ORDER
G.C. Bharuka, J.
1. The thirteen petitioners herein are among the eighteen candidates whose admissions in the respondent Oxford Dental College, Bangalore, has been refused to be approved by the respondent angalore University for the academic year 1995-96 under its communication dated 16.8.1996 (Annexure ‘R2’ to the statement of objections filed by the respondent University) on the ground that the admission capacity of the college for the year in question was only of 40 seats, whereas the admissions made were of 58 candidates, i.e., 18 in excess of the admission capacity approved by the Central Government under Section 10A of the Dentists Act, 1948 (in short, the “Dentist Act”).
2. The present Writ Petition was filed on 24.8.1996 for issuance of a direction to the respondent University to treat the petitioners as bona fide students of Bachelor of Dental Surgery (in short, “BDS”) course of the respondent college for the academic year 1995-96. Their further prayer was that the respondents should be directed to permit the petitioners to continue to appear at the 1st BDS Theory/ Practical/Viva-Voce which had already commenced form 23.8.1996 and not to disturb their appearance at the said examination.
3. A Little in depth, inquiry into the facts appearing in the present case through affidavits and counter affidavits, presents a disturbing state of affair about the manipulative trends of some of the managements of the professional colleges for whom education is nothing but an unscrupulous commercial venture and they seem to have acquired expertise in carrying it on successfully with all impunity.’
4. I will be narrating the facts hereunder with reasonable precision to substantiate the said aspect which may be found shocking to any prudent and vigilant citizen interested in up-keepment of minimum standards of medical and dental education in the country and maintenance of purity in administration of regulatory statutory provision, enacted for ensuring the said objectives.
5. In the present case, keeping in view the seriousness of the questions involved and the consequences like to ensue on determination thereof, the respondent college administration, the DCI, State of Karnataka through its Secretary, Department of Medical Education, Bangalore University and the Principal of the College has filed their separate counter affidavits. From the said affidavits and the documents filed therewith, if has emerged that there is no dispute among the parties so far as the foundational facts are concerned.
6. The respondent college in question was established during the year 1992-93 by the CHILDREN EDUCATION SOCIETY, which is a registered society under the Karnataka Societies Registration Act, 1974. By notification dated 24.8.1992, the respondent University accorded affiliation to the college in terms of Section 53(5) of the Karnataka State Universities Act, 1976 (in short, the “University Act”) for the academic year 1992-93 fixing its admission capacity as for 40 students (Annexure A-II to the statement of objections filed by the college). Earlier to that, on 13.5.1992, the management of the college had addressed a letter to the Secretary; Dental Council of India for according permission So it for starting the BDS Course. The DCI in reply, under its letter dated 8.7.1992 required the college administration to send the required information and documents for enabling it take decision in terms of the norms laid down by the DCI as approved by the Central Government. In compliance thereto, the management, under its letter dated 26.3.1993 (Annexure “A5′), sent some documents and information with the request to the Secretary, DCI, inter alia, to move the Council and the Central Government for grant of approval and recognition to the college. Subsequently, under letter dated 6.4.1993 (Annexure ‘A- VI’), the college administration submitted a scheme with the Central Government as required under Section 10A(2) of the Dentist Act for according statutory approval to start the BDS Course Subsequently, after various correspondences and on completion of statutory requirements, the Central Government accorded permission to the college for starting the BDS Course with intake capacity of 40 students from the academic session 1995-96.
7. The said letter of the Central Government according permission to the college fixing the admission capacity of 40 students for the academic year 1995-96 being quite material for the present purpose is being quoted hereunder in extenso:-
No. V.12017/17/94-PMS Government of India
Ministry of Health & Family Welfare
Nirman Bhawan, New Delhi,
Dated, the 20th Dec., 1995
To
The Secretary,
Children Education Society,
1st Phase, J.P.Nagar
Bangalore 560 078
Subject: Application for permission of the Central Government to establish a new dental college by Children’s Education Society, Bangalore’
Sir,
I am directed to refer to your letter No. 42/95=96 dated 19th July, 1995 on the subject noted above accepting the conditions of the letter of intent issued by this Ministry on 20.6.1995 and to convey the formal permission of the Central Government under Section 10A(4) of the Dentists Act, 1948 to start BDS Course with 40 admissions from academic session 1995-96 to Oxford Dental College, Bangalore, subject to the condition that the Society will appoint one more professor and engage ‘minimum Para Medical Staff as per the Dental Council of India norms within one month from the date of this letter.
