JUDGMENT
Gita Mittal, J.
1. This writ petition has been filed by the petitioner aggrieved by an order issued by the Government of India dated 10/23rd August, 2001 peremptorily ordering the petitioner to stop making admission to the Dr. S.M. Naqui Imam Dental College to the BDS Course for the academic sessions 2001-2002. Inasmuch as there is no dispute to the relevant facts and to the extent necessary of the purposes of the present case, the same are briefly set out hereafter.
2. Rauf Muslim Jamia is stated to be a society registered under the Societies Registration Act, 1860 which was established with an object to establish institutions for imparting education for the welfare of the minorities. This society set up the Dr. S.M. Naqui Imam Dental College, the petitioner (herein referred to as the ‘college’) for imparting education in dental sciences in the year 1989. The college was located in District Darbhanga in the State of Bihar.
3. The profession of dentistry and dental education is governed by the provisions of the Dentists Act, 1948. In these circumstances, upon establishment of the college, information was given by it to the Dental Council of India, the Bihar state government and the L.N.Mithila University seeking affiliation. Vide a letter bearing no. 6338 dated 1st March, 1989, the Dental Council of India directed the college to obtain a no objection certificate from the state government and affiliation from the concerned university. After the inspection conducted by the Vice Chancellor of the L.N. Mithila University on 10th June, 1990, the college was granted a no objection certificate for affiliation by a letter dated 12th June, 1990.
4. It is essential to notice that the petitioner has contended that its college was established in 1989. No proper action was taken by the authorities and that the process of admission started immediately thereupon.
5. It appears that the Department of Health of the Bihar State Government, by a letter dated 31st May, 1991 made a request to the Dental Council of India to inspect the petitioner’s college. As no action was taken, a reminder in this behalf was sent on 13th January, 1993. The Dental Council of India did not heed either the request of the state government or of the college.
6. Upon the incorporation of Section 10A by amendment to the Dentists Act, 1948 with effect from 25th August, 1992, the petitioner filed CWJC 9490/1992 based on the contention that Section 10A and Section 10C do not apply to the dental courses conducted by the petitioner. On this contention, the petitioner sought an inspection to be conducted by the Dental Council of India. This writ petition was dismissed by the High Court of Judicature at Patna vide a judgment dated 14th September, 1993 holding that Section 10A and C as amended and incorporated with effect from 25th August, 1992 would be applicable in the case of the petitioner.
7. The petitioner assailed the judgment of the High Court before the Supreme Court by way of SLP No. 20394-20396/1994 and was granted special leave to appeal. Its appeals before the Supreme Court were registered as CA 8098 and 8100/1994.
8. In the meantime, the university, inspected the college on 3rd November, 1995 and a report was submitted by the inspectors to its Vice Chancellor. The L.N. Mithila University apparently also gave affiliation to the college vide a communication dated 2nd December, 1995 which was in the following terms :-
To,
The Secretary,
Dr. S.M. Naqui Imam Dental College and Hospital,
Bahera, Distt. Darbhanga.
Sub: Grant of Permanent Affiliation to Muslim Minority Institution-Dr. S.M. Naqui Imam Dental College and Hospital, Bahera in B.D.S. Course from the session 1989-90.
Sir,
With reference to your letter no. 54/S-DC/95 dated 11.10.95 on the subject noticed above, I am directed to inform you that in pursuance of the order of the Hon’ble High Court Civil Review No. 42 of 1994 Arising out of judgment and order dt. 28.2.94 passed in C.W.J.C.No. 5824/93, dated 19.4.94 the Vice-Chancellor has been pleased to grant permanent affiliation to Muslim Minority Institution namely-Dr. S.M. Naqui Imam Dental College and Hospital, Bahera (Darbhanga) in B.D.S. Course from the session 1989-90 as per terms and condition laid down by the Dental Council of India from time to time. It will be open for the University to inspect your college from time to time to ensure that the requisite standard and facilities are being maintained there. You are directed to deposit the requisite Reserve Fund of your college to the University office within two months from the date of issue of this letter. Mr. Sandeep Sethi, learned senior counsel for the petitioner has contended that it is only upon full satisfaction and compliance of all formalities that the affiliation was granted by the university on 2nd December, 1995.
9. In SLP No. 20394 and 20396/1994 (wherein order dated 14th September, 1993 was assailed), the Apex Court vide orders passed on 20th February, 1995 directing the Dental Council of India to hold an inspection and make available the report before the court. In compliance with the orders, such an inspection was conducted by the team of inspectors of the Dental Council of India on 13th April, 1995 and 14th April, 1995 and a report was submitted by them to the Dental Council of India on 17th April, 1995. This inspection report of the inspectors was brought to the notice of the Apex Court at the time of hearing in SLP Nos. 20394 and 20396/1994(CA Nos. 8098 and 8100/1994). Without making any comment thereupon, the Apex Court in its order dated 10th July, 1995 observed that the first three batches of students could not join the third year classes resulting in stagnation at the second year level because the result of the first year BDS Examination of the students of the petitioner college had not yet been declared. The Apex Court directed the publication of the result of these students and permitted them to pursue further studies. Pursuant to the orders dated 10th July, 1995 passed by the Apex Court, the students of the college who were admitted in the sessions 1989-90, 1990-91, 1991-92 were allowed to appear in the examination.
10. Based on the aforesaid inspection report dated 13/14th April, 1995, of its inspectors, the Dental Council of India also granted permission to run the college with 60 students intake capacity from the year 1989-90 subject to rectification by the general body of the Dental Council of India. This communication dated 9th of August, 1996 from the Dental Council of India deserves to be considered in extenso :-
To,
The Secretary,
Dr. S.M.Naqui Imam Dental College and Hospital,
Bahera-847201(Bihar).
Sub: Request for the Council’s permission to run the DDS Course at Dr. S.M.Naqui Imam Dental College and Hospital, Bahara- Consideration of — Dated the 9th August, 1996
Sir,
The General Body of the Dental Council of India at its meeting held on 15th and 16th May, 1996 at New Delhi considered letter No. 0786/VC/95 dated 16.11.95 from the Vice-Chairman, Dr. S.M.Naqui Imam Dental College and Hospital, Bahera requesting the Council to consider the said college out of purview of the Dentists(Amendment) Act, 1993 and to grant its permission to run the BDS Course at the said College and Along with the recommendation of the Executive Committee (Dec., 1995) and after some discussion decided as under :-
College was inspected as per the direction of the Supreme Court Order dt. 20.2.95 in Special Leave Appeal(Civil) No. 20394-96 of 1994 and granted permission and directed to obtain Affiliation from the concerned University at General Body meeting held on 6th and 8th November, 1995. Since said College, Dr. S.M. Naqui Imam Dental College and Hospital (Muslim Minority ), Bahera has obtained permanent affiliation with L.N. Mithila University and BDS Examination are being conducted, permission to run BDS Course with 60 admission from the Academic year 1989-90 is granted.
Yours faithfully,
-Sd/-
(A.L. Miglani)
Secretary Dental Council of India
11. The petitioner therefore, contends that as it had complied with the directions of the Dental Council of India as were made to it in the general body meeting held on 6th and 8th November, 1995 to obtain the affiliation from the L.N. Mithila University, it made a representation to the Dental Council of India seeking approval of its course and permission to run the BDS course. The request of the petitioner was considered by the general body of the Dental Council of India on 9th August, 1996. The permission was recorded by the Dental Council of India vide its letter dated 9th August, 1996, it is stated, only because the petitioner fulfillled all legal requirements.
12. The Dental Council of India even thereafter caused inspection of the college to be conducted in respect of the infrastructure and the courses of the college. Such inspection was conducted on 22nd April, 2000. An inspection report confirming the adequacy of the infrastructure and compliance of all requirements in terms of building space, teaching staff etc were submitted by the inspectors to the Dental Council of India, respondent no. 4 herein. A joint inspection report dated 22nd April, 2000 was considered by the Dental Council of India in its 100th meeting held on 24th and 25th April, 2000. The recommendations of the Dental Council in this behalf was in the following terms :-
33(34) Joint Inspection Report of the Council’s Inspectors (i) Dr. Kanda Swamy, Chennai and (ii) Dr. Nand Kumar, Trivendrum to ascertain the physical facilities such as building space, teaching staff and other infrastructure facilities available at Dr. S.M. Naqui Imam Dental College 7 Hospital, Behara – Consideration of —
That the Joint Inspection Report may be accepted. The Council may recommend to the Central Government to recognise the BDS degree of L.N.Mithia University, Darbhanga in respect of BDS students of Dr. S.M. Naqui Imam Dental College and Hospital, Behara with 60 admissions if granted on or after 2.12.1997. The Council may authorise the President of the Council to forward the above recommendation to the Central Government after receiving the report of the representatives who were deputed by the L.N.Mithila University as well as Govt. of Bihar on the request of the Council. The under-lined portion is modified by the Council. The Council also decided to cancel the DCI letter No. DE-3(93)-99/7917 dated 24.2.2000 in which the Council’s Inspectors
(1) Dr. K. Jyotindru Kumar, Trivendrum and
(2) Dr. Dhirendra Srivastava, New Delhi have been appointed to verify the compliance report since the Council’s inspectors
(i) Dr. Kanda Swamy, chennai and
(ii) Dr. Nand Kumar, Trivandrum have inspected the said college for the same purpose.
13. Upon the acceptance of the inspection report, the Dental Council of India decided to make necessary recommendations to the Central Government to recognise the BDS Degree of the L.N.Mithila University in respect of the course conducted by the petitioner with 60 intake capacity and the president of the council was authorised to forward the recommendations to the central government.
14. Around this time, it appears that the Dental Council of India was also conducting inspections of the facilities which ought to have been made available in other dental colleges in the state of Bihar. A decision in this behalf was taken by the general body of the Dental Council of India in its meeting held on 19th and 20th February, 1999. The petitioner was inspected pursuant to action proposed in this meeting on 22nd April, 2000. As five other colleges did not agree for inspection, admission to their colleges were stopped by the Dental Council of India vide a letter dated 17th May, 2000. These included the Patna Dental College and Hospital, Budha Institute of Dental Sciences, Dr. B.R. Ambedkar Institute of Dental Sciences and Hospital, Darbhanga Dental College and the Mithila Minority Dental College and Hospital. This communication has been relied upon by the petitioner in support of its contention that it satisfied all the requirements stipulated by law and by the authorities in respect of running of dental courses, and that, for this reason there was no direction to it to stop admissions.
