CORAMTHE HONOURABLE MR v. Government of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 21.09.2007CORAMTHE HONOURABLE MR.JUSTICE M.CHOCKALINGAMW.P.NO.18771 OF 2007ANDM.P.NOS.2 AND 3 OF 2007Ragas Dental College and Hospitalrep. by its Principal,Dr.S.Ramachandran,2/102, East Coast Road,Uthandi,Chennai-600 119... PetitionerVs.1.Government of India, rep. by its Secretary, Ministry of Health & Family Welfare, (Department of Health & Family Welfare) Nirman Bhavan, New Delhi-110 011.2.The Dental Council of India, rep. by its Secretary, Aaiwan-E-Galib Marg, Kotla Road, New Delhi-110 002.3.The Tamilnadu Dr.M.G.R. Medical University, rep. by its Registrar, No.69, Anna Salai, Guindy, Chennai-600 032... Respondents This writ petition has been preferred under Article 226 of theConstitution of India praying for the issue of a writ of certiorarifiedmandamus to call for the records of the respondents, relating to the orderof the first respondent in No.V.12017/10/2006-DE, dated 27.4.2007 and toquash the same in so far as it reduced the intake from 3 seats to 2 seatsin the PG Course in Community Dentistry of the petitioner institution andto direct the respondents to forthwith restore the full intake of 3 seatsin PG course in Community Dentistry in the petitioner institution. For Petitioner : Mr.K.Doraisamy, SC for M/s.Kandavadivel DoraisamiFor Respondents: Mr.P.Wilson, Assistant Solicitor General of India for R1 Mr.P.Chandrasekaran for R2 Mrs.A.L.Gandhimathi for R3 https://hcservices.ecourts.gov.in/hcservices/ ORDERThe petitioner seeks writ of certiorarified mandamus to quashthe order of the first respondent made in No.V.12017/10/2006-DE, dated27.4.2007 in so far as it reduced the intake from 3 seats to 2 seats inthe PG course in Community Dentistry of the petitioner institution andalso to direct the respondents to forthwith restore the full intake of 3seats in PG Course in Community Dentistry in the petitioner institution. 2.The court heard the learned counsel on either side and perused theaffidavit filed in support of the writ petition and also the counteraffidavit filed by the respondents.3.The writ petition has arisen under the following facts andcircumstances. a)The petitioner Dental institution was established by RagasEducational Society in the year 1988-89. The college is running courses inUnder Graduate and Post Graduate in Dental Education, after obtainingnecessary permission from the Government of India, Dental Council of Indiaand the Tamil Nadu Dr.M.G.R. Medical University. On 10.5.2006, therespondents granted permission for starting MDS Course in the specialityof Community Dentistry with an annual intake of 3 students from theacademic year 2006-07 at Ragas Dental College & Hospital at Chennai.Pursuant to the same, the Tamil Nadu Dr.M.G.R. Medical University grantedaffiliation for the said course. b)One Dr.M.Sivakumar, Professor and Head of the Department of theCommunity Dentistry submitted his resignation letter and requested thecollege to relieve him from duty in order to join some other institution,but in view of the policy, the Dental Council of India communicated to thecollege vide letter No.DE/22-2006/483A, dated 15.4.2006 that no PostGraduate Faculty approved by the Dental Council of India at the time ofstarting the course would be permitted to join some other institution fora period of 3 years and relieving order would not be issued. Accordingly,the resignation was neither accepted nor relieving order was issued. Aletter was addressed to the Dental Council of India, seeking guidance inthat regard, but no communication was received. c)On 2.2.2007, a communication was received from the Dental Councilof India that the Executive Committee does not recommend to the CentralGovernment to renew its permission for 2nd year MDS Course in thespeciality of Community Dentistry with 3 seats at Ragas Dental College &Hospital, Chennai due to deficiencies, namely Dr.Shivakumar shown asProfessor & HOD, Community Dentistry was not accepted, since his name wasalso shown in Oxford Dental College unless the Professor & HOD isappointed before 20th February, the further admissions will be stopped. Areply was sent by the petitioner institution on 9.2.2007 to the Secretary,Dental Council of India that one Dr.Haridevaraya Choudhary was appointedas Professor & H.O.D. for the department of Community Dentistry witheffect from 9.2.2007 in compliance with the directions of the DentalCouncil of India. Necessary documents with reference to new appointmentfor consideration of the Executive Committee was submitted and a requestwas made to the Dental Council of India to recommend for the renewal ofthe Central Government's permission for the 2nd year course in thespeciality of Community Dentistry. https://hcservices.ecourts.gov.in/hcservices/ d)On 21.2.2007, a letter was received from the Dental Council ofIndia, stating that Dr.Haridevaraya Choudhary appointed as Professor inthe department of Community Dentistry was not accepted, since