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Friday, September 20, 2013

cut off date for starting the professional courses,= it is not possible to accede to the request of the petitioner to change the time-schedule when the last date for admitting the students, which was July 15, 2013, expired long ago. If the Central Government forwards the application to the DCI at this juncture, DCI shall hardly have any time to look into the feasibility of the scheme as per the requirements contained in Regulation 21. We have to keep in mind that in the schedule annexed to the Regulations 2006, six to eight months time is given to the DCI for this purpose. We are, thus, of the view that the High Court did not commit any error in holding that in the given circumstances mandamus could not be issued to the Central Government to exercise its discretionary powers in a particular manner to modify the time-schedule. Sanctity to the time-schedule has to be attached. It is too late in the day, in so far as present academic session is concerned, to give any direction.- This Court has highlighted the importance of cut off date for starting the professional courses, particularly medical courses, and repeatedly impressed upon that such deadline should be tinkered with. (See: Priya Gupta vs. State of Chhattisgarh (2012) 7 SCC 433 and Maa Vaishno Devi Mahila Mahavidyalaya vs. State of U.P. (2013) 2 SCC 617. 10. We, thus, do not find any error in the impugned judgment of the High Court. This petition is bereft of any merit and is accordingly dismissed.

                published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40787
                                             [REPORTABLE]

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

              SPECIAL LEAVE PETITION (Civil) No. 22910 OF 2013

Educare Charitable Trust                                      ……Petitioner

                 Vs.

Union of India & Anr.
       ….Respondents



                               J U D G M E N T



A.K.SIKRI,J.



1.    In this petition, invoking  the  provisions  of  Article  136  of  the
Constitution of India, the petitioner seeks  leave  to  appeal  against  the
judgment dated 2nd July 2013 passed by  the  High  Court  of  Kerala.   Writ
Petition of the petitioner has been dismissed  by  the  aforesaid  judgment.


2.    The petitioner, which is a Charitable Trust working in  the  field  of
education, has established a Dental College which was established few  years
ago.  During the  Academic  Year  2007-08,  course  in  Bachelor  of  Dental
Surgery (BDS) was started by it with an annual intake of 50 students.   This
was done after taking due -permission  from  the  Central  Government  under
Section 10-A of the Dentists Act,  1948  on  the  recommendation  of  Dental
Council of India (DCI).
 The  Government  of  Kerala  has  issued  requisite
Essentiality Certificate.  The college run by the petitioner  is  affiliated
with University of Calicut as that University had granted necessary  Consent
of Affiliation.
The Dental College also stands  affiliated  to  the  Kerala
University of Health Sciences,  established  by  the  Kerala  University  of
Health Science Act, 2010.

3.    In the year 2012, the petitioner wanted to expand  the  size  of  BDS,
being desirous of increasing the capacity from 50 to 100 seats.  
 Intention
was to do so with effect from  current  Academic  Year  i.e.  2013-14.  
The
scheme was rejected by the Government vide order  dated  31.12.2012  on  the
ground that  it  did  not  fulfil  the  eligibility  criteria  for  such  an
increase.
Against this order of refusal  of  the  Central  Government,  the
petitioner had approached the High Court of Kerala seeking quashing  of  the
said order and for issuance of  Writ  of  Mandamus  commanding  the  Central
Government to forward the  application  of  the  petitioner  for  intake  of
students,  to the DCI for technical scrutiny and further to direct  the  DCI
to make appropriate recommendation to the Central  Government  for  issuance
of letter of  permission  during  the  Academic  Year  2013-14  itself.   As
pointed out in the beginning of this order, the said Writ Petition has  been
dismissed by the High Court.

-

4.    In order to appreciate  the  controversy  and  the  grievance  of  the
petitioner, it would be necessary to traverse few facts.

5.    On 8th August 2012, the petitioner had submitted  the  scheme  to  the
Government of India for increasing the admission capacity.
This request  of
the petitioner was considered      but  the  Central  Government  could  not
process the same as at the  time  of  submission  of  the  application,  the
petitioner had yet to get the recognition of the BDC course  with  50  seats
i.e. the existing capacity, which is  a  pre-condition  for  forwarding  the
application.
The Central Government had issued  various  letters,  last  of
which was dated 19th December 2012, asking  the  petitioner  to  obtain  the
recognition.
Last date  for  forwarding  the  application  by  the  Central
Government to DCI for approval of such scheme  was  31.12.2012.  
Since  the
petitioner could not bring the said  “Essential  Documents”  even  upto  the
last date i.e. 31-12-2012, the Central Government returned  the  application
with liberty to the petitioner to apply afresh in  the  next  Academic  Year
i.e. 2014-15.