2. This permission to establish a new dental college and admit students is granted for a period of one year and will be renewed on yearly basis subject to verification of the achievement of the annual target and revalidation of the performance bank guarantees. This process of renewal of permission will continue till such time the establishment of dental college and expansion of the hospital facilities is completed.
Yours faithfully,
Sd/
(H.N. Yadav)
UNDER SECRETARY TO THE GOVT. OF INDIA.
8. It further appears that in the meantime the college administrative body made an application to the Government of Karnataka and the respondent University for increasing its admission capacity from 40 to 100 seats. Pursuant to the said application, the Government passed an order dt. 20.12.1995 with clear direction to obtain the approval of DCI and the Government of India for increasing the intake capacity. The said Government order is to the following effect:-
“GOVERNMENT ORDER NO. dt. 20.12.1995
In the circumstances explained in the preamble sanction is accorded to increase the intake of 1st year BDS seats in the Oxford Dental College, Bangalore run by the Children’s Education Society which is declared as Linguistic Minority Institution from 40 to 100 (from forty seats to hundred seats) from the academic year 1995-96.
Permission is accorded to issue Essentiality Certificate to increase intake and to start the courses after obtaining the approval of the Indian Dental Council and the Government of India.
The allocation of seats are as follows:-
Free Seats
Payment Seat
Free Seats
Payment
Seats
15
15
15
9
6
9. Acting, on the basis of the State Government’s Order, the respondent University issued notification dt. 22.2.1996 increasing the intake from 40 to 100 (additional 60 students) from the academic year 1995-96 subject to the approval of the DCI and the Government of India. The operative portion to the notification is being quoted hereunder:-
“In exercise of the powers conferred on it under Sub-section (5) of Section 53 of the KSU (Amendment) Act, 1986 (Karnataka Act 28 of 1976) and on the recommendations of the Government of Karnataka and Bangalore University, hereby accords sanction of increase of intake from 40 to 100 (additional 60 seats) to 1st year BDS course in respect of Oxford Dental College, Bangalore, from the academic year 1995-96, subject to the approval of the Indian Dental Council and Government of India,
10. Thereafter, the Secretary of the DCI under his letter dt. 12.7.1996 addressed to the Secretary, Government of India, communicated recommendation of executive committee of the Council to grant permission to the college to increase the BDS seats from 40 to 100 from the academic year 1995-96 subject to fulfilling of certain conditions as is evident from Annexure A to the Writ Petition, but quite surprisingly, the above recommendation was made by the executive committee of the Council for the academic year 1995-96 despite the fact that the said academic year was already over.
11. Thereafter, the Central Government issued a letter of intent dt. 22.8.1996 (Annexure A-XXXIII) proposing to increase the admission capacity of the college from 40 to 100 from the academic session 1996-97 subject to fulfilling of the conditions therein. The relevant part of the letter of intent reads as under:-
“Based on the report of the inspectors, the Dental Council of India have recomended to the Central Government for granting permission to increase of BDS seats from 40 to 100 at Oxford Dental College, Bangalore after obtaining the performance bank guarantee of Rs. 150 lakhs. On careful consideration of your scheme and inspection report and also the recommendation of the Council, the Central Government has come to the conclusion that a letter of intent may be issued to Oxford Dental College, 1st Phase, J.P. Nagar, Bangalore – 560 079 for increasing BDS seats from 40 to 100 from academic session 1996-97. Hence this letter of intent.
This letter of intent is subject to fulfillment of the following conditions:-
(i) The teaching and non-teaching staff shall be recruited as per Dental Council of India norms.
(ii) The applicant has a feasible and time bound programme to provide additional equipments and infra-structural facilities as per Dental Council of India norms.
(iii) The applicant shall provide a performance bank guarantee of Rs. 150 lakhs in favour of Dental Council of India.
4. The forma! permission shall be granted after the above conditions are accepted by you and the performance bank guarantee is furnished within 15 days of the date of this letter. Kindly acknowledge the receipt of this letter.”
12. As admitted by the Principal of the College in the counter affidavit, the compliance to the said letter of intent was made only by 1.10.1996. Therefore, from the above noticed facts, it is undisputedly clear that for the academic year 1995-96, the approved admission capacity of the college was only of 40 seats. But despite the same, it admitted 58 students, ie., 18 students in excess, which includes 13 petitioners, herein between the 1st and 3rd January, 1996.