he was alsopresent in the inspection of Kamineni Dental College, Nalgonda on 9th and10th February, 2007. Further, the Dental Council of India, by acommunication, has granted two days time for submitting compliance reportfor renewal of Central Government permission for the 2nd year MDS Course.Immediately, the institution relieved Dr.Haridevaraya Choudhary from hisduty and also informed Dr.Sivakumar to join duty as per the directions ofthe Dental Council of India. Accordingly, Dr.Sivakumar joined duty on22.2.2007. The same was also communicated to the Dental Council of Indiaon the very day. e)While the matter stood thus, on 3.4.2007, a communication wasreceived from the Government of India, dated 30.3.2007 recommending thedisallowing of admission in Community Dentistry for the 2nd year batch. Animpugned communication was received on 27.4.2007, stating that incontinuation of the letter, dated 10.5.2006 on the above subject, it wasconveyed that the approval of the Central Government was given for 2ndyear renewal of permission for admission of fresh batch of students in thespeciality of Community Dentistry with an annual intake capacity of 2seats instead of 3 seats at the petitioner's institution for the academicyear 2007-08. Under these circumstances, this writ petition has beenbrought forth before this court. 4.In support of the writ petition, the learned Senior Counsel wouldsubmit that after the grant of affiliation by the Dr.M.G.R. MedicalUniversity and following the permission given by the Government of Indiaand also the Dental Council of India, the particular course in thespeciality of Community Dentistry was commenced with an annual intake of 3students; that it is not in controversy that one Dr.Sivakumar, theProfessor and Head of the Department of the Community Dentistry submittedhis resignation, but it was not accepted and he was not relieved; that acommunication was addressed to the Dental Council of India, seekingguidance, but there was no reply; that on the contrary, a communicationwas addressed, stating that resignation could not be accepted; that whilethe matter stood thus, there was a communication that inspection reportwould indicate that his name was also shown in Oxford Dental College andtherefore, deficiency was found; that one Dr.Haridevaraya Choudhary wasappointed in the college with effect from 9.2.2007; that thereafter, itwas also communicated by the Dental Council of India that the appointmentof Dr.Haridevaraya Choudhary was not accepted for the reason that he wasalso working in Kamineni Dental College, Nalgonda and under thesecircumstances, a further communication was also addressed that thedeficiencies could be rectified within the stipulated period; and thatimmediately the very next day, Dr.Haridevara Choudhary was relieved andDr.Sivakumar also rejoined duty and the deficiencies were rectified.5.The learned Senior Counsel would further submit that on the daywhen the impugned order was passed reducing 3 seats to 2 seats by theGovernment of India pursuant to the recommendations made by the DentalCouncil of India, actually, there was no deficiency; that apart from that,the communication, what is addressed, does not specify any reason, whichwarranted to reduce the intake; that in the course of the counter, theyhave invented the reasons that there was no Reader available and that was https://hcservices.ecourts.gov.in/hcservices/ the reason for reduction, but that was not the reason mentioned in theorder and under these circumstances, even without notice or enquiry, theorder came to be passed contrarily. Hence, it has got to be set aside anda direction has got to be given to the respondents to allow the intake of3 students and hence, a writ petition has got to be ordered. 6.The learned counsel for the respondents 1 and 2 made sincereattempt to sustain the order under challenge. According to the learnedcounsel, in the instant case, it is true, originally, the petitionerinstitution was affiliated. On the recommendation made by the DentalCouncil of India, the first respondent has permitted the petitioner tohave an intake of 3 students. In the instant case, the appointments couldbe made as per the Rules and every year, it has got to be renewed. For theyear 2006-07, permission was granted to have an intake of 3 students, butso far as 2007-08 was concerned, permission was given to have an intake of2 students for the reason that in the instant case, deficiencies werenoticed. All communications between the parties would clearly indicatethat there were sufficient reasons to reduce the same. 7.It is an admitted fact that Dr.Sivakumar, Professor and Head of theDepartment of the Community Dentistry, tendered his resignation. From thecommunication given by him to the said college, where he was working, itis clear that he has resigned the post and also relieved. Under thesecircumstances, even as per the affidavit filed by the petitioner, theother professor, namely Dr.Haridevaraya Choudhary, was actually