6.    As per the petitioner, its college fulfilled all  the  norms  required
for increase of intake of students from 50 to  100  seats.   In  so  far  as
matter of recognition is concerned, the petitioner squarely blames  the  DCI
for dragging its feet and, therefore, it  is  pleaded  that  the  petitioner
could not be made to suffer for no fault on its part.  In  this  behalf,  it
was pointed out that the Executive Committee of the DCI in its meeting  held
on 26.11.12 had duly recommended to accord recognition.  -Recommendation  of
the Executive Committee was considered by the General  Council  of  the  DCI
which met on  27/28.11.2012.   This  Governing  Council  also  approved  the
proposal.  Nothing further was to be done by the DCI but to send  letter  of
recommendation to the Central Government.  Had it been done  immediately  or
within few days thereafter, the petitioner could have  got  the  recognition
of the BDS course much before 31st December 2012, which was the  last  date.
The grudge of the petitioner is tht the DCI slept over the matter  and  sent
the communication regarding recognition of the petitioner  –college  to  the
Central Government only on 7th January 2013 thereby causing  the  last  date
to expire.  The Central Government had  notified  the  recognition  on  23rd
January 2013 but with effect from July 2012.  In  this  conspectus,  it  was
the submission of the petitioner that the right of the  petitioner  to  seek
enhancement  of  seats  from  50  to  100  could  not  be  defeated  by  the
respondents when the delay was at their end.  It was  pleaded  that  thought
as per the time frame set out in the Schedule, last date for forwarding  the
application was 31st December, 2012, Note  (2)  appended  beneath  the  said
Schedule enables the Central Government to modify the  same  in  respect  of
any class or category of applicants.  In the present case, there  was  valid
reason to exercise such discretion but it was not done.   For  this  reason,
another prayer was made in the Writ Petition to the effect that the  Central
Government be directed to -modify the time schedule for  the  petitioner  by
invoking the power under Note (2) to the Regulations.

7.    The aforesaid plea of the petitioner did not  cut  any  ice  with  the
High Court.  It held that as per Regulation 18 of the DCI (Establishment  of
New Dental Colleges, Opening of New Higher Course of Study or  Training  and
Increase of Admission Capacity in Dental Colleges)  Regulations,  2006,  the
applicant has to submit application in Form 3 when it wants to  increase  of
seats.  Qualifying criteria is laid down in Regulation 19 and as per  Clause
(a) thereof, it is  mandatory  that  the  college  is  recognized  with  the
existing admission capacity.   This  condition  was  not  fulfilled  by  the
petitioner and it was not possible for the  Central  Government  to  forward
the application to the DCI for technical scrutiny.  In these  circumstances,
if the Central Government did not exercise  its  discretion  to  modify  the
time schedule, in terms of Note (2) of the Regulations, direction could  not
be issued to the Central Government to exercise that power in  a  particular
manner as it was purely within the discretion of the Central Government  and
Central Government refused to exercise the discretion for valid reason.

8.    Before us as well, the case was argued on the  same  lines  which  was
taken before the High Court.  It was submitted by Mr. Patwalia, the  learned
senior counsel appearing for the petitioner  that  in  the  absence  of  any
fault of the petitioner and when the petitioner has  taken  all  steps  well
within time, it was a fit case for -exercising  discretion  by  the  Central
Government and non-exercise of such  a  discretion  was  clearly  arbitrary.
Mr. Patwalia  emphasized and reemphasized, with lots of vehemence that  when
the  Governing  Council  had  approved  the  case  of  recognition  of   the
petitioner-college in respect of existing  seats  on  27/28  November  2012,
there was no reason for it to delay  forwarding  of  this  proposal  to  the
Central Government.  Had it been done immediately  thereafter,  the  Central
Government would have granted the recognition  much  before  31st  December,
2012 thereby removing the only handicap which was coming in the way  of  the
petitioner and its scheme containing proposal of increase of seats  from  5o
to 100 could have been forwarded to the DCI well in time.  He, thus, made  a
passionate plea that it was a fit case for exercise of power to  extend  the
time   Schedule   under    Note    (2)    of    the    Regulations,    2006.


