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Judgment
S.S. Subramani, J.—Petitioner seeks issuance of Writ of Mandamus directing the Respondent No. 1 to forthwith consider and grant provisional affiliation in respect of the increased intake of students from 40 to 60 for the first year B.D.S. course in Sree Balaji Dental College and Hospital, Chennai run by the Petitioner-Trust with effect from the academic years 1996-97 onwards within such time as the Court may deem fit to fix and pass such further orders.
Petitioner has established Sree Balaji Dental College and Hospital at Madras and the same is affiliated to the first Respondent-University. It has sanctioned strength of 40 students and the Petitioner is desirous of increasing the admission intake from 40 to 60 students. It has all the infrastructural facilities like staff, accommodation, library, laboratories etc. for the additional intake. Petitioner Trust moved an application on behalf of the college to the authorities. Petitioner, also obtained No objection Certificate from the Government of Tamil Nadu on 25.9.1996, and the approval was from the academic year 1996-97.
First Respondent University also appointed an inspection Committee pursuant to the application made by the Petitioner for the purpose of issuing a letter of affiliation as required under the Central Act. The inspection Commission also gave its recommendations by letter dated 2.1.1997 which fact was informed by the University and subsequently it issued a letter of University affiliation for increasing the number of students from 40 to 60 under the Dentist Amendment Act.
On the basis of the consent given by the Government as well as by the University, students were admitted, which fact was also informed to the authorities and it wanted the University to send registration form for the increased intake of students with effect from the academic year 1996-97. Government also wrote a letter to the Petitioner on 20.2.1997 that the request for filling up of students by the Government which is the appropriate authority was under consideration. As per letter dated 273.1997, the Joint Director of Medical Education informed the Petitioner that the request made by the Petitioner for admission of students into the first year B.D.S. Course for the increased intake cannot be made as selection has already been completed for that year.
Thereafter, Petitioner wrote a letter to the Government of Tamil Nadu stating that it had already provided infrastructural faculties for 100 students and it had only applied for increased intake for 20 students, and since the Government was not in a position to fill up the same, it had filled up the same as lapsed category. Petitioner also informed to the Government and also to the Secretary of the Selection Committee to avoid future problems with regard to admission of students under lapsed quota. While so, Petitioner received a letter of intent with regard to the increased intake from 40 to 60 from Central Government on 4.12.1997. In terms of this-Petitioner, was directed to furnish a performance Bank Guarantee for a sum of Rs. 50 lakhs in favour of Dental Council of India. It also informed that the admission of increased intake of students may be made after the formal permission of the Central Government. Petitioner by letter dated 6.5.1998, complied with all conditions and Central Government also granted permission for the increased intake from 40 to 60, but it is stated that it will be without retrospective effect.
Petitioner on the basis of the earlier correspondence with the University, made a request for the issuance of registration form for the 20 additional students for the academic year 1996-97 and 1997-98 by sending necessary cost of application and prescribed fee for registration of the increased strength. While this was the position, Petitioner was shocked and surprised to receive a communication informing the Petitioner that it should obtain permission from the Government of India through Dental Council of India for increase of seats from 40 to 60 and communicate the said permission to the University so as to enable the University to regulate excess 20 admissions made by Petitioner during the academic year 1996-97. The University was not inclined to grant provisional affiliation for the academic year 1996-97 and 1997-98. According to the Petitioner, University is bound to grant provisional affiliation in the light of its own conduct. It is under these circumstances, Petitioner has come to this Court for the relief stated above.
Along with the Writ Petition, Petitioner also filed W.M.P.22527 of 1998 seeking permission that the 20 students admitted in the year 1996-97 and 1997-98 must be permitted to write examinations which was to take place on 5.10.1998.
As per my order dated 25.9.1998, I dismissed the Writ Miscellaneous Petition on the ground that the Petitioner obtained permission only for the admission of 40 students earlier and intake has been increased only prospectively. It was also held in that order that when the Petitioner-Trust itself was seeking affiliation, it cannot permit the students to write examinations.
After disposal of Writ Miscellaneous Petition, I posted the Writ Petition for final arguments. Even though Respondents did not file Counter affidavit, both the Standing Counsel for, the Central Government as well as the University argued the matter on instructions.
After having heard all the counsel, I do not think that the Petitioner is entitled to the relief sought for in the Writ Petition.