allowed towork from 9.2.2007 and thus, for a period of nearly 8 months, thedepartment was without Professor and this deficiency was noticed andtherefore, the Dental Council of India brought the same to the notice ofthe institution and thus, the petitioner institution has violated theregulations, by accepting the resignation and relieving the ProfessorDr.Sivakumar. Once a teaching staff was permitted to joint duty in oneinstitution, he should not be permitted to joint some other institutionwithin a period of three years. In the instant case, accepting theresignation and also relieving the said Dr.Sivakumar was against therules. Subsequently, Dr.Haridevaraya Choudhary was also admitted intoservice. It was also noticed that during the relevant time, he wasworking at Nalgonda and this deficiency was also noticed. Once deficiencywas noticed, the Dental Council of India has made a recommendation and onthe strength of which, the Government has acted and reduced the intakefrom 3 to 2. 8.Added further the learned counsel that in the instant case,recommendation was made, since there is deficiency of one Professor; thatif to be so, having an intake of 3 students in the P.G. Course, there mustbe sufficient teaching staff; that the deficiency was not rectified; thatthe application for renewal must be made within a period of 6 monthsprior; that in the instant case, the petitioner's request for having 3intake instead of 2 cannot be done, since for the academic year, now theapplication cannot be made or entertained and under these circumstances,the writ petition has got to be dismissed. 9.The court has paid its anxious consideration on the submissionsmade. It is not in controversy that originally, affiliation was given tothe petitioner College to have a P.G. Course in the speciality ofCommunity Dentistry. It is also not in controversy that 3 students wereallowed to be taken for the academic year 2006-07. Now, the order under https://hcservices.ecourts.gov.in/hcservices/ challenge reads as follows:"In continuation of this Ministry's letter of even numberdated 10.5.2006 on the above subject, I am directed to convey theapproval of the Central Government for 2nd year renewal ofpermission for admission of fresh batch of students in thespeciality of Community Dentistry with an annual intake capacityof 2 seats instead of 3 seats at Ragas Dental College & Hospital,Uthandi, Chennai for the academic session 2007-08."10.At the outset, it has got to be stated that the order underchallenge, dated 27.4.2007 does not speak about any deficiency or anyreason, for which intake has been reduced from 3 to 2. What is stated bythe respondents' side is that deficiency what was noticed was the mainreason for reduction of intake from 3 to 2. Now, the facts that areadmitted are one Dr.Sivakumar, the Professor and Head of the Department ofthe Community Dentistry, submitted his resignation, but it would be quiteclear from the materials available that his resignation was never acceptedand a communication was addressed, after tendering resignation, though hewas not relieved. A communication was addressed by the petitioner's sideto the Dental Council of India, seeking guidance, keeping his resignationpending without accepting the same. But, no reply was received. At thesame time, further communication was received from the Dental Council ofIndia that so far as Dr.Sivakumar was concerned, his resignation cannot beaccepted, since his name was actually shown in Oxford Dental College atthe time of inspection. At this juncture, it is to be pointed out thatwhen the Professor and the Head of the Department tendered resignation,the resignation was not accepted. While there was no question of anyviolation of rules and regulations and in the instant case whenresignation was tendered by the Professor, it was not accepted, but it waskept pending and guidance was sought for. Thus, it would be quite clearthat the contention put forth by the respondents' side that there wasviolation noticed cannot be accepted. 11.Secondly, it is also an admitted fact that the institution hasemployed Dr.Haridevaraya Choudhary with effect from 9.2.2007. Acommunication in this regard was placed before the Dental Council ofIndia. Subsequently, a communication was received from the Dental Councilof India stating that he cannot be allowed to serve in the petitionerinstitution for the reason that he was found working at Nalgonda at thetime of inspection by the authority of the Dental Council of India. Atthis juncture, it is pertinent to point out that a communication wasaddressed on 21.2.2007, wherein it reads as follows:"In continuation to this office letter No.DE-15(32)-2006/16560 dated 2.2.2007 on the subject noted above, I amdirected to state that the deficiencies mentioned therein havenot so far been furnished, which may be furnished to thisCouncil within two days, failing which, the Council will not beresponsible for any consequences including not recommending thesubject matter to the