JUDGMENT
Jayanta Kumar Biswas, J.
1. The petitioner is a registered society. It is aggrieved by the decision of the Director of Medical Education and Ex Officio Secretary, Department of Health and Family Welfare, Government of West Bengal dated August 24, 2004, which is: “The rule is laid down by Dental Council of India – It is further certified that in case the appellant fails to create infrastructure for the Dental College as per Dental Council of India norms and fresh admissions are stopped by the Dental Council of India, the State
Govt. shall take over the responsibility of the students already admitted in the college with permission of the Central Govt.’ – in this regard it may be stated that we can not comply with the said rule and we can not take any responsibility of the proposed Dental College at present accordingly, on the event you fail to create necessary infrastructure.”
2. With a view to establishing a dental college the petitioner submitted the requisite application for permission of the central government on May 1, 2004. The permission was required because of provisions in the Dentists Act, 1948, Section 10A that put a prohibition on establishing a college such as the one the petitioner wanted to establish, unless the person intending to establish it obtained previous permission of the Central Government.
3. In terms of rules and regulations of the Dental Council of India constituted by the Central Government under provisions in Section 3 of the Act, the application was to be backed by an essentiality certificate, regarding the desirability and feasibility of the college, given by the State Govenment. The form of the certificate given in circular of the council No. DE-22 2002/9814 dated March 7, 2003 was this: “it is further certified that in case the applicant fails to create infrastructure for the dental college as per Dental Council of India norms and fresh admissions are stopped by the Dental Council of India, the State Government shall take over the responsibility of the students already admitted in the College with the permission of the Central Government.”
4. The essentiality certificate dated June 9, 2004 was given omitting the undertaking that was to be incorporated in it in terms of circular of the council dated March 7, 2003. As a result, by letter dated August 6, 2004 the council informed the petitioner that unless its application was supported by an appropriate essentility certificate, it would not be processed further. This is in this context that upon further representation from the petitioner the director of medical education and ex-officio secretary gave the impugned decision dated August 24, 2004. Feeling aggrieved the petitioner took out this writ petition.
5. By filing affidavit the State Government defended the decision dated August 24, 2004, on the ground that since it had no infrastructure to accommodate existing students at the college, in case of its closure in future for failure to create infrastructure as per norms of the council, it was unable to give an undertaking for taking over responsibility of the students already admitted to the college. In course of hearing of the matter the petitioner filed a supplementary affidavit alleging that in the matter of grant of essentiality certificate it was discriminated against, since the certificate was granted to a similarly situated college. The State authorities were given opportunity to respond by filing a supplementary opposition, which has been filed.
6. In the supplementary opposition it has been stated that in view of provisions in the Dental Council of India (Establishment of New Dental Colleges, Opening of New or Higher Course of Study or Training and Increase of Admission Capacity in Dental Colleges) Regulations, 2006, regulation 6(2)(h), the essentiality certificate dated March 10, 2006 was given to NPC Medical Sciences & Research Foundation, once the state government was satisfied that that college owned a hospital of its own; and that since the petitioner did not own its own hospital, the state government was not in a position to give an undertaking to take the future responsibility. It has, however, been admitted that the petitioner received written consent from one Rishra Seva Sadan (not a government hospital) regarding the tie up requirement.
7. Counsel for the State has argued that in view of the new regulations which came into force on January 10, 2006, the petitioner is not entitled to get an essentiality certificate with the undertaking. He relies on a division bench decision of this Court in Ramkrishna Pandia v. Jogesh Chandra Sarkar and Ors. 2007 (1) CHN 161, and contends that the new regulations will govern the case of the petitioner. It has been contended in the writ petition that the question of establishment of a dental college in the State should have been considered by the State Government with greater flexibility, when admittedly the dental surgeon population ratio in the State is 1 : 58820. Counsel for the petitioner has said that it is in the interest of the State that the state government ought to have issued the essentiality certificate with the required undertaking, particularly when the petitioner did not want a penny from the government.
8. His argument is that keeping in view that the petitioner already created an infrastructure of substantial worth and also demonstrated its financial ability to run the college, 6nce duly established, covering a vast area of land, the state government ought not to have declined to give the essentiality certificate on the ground that for lack of infrastructure it would not be in a position to take responsibility of the existing students at the college in case of its closure in future. He has severely criticized the varied stand of the State taken by it in its supplementary opposition while dealing with the allegation of discrimination. His submission is that the State has unfairly taken a stand that since the petitioner does not own a hospital, it will not be in a position to take the responsibility of the students.
9. I am unable to appreciate the manner in which the State has dealt with the matter. The petitioner did not want any help from it except a mere undertaking for giving which it could have put any reasonable condition for securing its interest. I am unable to see how on the basis of provision in the 2006 Regulations it can justify its decision given as back as June 9, 2004 and August 24, 2004. At those dates the question before it was whether it was in a position to give the essentiality certificate incorporating the undertaking to take responsibility of the existing students in case of closure of the college in future. As I have already pointed out though it was free to put any reasonable condition for protecting its interests, instead of considering the matter with reasonable flexibility, it seems to me, for some undisclosed reason, it just decided not to oblige the petitioner.
10. In my view, counsel for the State is not right in saying that in view of provisions in the 2006 Regulations the essentiality certificate cannot be given to the petitioner. The decision given by the State on August 24, 2004 cannot be justified by making reference to the 2006 Regulations which came into force only on January 10, 2006. Application submitted by the petitioner was governed by the 1993 Regulations. The 2006 Regulations clearly provided that dental colleges established or permitted to increase the admission capacity before the commencement of the 2006 Regulations would continue to be governed by the 1993 Regulations. I do not see how the division bench decision cited to me is of any assistance in the present case.
11. Here request of the petitioner made in connection with the application governed by the 1993 Regulations was turned down when those regulations were in force. Their application was to be decided in terms of those regulations. In my view, by making reference to any provisions in the 2006 Regulations the State is not entitled to say that the essentiality certificate is not to be given to the petitioner. To my mind, this is a fit case where an order should be made directing the State Government to issue the essentiality certificate incorporating the undertaking required in terms of circular of the council dated March 7, 2003. I think the State should call upon the petitioner to give an undertaking that in case of closure of the college in future the existing infrastructure would come to the absolute control of the State.
12. For these reasons, I set aside the impugned decision dated August 24, 2004 and dispose of the writ petition ordering that the director or any other appropriate authority of the State (if the director is not competent) shall give the undertaking needed in terms of circular of the council dated March 7, 2003 by issuing necessary order, or by incorporating amendments in the essentiality certificate dated June 9, 2004, within three weeks from the date of communication of this order, provided the petitioner gives an undertaking, if wanted by the State Government for protecting its interests. There shall be no order for costs in the case.
Urgent certified xerox copy of this order shall be supplied to the parties, if applied for, within three days from the date of receipt of the file by the section concerned.