has beenpassed by the first respondent based on the impugned order of the firstrespondent and also taking into account the direction of the Supreme Courtin its various judgments to strictly adhere to the time scheduleprescribed in the Dental Council of India Regulations, 2006. Thus, themain points which emerge for consideration in this petition are whetherthere is any delay caused by the respondents and whether the secondrespondent in rejecting the case of the petitioner based on thedeficiencies.
As for the first point for consideration is concerned, it wouldbe useful to refer to the Gazette Notification dated 16.01.2006 whichprescribes the time-table for each stage of processing of an applicationand the same runs thus:S.No.Stage of processingTime Schedule for BDS1Receipt of applications bythe Central GovernmentFrom 1st August to 30th September(both days inclusive) of anyyear2Forwarding of applicationsby the Central Governmentto the Dental Council of India for technicalscrutinyUpto 31st December3Recommendations of DCI tothe Central GovernmentUpto 15th June4Issue of Letter of Permission by CentralGovernmentUpto 15th July https://hcservices.ecourts.gov.in/hcservices/
It may also be useful to have a glance of the various dates fromthe following tabular column on which the parties to this petition haveperformed various tasks required to be completed at various stages:S.No.Action to be performed bypartiesDate on which parties haveperformed action1Submission of applicationby petitioner to firstrespondent30th September 20072Forwarding of applicationby first respondent tosecond respondent22nd Jan. 2007as against 31st December 20073Letter sent by secondrespondent with regard toits proposed inspection ofthe petitioner institution24thApril 20074Letter sent by petitionerto second respondentseeking postponement ofinspection1st May 20075Inspection carried out bythe second respondent16th & 17th May 20076Recommendation of secondrespondent to firstrespondent15th June 200713.From the above tabular column, it can apparently be seen that thefirst respondent has forwarded the petitioner's application to the secondrespondent on 22.01.2007 as against the deadline of 31.12.2006 and noreason whatsoever is assigned by the first respondent for this delay.
Secondly, it can also be seen that though the first respondent hasforwarded the petitioner's application on 22.01.2007, the secondrespondent has written to the petitioner of its proposal to conductinspection only on 24.01.2007 and hereagain, no reason whatsoever has beenattributed by the second respondent for this delay of about two months inwriting to the petitioner to conduct inspection. Of course, thepetitioner too, for its part, has sought postponement of the inspectiondue to road expansion work undertaken by National Highways Authority of India, which is a public cause and the time sought by the petitioner isnegligible and beyond its control. Thus, when the respondents themselveshave not adhered to the time schedule prescribed in the Dental Council of India Regulations, 2006, as rightly argued by the learned Senior Counselfor the petitioner, the petitioner cannot be made to suffer for the lacheson the part of both the respondents.
It is to be noted the firstrespondent itself which says in its impugned order that the directions ofthe Supreme Court with regard to keeping up of time schedule have to bestrictly adhered to, has not done its part of forwarding the petitioner's https://hcservices.ecourts.gov.in/hcservices/ application to the second respondent in time. Of course, the petitionercould have come before this Court immediately after the first respondentfailed to adhere to the time schedule. But, at the same time, the firstrespondent cannot cite, as an excuse, the failure of the petitioner toapproach this Court. Taking all these aspects into consideration, thoseportions of the impugned orders of the first and second respondents to theeffect that the last date for them to take action is over cannot besustained and they are accordingly quashed.
While coming to the second aspect of rejection of thepetitioner's case by the second respondent, it may be useful to refer tothe relevant portion of the impugned order which reads as under: "Since the college authority has not made good thefollowing deficiencies even after giving the reasonableopportunities, and the last date for submission ofDCI's recommendations to the Government of India is15.06.2007, the Scheme/Application of J.K.K. NatrajahDental College, Tamil Nadu for increase of seats from40 to 100 in BDS course to the Govt. of India fordisapproval:-1There is deficiency of one Professor in thedepartment of Oral Pathology since the collegeauthority has misled the Council by furnishing thefalse affidavit and declaration in respect ofDr.P.Sharda, Professor, Oral Pathology for claiming asworking in their institution but as per enquiry fromDr. P. Sharda, she confirmed that she has not joinedJ.K.K. Natrajah Dental College and the said college hasshown her name at their own and the strict actionagainst the college authorities may be taken.