Government of India for the academicsession 2007-2008."A reading of the above would clearly indicate that there were twocommunications, one is that the appointment of Dr.Haridevaraya Choudharycannot be accepted and the other communication is on the very day, namely21.2.2007 that deficiencies are noticed and it must be immediately https://hcservices.ecourts.gov.in/hcservices/ rectified within the time stipulated and if not, consequences would followand the Dental Council of India was not responsible for the same.Immediately, on receipt of the communication on 21.2.2007, Dr.HaridevarayaChoudhary was relieved and Dr.Sivakumar has assumed charge on the veryday. Thus, the deficiencies noticed as per the communication, dated21.2.2007 have been rectified. 12.Now, at this juncture, the Dental Council of India, who is thesecond respondent herein, is unable to show what is the other deficiencynoticed. Had it been true that there is any other deficiency, there is noimpediment for mentioning such deficiency. It is to be pointed out thatin the course of the counter, the respondents have come forward to statethat Reader should have been available, but there was no Reader availableand under these circumstances, that deficiency is felt. At this juncture,the communication was addressed that the intake was reduced from 3 to 2.The order does not speak about the deficiency or reason firstly. Secondly,the Reader was not posted and that was the deficiency, which in theopinion of the court is nothing but an invention. It is a settledproposition of law that when the order was passed, a particular reason wasnot available or stated and subsequently, when it was found out and theycame with a new plea, which is nothing but filling up the lacuna. Had thecase of the respondent No.2, Dental Council of India, is true and correctthat there was deficiency, there was no impediment for allowing theinstitution to run and to have the intake from 3 to 2. According to theDental Council of India, the deficiency was the reason for recommendingthe reduction from 3 to 2, which in the opinion of the court was not atall available during the relevant time. 13.The only deficiency that could be seen was that for a particularperiod, the Professor of the College has absented himself and has tenderedresignation, but it was not accepted and he was allowed to continue to bein service. Thus, there was no fault on the part of the institution at thetime when the order came to be passed and in the opinion of the court,there was no deficiency. The last contention put forth by the respondents'side that the application should have been made before 6 months and now,the period for the academic year is over and hence, it should not havebeen entertained, cannot be accepted for the simple reason that thecommunications were between the institution and the Dental Council ofIndia for all along the period. Now, the order has been passed withoutassigning any reason and under these circumstances, it is also beingchallenged before this court. When the matters are pending in the court,now they cannot plea that the period was over and therefore, theinstitution has to make application for the next academic year and thesame could be considered. The said plea cannot be either sound orreasonable or accepted. Under these circumstances, the court has tonecessarily reject the contentions put forth by the learned counsel forthe respondents. It is a fit and proper case where the order passed bythe first respondent has got to be struck down and a writ has got to begranted as one asked for. 14.At this juncture, the learned counsel for the respondents wouldsubmit that once academic year has already been commenced, no question ofintake of 3 students for the academic year 2007-08 would arise. Thelearned counsel for the petitioner would submit that the order of thefirst respondent from making the intake from 3 to 2 was stayed.Accordingly, 3 students have also been admitted. The statements made by https://hcservices.ecourts.gov.in/hcservices/ the learned counsel on either side were recorded. Under the above statedcircumstances, both the first and second respondents are directed toconsider the renewal application for permission for the academic year2007-08. Accordingly, this writ petition is disposed of. No costs.Consequently, the connected MPs are closed. vvkSd/-Asst.Registrar/true copy/ Sub Asst.RegistrarTo1.The Secretary, Government of India, The Secretary, Ministry of Health & Family Welfare, (Department of Health & Family Welfare) Nirman Bhavan, New Delhi-110 011.2.The Secretary, The Dental Council of India, Aaiwan-E-Galib Marg, Kotla Road, New Delhi-110 002.3.The Registrar, The Tamilnadu Dr.M.G.R. Medical University, No.69, Anna Salai, Guindy, Chennai-600 032.+1 cc to Mr.P.Chandrasekaran, Advocate Sr.No.58988.+1 cc to M/s.AL.Gandhimathi, Advocate Sr.No.58985.+1 cc to Mr.Muthumani Doraisamy, Advocate Sr.No.58972.+1 cc to Mr.P.Wilson, Advocate Sr.No.59032.ASM(CO)dcp/3.10W.P.NO.18771 OF 2007