15. The central government was concerned with the compliance with the guidelines given by the Supreme Court in the Unnikrishnan, J.P. and Ors. v. State of Andhra Pradesh and Ors. and Unnikrishnan P.J. and Ors. v. State of A.P. and Ors . The Director, Department of Health of the central government issued an order on 30th October, 2000 directing adoption of the admission process in terms of the guidelines given by the Apex Court. A reminder in this behalf was issued on 5th February, 2001.
16. The central government also required the Dental Council of India to stipulate that the dental colleges should be required to rectify all deficiencies identified by the Dental Council of India by 30th April, 2001 failing which derecognition process can be initiated for all dental colleges.
17. In the meantime, for the purposes of effecting admissions, the dental colleges were required to ensure that admissions were as per the Supreme Court guidelines with reference to allocation of seats in the free NRI/payment quotas. So far as Patna Dental College was concerned, a request was made to the DGHS that before allocation of seats to this college on the basis of the 15% all India quota for the CBSE examination, the status of the college for making admissions was required to be ascertained from the government. A reminder in this behalf was issued by the Government of India on 5th February, 2001 to the Dental Council of India. It is pointed out that the reference to seven colleges in the letters dated 30th October, 2000 and 5th February, 2001 of the Government of India was on an erroneous assumption inasmuch as the Dental Council of India had stipulated only five colleges in Bihar in its communication dated 17th May, 2000. The petitioner was not one of the colleges in respect of whom any deficiencies had been earlier pointed out.
18. However despite much water having flown, it appears that the decision arrived at by the Council earlier was reconsidered by the Dental Council of India in its meeting held on 5th and 6th March, 2001 which apparently was based on the government of India communication dated 30th October, 2000. In this meeting, the Executive Committee made a reference to alleged deficiencies and levelled an allegation to the effect that the petitioner’s authorities had mislead the Council and furnished wrong information about the teaching staff of the college.
19. In this meeting held on 5th and 6th March, 2001, the council upon reconsideration of the decision arrived at in respect of the petitioner college, decided as under :-
Since the college authority has been given reasonable opportunities to fulfilll the deficiencies whereas the college authority has not made good the above mentioned deficiencies and has not furnished the Compliance Report for the same inspite of repeated reminders issued by the Council. The Council desired that last and final opportunity may be given to the College authority to furnish the Compliance Report on the above deficiencies pointed out by the Council and required information/documents on the following points and date of inspection to be conducted by the Council’s Inspectors before 30/4/2001 failing which the admission in BDS Course at the said college shall be stopped.
1. All the relevant information and documents in relation to salary statement of entire staff of the years of which they are claiming their employment.
2. The present and permanent residential address of all the teaching staff of the said college.
3. Whether the college authority have adopted the admission procedure as streamlined by the Hon’ble Supreme Court of India in Unnikrishnan J.P. v. State of Andhra Pradesh and Review Petitions.
4. List of students admitted for BDS Course during the academic session commencing in year 18889-90 till the year. Interestingly, there was no reference even to the communication dated 9th August, 1996 whereby the Dental Council of India had given permission to the petitioner to run the BDS course with effect from 1989-90 with the 60 students intake.
20. Adverting to these deficiencies, the petitioner has pointed out that one of the deficiencies in the letter dated 29th March, 2001 related to the present and permanent residential address of the teaching staff. It appears that vide a letter dated 3rd February, 2001 the petitioner had informed the respondents about the status and address of all the teachers. It was also pointed out that these particulars stood duly verified by the Dental Council of India from the SDO of the area area vide its letter dated 28th December, 1999. The certificate of the SDO dated 5th January, 2000 in this behalf was available with the council. In this communication, it was also pointed out that all necessary information with regard to the salary of the entire staff which was a recurring expenditure was mentioned in the joint inspection report. All the figures were duly verified by the inspectors of the Dental Council of India with effect from the date of appointment of the employees and staff of the petitioner.
21. So far as the names of the students who were admitted in 1989 is concerned, it was pointed out that these students had approached the Supreme Court of India seeking permission to pursue the academic course and orders dated 15th February, 2001 were passed in favor of three students and for the remaining students of the batches on 18th September, 2001.
22. Since the respondents acted upon the orders passed by the Apex court, according to the petitioner, the entire information with regard to the particulars of the faculty and students was available with the respondents and the objections raised by the Dental Council of India and in its letter dated 29th March, 2001, were without any factual basis.
23. In the meantime, it appears that an order dated 27th April, 2001 was passed by the Lalit Narayan Mithila University to the effect that while granting affiliation to the petitioner the procedure laid down in Section 4c(xix) read with Section 2d of the Bihar State Universities Act, 1976 and the related statutes was not followed and therefore the letter dated 2nd December, 1995 communicating the affiliation and the order to this effect were void abinitio.
24. The petitioner assailed this order by way of a writ petition before the Patna High Court which was registered as CWJC 6388/2001. This writ petition was dismissed by an order dated 25th June, 2002 which order was assailed before the Apex Court by way of SLP(Civil) No. 12282/2002. Leave to appeal was granted by the Apex Court and also the operation of the judgment and order dated 25th June, 2002 of the High Court of Judicature at Patna in CWJC No. 6388/2001 and the order dated 27th April, 2001 was stayed by the Apex Court by its order dated 22nd July, 2002. It is stated that this matter is pending even on date before the Apex Court.
25. The petitioner has contended that the consequence of this interim stay would therefore be that the affiliation to the university which was granted, would stand restored.
26. Upon passing of the order by the Apex Court, the L.N.Mithila University permitted completion of the incomplete examinations of the students which was proceeded by the declaration of their results. A notification dated 25th July, 2003 was issued by the University which was in the following terms :-
NOTIFICATION
In pursuance of the interim order dated 22/07/2002 of the Hon’ble Supreme Court in the case of Dr. S.M. Naqui Imam Dental College and Hospital, Bahera, Distt. Darbhanga being S.L.P.(C) No. 12282 of 2002 and in pursuance to the diretion of the Hon’ble Chancellor as communicated vide memo no. -LNMU-35/2001- 1442/GS(I) dated 10/07/2003, it is hereby notified that the operation of the notification of the L.N.Mithila University under memo no. VCS-86-104/01 dated 27/04/2001 declaring the affiliation granted to the said college as void ab initio has been stayed during pendency of the appeal before the Hon’ble Supreme Court.
In pursuance of the aforesaid order the incomplete examinations have been completed and their results have been declared. Due examinations are in progress and publication of result is in process. It is further notified that on the recommendations of the Dental Council of India, the Ministry of Health and Family Welfare (P.M.S. Section), Govt. Of India vide F.No. V 12025/16/2000 PMS dated 10th/23rd August, 2001 has restrained from taking any admission in B.D.S. Course of the College from academic session 2001-2002 until further advice from this Ministry.
27. The petitioner points out that despite these facts, in the meantime, the government of India issued a communication dated 10th and 23rd August, 2001 to the petitioner and three other dental colleges in District Darbhanga, Bihar which was in the following terms :-
To:
1. The Principal,
2. Dr. S.M.Naqui Imam Darbhanga Dental College,
Dental College and Khan Deorhi, Hospital Faizullah Khan,
BEHERA-847201 DARBHANGA, (Bihar) (Bihar)
3. The Principal,
4. Principal, Sarjug Dental College, Mithila Minority Dental Hospital Road, College and Hospital, Laheria Surai, Samastipur Road, DARBHANGA MansukhNagar(Edmighat) (Bihar). Loheriasarai, DARBHANGA (Bihar).
Subject: Stopping of admissions in BDS course of Dental Colleges located in Bihar.
Sir,
The Dental Council of India have recommended for stopping admission for the BDS course in your dental college from the academic session 2001-2002 on account of certain deficiencies. Further, Lalit Narayan Mithila University, Darbhanga, Bihar, to which your dental college is affiliated, have withdrawn their affiliation with retrospective effect.
2. The above position was considered in the Ministry and it has been decided to advise you to stop admission in your dental college for BDS course from the academic session 2001-2002 until further advice from this Ministry. Any violation of this direction will be viewed seriously. This communication has been impugned by the petitioner before this court by way of the present writ petition. It is contended that the ground for stoppage of the admissions in the petitioner’s college was withdrawal of the petitioner’s affiliation. It is submitted that in view of the order dated 25th June, 2002 in SLP No. 6822/2002 staying the operation and effect of the order dated 27th April, 2001, the affiliation of the petitioner stood restored. It has been contended that there are no deficiencies in the facilities provided by the petitioner and for this reason, it deserves to be permitted to effect admissions in its college. It has further been contended that nothing further was communicated in this order of the government of India and that the ground to the effect of want of no objection certificate under Section 10A of the amended Act cannot be read into the order. Reliance has been placed on the pronouncement of the Apex Court in Mohinder Singh Gill v. Chief Election Commissioner and Chander Singh v. State of Rajasthan to contend that the order cannot be supported by reasons which have not been stated in the order and are only brought out in the counter affidavit.
28. By way of the present writ petition the petitioner has sought the following prayers :-
i) A writ, order and/or direction in the nature of certiorari be issued and be pleased to quash the order dated 10/23rd August , 2001 (Annexure P11) issued under the signature of director (H.E.), Department of Health (P.M.S. Section), Ministry of Health and Family Welfare, Government of India, whereby and whereunder an order issued to stop taking admission in the petitioner’s college/institution for B.D.S. Course from the academic sessions 2001-2002 until further order and any violation of the direction/order be viewed seriously.
ii) Issue rule nisi calling upon the respondents to show cause as to why the relief/reliefs prayed for the above may not be granted and after such cause may be shown and after hearing the cousel for the parties make the rule absolute; and or
iii) pass such other order/or orders as your lordships may deem fit and proper in the circumstances of the case.