TheCouncil is not in agreement with explanation given bythe Secretary, J.K.K. Natrajah Dental College and Hospital, Komarapalayam as the forgery pointed out bythe Council was investigated after the discrepancieswas brought to the notice of the management which wouldotherwise have been overlooked (copy of the compliancefrom the Secretary, JKK Natrajah Dental College and Hospital, is attached for ready reference). 2There is deficiency of one Reader in thedepartment of Community Dentistry since Dr. Abinaya, Reader in Community Dentistry is not accepted as she ishaving MDS qualification in the subject of Periodontics.3There is deficiency of one Reader in the Department of Anatomy since Dr. S. DevadossSivaprakasam, Reader in Anatomy has not furnished the https://hcservices.ecourts.gov.in/hcservices/ original affidavit and not being paid as per UGS payscale4There is deficiency of one Reader in the Department of Microbiology since Dr.
Vijaya ChandraBose, Reader in Microbiology has not furnished theoriginal affidavit and not being paid as per the UGSpay scale.5There is deficiency of one Reader in the Department of General Pathology since Dr. G.Vijayalaxmi, Reader in General Pathology has notfurnished the original affidavit and relieving orderfrom the previous institution.6The following teaching faculty is notaccepted since they were not present on both the daysof inspection:iReader in Prosthodontics Dr. AngelaRay ChaudhuriiiLecturer in Oral Pathology Dr. K.VenkateshiiiLecturer in Periodontics Dr. P.KavithaivLecturer in Periodontics Dr. O.Obliraj"
It is to be noted that pursuant to the second respondent'sproceedings dated 29.05.2007 pointing out various deficiencies, thepetitioner has sent its compliance report on 04.06.2007 on or before whichdate it was required to furnish the same explaining compliance of each andevery deficiency pointed out by the second respondent. But, the secondrespondent, without properly considering the compliance report of thepetitioner with due application of mind, has stuck to the deficienciespointed out by the inspection team despite the recommendation of theinspection team that the petitioner's case may be considered if theobservations pointed out by it are attended to by the petitioner. From aperusal of the materials available on record, it is seen that among thevarious deficiencies pointed out by the second respondent, only deficiencyno.2 which states that one Dr. Abinaya, Reader in Community Dentistrycannot be accepted as she is having M.D.S. Qualification in the subject of Periodontics instead of Community Dentistry, is not rectified by thepetitioner. The explanation given by the petitioner is that her teachingexperience of five years can be considered since there is acute shortageof teachers with M.D.S. qualification in the specialty of CommunityDentistry. All other deficiencies pointed out by the second respondenthave been duly replied to by the petitioner; yet, as already stated, thesecond respondent, without assigning any reason, has stuck to thedeficiencies pointed out by it and has stated that the petitioner has not https://hcservices.ecourts.gov.in/hcservices/ rectified the deficiencies even after being afforded reasonableopportunities and accordingly expressed its disapproval to the firstrespondent for consideration of the petitioner's case. This stand of thesecond respondent without due application of mind, cannot be accepted.
Operative part
Therefore, on an overall consideration of the facts andcircumstances of the case, since this Court feels that the case of thepetitioner deserves a re-look, the second respondent is directed toreconsider the petitioner's case afresh in the light of the compliancereport submitted by the petitioner, with due application of mind, inrespect of each and every compliance made by the petitioner andaccordingly, send its recommendations to the first respondent inaccordance with Rule 10(A) of the Dentists Act. Thereafter, based on thesecond respondent's recommendations, the first respondent is directed topass appropriate orders on the petitioner's application in accordance withthe rules and regulations and grant permission to the petitioner forincrease in intake from 40 students to 100 students. In fine, the writ petition is allowed in part with the abovedirections. No costs. Consequently, connected M.P. is closed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar. CadTo1The Secretary to Government of IndiaMinistry of Health & Family WelfareNirman Bhavan, New Delhi2The SecretaryDental Council of IndiaKotla RoadTemple Lane, New Delhi 110 0021 CC To Mr.P.Wilson, ASGI, SR NO.51537.1 CC To Mr.P.Chandrasekaran, SCGSC, SR NO.51454.3 CC To Mr.A.Jenasenan, Advocate, SR NO.51412.W.P. No.25908 of 2007 SKV(CO)RVL 18.08.2007
Questions this judgment answers
What did the Court decide in this case?
The Court recorded the following disposition: In fine, the writ petition is allowed in part with the abovedirections
Which statutory provisions did this judgment involve?
Constitution of India — art. 226; Aof the Dentists Act, 1948 — s. 10.
Which court decided this case, and when?
Madras High Court, on 17 May 2007. The bench was V DHANAPALAN.
Precedent status how later indexed judgments have treated this case
No known negative treatment found in the Courts & Cases corpus.
This is a result about the indexed corpus, not a finding that the judgment remains good law. Coverage may be incomplete.