13. It is also important to note here that as per the “calendar of events for BDS Course for 1995-96” published by the respondent University under its notification dt. 28.7.1995 which has been produced by the petitioners through their Advocate, Sri Mohan Rangam, as Annexure A-VI, the last date prescribed by the University for some of the relevant events are as under: –
SI.No.
Name of the event
Date Fixed for 1995-96
1.
Last date for admission to BDS Course
07.09.1995
2.
Commencement of I term of BDS course
04.10.1995
3.
Last Date for admission with penal fee of Rs.50/-
15.10.1995
6.
Last date before which approval of admission is required to be
communicated
01.02.1996
7.
Last working day of the I term
15.02.1996
9.
Commencement of II term
18.03.1996
12.
Last working day of II term
14.08.1996
13.
Commencement of Annual Examination
23.08.1996
14. It is also of important to notice that the Syndicate of the respondent University has framed Ordinance (hereinafter in short, the “University Ordinance”) governing the admission of students to various courses in the colleges affiliated to it under Section 38 of the University Act which has been published under notification dated 8.10.1984. Clause (6) of the University Ordinance provides that “NO COLLEGE SHALL ADMIT ANY STUDENT TO ANY COURSE AFTER THE LAST DATE FOR ADMISSION PRESCRIBED BY THE UNIVERSITY. NO ADMISSIONS SHALL BE MADE BEYOND THE SPECIFIED DATE, EVEN IN CASES WHERE VACANCIES MAY OCCUR FOR ANY REASON”. Despite the said mandatory direction contained in the University Ordinance, the college administration gave admission to the present petitioners not only in excess of the permissible admission capacity but also beyond the last date prescribed for admission to the course even with penal fee, that is, 15.10.1995.
15. The University Ordinance has made some more provisions to have an effective check on excess admissions. These clauses read thus:-
“Clause 7 – No college shall make any excess admissions to any course, branch or combination, over and above the sanctioned intake for the academic year.
Clause 8 – No college shall make admissions under any circumstances for any course, without a sanctioned intake approved by the University.
Clause 9 – The Principals of Engineering, Medical and other Professional colleges shall send a list of students admitted to various courses in the college to the University in the proforma prescribed by the University (in duplicate) not later than one week from the last date prescribed for admissions by the University.
Clause 10 – The inspection team from the University Office shall visit the Engineering, Medical and other Professional colleges immediately after the last date for admissions and made a check of admissions made by the Principals and close the admission registers maintained by the colleges for that academic year.
Clause 11 – The inspection team shall inform the excess admissions made if any, to the Principal in writing after checking the admission registers in the college to enable him to limit the admissions only to the sanctioned intake and send a compliance report to the University within seven working days.
Clause 12 – In cases of failure to comply with the above directions, the University will notify the Principal of the College concerned and also publish in the leading newspapers deleting excess/ irregular admissions, if any, in the list of the students admitted to the course/branch supplied to the University by the Principal.”
16. As per Clause (9) of the University Ordinance read with calendar of event sent out above, the respondent Principal of the college was required to submit the list of students admitted by him in the college within seven days from the last date of admission, that is, 15.10.1995, but as it has come on record through the affidavit of the Assistant Registrar of the University (Academic), the same was received in the University only on 28.6.1996 and that to through the Director of Medical Education showing 18 excess admissions. Accordingly, under letter dated 28.8.1996, the respondent Principal was immediately informed that such excess admissions cannot be approved. It has also been stated through another affidavit filed by the Registrar of the University himself that the respondent Principal of the college, by keeping the University in dark as Superintendent of Examination in respect of the Center of Examination, illegally permitted the petitioners to sit at the examination. The relevant statement made on oath by the Registrar in this regard is quoted hereunder:-
“In the instant case only 40 Admission Tickets had been issued for the academic year 1995-96 for 1st B.D.S. and the Admission Tickets of the Petitioners herein have not been issued, since their admission had not been approved on the grounds of excess admission and the admission Tickets are still with the University. The 5th respondent College has taken the liberty of admitting the Writ Petitioners without the Hall Tickets to the Theory Examination of 1995-96.”
