ORDER
1. Relying upon the Government Order dated 20-8-1996, Annexure-G, and Government Order dated 21-11-1996, Annexure-G1, the appellants herein filed a writ petition praying for issuance of direction to the respondent-University for granting affiliation under the provisions of the Rajiv Gandhi University of Health Sciences Act, 1995 (hereinafter referred to as the ‘Act’). The writ petition was disposed of by the learned Single Judge vide the order impugned in this appeal with the following observations and directions:
“(a) The first part of the prayer (seeking a direction to first respondent-University to issue necessary orders in term of the recommendations of the State Government) is disposed of recording the submission of Sri A.V. Srinivasa Reddy, learned Counsel for the first respondent-University, that if and when application is made by the petitioner for affiliation for 1996-97, it will be considered expeditiously and in terms of the Government order recommending affiliation (subject to the clarification that unless there is previous permissions of the Central Government, the University cannot permit the students of petitioner-college to participate in the examinations conducted by the University) is recorded.
(b) The second part of the prayer that no other order is necessary for approval of admissions of 1996-97 is rejected.
(c) Though there is no main prayer in regard to the students admitted to the academic year 1996-97, there is an interim prayer seeking direction to the first respondent to approve the admissions of the students (1996-97). It is open to the petitioners to approach the first respondent-University, after making an application for affiliation, to expedite grant of affiliation. It is also open to the petitioners, if so advised, to approach the Dental Council of India and Central Government for grant of previous permission under Section 10-A of Dentists Act, expeditiously, so that the students admitted for the academic year 1996-97 on the basis of Dental
Councils letter dated 12-7-1996 will not be put to any hardship. It is made clear that these observations shall not be construed as creating or recognising any right either in the petitioners or in the students to claim any relief on the basis of these observations alone.
(d) The petitioners are also permitted to approach the Bangalore University for refund of the amount of Rs. 80,000/- paid towards affiliation or for transfer of the amount to the first respondent-University”.
2. The order of the learned Single Judge has been challenged on the ground that the learned Single Judge failed to appreciate the submissions made on behalf of the appellants that the effect of the recommendations made by the Government of Karnataka granting permission and recommending grant of affiliation by the University concerned at the relevant time in favour of the appellants was conclusive and binding and not contrary to provisions of Sections 5 and 43 of the Act. The learned Single Judge is alleged to have wrongly widened the scope of inquiry. It is submitted that the appellants were not under any obligation to make a fresh application to the University for seeking affiliation for the year 1996-97 or for subsequent years. The appellants claim that they were not required to seek approval from the Dental Council of India (DCI) or the Central Government for admission of 1996-97. The question of seeking prior permission from the Central Government was claimed to be the subject-matter of rival contentions between the parties which stood adjudicated by the Apex Court. The findings returned by the learned Single Judge have been termed to be unworkable so far as appellants-college was concerned. Section 10A of the Dentists Act, is claimed to be not applicable in the case of the appellants-college. According to the appellants the learned Single Judge ought to have held that the respondent 1 was bound to continue affiliation already granted by the respondent 2 in terms of Government Orders relied upon and produced in the petition as Annexures-G and G1. The Dental Council of India is stated to have granted permission to the appellants under the old Dentists Act as the appellants-college did not come under the purview of Section 10A of the Dentists Amendment Act 1993. The State Government is stated to have permitted the appellant-college to run the college from the year 1992-93.
