S.B Sinha, J.:—The petitioner in this application has prayed for issuance of a writ of or in the nature of mandamus directing the respondent nos. 2 and 3 to grant approval to the petitioner's College purported to be in terms of sub-section (5) of Section 10A of the Dentist Act, 1948 and for a further direction upon respondent no. 4 to grant affiliation of the said college with respondent no. 5.

2. The institution in question is said to be a minority institution within the meaning of Articles 29 and 30 of the Constitution of India which is said to have been established with effect from 20.1.1989 and managed by Rauf Muslim Jamia Society. It is stated that by a letter dated 20.1.1989 the petitioner informed the respondent nos. 2 and 3 with regard to the establishment of the said institution and respondent no. 1 in turn by its letter dated 1.8.1989 stated that unless all the conditions are fulfilled by the said institution, no permission shall be granted. The petitioner, thereafter, raised a contention in terms of letter dated 20.3.1989 that being minority institution it does not require any permission for the establishment of the institution from the State Government. On 4.7.1989 the State of Bihar appears to have referred the matter to the Government of India. By letter dated 30.4.1990 respondent no. 1 allegedly stated that the conditions laid down for grant of permission in relation to the approval to the institution have to be satisfied purported to be in terms of its policy decision. At that stage, the petitioner also filed an application before the State of Bihar for grant of no objection certificate. Whereupon the matter was referred to Lalit Narain Mithila University, Darbhanga by terms of a letter dated 1.11.1989 as contained in Annexure-6 to the writ petition. It is stated that pursuant to the aforementioned letter, inspection was held by the University authorities and a report dated 12.6.1990 was submitted wherein it was stated that the petitioner fulfilled all the conditions whereupon allegedly no objection certificate was also granted. The said report is contained in Anexure-7 to the writ petition. Thereafter, the Additional Secretary to the Department of Health and Family Welfare, Government of Bihar, by letter dated 31.5.1991 requested respondent no. 1 to hold inspection of the institution but no step in that regard was taken. The petitioner again filed an application on 27.8.1991 as contained in Annexure-9 to the writ petition but despite the same no action was taken in terms thereof. It appears that several correspondences thereafter passed on between the petitioner, on the one hand, and the State Government and the University, on the other. The petitioner, however, admitted the students and as they were not being allowed to appear at the examination, a representation was filed by the Chairman of the petitioner to the Chancellor of the University who in exercise of his power under the Transitory Regulation permitted the students to appear at the 1st B.D.S Course examination but the results of the students were not published. It is stated that on the request of the Dental Council of India, the Vice Chancellor sent an inspection team who submitted a report on 2.8.1992 stating that the Institution has fulfilled all the requirements. It is stated that despite the same and despite several other applications filed by the petitioner, no recognition has yet been granted.

3. A supplementary affidavit has been filed on behalf of the petitioner on 7.2.1994 wherein it has been stated that the Under Secretary to the Government of India in the Ministry of Health and Family Welfare by a letter dated 7.12.1993 directed the petitioner to apply in the prescribed form for seeking permission of the Central Government which is required for establishment of a new Dental College. It has been stated that the Central Government or the Dental Council cannot treat the petitioner institution as a new Dental College and ask it to file an application for obtaining recognition for establishment of the college.

4. Mr. Chandra Shekhar, appearing for the petitioner submitted that in view of the fact that the students of the petitioner-institution having already attended their classes, should be permitted to appear at the examination and in any event, the Dental Council of India as also the Central Government should be directed to take expeditious steps for recognition of the petitioner-Institution.

5. Mr. Sunil Kumar, learned Additional Standing Counsel of the Central Government, on the other hand, submitted that the Transitory Regulations have been held to be ultra vires by a Division Bench of this Court. He further drew our attention to the fact that the petitioner filed a writ petition being C.W.J.C No. 9490/92 [Reported in 1993 (2) PLJR 641] in this Court for the self same reliefs but the same was dismissed by a judgment dated 14.9.1993 and thus this writ petition is not maintainable. Learned counsel further submitted that the application filed by the petitioner is barred under the principle of res judicata and in support of the aforementioned contention he has relied upon a recent decision of the House of Lords in the Indian Endurance Republic of India v. India Steamship Co. Ltd. reported in 1993 (1) All England Law Reports-998.

6. The question raised in this application as to whether the students of the petitioner-institution can be permitted to appear at the examination and get their results published is no longer res integra.

7. In Dr. Nitya Nand Pd. Gupta v. State of Bihar reported in 1993 (2) PLJR-221 a Division Bench of this Court having considered the provisions of All India Council for Technical Education Act, 1987 (hereinafter to be referred as ‘the Central Act’) which came into force on 28.3.1988 and the Bihar State Engineering and Pharmacy Education Act, 1982 (hereinafter to be referred as the Bihar Act 63 of 1982) which came into force with effect from 7.8.1982 inter-alia, held that the State Government had no jurisdiction to grant recognition in contravention to the provisions of Clause II of Section 6 of the Bihar Act 63 of 1982.

