M.N. Bhandari, J. - By this writ petition a challenge is made to the Notification dated 21.05.2012 to substitute Regulation 6(2)(h) of Dental Council of India (Establishment of New Dental Colleges, Opening of New or Higher Course of Studies or Training and Increase of Admission Capacity in Dental Colleges) Regulations, 2006.
2. Learned counsel for the petitioner-Biyani Shikshan Samiti submits that the Regulation 6(2)(h) has been amended affecting the rights of the petitioner. A reference of the provision, before amendment, has been given. It is to demonstrate difference between the amended and unamended provision. As per the unamended provision, the requirement for the applicant was to have a General Hospital of not less than 100 beds with necessary infrastructure facilities including teaching pre-clinical, para-clinical and allied medical sciences in the campus of the proposed dental college. Such a General Hospital is to be owned or managed by the applicant. The alternative was to have proposed Dental College in the proximity of a Medical College recognised by the Medical Council of India. It is with a condition of facility of training to the students in the subjects of Medicine, Surgery and Allied Medical Sciences. The distance from Medical college was also given. By the amended provision under challenge, the requirement is to attach proposed Dental College with the Government/Private Medical College recognised by the Medical Council of India at the distance of 10 kms by road apart from many other conditions. The subsequent amendment permits distance of 30 kms instead of 10 kms.
3. The challenge to the amended Regulations has been made as it is infringing rights of the petitioner guaranteed under Article 19 (g) of the Constitution of India. A condition has been imposed for attachment of the Dental College with Government/ Private Medical College.
4. There is no sanctity to attach a Dental College with a Medical College as the course of BDS is quite different than MBBS course taken in the Medical College. As per the unamended provision, a Dental College was to be in the campus of a General Hospital of not less than 100 beds with necessary infrastructure facilities including teaching preclinical, para clinical and allied medical sciences. The sanctity of the hospital was to give practical training to the students. It is more so when the condition was even not only for attachment of General Hospital but teaching facilities in pre-clinical, para clinical and allied medical science. In the alternative, attachment to a Medical College.
5. The students were getting training in the attached Medical Hospitals in the same campus, which would not be available now thus the purpose sought to be achieved has been frustrated. It is to have proper teaching and training of the students. In view of the above, prayer is made to struck down the amended Regulation 6(2)(h) of the DCI Regulations, 2006 with direction to consider case of the petitioner Samiti for approval of Dental College as per unamended provisions.
6. It is further stated that the Notification dated 21.5.2012, amending the Regulations, would be in contravention to sections 10(A) and 20 of the Dentist Act, 1948. The Dental Council of India has been given power to frame Rules with approval of the Central Government. Section 10(A) 7(e) of the Dentist Act, 1948 requires arrangement or the programme to impart proper training to the students and, accordingly, requirement to attach the Dental College with Medical Hospital was provided but by virtue of the amendment, the attachment is now required with the Medical Colleges. It is opposed to section 10(A) of the Act of 1948.
7. Learned Additional Solicitor General of India Mr RD Rastogi has opposed the petition. It is submitted that challenge to the Notification dated 21.5.2012 has been made without specifying as to how it has infringed right of the petitioner and otherwise to be illegal being in violation of the Constitution of India. The attachment of Dental College with the Medical College is to provide proper teaching facilities. In view of the above, amendment in the Regulations has been made not only in consonance to the Act of 1948 but to strengthen the studies in Dental Colleges thus challenge to the amendment in the Regulations may not be accepted.
8. It is further stated that there is no violation of section 10(A) of the Act of 1948, as stated by learned counsel for petitioner. The amendment in regulation 6(2)(h) has been made by inserting a provision requiring attachment of the proposed Dental College with Government/ Private Medical College approved/ recognised by the Medical Council of India. It is with the proof that the Medical College would facilitate training to the students of the proposed Dental College as per the syllabus/ course given in the curriculum.
9. Learned counsel Mr Rastogi has given reference of the judgment of Kerala High Court in the case of "Heera Educational & Charitable Trust vs. Union of India & ors", WP (C ) N0.20385 of 2012, decided on 22.1.2013. Therein, similar challenge was not accepted. The said judgment was then upheld by the Division Bench of the Kerala High Court.
10. Another judgment referred by learned counsel for respondents is in the case of "Bhavesh D Parish & ors vs. Union of India & anr", (2000) 5 SCC 471 and in the case of "Dharmendra Kirthal vs. State of Uttar Pradesh & anr", (2013) 8 SCC 368.