9.     We  are  not  persuaded  by  these  submissions  of  the  petitioner.
Regulations, 2006 are framed by the DCI, with the previous approval  of  the
Central Government, in exercise of powers  conferred  by  Section  10A  read
with Section 20 of the Dentists Act, 1948.  These  Regulations,  thus,  have
statutory force.  These Regulations deal with the  procedure  for  obtaining
permission of the Central Government to establish new  Dental  College,  for
starting new or higher courses or training in a Dental College  as  well  as
for increase in admission capacity  in  a  Dental  College.   Regulation  18
deals with “Permission of the  Central  Government  -to  increase  admission
capacity in the dental college” which is the subject matter of  the  present
proceedings.  Under Regulation 18, the applicant, a Dental College  desirous
to increase the admission capacity has  to  make  requisite  application  in
Form 3.  Regulation 19 lays down the qualifying criteria and the  conditions
which are to be necessarily fulfilled to enable that college to apply  under
Regulation 18.  As per Regulation 20, application  is  to  be  submitted  in
Form 3 and the application fee with the particulars mentioned  in  the  said
Regulation. Relevant portions of Regulations 18,19 and  20,  with  which  we
are concerned, are reproduced herein below:

      “18.   Application for increasing the admission capacity:-

            For increasing the admission capacity (number of seats)  at  the
      under-graduate or post-graduate level (degree or  diploma),  a  dental
      college shall,  subject  to  regulation  19,  submit  to  the  Central
      Government the scheme in this  regard  in  Form  3,  as  annexed,  for
      obtaining its permission.




      19.   Qualifying Criteria:-

      A dental college shall qualify to apply under regulation  18,  if  the
      following conditions are fulfilled:

            (a) the dental qualification granted  to  the  students  of  the
      college and in respect of which the capacity is sought to be increased
      is recognized with the existing admission capacity;

            (b) xxxxxxxxxxxxxxxxxxx

-           (c) xxxxxxxxxxxxxxxxxxxx

            (d)xxxxxxxxxxxxxxxxxxxx

            (e)xxxxxxxxxxxxxxxxxxx

      20.   Submission of the application in  Form  3  and  the  application
fee:-

            (1) xxxxxxxxxxxxxxxxxxx

           (2) Incomplete application or scheme will not  be  accepted  and
           will be returned by the  Central  Government  to  the  applicant
           along with enclosures and processing fee.

            (3)xxxxxxxxxxxxxxxxx”



7.    It is clear from the above that  Regulation  18  is  made  subject  to
Regulation 19.   Regulation 19 states, in no uncertain terms, that a  dental
college “shall qualify to apply  under  regulation  18”  if  the  conditions
stipulated in Regulation 19  are  fulfilled.   It  clearly  follows  that  a
dental  college  which  does  not  satisfy  the  conditions  laid  down   in
Regulation 19 is not qualified to make an application under  Regulation  18.
Clause (a) of Regulation 19 lays down a specific condition, namely  existing
admission capacity should be recognized

8.    Admittedly, as on the date of  application,  the  petitioner  did  not
have this  recognition  and  thus,  it  did  not  fulfill  the  stipulations
contained in Clause (a) of Regulation 19.   In the absence thereof,  it  was
not qualified to make the -application.  It, thus, clearly  follow  that  on
the  date  of  application  i.e.  8th  August  2012,  the  application   was
incomplete. As per regulation 20(2) incomplete application or scheme can  be
returned by the Central Government to the applicant,

9.     No  doubt,  instead  of  returning  the  application,   the   Central
Government gave chances to the petitioner to  obtain  the  recognition  from
DCI and furnish the same to it.   Mr.  Patwalia  may  be  correct,  to  some
extent, that had such a recommendation been  forwarded  by  the  DCI  before
December 2012, probably Central Government would have acted  thereupon.   It
is also correct that the Governing Council in  its  meeting  held  on  27/28
November 2012 approved the case of the petitioner and sent the same  to  the
Central Government only on 7.1.2013.  However, merely from these facts,  the
blame cannot be foisted upon the DCI.  It has been  duly  explained  by  the
DCI that there  are  about  40  Members  of  the  Governing  Council  spread
throughout the country.  The Governing Council meets twice  a  year  and  in
every meeting the business transacted by  the  Governing  Council  is  huge.
After the meeting, minutes are to be prepared in respect of  all  the  items
in the agenda.  By the time minutes are prepared, the  Members  go  back  to
their respective places of residence.  Getting signatures of the Members  of
the Council is, therefore, a time consuming  process.  It  was  pointed  out
also by the learned counsel for the DCI, which could not be disputed by  the
petitioner, that 40 days time is earmarked for  sending  the  recommendation
to the Central -Government, after it is approved by the  Governing  Council.
In  the  instant  case,  the  Governing  Council  did  its  job  within  the
stipulated time.  Therefore, there is no delay in sending  its  approval  to
the Central Government on 7th January 2013.

10.   As per Regulation 4 of Regulations, 2006, the scheme or  proposal  has
to be submitted within the time frame as appended in  the  Schedule  annexed
to the said Regulations.  The Schedule gives the following time frame:

                            SCHEDULE

                       (See Regulation 4(2))

      Schedule for receipt of Applications for Establishment of  New  Dental
Colleges, Opening  of  Higher  Course  of  Study  &  Increase  of  admission
capacity  in  the  recognized  Dental  Colleges  and   processing   of   the
applications by the Central Government and the Dental Council of India.