3. The necessary facts leading to the filing of the writ petition and this appeal as stated by the appellants are that the appellants-college was established in the year 1992 and was running the BDS Course in accordance with the permission granted by the Dental Council of India with an intake capacity of 60 students per year. It was submitted that the State Government had given permission to the appellants-college in accordance with the direction of this Court in W.P. No. 22595 of 1994 dated 25-11-1994 and the Hon’ble Supreme Court in SLP No. 8437 of 1995 dated 16-8-1995. The appellants-college is claimed to have been affiliated to Bangalore University and was required to be deemed affiliated to the Rajiv Gandhi University of Health Sciences, Karnataka, in
terms of the provisions of sub-section (3) of Section 5 of the Act which came into force on 1st June, 1996. The State Government is stated to have conveyed its approval for the grant of affiliation to the appellant-college from the year 1992-93 vide its order dated 11-10-1995. The said order is stated to have been passed as per directions of this Court and the Hon’ble Supreme Court of India. Vide notification dated 30-1-1996, the 2nd respondent is claimed to have issued notification dated 30-1-1996 granting renewal of affiliation to the appellants-college from the years 1993-94, 1994-95 and 1995-96. The respondent-University thereafter collected the annual affiliation fee for the year 1996-97 from the appellants-college as is evident from the receipt dated 2-8-1996. They further demanded annual affiliation fee for the year 1997-98. The State Government is claimed to have issued Government orders annexed with the writ petition as G and G1. The respondent 1 vide its letter dated 3-5-1997 Annexure-K is stated to have informed the appellants that it was only an affiliated college of Bangalore University for specified periods and was never affiliated permanently to Bangalore University in accordance with the provisions of Section 53(6) of the Karnataka State Universities Act, 1976. Vide letter dated 3-5-1997 Annexure-K the respondent 1 declared that the Government by its order dated 21-11-1996 had only fixed the intake of the college for the year 1996-97 and not the affiliation of the college. It is submitted that the respondent 1 has wrongly interpreted State Universities Act to the detriment of the appellants. The refusal to approve the admission of the appellant-college by respondent 1 is stated to be a deliberate attempt to spoil the name and reputation of the college. The State Government is also claimed to have allotted CET students to the appellants-college for the year 1996-97 after fixing the intake capacity.
4. To substantiate their claim, the appellants have referred to some dates which according to them are relevant for the purposes of determining the controversy between the parties. According to them an application for grant of affiliation to the appellant-college was submitted to the Bangalore University on 30-10-1986. As no permission was granted to the appellants for starting Dental College, W.P. No. 7837 of 1991 was filed in this Court. The Dental College is stated to have been started in May 1992 presumably “with legitimate expectation of affiliation from the year 1992-93”. While disposing of the writ petition filed by the appellant the High Court directed the Government to consider the application of the appellant expeditiously vide its order dated 3-6-1992. In another W.P. No. 29400 of 1992 filed by the appellant the Court is stated to have directed the Government vide its order dated 10-11-1992 to dispose of the application of the appellant within one month. In W.A. No. 2355 of 1992 this Court is stated to have directed the Government to consider the application of the appellant on the basis of the report made by the LIC of the Bangalore University and intimate the decision before the end of December 1992. Such an order is stated to have been passed on 4-12-1992. In CCC No. 56 of 1993 this Court vide its order dated 10-3-1993 granted time to the Government to consider the application of the appellant without reference to the policy decision of the Government.
The application of the appellants was rejected by the Government on 10-3-1993 and against this order Writ Petition Nos. 28686 to 28705 of 1993 were filed wherein University was directed to permit the students of appellants-college to appear in the I year BDS examination subject to the result of the writ petition. The Government order dated 10-3-1993 was quashed by this Court in W.P. No. 8699 of 1993 on 2-9-1993. Direction was issued to the Government to reconsider the whole issue on the basis of the additional report of the Committee constituted by the University. The Government was directed to recommend affiliation allegedly without taking into consideration the “need factor”. In W.P. No. 355 of 1994 decided on 8-2-1994 the Government was permitted to pass appropriate orders objectively on relevant facts within a period of six weeks. On 28-7-1994 the State Government again rejected the application of the appellant against which W.P. No. 22595 of 1994 was filed which is stated to have been disposed of on 25-11-1994 directing the Government to forthwith grant the affiliation to appellant-College effective from the year 1992-93. The orders passed in the aforesaid writ petition is stated to have been confirmed in W.A. No. 609 of 1995 which was decided on 2-3-1995. The appellant-college is claimed to have been inspected by Dental Council of India on 23-7-1995. SLP No. 8437 