29. The respondents have vehemently opposed grant of this writ petition on the ground that the petitioner has not satisfied any of the requirements of the Dentists Act, 1948. It has been vehemently urged that the issue relating to affiliation of the college of the petitioner with the University is pending before the High Court of Judicature at Patna while the requirements of the petitioner to abide by the provisions of Section 10A of the Dentists Act, 1948 is pending before the Apex Court. In these circumstances, the petitioner cannot possibly be held to be an institution which has satisfied the requirements of law and as such cannot be permitted to effect admissions. Appearing for the Dental Council of India, Mr. Maninder Singh, learned counsel has urged that the amended provisions have been incorporated in the statute after a careful consideration of the plight of hundred of students who are admitted in the private professional institutions which are unable to maintain academic standards. As a result midway through the courses, the institutions closed down putting into jeopardy professional careers of hundred of students. As these institutions were earlier not required to seek any certification from the state government, there was no authority which was willing to take responsibility for these students when the institutions where they were admitted closed down. It was to prevent such a situation that Section 10A of the Dentists Act was incorporated. Therefore, the petitioner cannot be permitted to commence or continue any course without obtaining the requisite no objection certificate from the state government in compliance with the statutory provision. Learned counsel has contended that in view of the statutory provision, no admissions can be effected till such time that the course of the petitioner and the degree awarded by it is recognised by the competent authority under the statute. The recognised qualification has to be incorporated in the schedule to the statute. According to learned counsel for the Dental Council of India, the degree of B.D.S. granted by the L.N. Mithila University is not a recognised qualification under the Dentists Act and the petitioner is not a recognised institute and for this reason as well no admissions can be permitted to be effected by the college. Strong reliance has been placed on the refusal of the Supreme Court to grant the application filed by the petitioner for recognition of its course. It is contended that the order dated 18th September, 2001 passed by the Apex Court was restricted to the students who had been admitted up to the year 1992. For this reason, it is submitted, no relief can be given to the petitioner in the instant case. The court had directed limited relief and granted recognition only limited to the students who had pursued the course under orders of the court. All these batches finished by 1997 and it is pointed out that the recognition has worked itself out.
30. The Dental Council of India has also objected to grant of relief to the petitioner for the reason that the issue of recognition of the course and institution has been considered at the highest level. It is pointed out that meetings were taken in the ministry which were attended by representatives of all concerned including the Dental Council of India, the representatives of the University, state government and all the dental colleges. It has been pointed out that in the meeting dated 27th December, 2002, the state government had stated that it had not granted any permission to start any of the private dental colleges in the state of Bihar and hence it had no role in allocating students to these colleges. The said representative had requested that no new admissions should be allowed in the dental colleges and that wide publicity should be given to the prohibitory orders passed by the Government of India. Despite further meetings held even on 23rd August, 2003, it is contended that the position remains the same. It is pointed out that the Dental Council of India had agreed that it would undertake inspection of dental colleges which fulfillled its norms in terms of position of the no objection certificates from the state governments and the university affiliation certificates apart from the infrastructure and facilities etc. According to learned counsel, the government had jurisdiction to issue prohibitory orders and stop admissions in view of the applicable regulations.
31. Having heard learned counsel for the parties, it is evident that three steps are necessary to be completed in order to run a dental college. These include (i) affiliation by the university; (ii) recognition of the course and the institution by the government of India and (iii) no objection certificate from the concerned government.
32. Civil Appeal No. 8098/8100/1995 is still pending before the Apex Court which arose out of the orders passed by the High Court of Patna on 14th September, 1993 and 13th September, 1994 on the question as to whether the Dentists Act as amended in 1993 was applicable to the petitioner or not and whether the appellant is a minority institution. In these appeals, on 10th July, 1995, the Apex Court had made an order to the effect that without prejudice to the contentions that may be raised at the time of hearing, the result of the students from the college who had appeared in the BDS first year examination held by the L.N.Mithila University in the year 1992 should be published forthwith and after declaration of the results, the eligible students should be permitted to pursue their further studies including taking part in the next higher examination under the rules. These students had completed their studies and passed out of the college had obtained their degrees from the L.N. Mithila University. However the degree obtained by these students were not being recognised by the government of India on the ground that the college was not recognised. The Apex Court took notice of the fact that inspections have been held of the college in year 1997, 1999, 2000 and on 23rd April, 2000 by the Dental Council of India and that the Dental Council of India had made a recommendation to the government of India to accept the inspector’s report and accord recognition to the college. It was because a review was sought of the resolution in the meeting held on 16th and 17th July, 2000 that the matter had remained pending. In these circumstances, having regard to the fact that the students had pursued the course pursuant to the orders made by the court and that even the Dental Council of India had contemplated grant of recognition to the petitioner, vide an order passed on 15th February , 2001, the court directed that so far as these three students were concerned, the degree conferred on them should be recognised and appropriate action should be taken by the Dental Council of India in this behalf. The order dated 15th February, 2001 was in the following terms :- These appeals arise out of orders made by the High Court of Patna on 14.9.1993 and 13.9.1994 on the question whether the Dentists Act, as amended in 1993, is applicable to the appellant institution or not and whether the appellant is a minority institution. However in these proceedings, with which we are concerned at present, we are not concerned with the larger questions. In these appeals, on 10.7.1996 this Court made an order to the effect that without prejudice to the contentions that may be raised at the time of hearing, issued a direction that the result of the students from the college who had appeared in the B.D.S. First year examination held by L.N.Mithila University, Darbhanga in the year 1992 should be published forthwith and after declaration of the results, the eligible students should be permitted to pursue their further studies including taking part in the next higher examination under Rules. Thereafter three students, who are applicants before us completed their studies and passed out of the college. Although they have obtained their degree since the college has not been recognised by the Government of India under the Dentists Act, the college cannot be treated to be one which is recognised for the purpose of recognising the degrees obtained in such courses. The applicants, therefore, now sought for certain additional reliefs in these applications. It is brought to our notice that certain inspections have been held in the year 1997, 1999, 2000 and on 23.4. 2000 the Dental Council of India made a recommendation to accept the inspector’s report and accord recognition to the same. However, a review was sought of the resolution made in this matter in a meeting held on 16th and 17th July, 2000 on certain material placed before it. It is unnecessary to advert to this aspect of the matter in these proceedings. Applicants, in these cases, pursued their studies pursuant to the orders made by this court and even the Dental Council of India too contemplated to recognise this institute and for one reason or the other that recommendation could not be sent to the Government and the same has been withheld. If these students are left in limbo their entire career will be jeopardised for it is well nigh impossible to say when the final decision as to recognition of the college will be taken. So far as these students are concerned the degrees conferred upon them should be recognised and appropriate action should be taken by the Dental Council of India to do so. Let such action be taken by the Dental Council of India within a period of one month from today. I.As. Are disposed of accordingly.
Sd/- Sd/-
(Meen Sethi) (S. Malkani)
Court Master Court Master
33. The Dental Council of India was opposing the recognition of the degrees given to the students and had filed a review petition dated 8th May, 2001. The principal ground for review as raised in the petition was that only such dental qualifications can be recognised which have been granted by the college recognised by the Central Government based upon the recommendations of the Dental Council of India. According to the Dental Council of India, the direction of the Apex Court to the council to recognise the dental qualifications granted by the college when the college itself had not been recognised would not be in conformity with the provisions of the Dentists Act, 1948. This review petition was rejected by the Apex Court by an order dated 31st July, 2001.
34. It has been stated on record that so far as the degrees obtained by the students pursuant to the orders of the Apex Court is concerned, the same were duly recognised and notifications in this behalf were issued by the authorities.
35. Strong reliance has been placed by the petitioner on the letter dated 9th August, 1996 whereby the Dental Council of India had granted approval to the petitioner to the BDS course from 1989-90 with the intake capacity of 60 students. According to the petitioner, there was no objection and no deficiencies so far as the availability of infrastructure facilities and staff was concerned and that for this reason, the Dental Council of India had given permission to the petitioner to commence the BDS course. Inspection of the petitioner’s institution was duly conducted in April, 2000 by the experts appointed by the Dental Council of India in the presence of observers of the L.N. Mithila University who recommended the recognition of the petitioner and did not point out any deficiency. The inspection report was accepted by the Executive Committee of the Dental Council of India which recommended that the recognition of the BDS qualification of the appellant college with 60 intake capacity be forwarded to the government of India. This recommendation of the Executive Committee was accepted and approved by the general body of the Dental Council of India in the meeting held on 24th and 25th April, 2000 and the recommendation was accordingly sent to the government of India.
36. It has been pointed out that it was thereafter that on a general observation made by the observers with regard to the absence of a representative of the state government in the inspection conducted in April, 2000 that the matter was reconsidered in a meeting held on 16 and 17th July, 2000. According to the petitioner, there was no material whatsoever and no deficiencies which remained in respect of the petitioner and nothing remained to be done by it in order to be entitled to the recognition of its course and the college by the government of India. Even the deficiencies which were pointed out by the Dental Council of India were duly satisfied by the petitioner.
37. At this stage, it becomes important to notice the orders of the Apex Court in the proceedings arising out of the petitioner’s challenge to the applicability of the amended provisions of Section 10A to 10C of the Dentists Act, 1948 to it. The High Court had rejected the petitioner’s writ petition in this behalf vide its judgment dated 10th September, 1993. This appeal of the petitioner before the apex court being CA 8098 and 8100/1994, it has been informed, got tagged with the bunch of petitions which were disposed of on 12th March, 2003 Along with T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors. . The civil appeal of the petitioner were disposed of by the Supreme Court vide an order passed on 12th March, 2003 with the direction to the High Court to re-examine the matters which had been decided and which were in appeal before the Apex Court. The order passed by the Apex Court on 12th March, 2003 reads thus :-
In Writ Petitions These matters are covered by the decision of a Constitution Bench of this Court in Writ Petition No. 317/1993- T.M.I. Pai Foundation and Ors. Etc.v. State of Karnataka and Ors. Etc. And connected batch decided on 31st October, 2002.
All statutory enactments, orders, schemes, regulations will have to be brought in conformity with the decision of the Constitution Bench of this court in T.M.A. Pai Foundation’s case decided on 31.10.2002. As and when any problem arises the same can be dealt with by an appropriate Forum in an appropriate proceeding.
The Writ Petitions are disposed of accordingly.