8. This Court again in Syed Welayat Hussain v. State of Bihar reported in 1994 (1) PLJR-1 while dealing with amendment in the Indian Medical Council Act whereby Sections 10A,10B and 10C were inserted by reason of Indian Medical Council (Amendment) Ordinance, 1993 held that the power to grant recognition in such matters lies with the Central Government and Central Council and unless such recognitions are granted, the students of the institution cannot claim any right to get their results published.

9. The decision of Syed Welayat Hussain v. State of Bihar (Supra) was considered in Board of Directors of the Saryug Dental College, Darbhanga v. The State of Bihar reported in 1993 (2) PLJR-610 wherein it was held as follows:

“Unless, the Central Government grants permission to the University as required under Section 10A(b) of the Central Act, for conducting the courses of studies in question and it is authorised to award recognition/dental qualification, there cannot be any occasion for the Central Government for granting permission to the institution like the present one to have its permission for imparting courses and training in dentistry.”

10. Yet another Division Bench of this Court in Dr. S.M Naqui Imam Dental College & Hospital v. Dental Council of India reported in 1993 (2) PLJR-641 noticed the decision of Syed Welayat Hussain & ors. (Supra) while considering the provision of Dentist Act, 1948 and held:

“Section 10C clearly embraces within its fold all institutions established before the commencement of the said Act. If the provisions are intended to apply to even existing institution the question of recognition of the institution in question has now to abide by decision of the Central Government in accordance with the provisions contained in Section 10A”.

11. In Rajeev Ranjan v. The State of Bihar reported in 1993 (2) PLJR-610 a Division Bench of this Court, inter-alia, held that terms ‘affiliation’, ‘recognition’ and ‘affiliated colleges’ are cognate in nature. It was further held that the Transitory Regulation framed under section 39(2) of the Bihar State Universities Act, 1976 so far as the same relates the conduct of examination of B.D.S Course of private Dental College, is ultra vires. The Bench observed.

16. “Chapter V of the Central Act creates offences for certain acts and omission. Under section 49 of the Central Act, practice in dentistry or allied matters by a person other than by a registered dentist, has been made an offence. In part I of the Schedule, in the State of Bihar, only Patna University has been authorised to grant a recognised dental qualification of Bachelor of Dental Surgery (B.D.S Patna). Therefore, keeping in view the provisions of Central Act, the respondent L.N Mithila University is not competent to conduct courses of study or training for grant of any recognised dental qualification. It is a matter of record as has been admitted at the Bar as also is apparent from statute of this University that as required under section 26 of the State Act, it has neither any faculty of dentistry nor it has prescribed any syllabus or courses of study in this branch of learning nor there is any regulation providing for grant of any affiliation or recognition to any private Dental College. In this view of the matter, provisions of newly inserted Section 10A of the Central Act will have its immediate play. The relevant clauses of Section 10A of the Central Act may be quoted thus:

12. (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) except with the permission of the Central Government obtained in accordance with the provisions of this Section.

17. In view of the aforesaid provisions, the respondent-University having not been so authorised to grant any recognised degree in dental surgery, if so advised, has to approach the Central Government seeking for permission for the courses of studies in question for grant of recognised dental qualification and it is only subsequent to the grant of such permission, it can proceed with the laying down the syllabus or courses of studies for the dental qualification so recognised and further proceed to include faculty of dentistry in its statute under Section 26 of the State Act. It has then to provide for…. (a) the courses of studies to be laid down for dental degree, and (b) the conditions under which students shall be admitted to the said degree course and to the University examination and shall be eligible for such degree as required under section 39(a) and (b) of the State Act.

13. The Bench further observed that in view of the fact that the name of L.N Mithila University does not appear in the Schedule appended to Central Act and as the University had not framed any statute for admission of Dental College to its privileges for grant of affiliation/recognition as required under section 34 of the State Act is not competent for grant of affiliation/recognition for imparting any courses of training which may enable the students to qualify themselves for grant of any recognised dental qualification.

14. It has further been held:

“Neither the Dental Council of India constituted under the Central Act nor the State Government under any existing statutory provisions including State Act has any authority to grant affiliation or recognition to any dental college. Under section 4(19) read with section 21(2) of the State Act, an affiliation of the College cannot take effect unless it is approved by the State Government. Therefore, the State Government will have its say in relation to affiliation/recognition only when a proposal to this effect is sent to the State Government in accordance with the provisions of the statutes made in this regard by the authorities of the University defined under section 17 of the Act.