11. We have considered rival submissions of the parties and perused the record.
12. The writ petition has been filed to challenge the Notification dated 21.5.2012 to substitute Regulation 6 (2) (h) of the Regulations, 2006. It would be gainful to reproduce unamended and amended Regulation.
Before amendment
6. (2) (h) Eligibility and Qualifying Criteria
(2) The organizations under sub-regulation (1) shall qualify to apply for permission to establish a dental college if the following conditions are fulfilled: -
(h) the applicant owns and manages a General Hospital of not less than 100 beds as per Annexure I with necessary infrastructure facilities including teaching PreClinical, Para-Clinical and allied medical sciences in the campus of the proposed dental college,
Or
the proposed dental college is located in the proximity of a Government Medical College or a Medical College recognised by the Medical Council of India and an undertaking of the said Medical College to the effect that it would facilitate training to the students of the proposed dental college in the subjects of Medicine, Surgery and Allied Medical Sciences has been obtained, where no Medical College is available in the proximity of the proposed dental college, the proposed dental college gets itself tied up at least for 5 years with a Government General Hospital having a provision of at least 100 beds and located within a radius of 10 K.M. of the proposed dental college and the tie up is extendable till it has its own 100 bedded hospital in the same premises. In such cases, the applicant shall produce evidence that necessary infrastructure facilities including teaching pre-clinical, para-clinical and allied medical sciences are owned by the proposed dental college itself;
After amendment
"(i) Short Title and Commencement
(1) These regulations may be called the Dental Council of India (establishment of new dental colleges, opening of new or higher courses of study on training and increase of admission capacity in dental colleges) (4th amendment) Regulations, 2006.
(2) They shall come into force from the date of their Publication in official gazette.
2. Clause (h) sub regulation (2) of regulation 6 of the principal regulations 2006 is hereby substituted with the following-
"(h) the applicant shall attach its proposed Dental College with government/private medical college approved/recognised by the Medical Council of India which is located at the distance of 10 kilometers by road from the proposed Dental College and produce evidence of the said Medical College to the effect that it would facilities training to the students of the proposed Dental College as per the syllabus/course curriculum prescribed in the respective undergraduate and postgraduate Dental codes regulations as amended from time to time; provided that not more than one Dental College shall be attached with the medical college."
13. As per the unamended provision, an applicant was required to own and manage a General Hospital of not less than 100 beds with necessary infrastructure facilities including teaching preclinical, para-clinical and allied medical sciences in the campus of proposed Dental College.
14. In the alternative, to locate the Dental College in the proximity of a Government Medical College or a Medical College recognised by Medical Council of India with an undertaking that the Medical College would facilitate training to students of the Dental College. It was with the further arrangement that if no Medical College is available in the proximity of the proposed Dental College, it would get itself tied up at least for five years with a Government General Hospital of 100 beds and located within radius of 10 kms.
15. The amended provision now provides for attachment of the proposed Dental College with a Government/Private Medical College approved/ recognised by MCI and located at the distance of 10 km by road from the proposed Dental College. It was even provided in the unamended Regulation in different words but it was with the alternative that in case of non-availability of Medical College then to have attachment with Government General Hospital for a period of five years within the radius of 10 km. The only reason to make amendment is to strengthen the studies of Dental course with the attachment to a Medical College.
16. We fail to understand as to how the earlier provisions, in any manner, were not sufficient for the object sought to be achieved. A careful reading of the unamended Regulation 6(2) (h) shows requirement of attachment with General Hospital owned and managed by the applicant in the campus of the proposed Dental College. It was with infrastructure facilities including teaching preclinical, para-clinical and allied medical sciences.
17. If we talk about practical training, it would be more in the hospital, therefore the unamended provision of Regulation 6(2)(h) provided both i.e. attachment with General Hospital or with a Medical College with required facilities of teaching. The amended provision restricts it for Medical College only. In view of that, even one who has a Medical Hospital, cannot propose for Dental College.
18. With the amendment in the Regulation, there exist violation of Article 19(1)(g) of the Constitution of India. Despite a General Hospital of 100 beds with all required teaching facilities including infrastructure, an applicant would be deprived to get recognition of the Dental College. It is supported by the judgment in the case of "TMA Pai foundation & Ors. vs. State of Karnataka & ors", (2002) 8 SCC 481. The curtailment of rights can be for justified reason and not by an arbitrary decision in violation of Article 14 of the Constitution of India.