C.A. No. 2334/2002
The several questions raised in this matter are covered by the decision of a Constitution Bench of this Court in Writ Petition No. 317/1993 T.M.A. Pai Foundation and Ors. Etc. v. State of Karnataka and Ors. Etc. and connected batch decided on 31st October, 2002. Since larger questions have been decided by this Court, it becomes necessary for the High Courts to re-examine the matters which have been decided and which are in appeal before this Court. The orders of the High Court are, therefore, set aside without expressing any opinion on merits and the matter is remitted to the High Court for fresh consideration in accordance with law. Status quo shall continue unless the High Court so decides to modify the same by an appropriate application made to them by any of the parties. The parties are at liberty to file fresh pleadings, if any, within the period fixed by the High Courts. It is made clear that all statutory enactments, orders, schemes, regulations will have to be brought in conformity with the decision of the Constitution Bench of this court in T.M.A. Pai Foundation’s case decided on 31.10.2002. As and when any problem arises the same can be dealt with by an appropriate Forum in an appropriate proceeding. It is further directed that the parties can move the High Court for appropriate interim relief. The appeal is disposed of accordingly. In Rest of the Civil Appeals The several questions raised in these matters are covered by the decision of a Constitution Bench of this Court in Writ Petition No. 317/1993 T.M.A. Pai Foundation and Ors. Etc.v. State of Karnataka and Ors. Etc. And connected batch decided on 31st October, 2002. Since larger questions have been decided by this court, it becomes necessary for the High Courts to re-examine the matters which have been decided and which are in appeal before this Court. The orders of the High Court are, therefore, set aside without expressing any opinion on merits and the matters are remitted to the High Court for fresh consideration in accordance with law. Status quo shall continue unless the High Court so decides to modify the same by an appropriate application made to them by any of the parties. The parties are at liberty to file fresh pleadings, if any, within the period fixed by the High Courts. It is made clear that all statutory enactments, orders, schemes, regulations will have to be brought in conformity with the decision of the Constitution Bench of this court in T.M.A. Pai Foundation’s case decided on 31.10.2002. As and when any problem arises the same can be dealt with by an appropriate Forum in an appropriate proceeding. The appeals are disposed of accordingly.
Sd/- Sd/- [S. RJENDRA BABU] [G.P. MATHUR]
38. The order of the high court holding that Section 10A appllies to the petitioner was therefore set aside. Without any expression of opinion on the merits of the matter, the matter was remitted to the High Court for fresh consideration in accordance with the principles of law laid down by the court in TMA Pai’s case law. The Apex Court directed that status quo would continue unless the same was modified by the High Court by an appropriate application made by any of the parties.
39. This matter, it is stated, is still pending adjudication in the High Court of Judicature at Patna.
40. In the case of the petitioner, so far as affiliation by the University is concerned, the withdrawal thereof was impugned by the petitioner. The judgment of the Division Bench of the High Court has been reported at AIR 2002 Patna 143 Dr. S.M. Naqui Imam Dental College and Hospital v. L.N. Mithila University and Ors. The matter is pending before the Apex Court and the order withdrawing the affiliation stands stayed vide an order dated 22nd July, 2002. The petitioner was granted leave to appeal under Article 136 of the Constitution of India.
41. So far as the issue of the applicability of Section 10A of the Dental Council of India Act, 1942 is concerned, undoubtedly the petitioner was permitted to effect admissions by the Dental Council of India vide its letter dated 9th August, 1996 and it commenced to admit students from 1989. A recommendation was even made by the Dental Council of India to the central government to grant recognition to the petitioner prior to Section 10A being incorporated on the statute book. The respondents have urged that the petitioner had first filed Writ Petition(Civil) No. 9490/1992 to the effect that Section 10A and Section 10C does not apply which was rejected. This writ petition is still pending final adjudication before the High Court of Judicature at Patna. It is noteworthy that the petitioner also filed a writ petition being CWJC No. 5824/1993 wherein the petitioner had sought grant of the approval under Section 10A of the Dental Council of India Act which was dismissed on 5th February, 1994 on grounds of constructive resjudicata as the petitioner in the earlier petition had said that Section 10A does not apply to it.
42. Inasmuch as the entire issue with regard to the applicability of Section 10A and the other amendments to the Dental Council of India effected in 1992 to the petitioner are concerned, the issue is therefore pending adjudication in CWJC No. 9490/1992. On considerations of judicial propriety, it would be improper for this court to dwell any further on this issue.
43. However, it is noteworthy that no effort has been made by the petitioner to seek hearing and adjudication in this matter. The petitioner has taken a stand that it was a college established prior to the provisions of Section 10A coming into force and hence this statutory provision is not applicable to it. On the other hand, it is the stand of the respondents that the petitioner is required to take permission, not only for the purposes of commencement of an institution, but also for the purposes of increase of the intake capacity as has been specifically stipulated in the provision incorporated by amendment of the statute.
44. The same is the position with regard to the withdrawal of affiliation by the university. It is nobody’s case that an institution can be run without affiliation to the university. Leave to appeal was granted to the petitioner against the High Court’s orders dated 25th June, 2002 in CWJC 6388/2001 and the order of the university dated 27th April, 2001 suspending affiliation was stayed. Even during the pendency of the present writ petition, no steps have been taken by the petitioner to seek hearing in this matter.
45. The question as to the scope of right of minorities to establish and administer educational institutions of their choice under Article 30 of the Constitution of India fell for consideration before the Constitution Bench of Apex Court which has decided several questions of far reaching impact in its judgment reported at T.M.A. Pai Foundation and Ors v. State of Karnataka and Ors. The judgment of the court was rendered on 31st October, 2002 where it was interalia held as under :-
57. We, however, wish to emphasize one point, and that is that inasmuch as the occupation of education is, in a sense, regarded as charitable, the Government can provide regulations that will ensure excellence in education, while forbidding the charging of capitation fee and profiteering by the institution. Since the object of setting up an educational institution is by definition charitable , it is clear that an educational institution cannot charge such a fee as is not required for the purpose of fulfillling that object. To put it differently, in the establishment of an educational institution, the object should not be to make a profit, inasmuch as education is essentially charitable in nature. There can, however, be a reasonable revenue surplus, which maybe generated by the educational institution for the purpose of development of education and expansion of the institution.
67. We now come to the regulations that can be framed relating to private unaided professional institutions.
69. In such professional unaided institutions, the management will have the right to select teachers as per the qualifications and eligibility conditions laid down by the State/university subject to adoption of a rational procedure of selection. A rational fee structure should be adopted by the management, which would not be entitled to charge a capitation fee. Appropriate machinery can be devised by the State or University to ensure that no capitation fee is charged and that there is no profiteering, though a reasonable surplus for the furtherance of education is permissible. xxxxx
135. We agree with the contention of the learned Solicitor-General that the Constitution in Part III does not contain or give any absolute right. All rights conferred in Part III of the Constitution are subject to at least other provisions of the said part. It is difficult to comprehend that the framers of the Constitution would have given such an absolute right to the religious or linguistic minorities, which would enable them to establish and administer educational institutions in a manner so as to be in conflict with the other Parts of the Constitution. We find it difficult to accept that in the establishment and administration of educational institutions by the religious and linguistic minorities, no law of the land, even the Constitution, is to apply to them.
136. Decisions of this Court have held that the right to administer does not include the right to maladminister. It has also been held that the right to administer is not absolute, but must be subject to reasonable regulations for the benefit of the institutions as the vehicle of education, consistent with national interest. General laws of the land applicable to all persons have been held to be applicable to the minority institutions also for example, laws relating to taxation, sanitation, social welfare, economic regulation, public order and morality.
161. The essence of secularism in India is the recognition and preservation of the different types of people, with diverse languages and different beliefs, and placing them together so as to form a whole and united India. Articles 9 and 30 do not more than seek to preserve the differences that exist, and at the same time, unite the people to form one strong nation.
Q.5 (a) xxxx
Answer to Question 5(a). A minority institution may have its own procedure and method of admission as well as selection of students, but such a procedure must be fair and transparent, and the selection of students in professional and higher education colleges should be on the basis of merit. The procedure adopted or selection made should not be tantamount to maladministration. Even an unaided minority institution ought not to ignore the merit of the students for admission, while exercising its right to admit students to the colleges aforesaid, as in that event, the institution will fail to achieve excellence.
Q.5(c) xxxx
Answer to Question 5(c). So far as the statutory provisions regulating the facets of administration are concerned, in case of an unaided minority educational institution, the regulatory measure of control should be minimal and the conditions of recognition as well as the conditions of affiliation to a university or board have to be complied with, but in the matter of day-to-day management, like the appointment of staff, teaching and non-teaching, and administrative control over them, the management should have the freedom and there should not be any external controlling agency. However, a rational procedure for the selection of teaching staff and for taking disciplinary action has to be evolved by the management itself. xxx
46. The Apex Court therefore has categorically held that the conditions of recognition and affiliation to a university or a board have to be complied with even by a minority institution.
47. Vide the order dated 12th March, 2003, CA 8098 and 8100/1994 filed by the petitioner before the Apex Court, challenging the High Court judgment rejecting the contention that the provisions of Section 10A and the other provisions incorporated by amendment to the Dental Council of India Act, 1948 do not apply to the petitioner on the ground that it was a minority institution, was allowed. The Apex Court set aside the order dated 14th September, 1993 passed by the High Court of Judicature at Patna dismissing the petitioner’s writ petition based on this contention and remanded the matter for fresh consideration to the High Court. The court in its order had noticed that the questions raised in the matter were covered by the decision of the Constitution Bench in T.M.A. Pai Foundation (supra) and directed the High Court to decide the writ petition in the light of the principles laid down in TMA Pai’s case. Therefore, there can be no quarrel that the directions of the Apex Court are binding on all parties and would govern adjudication on the issues raised by the petitioner in its writ petition before the Patna High Court.
48. The petitioner had admittedly filed a writ petition being CWJC No. 5824/1993 on the stand that a right had accrued to the petitioner college for its approval by the respondent nos. 1 to 3 in view of the amended Section 10A of the Dentist Act, 1948. Copy of this writ petition no. CWJC 5844/1993 filed by the petitioner has been placed before this court during the course of arguments. This petition was filed after the judgment delivered by the Apex Court in TMA Pai’s case. In para 26 of this writ petition, the petitioner had pointed out that it had filed a writ petition being CWJC No. 9490/1992 for a direction to respondents 1, 2 and 3 to hold an inspection and finalise the question of approval which was heard on 14th May, 1993 and the judgment has been reserved which has not been delivered till date. In CWJC 5824/1993, the petitioner had sought the following relief :-
1. That this is an application for a direction to the respondents 1 to 3 to grant approval to the petitioner-College in accordance with clause (5) of section 10A of the Dentists Act, 1948 for which application is pending since 1989 and further respondent no. 4 be directed to grant affiliation with respondent no. 5 to the petitioner college which is satisfied with the establishment of the petitioner college.
49. In view of the submissions made by the petitioner in CWJC 5824/1993 which has been filed after the judgment rendered in T.M.A. Pai’s case and having regard to the prayers made therein, it would appear that the petitioner has accepted the position that it is bound to comply with the amended provisions of the Dental Council of India Act.
