JUDGEMENT
AMITAVA ROY, J. -
(1.)THE order dated 11.2.2013 passed in S.B.Civil Writ Petition
No.786/2013 whereby, in the interim, pending final adjudication of
the writ proceedings, the appellant no.1 herein had been directed
to forward the respondent's application with the annexures thereto
to the appellant no.2 for consideration thereof qua Academic
Session 2013-14 and for making recommendations by 28.2.2013 vis-
a-vis its (Respondent) request for starting the MDS Course,
constitutes the subject matter of assailment in the present appeal.
(2.)WE have heard Mr.Gaurav Sharma, learned counsel for the appellants and Mr.P.P.Choudhary, learned Senior Counsel for the
respondent.
The respondent-Sarawgi Charitable Trust (for short, hereafter also referred to as "the Trust"), registered under the
Rajasthan Charitable Trust Act, 1959, had applied for
establishment of a Dental College at Sri Ganganagar in the name of
Maharaja Ganga Singh Dental College and Research Centre (for
short, hereafter referred to as "the College"). Pursuant thereto,
the Medical and Health Department, Government of India by order
dated 3.10.2006 granted the said permission. According to the
respondent-Trust, its College started BDS course for the Academic
Session 2008-89 and the final Academic Session of its first batch
has been completed during 2011-12. In terms of Rule 11 of the
Dental Council of India (Establishment of New Dental Colleges,
Openng of New or Higher Course of Study or Training and Increase
of Academic Capacity in Dental Colleges) Regulations, 2006 (for
short, hereafter referred to as "the Regulations"), admissions of
next batches cannot be made by the Dental College unless the
permission granted under Regulation 10 of the Regulations is
renewed by the Central Government. Proviso to Regulation 11
stipulates that the process of renewal of permission cannot be
made applicable after the completion of phased expansion of the
infrastructure facilities and teaching faculty as per norms laid
down by the Dental Council of India (for short, hereafter referred
to as "the Council/DCI") and the first batch of students take the
final year examinations. The application for renewal of permission,
however, has to be submitted to the Council with a copy to the
Central Government, six months prior to the expiry of the current
academic session and final order on the recommendations made by
it (Council) is generally issued by the Central Government by 15th
July of each year. The respondent-Trust claims that its College is
affiliated with the Rajasthan University of Health Sciences and due
to the delay in holding of examinations of the final academic
session, the theory examinations of the BDS final year, which
started from 24.8.2012 could be completed on 14.9.2012 followed
by practical examinations with effect from 17.9.2012 to 26.9.2012.
Meanwhile, on 4.5.2012, the College of the respondent-Trust
had applied to the Government of India, Ministry of Health &
Family Welfare in the form prescribed by the Regulations seeking
permission to start Post-graduate (MDS) Course, whereupon, by
letter No.V.12017/2/2012-DE dated 24.5.2012 issued by the
Ministry of Health & Family Welfare (Dental Education Section),
Government of India, the College was informed that its application
was incomplete being not accompanied by certain documents as
referred to therein. Thereby, the respondent-Trust's College was
required to furnish the requisite documents if its BDS degree had
been recognized. The College was asked to do by 31.7.2012 being
the last date for forwarding the complete proposal/application to
the DCI for the Academic Session-2013-14. According to the
respondent-Trust, on 27.7.2012, its College furnished the requisite
documents highlighting at the same time that the recognition of its
BDS degree was delayed due to delay in holding BDS final year
examination. A request was, however, made to consider its
application for starting the MDS Course from the Academic Session
2013-14 and to forward the same to the DCI for necessary action. By communication No.V.12017/2012-DE dated 6.8.2012, the
College was, however, informed by the Ministry of Health & Family
Welfare (Dental Education Section), Government of India that its
application for starting the MDS Course was not in conformity with
the qualifying criteria prescribed by Regulation 13 (a) of the
Regulations as its BDS Course was not recognized by 31.7.2012 i.e.
the last date of forwarding the complete application to DCI. The
BDS Course of the College of the respondent-Trust was eventually
recognized with effect from 21.9.2012 as per the Notification
F.No.V.12017/44/2007-DE dated 17.1.2013. As the request of its
College for reconsideration of the decision conveyed by the letter
dated 6.8.2012 did not meet any positive response, the
respondent-Trust approached this Court seeking judicial
intervention.
(3.)THE learned Single Judge by the order impugned passed the following operative directions in the interim:-
"By way of this interim order, without expressing any final opinion on the matter and finally deciding the present writ petition, it is considered expedient to direct that the concerned Ministry of Health and Family Welfare to forward the petitioner's application along with the certificate issued by the respondent no.1 Ministry of Health and Family Welfare, Govt. of India, New Delhi, to the Dental Council of India immediately and the Dental Council of India is directed to undertake the necessary procedure for consideration of the application of the petitioner on merits for Academic Session 2013-14 for making necessary recommendations back to the Central Government before 28th February, 2013. It is made clear that the aforesaid directions will not create any equity in favour of the petitioner institution and this interim direction of considering of the petitioner's application on merits will, however, remain subject to the final decision of this writ petition."
Mr.Sharma has assiduously argued that as is patent from the
qualifying criteria ordained by Regulation 13 of the Regulations,
the recognition of the BDS Course of a College seeking permission
for starting a new or higher course of study or training is an
alienable pre-condition bearing on its eligibility therefor, the
request of the College of the respondent-Trust for starting the MDS
Course had been rightly rejected and thus, the directions
contained in the impugned order even if in the interim, ought not
to have been issued. As the BDS Course of the College admittedly
had not been recognized by 31.7.2012 i.e.the last date for
forwarding the complete application for permission to start the
MDS Course to the DCI, it was ineligible for such permission for the
Academic Session-2013-14 and thus, the arrangement envisaged by
the impugned order is in contravention of the Regulations, he
urged. According to the learned counsel, the recognition of the BDS
Course of the College of the respondent-Trust from 21.9.2012,
having regard to the deadline of 31.7.2012 for forwarding its
application for permission to start MDS Course from the Academic
Session-2013-14, is of no consequence. The impugned order being
clearly not sustainable in law and on facts in the face of the
Regulations, it is liable to be interfered with, he pleaded. To
emphasize upon the binding nature of the time schedule fixed in
this regard, the learned counsel placed reliance on the decisions of
the Hon'ble Apex Court in Mridul Dhar (Minor) and anr. V/s Union
of India & ors. ((2005) 2 SCC 65) and Priya Gupta V/s State of
Chhattisgarh and ors. ((2012) 7 SCC 433).