15. Mr. Azfar Hassan appearing on behalf of the University, however, pointed out that attention of the Court deciding the aforementioned case could not be drawn to sub-section (2) of Section 10 of the Dentist Act, 1948 and thus that part of the Judgment may be held to have passed sub silentio.

16. In the case of the petitioner itself (reported in 1993 (2) PLJR-641) a Division Bench of this Court, inter-alia, observed that appropriate decision in the matter of grant of recognition would be taken in the light of the amended provision as early as possible preferably within six months from the date of receipt of a copy of the order.

17. In this view of the matter, in our opinion, the submission of Mr. Prasad to the effect that this application is barred by the principle of res judicata must be held to have sub-stance.

18. The House of Lords in the Indian Endurance Republic of India v. India Steamship Co. Ltd. reported in (1993) 1 ALL E.R-998 observed as follows:

“Central to the consideration of these issues is the impact of S-34 of the 1982 Act, upon which Sheen J., and the Court of Appeal based their conclusion that the appellants' claim should be struckout. Indeed Sheen, J. expressed the view that, if S. 34 did not apply, and the case was to be decided upon the basis of the common law principle of issue estoppel, further investigation of the facts would be necessary. I propose therefore to turn first to consider the legislative purpose underlying S. 34, and the effect of the section in the light of that legislative purpose; and in order to carry out that task it will, in my opinion, be necessary to set the section against the background of the common law principle of res judicata.”

19. The House of Lords upon taking into consideration its earlier decision in Thoday v. Thoday (1964) All E.R-341 at page 352 and Yat Tung Investment Company Ltd. v. Dao Heug Bank Ltd. (1975) Appeal Cases 581 at page 590 and other decisions, inter-alia, held that the cause of action also merges with the judgment. It also emphasised the principles of constructive res judicata which in India is laid down in Explanation 4 appended to Section 11 of the Code of Civil Procedure.

20. However, as noticed hereinbefore, Mr. Chandra Shekhar submitted that in view of the subsequent development this writ application is maintainable. There cannot be any doubt that if any fresh cause of action arises, a separate action would be maintainable at the instance of the petitioner. However, in this application the petitioner by reason of supplementary affidavit has only brought out letter dated 7.12.1993 as contained in Annexure-23 to the supplementary affidavit, whereby and whereunder it was directed to seek prior permission of the Central Government for establishment of the dental college.

21. This Court in earlier case of the petitioner has also considered this aspect of the matter. Further it is not the case of the petitioner that even in terms of the State Act, the State Government in fact had granted permission for establishment of the Institution. In any event, in our opinion, the petitioner cannot be permitted to raise the same questions over again as the said questions as is evident from reported case, were also canvassed earlier but rejected by this Court.

22. So far submission of Mr. Azfar Hassan, with regard to non-consideration of provisions of sub-section (2) of Section 10 of the Dentist Act, 1948 is concerned, the same has substance.

23. Sub-section (2) of Section 10 reads thus:

“Any authority or institution in India which grants a dental qualification not included in Part I of the Schedule may apply to the Central Government to have such qualification recognised and included in that part, and the Central Government, after counsulting the Council, and after such inquiry, if any, as it may think fit for the purpose, may, by notification in the Official Gazette, amend Part I of the Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in part I of the Schedule against such dental qualification declaring that it shall be a recognised dental qualification only when granted after a specified date.”

24. In terms of the aforementioned provisions, therefore, the Central Government after consulting the Council and after such enquiry as it may think fit and proper may issue an appropriate notification. In fact the parties have brought to our notice a similar notification issued by the Central Government in relation to the Magadh University.

25. In this view of the matter, it must be held that the Central Government is also empowered to amend the Schedule by issuing a notification in exercise of its power under Sub-section (2) of Section 10 of the Act.

26. So far, as the University is concerned, it is stated at the Bar that it has a ‘medical faculty’ constituted in terms of the University Statutes which by necessary implication include the faculty in Dental Science.

27. It has further been submitted that thus no separate faculty of Dental Science is to be created and in fact Dean of Faculty of Medicine can be appointed/promoted from amongst the eligible candidates posted in any of the branches, be it Medicine, Surgery or Dental Science or any other branch of Medical Science.

28. It appears that the provision of Sub-section (2) of Section 10 of the Dentist Act was not brought to the attention of the learned Judges deciding B.D of Saryug Dental College and thus it must be held that the observation made in relation to the obligation on the part of the University to obtain prior permission passed sub-silentio.

29. It would thus be open to the University to approach the Central Government for issuance of a notification under Sub-section (2) of Section 10 of the Act which it is needless to point out may exercise his statutory power in the manner laid down therein.

30. For the reasons aforementioned, there is no merit in this application and it is, accordingly, dismissed with the aforementioned observations but without any order as to cost.

S.K Singh, J.:—I agree.