of 1995 filed by the State is stated to have been disposed of on 16-8-1995 with the observation that in view of the letter issued by the DCI, it was not necessary to examine the question of law raised by the State Government or to interfere with the directions of the High Court to the State Government to make recommendations to the University to grant the affiliation. The State Government is stated to have recommended affiliation of the appellant-College for starting BDS Course from the year 1992-93 vide its order dated 11-10-1995. The General Body of Dental Council of India is alleged to have accepted the report of the Committee and granted its permission to the appellant-College on 10-11-1995. On 14-11-1995 the Bangalore University is stated to have granted affiliation to the appellant-College only for the year 1992-93 and sought clarification from the Government whether to continue the affiliation for the years 1993-94 and 1994-95. On 17-1-1996 State Government is claimed to have directed the University to grant renewal of affiliation to the appellant-College from the year 1993-94 onwards. On 30-1-1996 the Bangalore University is alleged to have renewed the affiliation for the years 1993-94, 1994-95, and 1995-96 and declared the results of the examination of all the students admitted upto the year 1995-96. On 12-7-1996 the DCI is stated to have issued the final order of permission claimed to have been granted to the appellant-college with an intake of 60 students from the year 1992-93 in accordance with the teaching and infrastructural facilities provided by the College. The State Government vide its order dated 20-8-1996 issued an order according permission to start the college from the year 1992-93 retrospectively and vide its order dated 21-11-1996 fixed the intake of the appellant-college at 60 students for the year 1996-97. On 1-2-1997 the State Government is claimed to have directed Bangalore University to declare the results of 60 students of the appellant-college admitted during 1995-96. However, on 5-4-1997
the Rajiv Gandhi University insisted the appellant to produce the affiliation orders from the Bangalore University for the approval of admissions made during 1996-97. The appellant contended that as it was deemed to have been affiliated from the year 1992-93, it was not necessary to seek approval of admission from the Bangalore University for the year 1996-97. The respondent 1, however, refused to approve the admission made during the year 1996-97 which necessitated the filing of the writ petition by the appellants which was disposed of by the learned Single Judge vide order impugned in this appeal.
5. The claim of the appellants was resisted by the respondents, in the statement of objections filed in the Court. It was submitted that as the appellant had not impleaded State Government, the DCI and the Central Government, the writ petition was liable to be dismissed on account of non-joinder of necessary parties. The respondent 1 was claimed to have been established under the Act which came into force on 1-6-1996. Under Section 5 of the Act no college in the State of Karnataka imparting education in Health Sciences could be associated in any way with or seek admission to any privileges of any other University in India or abroad, save with the consent of the University. Any such privileges enjoyed from other University before the appointed date was deemed to be withdrawn with effect from the date of coming into force of the Act. The appellant was therefore under an obligation to get affiliation to respondent 1-University under the Rules, Regulations and Statutes. The appellant was informed vide letter dated 5-4-1997, Annexure-H, that the students admitted by it could not be approved for want of Government order for starting the college, affiliation orders from the concerned University for 1996-97, Original marks card and proof of date of birth of the students. Government order for increased intake, approval by the CCH/CCIN/AICTE, registration fee of Rs. 2,000/- per candidate, admission fee of Rs. 250/- per candidate and eligibility fee of Rs. 1,000/- for non-Karnataka students. The approval of the Dental Council was not binding upon the respondent-University as the Dental Council was stated to be only a recommendatory body under the Dentists Act. Only the Central Government could grant permission. As the appellant was alleged to have not obtained the permission under Section 10A or under Section 10C of the Dentists Act as amended in the year 1993, it could not run the institution or seek affiliation. The writ petition was termed to be misconceived and liable to be rejected.
6. The learned Counsel appearing for the appellants has referred to a number of documents and the extracts from various pronouncements to impress upon us that the respondents were under an obligation to grant affiliation notwithstanding the pleas raised by them regarding the applicability of Sections 10A and 10C of the Dentists Act as amended in the year 1993. It is further submitted that under the relevant provisions of law applicable in the case, the appellants-college stood permanently affiliated and the respondent 1 was left with no option but to accord approval in terms of Section 5(3) read with Section 45 of the Act. Reliance was also placed upon the provisions of Section 53 of the Karnataka State Universities Act. It was submitted that the learned Single Judge
was not justified in directing the appellant-college to file fresh application and seek approval in terms of Section 10A of the Dentists Act.