19. This matter has other aspects also. It is in reference to section 10A of the Act of 1948. Bare reading of section 10A would demonstrate as to what are the requirements for establishment of new Dental College and even courses of studies.
20. Section 10A(7)(d) of the Act of 1948 requires adequate hospital facilities having regard to the number of students likely to attend the course in the proposed Dental College. The provision aforesaid emphasise hospital facilities in the proposed Dental College which has not been provided in the amended provision. It is also that in the amended provision, the Medical College should be at the distance of 10 kms (now 30 kms). The use of words "at the distance" is defective. It means that Medical College cannot be at the distance of less than 30 Kms. It was earlier the radius of 10 Kms. The amended provision is hit by section 10A (7)(d) of the Act of 1948 and even clause (e) thereunder. It is, no doubt, true that the DCI has power to make Regulations and amend it but it cannot be de hors the provisions of the Act of 1948. Section 10A (7) (d) and (e) are quoted hereunder for ready reference :-
"10A. Permission for establishment of new dental college, new course of study,
etc.-(1) to (7) ...
(a) to (c ) ...
(d) whether adequate hospital facilities, having regard to the number of students likely to attend such authority or institution or course o study or training or as a result of the increased admission capacity have been provided or would be provided the time-limit specified in the scheme;
(e) whether any arrangement has been made or programme drawn to impart proper training to students likely to attend such authority or institution or course of study or training by persons having the recognised detal qualifications;"
21. Learned counsel for respondents could not clarify that if a Dental College approved earlier with grant of permission is continued having attachment with General Hospital instead of Medical College then as to whether studies of the students would not be affected. If not, then how they justify the amendment. In view of the above, the Dental Colleges established prior to amendment, would be permitted to run without attachment with Medical College but a General Hospital while other Dental Colleges are compelled to have attachment with the Medical College.
22. If the object sought to be achieved is to strengthen the studies then it would be frustrated in respect of earlier Dental Colleges. The aforesaid aspect has been highlighted by the petitioner Samiti and could not be replied by the respondents. It is more so when proper care of it has been taken in the unamended provision. In view of the above, we find that the amended Regulation 6(2)(h) is hit by Article 14 and 19 (1)(g) of the Constitution of India and de hors the Act of 1948 and otherwise the reasons to amend the provisions are not convincing.
23. Learned counsel for respondents has given reference to the judgment of the Kerala High Court in the case of Heera Educational & Charitable Trust (supra). We have gone through the judgment. Therein, an argument was not raised in reference to section 10A (7)(d) of the Act of 1948 thus has not been dealt with. It however makes a reference of section 20 of the Act of 1948, whereas, Section 10 A (7) (d) and (e) of the Act requires adequate hospital facility to be one of the requirements for proposed Dental College. It cannot be left for consideration of the Central Government as it is a mandate of the Act thus with due respect to the Kerala High Court, we are not in agreement with the judgment aforesaid.
24. The provision of the Act cannot be ignored, thereby, amended provision is hit by section 10A (7)(d) of the Act of 1948 apart from Constitution of India, as explained by the Apex Court in the case of TMA Pai Foundation (supra).
25. The other judgments referred by the respondents are not in reference to the issue involved herein.
26. Learned counsel for respondents could not show as to how the requirement given under section 10A (7)(d) of the Act of 1948 would be complied in the amended provision which was otherwise provided in the unamended provision.
27. It is further necessary to add that it was not only hospital facility but required infrastructure and teaching facilities in all required sphere like pre-clinincal, para-clinical or allied medical science was provided in the unamended provision. Hence, we do not find that even the objects sought to be achieved are going to be fulfilled with the amended provision because the Dental Council of India so as the Government of India have failed to realise that teaching facilities were adequately taken care of by the unamended provision thus earlier provision was not only adequate but was in consonance to the Act of 1948.
28. An argument can be raised that a Medical College need to have a Medical Hospital. The practical training can be given therein. If that is so then as per the unamended provision also, it was existing due to attachment of Dental College with a Medical Hospital and so far as studies are concerned, facilities were required therein also.
29. In view of the above, we hold Notification dated 21.5.2012 to be inconsistent to the provisions of the Act of 1948 which otherwise hit by Article 14 and 19(1)(g) of the Constitution of India, hence, struck down. The case of the petitioner-Samiti would be considered in the light of the aforesaid.
30. With the aforesaid, writ petition is allowed.