50. So far as running of educational institutions is concerned, while the petitioner may have a right to establish and run a minority educational institution, however the right to administer is not an absolute right but is subject to reasonable regulations for the benefit of the institutions. It has been repeatedly emphasised by the Apex Court that the institutions have to abide by the rules and regulations framed by the authorities in respect of affiliation and recognition. In the present matter, the court is concerned with serious course of dentistry whereby after pursuing the full curriculum, the degree of BDS is to be awarded. Upon award of a recognised degree, the student becomes entitled to a license to practice as a dentist under the Dentists Act, 1948 and to treat patients. Serious dental procedures are performed which requires extensive skills. It is not the rights the person setting up the institution alone which are to be considered, but the interests of the students and the public have to be also borne in mind. The larger interest of the students and the public would override any individual interests of the petitioner.
51. In the instant case, a cloud has been cast over the legality and validity of the petitioner’s affiliation to the university. The course conducted by the petitioner has till date not received recognition by the university. Even the degree of BDS which is awarded by the L.N. Mithila University with whom the petitioner is claiming affiliation has not been recognised by the Central Government.
52. In this behalf, it would be noteworthy to notice the fact situation which weighed with the High Court of Judicature at Patna in AIR 2002 Patna 143 Dr. S.M. Naqui Imam Dental College and Hospital v. L.N.Mithila University and Ors. The court recorded thus :-
6. It may be mentioned here that the petitioner-College had filed writ petition, C.W.J.C. No.9490/92 seeking direction upon the respondents to make inspection and finalise the approval of the College in which it took the stand that being a minority institution it had right to establish any institution of its choice unaffected by the amended provisions of Sections 10(A), 10(B) and 10(C) of the Dentist Act. A Division Bench of this Court by judgment dated 14- 9-93 held that the right to establish minority institution is not absolute. It was subject to statutory regulations and therefore, the establishment and maintenance of an educational institution must be in conformity with the statutory provisions. The Court further held that the amended provisions of the Dentist Act were applicable to all institutions including those which were established before the commencement of the amended provisions and therefore, the recognition of the existing institutions will abide by the decision of the Central Government. The above decision titled Dr.S.M.Naqui Imam Dental College and Hospital v. Dental Council of India, reported in 1993(2) PLJR 641. The petitioner-college then filed C.W.J.C. No.5824/93 seeking more or less similar direction to grant approval to the college in terms of Section 10A(5) of the Dentists Act and, further, direction to grant affiliation. That writ petition too was dismissed on 28-3-94. The Court held that the second writ petition seeking similar relief was barred by principles of res judicata as no party can be permitted to raise the same question again after being canvassed and rejected in the earlier writ petition. In Civil Review No.42/94 on 19-4-94 the Court clarified that the petitioner-college could take steps for affiliation.
12. The further case of the University is that General Body of the Dental Council in its meeting held on 29/30-11-88 had taken a policy decision that no new Dental Colleges would be permitted to be established without the permission or ‘no objection’ certificate of the concerned State Government and the affiliation or ‘no objection’ certificate of the concerned State Government and the affiliation or ‘no objection’ certificate of the concerned University. Further, no new proposal for setting up of new Dental Colleges wold be considered by the President or the Executive Committee of the Dental Council under Regulation 3(5) by circulation. Accordingly, on receipt of the intimation from Rauf Muslim Jamia about the proposed establishment of a college in the name of Dr.S.N.Naqui Imam Dental College and Hospital, the Dental Council vide its letter dated 1-3-89 directed the President of Rauf Muslim Jamia to obtain prior permission from the State Government and affiliation from the University, Rauf Muslim Jamia/college objected to the above stand on the ground that it had right to establish a minority institution of its choice. Upon reference made to the Central Government, vide its letter dated 18-4-90 of the Ministry of Health and Family Welfare, Government of India, it was clarified that although the right of Rauf Muslim Jamia to establish and administer a Dental College cannot be denied, the right is subject to the regulatory measures as prescribed in that behalf. Rauf Muslim Jamia thereafter filed ‘representation’ before the Vice-Chancellor on 14-5-90. The T\then Vice-Chancellor (Dr.J.Kumar) who had no medical qualification inspected the college on 10-6-90 and issued ‘no objection’ certificate on 12-6-90. Curiously, the Vice-Chancellor stated in the letter that the college is smoothly functioning in the three storeyed and electrified palatial newly constructed building located at Bahera… I am influenced and satisfied to this Dental College and Hospital since it has its own well equipped and furnished laboratories, hospital library, hostels (boys and girls), typewriting and duplicating machines, telephone, furniture, teaching aids, well experienced and qualified teaching and non-teaching staff’. The case of the University is that the Dental Council has laid down minimum basis norms for new dental Colleges, none of which has apparently been specifically noticed or mentioned in the said letter. The University has expressed doubt that a college allegedly established in the year 1989 could be so ‘well equipped’ on or about 12-6-90 as stated in the letter.
14. In the meantime the petitioner-college had preferred special leave petitions SLP(C) Nos.20394-96/94 challenging the decision of this Court in C.W.J.C. No.9490/92 (supra) but without impleading the University. The Supreme Court passed interim orders relief upon on behalf of the petitioners, directing the Dental Council to conduct inspection vide order dated 20-2-95, and directing the University to publish the result of the first BDS examination vide order dated 10-7-95. These orders were passed behind the back of the University. It was only on or about 12/13-10-95 that the University was added as a party. The examinations were accordingly held but under Transitory Regulations already held to be ultra vires by this Court. The fact that Transitory Regulations had already been held to be ultra vires was suppressed from the Supreme Court nor it was brought to its notice that the L.N.Mithila University had no authority to conduct any such examination or to grant ‘recognised dental qualification’ in BDS course under the Dentist Act.
16. As regards the affiliation dated 2-12-95 it has been stated that in the second week of October, 1995 the permanent Vice-Chancellor Sri R.C.P. Sinha proceeded on leave. Taking advantage of his absence on or about 11-10-95, the petitioner-college made application for grant of permanent affiliation. On or about -11-95 the then Registrar of the University suo motu without any order or authority inspected the college and submitted a report on 9-11-95 to the acting Vice-Chancellor Dr.B.N.Jha. On 2-12-95, the impugned notification was issued granting permanent affiliation of the petitioner-college in respect of BDS course from the session 1989-90 professedly in the light of the order of this Court dated 19-4-94 in Civil Review No.42/94. According to the University, it was yet another act of fraud inasmuch as neither in the main judgment in C.W.J.C. No.5824/93 (giving rise to Civil Review No.42/94) nor in the order on the review petition, there was any direction of this Court to grant affiliation much less permanent affiliation. All this was apparently done taking advantage of temporary absence of the permanent Vice-Chancellor. A counter-affidavit to this effect was also hurriedly filed in the Supreme Court in S.L.P. Nos.20394-6 of 1994, in January 1996. As soon as the permanent Vice-Chancellor Dr.R.C.P.Sinha assumed charge of the office on return from leave, taking notice of the illegalities committed during his absence he submitted a detailed report to the Chancellor and the State Government on 6-1-96 pointing out violation of statutory provisions. The Chancellor advised the Vice-Chancellor to take action according to law. In August, 1996 the University filed a counter-affidavit setting out the facts and circumstances and violation of the statutory provisions in the matter of grant of affiliation. The counter-affidavit filed earlier in January, 1996 was withdrawn as being unauthorised. The aforenoted judgment has been noticed only in order to appreciate the fact situation which has not been placed before this court.
53. So far as the dental education is concerned, the power to recognise courses and grant permission for commencement of courses is strictly vested in the central government under the Dentists Act, 1948. An amendment was effected to the Dentists Act, 1948 (hereinafter referred as the Act) which became effective from 27th August, 1992. Section 10 of the enactment stated that such qualifications as are mentioned in the schedule to the Act would be recognised dental qualifications for the purposes of the Act. By virtue of the amendment, the following provisions were incorporated into the statute :-
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 being in force,-
(a) no person shall establish an authority or institution for a course of study or training (including a post-graduate course of study or training) which would enable a student of such course or training to qualify himself for the grant of recognised dental qualification; or
(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 qualification shall –
(i) open a new or higher course of study or training (including a post-graduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised dental qualification; or
(ii) increase its admission capacity in any course of study or training (including a post-graduate 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.
10C. Time for seeking permission for certain existing authorities. – (1) If, after the 1st day of June, 1992 and on and before the commencement of the Dentists (Amendment) Act, 1993 any person has established an authority or institution granting recognised dental qualification has opened a new or higher course of study or training (including a post-graduate course of study or training) or increased its admission capacity, such person, authority or institution, as the case may be, shall seek, within a period of one year from the commencement of the Dentists (Amendment) Act, 1993 the permission of the Central Government in accordance with the provisions of Sect. 10A
(2) If any person or, as the case may be, any authority or institution granting recognised dental qualification fails to seek the permission under sub- section (1), the provisions of Sec. 10B shall apply, so far as may, be, as if permission of the Central Government under Sec. 10A has been refused.] 10B. Non recognition of dental qualifications in certain cases.-(1) Where any authority or institution is establsihed for grant of recognised dental qualification except with the previous permission of the Central Government in accordance with the provisions of Sec. 10A, no dental qualification granted to any student of such authority or institution shall be a recognised dental qualification for the purpose of this Act.
(2) Where any authority or institution granting recognised dental qualification opens a new or higher 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 Sec. 10A, no dental qualification granted to any student of such authority or institution on the basis of such study or training shall be a recognised dental qualification for the purposes of this Act.
(3) Where any authority or institution granting recognised dental qualification 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 Sec. 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 this Act.
54. Thus upon the amendment coming into force with effect from 27th August , 1992, no institution could be established for the grant of recognised dental qualifications and where an institution stood established, no new course or higher course of study or training or increase in admission capacity in any course of study or training in respect of a recognised dental qualification could take place except with the previous permission of the central government obtained in accordance with the provisions of the Section. Such permission required a scheme in the prescribed form and containing prescribed particulars accompanied by the prescribed fee to be submitted to the central government. This scheme was required to be referred by the central government to the Dental Council of India for its recognition. The Dental Council of India was vested with the jurisdiction to obtain such other particulars as may be considered necessary from the person, authority or institution concerned granting the recognised dental qualification. Thereafter, it may, if the scheme is incomplete and does not contain necessary particulars, give a reasonable opportunity to the person, authority or institution for making a written representation and it shall give opportunity to such person, authority or institution to rectify the defects, if any, specified by the Council and consider the scheme, having regard to the factors specified in Section 10(vii). As per Section 10A(iii)(b), the Dental Council of India was thereupon required to submit the scheme together with its recommendation to the central government. Thereafter, in accordance with Section 10A(iv), the central government was vested with the discretion to approve or disapprove the scheme. The approval could be with such conditions as the government may consider necessary. Such approval by the government tantamounts to the requisite permission required by the person, authority or institution under Section 10A(i).