Even according to the Petitioner, permission now granted is by the Central Government. A recommendation is to be made as per the amended provisions of the Dentist Act and an application will have to be made to the Central Government, which in turn takes the opinion of recommendation of the Dental Council of India. On the recommendation of Dental Council of India, Central Government pass the final orders and only thereafter the college could be established or intake could be increased. In this case, even though the college was already established, the permitted intake was only for 40 students. The grievance of the Petitioner is that the infrastructural facilities available in the college is for nearly 100 students and it has been making applications after applications every year and all the authorities are also satisfied that the college has infrastructural facility for admitting more than 60 students. In fact Petitioner wrote to the Government on 26.6.1998 about its grievance and circumstances under which it has been allowed to take only 40 students. It requested the Government along with other matters that the intake capacity may be increased from 40 to 100 for the first year B.D.S. course. On 29.6.1998, the Secretary to the Government informed the Petitioner that it has no objection to increase the intake capacity from 40 to 60 from the academic year 1996-97. This fact was also informed to M.G.R. University, which is the affiliating University. It made an inspection and thereafter, it also recommended for the affiliation of increased intake of students from 40 to 60. That letter is dated 2.1.1997. Under the belief that on the basis of this recommendation, permission will also be granted, students were also admitted even though letter of intent or permission was not issued by the Central Government. Ultimately on 4.12.1997, Central Government issued a letter of intent on certain conditions. Paragraphs 3 to 6 of the letter read thus,
On a careful consideration of your scheme and inspection report and also the recommendations of the Council, the Central Government has come to the conclusion that a letter of Intent may, be issued to Laxmi Animal Educational Trust, Chennai to increase its admission capacity in BDS from 40 to 60 (forty to sixty) at Sree Balaji Dental College at Chennai with prospective effect.
Hence this letter of Intent.
This letter of intent is subject to fulfilment of the following conditions:
(i) the teaching and non-teaching staff shall be recruited as per the Dental Council of India norms;
(ii) the applicant has a feasible and time bound programme to provide additional equipments and infrastructural facilities as per Dental Council of India.
(iii) the applicant will provide a performance bank guarantee of Rs. 50.00 Lakhs in favour of Dental Council of India.
(iv) infrastructure will be created as D.C.I. norms.
(v) admissions to increased intake will be made after the issue of formal permission by the Central Government.
The formal permission will be granted after the above conditions are accepted by you and the bank guarantee is furnished within 15 days from the date of issue of this letter.
Petitioner as per its letter dated 17.2.1998 accepted the conditions, pursuant to which Central Government permitted for the increased intake of students from 40 to 60. But the letter was very clear, that the same was with prospective effect. That means, the admission made prior to that letter was not recognised by the Central Government. Based on the letter of intent and also permission, first Respondent-University as per letter dated 17.8.1998 informed the Petitioner that affiliation is granted for increased intake from the academic year 1998-99. It is this letter that is challenged by the Writ Petitioner in this Writ Petition.
It is not disputed by the Counsel for the Petitioner that the Central Government alone is the authority to permit either for establishment of a college or for increased intake of students and the same is based on the recommendation of the Dental Council of India. Even though State Government informed the Petitioner that it has no objection for the increased intake, that will not be relevant or sufficient when the authority to give such permission is only the Dental Council of India and the Union Government.
In the decision reported in Medical Council of India Vs. State of Karnataka and Others, , a similar question came up for consideration. That case arose under the Medical Council Act, 1956. Section 10-A, 10-B, and 10-C etc. of Medical Council Act were also incorporated by amendment in 1993 and simultaneously the Dentist Act also amended incorporating the similar provisions. In that case, the question was whether the State Government can fix the intake capacity in Medical Colleges. The argument before the Supreme Court was that the regulations are only recommendary in nature and the State Government has got the power to fix the intake capacity of the College. This argument was not accepted by the Honourable Supreme Court and their Lordships said, it is the Medical Council of India, who is the authority to fix the intake capacity and the State Government cannot act beyond what the Medical Council has said. Their Lordships further said that what was held for Medical Council under Indian Medical Council Act would equally apply to the Dental Council under the Dentists Act. Paragraphs 30 and 31 of the judgment are relevant for our purpose" which read thus,
Having thus held that it is the Medical Council which can prescribe the number of students to be admitted in medical courses in a Medical College or institution, it is the Central Government alone which can direct increase in the number of admissions but only on the recommendation of Medical Council. In our opinion, the learned Single Judge was right in his view that no Medical College can admit any student in excess of its admission capacity fixed by the Medical Council subject to any increase thereof as approved by the Central Government and that Sections 10-A, 10-B and 10-C will prevail over Section 53(10) of the State Universities Act and Section 4(1)(b) of the State Capitation Fee Act. To say that the number of students as permitted by the State Government and or the university before 1.6.1992 could continue would be allowing an illegality to perpetuate for all time to come. The Division Bench, in our opinion, in the impugned judgment was not correct in holding that admission capacity for the purpose of increase of decrease in each of the Medical Colleges/institutions has got to be determined as on or before 1.6.1992 with reference to what had been fixed by the State Government or the admission capacity fixed by the Medical Colleges and not with reference to the minimum standard of education prescribed u/s 19-A of the Medical Council Act which the Division Bench said were only recommendatory. Nivedita Jain case does not say that all the regulations framed by the Medical Council with the previous approval of the Central Government are directory or mere recommendatory. It is not that only future admissions will have to be regulated on the basis of the capacity fixed or determined by the Medical Council. The plea of the State Government that power to regulate admission to Medical Colleges is the prerogative of the State has to be rejected.
What we have said about the authority of the Medical Council under the Indian Medical Council Act would equally apply to the Dental Council under the Dentists Act.