17. After so stating, it has further been revealed that because of the said lapses, the Chief Superintendent of the Examination of the college has been relieved of all examination work forth with under communication dated 17.9.1996 (Annexure ‘R7’). It has also been stated on behalf of the University that in the order of the State Government dated 20.12.1995 and the order dated 2.2.1996 of the University, it was made clear that the recommended increase in the admission capacity from 40 to 100 will be effective only on obtaining of the approval of the. Dental Council of India and the Government of India. It has also been admitted that both the University as well as the State Government had the knowledge of incorporation of Sections 10A, 10B and 10C to the Dentists Act. Shri A.L Miglani, Secretary to the Dental Council of India, has sworn the statement of objection on behalf of the Council. He has stated that he had received an application submitted by the college to the Central Government for increase in seat from 40 to 60 from the Central Government on 20.3.1996. Then an inspection team was appointed to visit the college which conducted the inspection on 10th and 11th April, 1996. Since, as per the report, there were several defects. The college was required to remove the same. On receiving compliance, the Council again appointed an inspection team to visit the college. Accordingly, the second inspection was conduced on 2nd and 3rd of July, 1996. This team recommended for increase of admission capacity from 40 to 100. The Executive Committee thereafter in its meeting held on 11th and 12th July, 1996 recommended the Central Government for increase of the intake from 40 to 100 for- the year 1995-96. It has been stated that it was purely recommendation and was yet to be approved by the Central Government.
18. It is rather astounding to! notice that though, as per the University calendar of events for BDS Course for 1995-96, the last date of admission even with penal fee had expired on 15.10.1995 and though even the first term of the course ended on 15.2.1996, but still the University issued notification dated 32.2.1996 sanctioning increase of intake from 40 to 100 to the first year BDS Course of the respondent college for the academic year 1995-96 though with a caution of subjecting the same to the approval of the DCI and the Government of India. Similarly, a similar resolution as noticed above, is purported to have been passed by the Executive Committee of the DCI and communicated to the college under a letter dated 12.7.1996 though by that time the academic year 1995-96 itself was already over. Further, under Section 10A, a scheme for increase in the admission capacity was to be considered for recommendation to the State Government by the Dental Council of India as constituted under Section 3 of the Dentists Act and not by the Executive Committee constituted under Section 9 of the said Act, but the records placed before this Court shows that the recommendation were made to the Central Government at the instance of the Executive Committee. It is further of importance that under the provisions of the Dentists Act the Secretary of the Council was not required to communicate the copy of the recommendations to the college concerned as has been done in the present case. An answer is still to be found out as to why and with what purpose the statutory authorities had acted in the manner aforesaid.
19. Keeping in view the said factual aspects read with the provisions of Section 10A of the Dentists Act, though I had refused to grant any interim relief to the petitioners as claimed by them by passing a detailed order dated 4.9.1996, but the petitioners went in appeal before the division bench by filing Writ Appeal no.8223-8235 of 1996 and on the basis of an interim order dated18.9.1996 continued with their studies at their own risk and responsibility. The interim order reads thus:-
“In the meanwhile, it is directed that the appellants shall be permitted to appear in the practical and viva-voce examination commencing with effect from 18.9.1996 at their own risk and responsibility, however subject to the result of these Writ Appeals.
Pendency of these appeals will not however prevent the learned Single Judge from deciding the Writ Petitions on merits.”
20. Notwithstanding the aspects contained in the foregoing paragraphs, now it has emerged as an admitted fact that the petitioners had been admitted to the BDS Course in the Oxford Dental College, Bangalore in excess of the admission capacity fixed and approved by the Central Government for the academic year 1995-96 pursuant to mandatory provisions under Section 10A of the Dentists Act.
21. The question is whether this Court can direct the respondent University to approve the said excess admissions and exercise its Writ jurisdiction under Article 226 of the Constitution of India.
22. Section 10A(1)(b)(ii) and Section 10B(3) of the Dentists Act are material for the present purpose which reads as under:-
“10A. Permission for establishment of new dental college, new courses of study etc. – (1) Notwithstanding anything contained in this Act or any other law for the time in being in force,
(a)……
(b) no authority or institution conducting a course of study or training (including a post-graduate course of study or training) for grant of recognised dental qualifications shall-
(i) ………….
(ii) increase its admission capacity in any course of study or training (including a post-graduate 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(3) – Where any authority or institution granting recognised dental qualifications increases its admission capacity in any course of study or training (including a post-graduate course of study or training) 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 authority or institution on the basis of the increase in its admission capacity shall be a recognised dental qualification for the purposes of the Act.”