7. Opposing the prayers of the appellants learned Counsel appearing for the respondents has submitted that the plea of the appellants of deemed affiliation was misconceived being contrary to the provisions of law applicable in the case. It is further contended that in view of the amended provisions of Section 10A of the Dentists Act, 1993, the appellant cannot insist for the grant of affiliation under the Act. It is submitted that granting affiliation would amount to contravening the provisions of Section 10A of the Dentists Act. In the absence of valid recognition the appellant-Institution was not justified in filing the petition and making prayer for accord of affiliation without insisting upon the permission under Section 10A of the Dentists Act. He has submitted that the learned Single Judge has rightly disposed of the petition filed by the appellants and issued appropriate directions as warranted under the circumstances of the case.
8. Before the enforcement of the Act, the affiliation of the colleges were governed by the Karnataka State Universities Act, 1976. The Act was necessitated to establish and incorporate a University for the purpose of ensuring proper and systematic instruction, teaching, training and research in modern medicine and Indian Systems of Medicine in the State. Under the Karnataka Act of 1976 affiliation of the colleges to the University was governed by the provisions of Section 53. Colleges within the University area could be affiliated to the University as affiliated colleges upon satisfying the conditions specified in the said section. Corresponding provision was made under Section 5 of the 1994 Act which provided:
“5. Jurisdiction and admission to privileges:
(1) No college in the State of Karnataka imparting education in Health Sciences shall, save with the consent of the University and the sanction of the Government, be associated in any way with or seek admission to any privileges of any other University in India or abroad.
(2) Any such privilege enjoyed from other University before the appointed date by any Medical College or Institution of Health Science situated in the State shall be deemed to be withdrawn with effect from such date.
(3) With effect on and from the date of commencement of this Act. all colleges and autonomous Institutions of Health Sciences previously admitted to the privileges of or affiliated to the Universities of Mysore, Bangalore, Karnatak, Mangalore, Gulbarga and Kuvempu shall be deemed to be admitted to the privileges or affiliated to the University”.
It is also worth noticing that Sections 10A, 10B and 10C of the Dentists Act were amended and enforced with effect from 1-6-1992. Section 10A of the Central Act provided:
“10-A. (1) Notwithstanding anything contained in this Act or any other law for the time being in force:-
(a) no person shall establish a medical college, or (b) no medical college shall - (i) open a new or higher course of study or training (including a postgraduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or (ii) increase its admission capacity in any course of study or training (including a postgraduate course of study or training), except with the previous permission of the Central Government obtained in accordance with the provisions of this section....." Section 10B of the Central Act provided that where any college is established except with the previous permission of the Central Government in accordance with the provisions of Section 10A, no dental qualification granted to any student of such dental college shall be a recognised dental qualification for the purpose of Central Act. Section 10C of the Central Act provided:
“10-C. (1) If, after the 1st day of June, 1992, and on and before the commencement of the Indian Medical Council (Amendment) Act, 1993, any person has established a medical college or any medical college has opened a new or higher course of study or training or increase the admission capacity, such person or medical college, as the case may be, shall seek, within a period of one year from the commencement of the Indian Medical Council (Amendment) Act, 1993, the permission of the Central Government in accordance with the provisions of Section 10A.
(2) If any person or medical college, as the case may be, fails to seek the permission under Section 10-B shall apply, so far as may be, as if permission of the Central Government under Section 10A has been refused”.