Once it is found that the Dental Council of India alone has power to fix the intake capacity, the only other question arises for consideration is whether the Dental Council of India is justified in granting permission with prospective effect.
On 4.12.1997, letter of intent was issued on certain conditions. It was stated therein that the admission also should be made for the increased intake, after formal permission is obtained from the Central Government. Petitioner accepted those conditions and it was thereafter permission was granted by the Central Government. So long as the order stands and so long as the Central Government or Dental Council of India is the authority to approve or permit the intake capacity, first Respondent herein can act only on the basis of the said permission. If the permission is only with prospective effect, the affiliating University also will have to go along with the conditions of the permission. First Respondent was justified in writing to the Petitioner that the affiliation for the increased intake is only from the academic year 1998-99. I do not find any infirmity in the order of the first Respondent.
The argument of both the Standing Counsel for the Central Government as well as the University is the Petitioner himself agreed for the terms of the letter of intent and it was only thereafter permission was granted. Once consent has been given, Petitioner cannot again come forward with the case that it should get permission from anterior period. I do not think that the said submission could be accepted. Petitioner has been waiting for permission for. Years together and if Petitioner is not prepared to accept the permission, permission itself may be denied even for the future. That means, the entire investment will have to be wasted. It is only to safeguard that right, Petitioner had to give such consent. The Government or the University, cannot plead the Principle of Estoppel for they did not act simply on the consent alone. They are granting permission not on the consent but taking into consideration the statutory conditions for granting affiliation or permission.
Learned Counsel for the Petitioner based his arguments on the basis of recent decision of Honourable Supreme Court reported in Baba Mungipa Medical College and Another Vs. Govt. of Tripura and Others, wherein certain directions have been given by the Honourable Supreme Court. In that case, a provisional affiliation was given by the University. But the Medical Council of India, who is the supreme authority did not recognise it. On the basis of provisional admission, students were also admitted. On a request made to the Medical Council of India, an inspection, was made, which found some defects. The institution requested the Medical Council of India that the students already admitted may be permitted to write examinations and their admissions may be approved or regularised. The matter was taken to Supreme Court, where also the Institution pleaded before the Supreme Court that the defects pointed out by the Inspection Committee have been rectified and the, admission of the students may be regularised. In paragraph 3 of the judgment, their Lordships held thus,
The question of recognition of the College is essentially to be considered and decided by the Medical Council of India as per its norms and guidelines. That recognition has not so far been given. We, therefore, do not consider it appropriate to keep this matter pending any further and dispose of it with the following direction, which shall be read in addition to various directions earlier made from time to time by this Court:
In the event the Medical Council of India grants recognition to the College and the College authorities consider the question of admission or regulations of admission of the students, they shall consider the cases of the students, who were already in the College and pass appropriate orders with regard to them under the rules. They may take into consideration that these students were already admitted and would have continued with their studies had the College been recognised. The special leave petitions are, accordingly, disposed of. No, costs.
On the basis of this decision, learned Counsel for the Petitioner submitted that the authorities can even now consider as to the students already admitted could be regularised or not. The facts in this case are slightly different, in the sense that the Central Government already recognised the increased intake from a particular year, and Petitioner also accepted those conditions. In that way, the decision may not help the Petitioner.
In this case, from the beginning Petitioner has been insisting that it has got infrastructure for 100 students. State Government as well as Medical University were also satisfied that it has the infrastructure for more than 60 students. They also granted permission. Even though the permission by itself may not enable the Petitioner to increase the intake capacity, that is the relevant material which the Central Government and the Dental Council of India should have taken note of. When the infrastructure facility is available for more than 60 students from the very beginning, the Union of India also should have considered whether the increased intake can be granted only from 1998-99. It is not the case of the Petitioner nor any of the Respondents that infrastructure faculties are added after 1996 or 1997. It is on the basis of existing infrastructural facility permission was sought for increased intake. The inspecting authorities also found that it has the infrastructural facility as prayed for.
Petitioner invested huge amounts and it cannot be doubted that the infrastructural facilities for 40 students and 60 students could be the same. After having invested huge amount for the intake capacity of more than 60 students, limiting the admission to 40 students is not proper. It is only proper on the part of the authorities to consider this question in little more minutely. In the event of consideration of the same, if the authorities feel that the permission has to be granted from the academic year 1996-97, the question of regularisation of admission of students also be considered by it.
In the result, I am not granting any relief to the Petitioner at present. But I permit the Petitioner to move representation to the second Respondent and also to the Dental Council of India to reconsider the decision of granting permission for the increased intake from the year 1996-97. If any such request is made, the Dental Council of India will pass appropriate orders after taking into consideration the observations made above. First Respondent, thereafter, will take appropriate decision taking into consideration the decision of Dental Council of India or Union Government. Petitioner shall make the representation to the second Respondent within a period of 15 days from today and the second Respondent shall pass orders on the same within a month thereafter, with notice to the Petitioner.
The Writ Petition is disposed of as above. No costs.