23. By taking into account the aforesaid provisions, the Supreme Court, in the case of State of U.P. v. PRAVEEN KUMAR, AIR 1995 SC 220, has held that:-
“The statutory provision which is relevant at this stage is Section 10A(A) which came to be introduced in Dentist Act, 1948 under Dentist Ordinance, 1993. That Section imposes a complete embargo that no institution could increase its capacity in any course of study and training except with the previous mission of the Central Government.”
24. In the case of STATE OF PUNJAB v. RENUKA SINGLA , the Supreme Court, when faced with the problem of admission in excess of the approved admission capacity to BDS Course was pleased to hold that:-
“The admission in Medical Course throughout India is governed by different statutory provisions including regulations framed under different Acts. During last several years efforts have been made to regulate the admissions to the different medical institutions in order to achieve academic excellence. But, at the same time, a counter attempt is also apparent and discernible, by which the candidates, who are not able to get admissions against the seats fixed by different statutory authorities, file writ applications and interim or final directions are given to admit such petitioners. We fail to understand how the High Court or this Court can be generous or liberal in issuing such directions which in substance amount to directing the authorities concerned to violate their own statutory rules and regulations, in respect of admission of students. It cannot be disposed that technical education, including medical education, requires infra-structure to cope with the requirement of giving proper education to the students, who are admitted. Taking in to consideration the infra-structure, equipment, staff the limit of the number of admissions fixed is either by the Medical Council of India or Dental Council of India. The High Court cannot disturb the balance between the capacity of the institution and number of admissions, on “compassionate grounds”. The High Court should be conscious of the fact that in this process they are affecting the education of the students who have already been admitted, against the fixed seats, after a very tough competitive examination. According to us, there does not appear, to be any justification on the part of the High Court, in the present case, to direct admission of respondent No. 1 on “compassionate grounds” and to issue a fiat to create an additional seat which amounts to a direction to violate Section 10A and 10B(3) of the Dentists Act referred to above.
25. Again very recently, the Supreme Court has once again held out a mark of caution coached in rather a some what strong language, against the exercise of writ jurisdiction by the High Courts in educational matters in the case of DENTAL COUNCIL OF INDIA v. HARPREET KAUR BAL, . In para 4 of the judgment it has been held that:-
“There are many pronouncements of this Court cautioning against exercise of jurisdiction characterised more by benevolence than on settled legal principles. A relief must be such as could be considered permissible in law and worked out by the application of legally recognised principles. The decision must have legitimacy of legal reasoning and should not incur the criticism of lacking objectivity of purpose and rational and legal justification. Where an educational institution embarks upon granting admissions without the requisite affiliation and recognition and the students join the institution with their eyes wide open as to the lack of legitimacy in the admission, it would be preposterous to direct the University to hold examinations for the benefit of such students. We cannot sufficiently deplore this attitude and approach. The High Court has, by its order, simply bolstered the hopes and aspirations of these students without any means of gratifying these expectation a manner known to law…,”
26. For the said reasons, in my opinion, that this Court has no jurisdiction under Article 226 of the Constitution of India to regularise the admissions granted to the petitioners in contravention of Section 10A of the Dentists Act and/or to direct the University to do so thereby directing the statutory authorities to disobey their own laws and to affect the educational standards.
27. I may further notice here that in the case of RC. Dental College, Bangalore, the Supreme Court, under its order dated 28.4.1995 passed on I.A.no.24 in W.R(C) no. 317/93, while refusing to permit the regularisation of 70 students admitted in excess of permitted admission capacity of 40 for the academic year 1993-94, further directed for a COD investigation but subsequently having realised the involvement of various high ups in the matter, by order dated 28.9.1995, entrusted the investigation to the Central Bureau of Investigation and follow up action, which has ultimately led into filing of charge-sheets. In my opinion, a similar course needs to be adopted in the present case as well. Accordingly, I direct the Central Bureau of Investigation to take up the investigation in the present case, as well in the line it has done in the case of RC. Dental College and take appropriate action in accordance with law. The CBI is further directed to submit its progress report about the stage and progress of the investigation within three months from today.
28. Subject to the said observations and directions, the Writ Petitions are dismissed being devoid of any merits. There will no order as to costs.