S.No.         Stage   of   Processing                 Time   Schedule    for
Time Schedule
                                       BDS                               for
MDS
----------------------------------------------------------------------------
------------------------
1                2                           3                     4
----------------------------------------------------------------------------
-----------------------
1.    Receipt of applications by  From 1st August to 30th          From  1st
May
      the Central Govt.                 Sep.(both  days  inclusive)       to
30th June
                                   of  any  year.                      (both
days
                                                           inclusive)of
                                                                   any year




2.    Forwarding of applications   Upto  31st  October            Upto  31st
July
      by the Central Government
      to the Dental Council of India
      for technical scrutiny.
3.    Recommendations of DCI      Upto 15th June        Upto 28th February

      to the Central Govt.
4.    Issue of Letter of Permission    Upto 15th July        Upto 31st
March
      by Central Government

Note (1)If any clarification is sought by  the  Central  Government  on  the
recommendation of the Council, the same will be  furnished  by  the  Council
forthwith, if necessary after conducting inspection.
      (2) The time-schedule indicated above may be modified by  the  Central
Government, for reason to be recorded in writing, in respect  of  any  class
or category of applications.”


8.    As per the aforesaid time-schedule, the applicant-college desirous  of
increasing the admission capacity is to  submit  the  application  from  1st
August to 30th September.  This was done by the petitioner.   However,  what
was found that the petitioner was not meeting the qualifying criteria as  on
that date because with respect to existing admission capacity,  it  had  not
been recognized so far.   The  applications  are  to  be  forwarded  by  the
Central Government, once they are found to  be  in  order  and  meeting  the
qualifying criteria laid down in Regulation 19, by 31st October  in  respect
of BDS course.  This time was extended upto  31st  December  in  this  year.
After an application is forwarded to the DCI, DCI is  supposed  to  evaluate
the scheme for increasing admission capacity as per the procedure laid  down
in Regulation 21 which lays down that the DCI is required to  ascertain  the
desirability and  prima  facie  feasibility  for  increasing  the  admission
capacity at the Dental College.  It  is  also  required  to  satisfy  itself
about the capability of the Dental College to  provide  necessary  resources
and infrastructure  for  the  scheme.   DCI  is  even  required  to  conduct
physical inspection of the college before forming an opinion as  to  whether
the applicant satisfies the condition  of  -feasibility  of  increasing  the
admission capacity.  This process, naturally, is  time  consuming.   As  per
the time-schedule referred to above, time upto 15th June is  given  for  the
DCI to make  recommendation  to  the  Central  Government.   Such  a  report
containing its recommendation is to be given  in  terms  of  Regulation  22.
Thereafter,  Central  Government  is  required   to   go   into   the   said
recommendation and if  it  is  found  that  applicant-college  deserves  the
permission to increase the admission capacity, Letter of  Permission  is  to
be issued by 15th July.  This time frame  is to ensure timely admissions  of
students.
9.    Having regard to the above,
  it  is  not  possible  to  accede  to  the
request of the petitioner to change the time-schedule  when  the  last  date
for admitting the students, which was July 15, 2013, expired long  ago. 
  If
the  Central  Government  forwards  the  application  to  the  DCI  at  this
juncture, DCI shall hardly have any time to look  into  the  feasibility  of
the scheme as per the requirements contained in Regulation 21. 
 We  have  to
keep in mind that in the schedule annexed to the Regulations  2006,  six  to
eight months time is given to the DCI for this purpose.  
We  are,  thus,  of
the view that the High Court did not commit any error  in  holding  that  in
the given  circumstances  mandamus  could  not  be  issued  to  the  Central
Government to exercise its discretionary powers in a  particular  manner  to
modify  the  time-schedule.   
Sanctity  to  the  time-schedule  has  to   be
attached.  It is too late  in  the  day,  in  so  far  as  present  academic
session is concerned, to give any direction.-  
This  Court  has  highlighted
the importance of cut  off  date  for  starting  the  professional  courses,
particularly medical  courses,  and  repeatedly  impressed  upon  that  such
deadline  should  be  tinkered  with.  (See:  Priya  Gupta  vs.   State   of
Chhattisgarh (2012) 7 SCC 433 and Maa Vaishno Devi Mahila Mahavidyalaya  vs.
State of U.P. (2013) 2 SCC 617.

10.   We, thus, do not find any error in the impugned judgment of  the  High
Court.  This petition is bereft of any merit and is accordingly dismissed.

                                       ……………………………….J.
                                       (K.S.Radhakrishnan)



                                       ……………………………….J.
                                       (A.K. Sikri)
New Delhi,
September 17, 2013

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