9. The admitted position is that the appellant-college had not been established under any authority of law prior to 1st of June, 1992. It is also not denied that the appellant-college has not sought or obtained the permission of the Central Government in terms of Section 10A of the Central Act. Prom the narration of facts and the list of dates furnished by the appellants it appears that they had allegedly started the college during the pendency of the Writ Petition No. 7837 of 1991 presumably “with legitimate expectation of affiliation from the year 1992-93”. The application of the appellant for grant of affiliation was rejected by the Government on 19-3-1993, on the ground that there was no need to open a Dental College as on 9-6-1992 and that there were no proper clinical facilities in the college proposed to be opened by the appellant. This
order was challenged by the appellant in W.P. 8699 of 1993 which was disposed of on 2-9-1993 quashing the aforesaid Government order. The Bangalore University was directed to constitute a Special Enquiry Committee within 15 days from the date of the order to ascertain whether the Institution had the necessary infrastructure and it had set right the short-comings pointed out in the report made by the previous Local Inquiry Committee. Additional report of the Committee was directed to be an integral part of the previous report. The State Government was again directed to reconsider the whole issue of grant of affiliation on the basis of the reports submitted by the University. The Division Bench of this Court in W.A. No. 355 of 1994 modified the order of the learned Single Judge holding that the State Government was entitled to consider the existence of clinical infrastructure facilities of the appellant-college in the light of recommendations of the Committee and also the need for a Dental College as on 9-6-1992. Ultimately the Government rejected the application of the appellants by its order dated 28-7-1994. That order was challenged in W.P. Nos. 22595 of 1994 and 11753 of 1994. While disposing of the said writ petitions this Court vide the order dated 25-11-1994 quashed the said Government order and issued a direction to the Government to forthwith grant affiliation to the appellant effective from the academic year 1992-93. Feeling aggrieved by the aforesaid order, Writ Appeal No. 609 of 1994 was filed in this Court which was dismissed on 2-3-1995 with the clarification to the effect:
“When the learned Single Judge directed the Government to grant affiliation, what was intended was that the State Government should grant affiliation as contemplated by the provisions of the Karnataka State Universities Act, 1976. Really, it will not be an affiliation but a recommendation to the University to grant the affiliation”.
Being not satisfied with the order of the Division Bench, the State Government filed a Special Leave Petition in the Supreme Court which was disposed of on 16-8-1995 holding:
“During the pendency of the special leave petitions, respondents have produced a letter dated 29-7-1995 (at page 7 of the additional paper book) from the Dental Council of India which certifies that this college fulfils the requirement for starting the BDS course as per the Dental Council of India norms and that a recommendation for grant of permission to start the BDS course at the said college has been made. In view of this fact, we consider it unnecessary in the present case to examine the questions of law raised herein or to interfere with the direction given by the High Court to the State Government to make a recommendation to the University to grant the affiliation”.
10. The appellants have urged that in view of the aforesaid order of the Supreme Court, there was no necessity of prior permission of the Central Government under Section 10A of the Dentists Act. It is submitted that the State of Karnataka in their SLP had specifically pleaded:
“The learned Single Judge and Division Bench, grossly erred in not noticing, that power to grant recognition by permitting to establish and opening an Educational Institution to start a college in particular course, by the State Government or Central Government, is distinct and independent of the power to grant affiliation by exercise of statutory power under the relevant Universities Act and affiliation mainly meant to prepare and present the students for public examination to enable them to obtain degree in a particular course in the concerned University. The learned Judges further failed to notice that in view of the Dentists (Amendment) Act, 1993, which is deemed to have come into force on the 27th day of August, 1992, under Section 10A of the said Act, a person who intends to establish and open a new Institution in dental course has to obtain prior permission of the Central Government in accordance with the said section, and the existence of prior permission and approval by the Central Government to establish and open a new dental college is a condition precedent before affiliation is granted, since, grant of affiliation without prior permission and approval as postulated under Section 10A of the said Act, has no meaning and the same is futile”.
However, the Hon’ble Supreme Court while observing:–
“We consider it unnecessary in the present case to examine the question of law raised herein or interfere with the direction given by the High Court to the State Government to make a recommendation to the University to grant affiliation”, which is interpreted impliedly to mean the rejection of the contention of the State. It is submitted that in view of the Supreme Court order there was no necessity of seeking permission from the Central Government under Section 10A of the Dentists Act. After referring to the various events and the order of Supreme Court the learned Single Judge held that the Apex Court never intended to exempt the petitioner from obtaining prior permission under Section 10A of the Dentists Act. The Supreme Court chose not to interfere with the direction of this Court leaving all questions of law open and accord of affiliation subject to the provisions of the law. It was rightly observed by the learned Single Judge:
“It is evident that the question whether prior permission under Section 10A of Dentists Act was necessary or not did not arise before the Supreme Court. The question that was raised by the State Government before the Supreme Court was whether, previous permission of the Central Government was a condition precedent for making an order of recommendation under Section 53(5) of the KSU Act and not the question whether prior permission under Section 10A of Dentists Act is unnecessary where a recommendation is made under Section 53(5) of KSU Act” “.