55. The legislature provided for the eventuality of the central government failing to pass an order upon the scheme submitted to it under sub-section 2. Where no order passed by the central government has been communicated to the person, authority or institution which submitted the scheme within one year from the date of its submission, Section 10(5) provides that the scheme shall be deemed to have been approved by the central government in the form in which it had been submitted. It also stipulates that the permission of the central government required under sub-section (1) thereupon shall be deemed to have been granted. However in computing the time limit specified in sub-section (5), the time taken by the person, authority or institution concerned, submitting the scheme in furnishing particulars called for by the Dental Council of India or by the government is required to be excluded. The considerations which are to weigh with the council while making its recommendations and with the central government while passing the order approving or disapproving the scheme have been set out in sub-section (7) of Section 10A. Section 10A(7), mandates that where the government passes the order either approving or disapproving the scheme, the copy of the order shall be communicated to the person, authority or institution, concerned.
56. Learned counsel appearing for the Dental Council of India has drawn this court’s attention to the regulations which have been framed by the Dental Council of India in exercise of powers conferred by Section 10A read with Section 20 of the Dentists Act, 1948. These regulations have been called the Establishment of New Dental Colleges, Opening of Higher Courses of Study and Increase of Admission Capacity in Dental Colleges Regulations, 1993. The same have come into effect on 25th September, 1993 when they have been published in the official gazette. These regulations contained the provisions with regard to the manner in which an application will be made and processed for approval under Section 10A of the Dental Council of India Act. They contain a provision under the heading grant of permission which reads as follows :- Grant of permission :- The Central Government on the recommendations of the Dental Council of India may issue a letter of intent to set up a new Dental College with such conditions or modification in the original proposal as may be considered necessary. The formal permission will be granted after the above conditions and modifications are accepted and the performance bank guarantees for the required sums are furnished by the applicant. The formal permission will include a time-bound programme for the establishment of the Dental College. This permission will also include a clear- cut definition of preliminary requirements to be met in respect of buildings, infrastructurul facilities, dental and allied equipment, faculty and staff etc., before admitting the first batch of students. The permission will also define annual targets to be achieved by the applicant to commensurate with the in-take of students during the following years. The above permission to establish a new Dental College and admit students will be granted for a period of one year and will be renewed on yearly basis subject to verification of the achievement of annual targets and revalidation of the performance bank guarantees. This process of renewal of permission will continue till such time the establishment of the Dental College and expansion of the hospital facilities is completed and a formal recognition will be granted after four years of the Dental College by the Dental Council of India. Unless the college fulfillls the requirements for various stages of development to the satisfaction of the Dental Council of India further admissions are liable to be stopped. The statutory source of power of the government to prohibit further admissions as has been done by the impugned order dated 10/23rd August, 2001 is sought to be derived from these regulations.
57. The petitioners have contended that they have repeatedly represented to the government of India to recall the impugned directions contained in the order dated 10th/23rd August, 2001 and that the same has been of no avail.
58. I find that the Government of India issued the order dated 10th/23rd August, 2001 at a stage when the issue of recognition of the institution, course and degree of the petitioner had not been finally decided.
59. At this stage, it would be appropriate to notice the application which was filed by the present petitioner before the Apex Court seeking a clarification of the order dated 15th February, 2001 and further directions pursuant thereto. This application was filed in 2001 itself in Civil Appeal No. 8098 and 8100/1994. After making detailed submissions on the several inspections of the college, the petitioner on the averments noticed hereinafter sought certain prayers which deserve to be also considered:-
27. The aforesaid application was finally disposed of by this Hon’ble Court on 15.2.2001 interalia, directing the Dental Council of India to take appropriate action to recognise the degrees of the students. The said direction was made by this Hon’ble Court in the light of the observation that the students were allowed to pursue their studies pursuant to the orders made by this court.
28. That the aforesaid order has been deliberately misconstrued by the Dental Council of India and have thereby mischievously recommended the names of only three students who preferred the application, knowing well that this is not the proper procedure to recommend in as much as in terms of Section 10(2) of the Dentists Act, 1948, the BDS, degree of the Institution concerned is to be notified by making amendment int he schedule. The Council is well aware that the decree awarded of the college has to be recognised of the Act of recognition to BDS degree in as well as the college has reliably learnt that the Central Government has rejected the recommendation of the Dental Council of India. Thus it is evident that the Dental Council of India circumvented the orders passed by this Hon’ble Court. It is respectfully submitted that the order dated 15.2.2001 was passed by this Hon’ble Court keeping in view the order dated 10.7.95, whereby the students of the Appellant College were allowed to pursue their studies. Therefore, while passing the present order the intention of the Hon’ble Court was to grant the relief to those students who pursued their studies pursuant to the orders of this Court i.e. 10.7.95. It has been pointed out by the petitioner that based on these averments, the following prayers were sought : PRAYER
(a) clarify the order dt. 15.2.12001 passed by this Hon’ble Court in so far as its applicability is concerned.
(b) direct the respondent Dental Council of India (Respondent Nos.1 and 2) to recommend the recognition of the BDS Course awarded by the respondent University to students of Appellant College.
(c) direct the Union of India to take appropriate steps in regard to the recognition of the degree awarded in accordance with law and also in accordance with the order dated 15.2.2001 passed by this Hon’ble Court in I.A. Nos. 10-14 in Civil Appeals No. 8098-8900 of 1995 within a stipulated time frame and/or
(d) pass such order or further order(s) as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case.
60. This application was decided by the Apex Court in terms of the order dated 18th September, 2001 whereby a limited prayer was granted in respect of the batches of students who had been already admitted under orders of the court. The other reliefs sought in the application stood rejected for the present.
61. The prayer was made by the petitioner for recognition of the course conducted by it was not granted by the Apex Court while disposing of the petitioner’s application in terms of the order dated 18th September, 2001 which reads as hereunder :
In these matters it is brought to our notice that there are very serious questions whether the Dentists Act, as amended in 1993 is applicable; whether the affiliation granted to the college in question is valid or not and whether the appellant is a minority institution. In these cases we do not propose to examine these larger aspects of the matter and what we are concerned at present is whether the order made by us on 15.2.2001 should be made applicable to such of the students who are similarly placed as the students with whom we were concerned in that order, we made that order on 15.2.2001 only on the basis that pursuant to the studies made by them, examination taken by them, this court having made an order that their results should be declared in which they are declared to have passed. When these students had pursued their studies along with those students in respect of whom order is already made we do not think any other order could be made in respect of them. For such of the students who had passed along with those students in respect of whom order was made by us on 15.2.2001 shall be extended and that is confined only to the batches passing out in years 1989-90, 1990-91, 1991-92. The other reliefs sought for shall stand rejected for the present. We direct the Dental Council and the Union of India to take further steps to implement the order dated 15.2.2001 as extended by us by this order within a period of one month from today. I.As. And contempt petitions are disposed of accordingly.
62. The Apex Court therefore had only directed that for such students who had passed Along with those students in respect of whom the order was made on 15th February, 2001, the order shall be extended and that the same would be confined only to the batches passing out in the years 1989-90, 1990-91 and 1991- 92. In implementation of the orders dated 15th February, 2001 and 18th September, 2001, the Government of India issued a notification dated 12th December, 2001 making an amendment in part I to the Dentists Act, 1948 to the following effect :-
Now, therefore, in pursuance of the Order dated the 18th September, 2001 of the Supreme Court of India and in exercise of the powers conferred by sub-section (2) of section 10 of the Dentist Act, 1948 (16 of 1948), the Central Government, after consultation with the Dental Council of India, hereby makes the following further amendments in Par I of the Schedule to the said Act, namely :- In Part I of the Schedule, against serial no. 38 relating to Lalit Narayan Mithila Univeristy, Darbhanga, in column 2, under the recognised dental qualification Bachelor of Dental Surgery , the following shall be inserted namely :-
The above qualification shall be recognised dental qualification in respect of BDS students of S.M.Naqui Imam Dental College, Darbhanga, if granted in or before 1997 .
63. The hard fact which remains is that admittedly the course conducted by the petitioner has even not been approved till date by the Dental Council of India and the degree has not been recognised by the Central Government. It has still not been included in the list of recognised qualifications in the schedule to the Dentists Act. The judgment rendered by the Apex Court dated 12th December, 2002 in Civil Appeal 2194/1996 Mata Gujri Memorial College v. State of Bihar and Ors. is also distinguishable for the reason that on account on facts intervening during the pendency of the matter before the Apex Court, relating to inspections etc., recommendations stood made by the Medical Council of India as well as by the central government relating to recognition of the course and for this reason the Apex Court directed the university to grant permanent affiliation to the institution. No such facts have intervened in the present matter.
64. The petitioner had sought orders with regard to recognition by the Dental Council of India. This was not granted even by the Apex Court.
65. Much emphasis was laid by the petitioner on the fact that there is a stay of the order withdrawing the affiliation and the petitioner was permitted to effect admission by the Dental Council of India. I find that the petitioner in the instant case has admittedly not run any classes after the last batch of students admitted by it in the year 1992 left college. The University withdrew the affiliation granted by it which matter is pending before the court. The question as to whether the petitioner is required to seek the no objection from the state government is also in issue and has not been decided so far. The reasons which weighed with the government for introducing the amendment in 1992 have been vehemently relied upon by the Dental Council of India. It has been contended that professional colleges mushroom but are unable to ensure completion of courses and abandon institutions resulting in tremendous difficulties being faced by students who have taken admissions in these institutions. It has been contended that the requirement of taking a no objection from the state government ensures that some responsibility is maintained in respect of the students who have been admitted to private institutes. As per the now prevalent rules, periodic certification is required from the authorities. In T.M.A. Pai’s case, the Apex Court held that even private minority institutions are required to abide by the terms of affiliation and recognition. The petitioner sought interim relief with regard to recognition which was not granted by the apex court. In the light of the larger issue at stake and the interests of dental education, students and the public at large being involved, the petitioner cannot possibly be permitted to take advantage of the stay of the order withdrawing the affiliation in its favor which had been granted by the university or the pendency of the litigation at its instance.