11. The Apex Court could not be presumed to have conferred a benefit upon the appellants without referring to the provisions of Section
10A of the Dentists Act. Accepting the contention of the appellants would amount to perpetuating the illegalities being committed by them inasmuch as they are admitted to have not sought prior permission of the Central Government under the Central Act despite enforcement of the Act on 27-8-1992 and the commencement of the appellant-Institution thereafter. It is true that the law declared by the Supreme Court is binding on all Courts within the territory of India and it is equally true that every statement contained in the judgment of the Supreme Court does not attract the provisions of Article 141 of the Constitution. In Lakskmi Shankar Srivastava v State (Delhi Administration), it was held that the judgment proceeding on concession and not on any analysis or examination of the relevant provisions cannot be held to be declaring the law within the meaning of Article 141 of the Constitution, In order to see as to whether the Supreme Court had settled the dispute between the parties or laid down the law within the meaning of Article 141 of the Constitution, the context of questions which arose for consideration under which the judgment was delivered has to be taken note of and the reasoning of one decision cannot be applied to the other case unless there exists similar situations and circumstances. The law laid down by the Supreme Court is required to be followed if it is shown that such law was laid down with respect to the matter in controversy before the Court and the same was not an obiter dictum. The Hon’ble Supreme Court, even if pleaded, could not have issued directions which ex facie and apparently appeared to be in contravention of the mandate of Section 10A of the Dentists Act.
12. Section 53 of the Karnataka State Universities Act and Section 5 of the Act presupposes the existence of a legally established and constituted college requiring affiliation and privileges. No Institution can seek the affiliation or privileges under the Act unless the same is shown to have been established in accordance with the provisions of law. Under sub-section (3) of Section 5 only such colleges were deemed to be admitted to the privileges or affiliated to the University who were previously admitted to the privileges of or affiliated to the Universities of Mysore, Bangalore, Karnatak, Mangalore, Gulbarga and Kuvempu. The appellants-college had not been admitted to such privileges by any valid and proper order of the then University of the Bangalore. The appellants-college have been carrying on the education in the Institution on the basis of the Court orders during the course of prolonged litigation as noted hereinabove. The appellants therefore cannot insist for affiliation with the respondent-University with declaration, “that no other order is necessary for the approval of admission for 1996-97”.
13. The learned Counsel for appellants has filed an I.A. along with the clarification of the Dental Council of India dated 19-8-1997 to impress upon us that as their matter was covered under Section 10A of the Dentists Amendment Act, 1993, they be granted affiliation as prayed. Under the Central Act the Dental Council of India is only a Recommending Authority and not an authority to grant permission for
starting a college or to declare that the college already started did not require the permission under the Central Act.
14. Keeping in view the urgency of the matter and the career of the students admitted by the appellants, the learned Counsel appearing for the respondent-University was fair to submit before the learned Single Judge that if and when an application is made by the appellants for affiliation for 1996-97, the same shall be considered expeditiously and in terms of the Government Order recommending affiliation subject to clarification regarding permission of the Central Government in terms of Section 10A of the Dentists Act. The learned Single Judge was also justified in issuing the appropriate directions warranted under the facts and circumstances of the case. We cannot subscribe to the view that affiliation be granted to the appellant notwithstanding the provision of Section 10A of the Dentists Amendment Act, 1993 and the law laid down by this Court in that behalf. The order impugned in the present appeal being based upon proper appreciation of facts and in consonance with the relevant provisions of law does not require any interference.
15. There is no merit in this appeal which is accordingly dismissed.
16. It may be noticed that keeping in view the urgency of the matter the appeal was heard and is being disposed of at the preliminary stage with the consent of the learned Counsel for the parties.