66. Most pertinent is that, even if it were to be held that the petitioner had affiliation with the L.N.Mithila University, it is an admitted fact that the course conducted by the petitioner does not have the approval of the Dental Council of India. Further the degree proposed to be awarded to its students has not been recognised by the Central Government of India in accordance with the provisions of the Dentists Act.
67. It would be useful to notice the pronouncement of the Apex Court in respect of education. It has been held by the Apex Court that the recommendations of the Medical Council of India constituted under the Indian Medical Council Act are not merely recommendatory but are mandatory and are binding. In this behalf the judgment of the Supreme Court in Medical Council of India v. State of Karnataka reads as follows :-
27. …It is the Medical Council which is primarily responsible for fixing standards of medical education and overseeing that these standards are maintained. It is the Medical Council which is the principal body to lay down conditions for recognition of medical colleges which would include the fixing of intake for admission to a medical college. We have already seen in the beginning of this judgment various provisions of the Medical Council Act. It is, therefore, the Medical Council which in effect grants recognition and also withdraws the same.
29. A medical student requires gruelling study and that can be done only if proper facilities are available in a medical college and the hospital attached to it has to be well equipped and the teaching faculty and doctors have to be competent enough that when a medical student comes out, he is perfect in the science of treatment of human beings and is not found wanting in any way. The country does not want half-baked medical professionals coming out of medical colleges when they did not have full facilities of teaching and were not exposed to the patients and their ailments during the course of their study. The Medical Council, in all fairness, does not wish to invalidate the admissions made in excess of that fixed by it and does not wish to take any action of withdrawing recognition of the medical colleges violating the regulation. Henceforth, however, these medical colleges must restrict the number of admissions fixed by the Medical Council. After the insertion of Sections 10A, 10B and 10C in the Medical Council Act, the Medical Council has framed regulations with the previous approval of the Central Government which were published in the Gazette of India dated 29-9-1993 (though the notification is dated 20-9-1993). Any medical college or institution which wishes to increase the admission capacity in MBBS/higher courses (including diploma/degree/higher specialities), has to apply to the Central Government for permission along with the permission of the State Government and that of the university with which it is affiliated and in conformity with the regulations framed by the Medical Council. Only the medical college or institution which is recognised by the Medical Council can so apply.
30. 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 the 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 10A, 10B and 10C 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 or 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 under Section 19A 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 .
31. 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.
68. In the instant case, we are concerned with the recommendations of the Dental Council of India in the Dentists Act, 1942. The Dental Council of India is performing functions in respect of dental education and dentists which are parimateria to those performed by the Medical Council of India in respect of doctors and medical education under the Medical Council of India Act. By parity of reasoning and the principles of law laid down by the Apex Court in the context of the Medical Council of India and medical education, it has to be held that the recommendations of the Dental Council of India are not merely recommendatory but are mandatory and are binding.
69. So far as education is concerned, the Apex Court has repeatedly deprecated any order which would have the effect of deviations or violating statutory rules and regulations. In this behalf in State of Punjab and Ors. v. Renuka Singla and Ors. the Apex Court observed thus :-
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 appreciate as to 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 admissions of students. It cannot be disputed that technical education, including medical education, requires infrastructure to cope with the requirement of giving proper education to the students, who are admitted. Taking into consideration the infrastructure, equipment, staff, the limit of the number of admissions is fixed either by the Medical Council of India or Dental Council of India. The High Court cannot disturb that balance between the capacity of the institution and number of admissions, on compassionate ground . 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 1 on compassionate ground and to issue a fiat to create an additional seat which amounts to a direction to violate Section10A and Section 10B(3) of the Dentists Act referred to above.
70. In , the apex court was considering an order passed by the High Court on the writ petition of the respondent students. It appears that some students of the BRS Institute of Medical Sciences(Dental College) were seeking orders against the Kurukshetra University for holding the first professional examination. At the relevant time when the admissions were made, recognition and affiliation from the Kurukshetra University had been granted. It is necessary to notice the fact situation in the matter in order to appreciate the judgment passed by the Apex Court. In its judgment which is reported at Guru Nanak Dev University v. Parminder Kr. Bansal and Ors. the court noticed thus :-
2. Guru Nanak Dev University is aggrieved by the orders dated August 17, 1992, of the High Court in Civil Writ Petition Nos. 2732 and 4928 of 1992 respectively, directing the regularisation of the admission of the first respondents in each of these appeals, to the Internship Course.
3. Regulation 27 of the Guru Nanak Dev University regulating eligibility for admission to the Internship Course provides :
(a) Compulsory Rotating Housemanship. – Every candidate, on passing the final MBBS examination, shall undergo 12 months’ training as laid down by the Faculty of Medical Science before he is allowed full registration by the State Medical Council. The work done in a Military Hospital or any other recognised Institute(names given in the appendix) shall be accepted for this training.
(b) There shall be an oral test at the end of the internship programme to be conducted by a Board of the College set up by the Principal of the College. The Board will review the certificates of the work given by the Heads of the Departments or the Head of the Hospital where the candidate has worked and also assess the candidate through an oral examination. If the Board is not satisfied with the performance of the candidate, the candidate shall be required to put in extra three or six months of internship. Provided that in the case of a student who goes abroad for internship training and cannot appear in the test at the end of the term being in a foreign country, the test may be conducted in his respective institution and report sent to the Principal of the concerned College from which the student had gone, along with the report of his work and if the Principal is satisfied he may recommend to the University for grant of a degree. The validity of this regulation, though sought to be raised, was presumably not argued and has not been gone into by the High Court. Prima facie, there is no valid ground to assail the constitutional validity of this regulation.
4. The High Court, by its interim orders directed the admission of the two respondents to the Internship Course with effect from April 1, 1992, on which date, admittedly, they did not possess the requisite eligibility. They had not passed the MBBS examination. Pursuant to the interim orders the respondents, were so admitted. Thereafter, by the final order dated August 27, 1992, the High Court as a logical corollary and consequence of the implementation of the interim orders, directed that their internship be regularised.
5. Shri Gambhir, learned counsel for the University says that the very implication of the idea of regularisation contained within it the premise that the initial admission itself was irregular. He submitted that the University was confronted with a fait accompli by virtue of interlocutory orders. The final order in the writ petition did no more than validate and perpetuate the interlocutory error without any pronouncement on or adjudication of the basic issues of eligibility. Shri Gambhir aired a serious grievance that these type of orders would introduce an element of indiscipline in academic life and expose the system to ridicule and render any meaningful control of academic work impossible. He relied upon certain pronouncements of this Court to support his contention that in academic matters courts should be wary in directing the admissions to colleges by means of interim directions which would create complications later and expose even the beneficiaries of such orders to difficulties when the final adjudication goes against them.
71. The Apex Court has repeatedly stipulated that courts ought not to be liberal or generous while passing orders in respect of admissions and examinations especially with regard to institutions wherein issues relating to recognition thereof are concerned and are at issue and that the requirements of law are to be strictly enforced.
72. The Apex Court had occasion to examine a matter where students seeking reliefs in respect of a dental college which was not yet recognised in accordance with law. In its judgment reported at 1995 Supp (1) SCC 304 Dental Council of India v. Harpreet Kaur Bal and Ors., the apex court set aside the judgment of the High Court and observed thus :
4. 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 joint he institution with their eyes wide open as t 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 expectations in a manner known to law. We have, therefore, no hesitation in setting aside the order under appeal as totally unjustified.
5. Instead of the kind of order that the High Court has persuaded itself to make, it should, perhaps, have directed the Union of India to forward the application for recognition stated to have been submitted sometime in 1993 by the institution to the Dental Council of India and, in turn, directed the Dental Council of India to consider that application and decide within a time-frame whether it would accord the recognition or not. These were the only permissible reliefs grantable in the case. Having held thus, the apex court set aside the order of the High Court and directed the government of India to forward the application submitted to it by the institute to the Dental Council of India and passed further directions in respect of the consideration of the application of the Dental Council.
73. In the light of the view taken by the apex court in Dental Council of India v. Harpreet Kaur, it is evident that the prayers made in the writ petition cannot be granted without decision and adjudication of the issues relating to affiliation and recognition of the course conducted by the petitioner. Inasmuch as these issues are pending in proceedings, one before the apex court and, the other, before the High Court of Judicature at Patna, this court cannot even issue the directions which were issued in the Harpreet Kaur Bal case(supra).
74. In view of the above, the central government is bound to look at the larger interest of the students at large who may be persuaded to take admission to the course conducted by the respondents in case such a caution or prohibition was not issued by the government. Undoubtedly the petitioner is in litigation and there is a cloud over its affiliation. The issue as to whether it is to be required to seek a no objection certificate from the state authority or not has also not been finally adjudicated upon. The petitioner at one time had itself contended that it is required to get the requisite no objection and had sought a mandamus to be issued to the authorities in CWJC 5824/1993.
75. In A.P. Christians Medical Educational Society v. Government of Andhra Pradesh and Anr., it was held thus :-
7. Even while narrating the facts, we think, we have said enough to justify a refusal by us to exercise our discretionary jurisdiction under Art. 136 of the Constitution. We do not have any doubt that the claim of the petitioner to start a minority educational institution was no more than the merest pretence. Except the words, As the Christian Minorities Educational Institutions occurring in one of the objects of the society, as mentioned in the memorandum of association, there is nothing whatever to justify the claim of the society that the institutions proposed to be started by it were ‘minority educational institutions’ . Every letter written by the society whether to the Central Government, the State Government or the University contained false and misleading statements. As we had already mentioned the petitioner had the temerity to admit or pretend to admit students in the first year MBBS course without any permission being granted by the Government for the starting of the medical college and without any affiliation being granted by the University. The society did this despite the strong protest voiced by the University and the several warnings issued by the university. The society acted in defiance of the University and the Government, in disregard of the provisions of the Andhra Pradesh Education Act, the Osmania University Act and the Regulations of the Osmania University and with total indifference to the interest and welfare of the students. The society has played havoc with the careers of several crore students and jeopardised their future irretrievably. Obviously the so-called establishment of a medical college was in the nature of a financial adventure for the so-called society and its office bearers, but an educational misadventure for the students. Many, many conditions had to be fulfillled before affiliation could be granted by the University. Yet the society launched into the venture without fulfillling a single condition beyond appointing someone as Principal. No one could have imagined that a medical college could function without a teaching hospital, without the necessary scientific equipment, without the necessary staff, without the necessary buildings and without the necessary funds. Yet that is what the society did or pretended to do. We do not have any doubt that the society and the so-called institutions were started as business ventures with a view to make money from gullible individuals anxious to obtain admission to professional colleges. It was nothing but a daring imposture and skul duggery. By no stretch of imagination, can we confer on it the status and dignity of a minority institution. xxx
10. Shri K.K. Venugopal, learned counsel for the students who have been admitted into the MBBS course of this institution, pleaded that the interests of the students should not be sacrificed because of the conduct or folly of the management and that they should be permitted to appear at the University examination notwithstanding the circumstance that permission and affiliation had not been granted to the institution. He invited our attention to the circumstance that students of the Medical college established by the Daru Salam Educational Trust were permitted to appear at the examination notwithstanding the fact that affiliation had not by then been granted by the University. Shri Venugopal suggested that we might issue appropriate directions to the University to protect the interests of the students. We do not think that we can possibly accede to the request made by Shri Venugopal on behalf of the students. Any direction of the nature sought by Shri Venugopal would be in clear transgression of the provisions of the University Act and the regulations of the University. We cannot by our fiat direct the University to disobey the statute to which it ownes its existence and the regulations made by the University itself. We cannot imagine anything more destructive of the rule of law than a direction by the court to disobey the laws. The case of the medical college started by the Daru-Salam Trust appears to stand on a different footing as we find from the record placed before us that permission had been granted by the State Government to the Trust to start the medical college and on that account, the University had granted provisional affiliation. We also find that the Medical Council of India took strong and serious exception to the grant of provisional affiliation whereupon the University withdrew the affiliation granted to the college. We are unable to treat what the University did in the case of the Daru-Salam Medical College as a precedent in the present case to direct the university to do something which it is forbidden from doing by the University Act and the regulations of the University.
76. Even if it were to be found that the petitioner had some kind of a right, it has been held by the Apex Court that such individual right has to give way to overriding interests of the public at large. In this behalf, in entitled Ramniklal N. Bhutta and another v. State of Maharashtra and Ors., the Court held thus:-
10. Before parting with this case, we think it necessary to make a few observations relevant to land acquisition proceedings. Our country is now launched upon an ambitious programme of all-round economic advancement to make our economy competitive in the world market. We are anxious to attract foreign direct investment to the maximum attain the pace of progress achieved by some of the Asian countries, referred to as Asian tigers , e.g. Sough Korea, Taiwan and Singapore. It is, however, recognised on all hands that the infrastructure necessary for sustaining such a pace of progress is woefully lacking in our country. The means of transportation, power and communications are in dire need of substantial improvement, expansion and modernization. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these courts. These things very often call for acquisition of land and that too without any delay. It is, however, natural that in most of these cases, the persons affected challenge the acquisition proceedings in courts. These challenges are generally in the shape of writ petitions filed in High Courts. Invariably, stay of acquisition is asked for and in some cases, orders by way of stay or injunction are also made. Whatever may have been the practices in the past, a time has come where the courts should keep the larger public interest in mind while exercising their power of granting stay/injunction. The power under Article 226 is discretionary. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. And in the matter of land acquisition for public purposes, the interest of justice and the public interest coalesce. They are very often one and the same. Even in a civil suit, granting of injunction or other similar orders, more particularly of an interlocutory nature is equally discretionary. The courts have to weigh the public interest vis-a-vis the private interest while exercising the power under Article 226 — indeed any of their discretionary powers. It may even be open to the High Court to direct, in case it finds finally that the acquisition was vitiated on account of non-compliance with some legal requirement that the persons interested shall also be entitled to a particular amount of damages to be awarded as a lump sum or calculated at a certain percentage of compensation payable. There are many ways of affording appropriate relief and redressing a wrong; quashing the acquisition proceedings is not the only mode of redress. To wit, it is ultimately a matter of balancing the competing interests. Beyond this, it is neither possible nor advisable to say. We hope and trust that these considerations will be duly borne in mind by the courts while dealing with challenges to acquisition proceedings.
77. It has been authoritatively held in a catena of authoritative and binding judicial precedents that wider public interest is liable to be borne in mind while exercising the power of issuing a writ and granting a stay and injunction.
78. In Sangram Singh v. Election Tribunal, Kotah and Anr. it was held thus :-
13. The jurisdiction which Arts. 226 and 136 confer entitles the High Courts and this Court to examine the decisions of all Tribunals to see whether they have acted illegally. That jurisdiction cannot be taken away by a legislative device that purports to confer power on a tribunal to act illegally by enacting a statute that its illegal acts shall become legal the moment the tribunal chooses to say they are legal. The legality of an act or conclusion is something that exists outside and apart from the decision of an inferior tribunal. xxx
14. That, however, is not to say that the jurisdiction will be exercised whenever there is an error of law. The High Courts do not, sand should not, act as Courts of appeal under Art. 226. Their powers are purely discretionary and though no limits can be placed upon that discretion it must be exercised along recognised lines and not arbitrarily; and one of the limitations imposed by the Courts on themselves is that they will not exercise jurisdiction in this class of case unless substantial injustice has ensued, or is likely to ensue. They will not allow themselves to be turned into Courts of appeal or revision to set right mere errors of law which do not occasion injustice in a broad and general sense, for though no legislature can impose limitations on these constitutional powers it is a sound exercise of discretion to bear in mind the policy of the legislature to have disputes about these special rights decided as speedily as may be. Therefore, writ petitions should not be lightly entertained in this class of case.
79. In AIR 1957 SC 227 A.M. Allison and Anr. v. B.L. Sen and Ors., it was held thus :-
17. xxx Proceedings by way of certiorari are not of course . (Vide Halsbury’s ‘Laws of England’, Hailsham Edition, Vol.9, paras 1480 and 1481, pp. 877-878). The High Court of Assam had the power to refuse the writs if it was satisfied that there was no failure of justice, and in these appeals which are directed against the orders of the High Court in applications under Art. 226, we could refuse to interfere unless we are satisfied that the justice of the case requires it. But we are not so satisfied. We are of opinion that, having regard to the merits which have been concurrently found in favor of the respondents both by the Deputy Commissioner, Sibsagar, and the High Court, we should decline to interfere.
80. Noteworthy in this behalf are the observations of the Apex Court in AIR 2000 SC 1508 entitled Indian Overseas Bank v. I.O.B. Staff Canteen Workers’ Union and Another in which it was held thus:-
The learned single Judge seems to have undertaken an exercise, impermissible for him in exercising writ jurisdiction, by liberally reappreciating the evidence and drawing conclusions of his own on pure questions of fact, unmindful, though aware fully, that he is not exercising any appellate jurisdiction over the awards passed by a Tribunal, presided over by a Judicial Officer. The findings of fact recorded by a fact-finding authority duly constituted for the purpose and which ordinarily should be considered to have become final, cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or credible in the opinion of the writ Court to warrant those findings at any rate, as long as they are based upon some material which are relevant for the purpose or even on the ground that there is yet another view which can b reasonably and possibly one taken. The Division Bench was not only justified but well merited in its criticism of the order of the learned single Judge and in ordering restoration of the Award of the Tribunal. On being taken through the findings of the Industrial Tribunal as well as the order of the learned single Judge and the judgment of the Division Bench, we are of the view that the Industrial Tribunal had overwhelming materials which constituted ample and sufficient basis for recording its findings, as it did, and the manner of consideration undertaken, the objectivity of approach adopted and reasonableness of findings recorded seem to be unexceptionable. The only course, therefore, open to the writ Judge was the relevant criteria laid down by this Court, before sustaining the claim of the canteen workmen, on the facts found and recorded by the fact-finding authority and not embark upon an exercise of re-assessing the evidence and arriving at findings of ones own, altogether giving a complete go-bye even to the facts specifically found by the Tribunal below.
81. Admittedly, admissions were effected by the petitioner only for three batches which were the 1989-90, 1990-91 and 1991-92 batches. They completed their course under orders of the Apex Court and were granted recognition of the degrees also under the orders dated 15th February, 2001 and 18th September, 2001. Admittedly the petitioner has not effected any admissions to the courses thereafter. When it sought permission, it was not permitted to admit any other students. The petitioner itself has contended that the Dental Council has yet to decide the case of its approval and recommend the recognition of its course. There is no material or inspection with regard to the current position of the facilities and infrastructure with the petitioner.
82. In the meetings held by the government on 27th December, 2002 and 23rd August, 2003, all present were of the view that fresh admissions cannot be effected and that publicity should be given to the prohibitory orders issued by the government. The recognition given by the central government vide its notification dated 12th December, 2001 was restricted to those batches of students who were admitted up to 1992 and not beyond. The central government had issued its orders in discharge of duty imposed by it under the regulations. The state government had objected to giving its consent in the meeting held with the Ministry. Certainly the government cannot be faulted for issuing the direction prohibiting admissions when the institution having complied with the statutory requirements.
83. The petitioner has made a grievance that the impugned order of prohibitting admissions was passed on the sole ground that the affiliation of the petitioner stood withdrawn by the University and that no other reasons can be added in support of this. Undoubtedly, the order reads that the prohibition is being issued for withdrawl of affiliation by the University and this order stands stayed in the appeal of the petitioner which is pending before the Apex Court. The principles laid down by the Supreme Court in Mohinder Gill v. Chief Election Commissioner and Chander Singh v. State of Rajasthan(supra) cannot be disputed. However, in the facts of the present case, the contentions of the petitioner are pending the adjudication in proceedings before the Apex Court and, the other, in proceedings before the High Court of judicature at Patna. So far as the matter of admissions of students is concerned with, it effects not only the petitioner but also effects candidates who are admitted to the institution and has a larger effect on the public at large. I have noticed above the several pronouncements of the Apex Court holding that requirements of affiliation, recognition and obtaining of requisite certification by professional institutions cannot be and ought not to be by passed or compromised with under any circumstance. For this reason, as already noticed hereinabove, without final adjudication on the issues raised by the petitioner relating to its affiliation, recognition and no objection certificate from the state government, the petitioner cannot possibly be permitted to take advantage of the interim order of stay on the withdrawl of affiliation to effect admissions to its institutions. Granting the petitioner the prayers made in this writ petition may have the effect of permitting an institution to effect admissions without fulfillling statutory requirements which has been deprecated by the Apex Court in several pronouncements noticed above. For all the foregoing reasons, the petitioner cannot possibly be granted the prayers made in this writ petition.
This writ petition is accordingly dismissed.