Tirath Singh Thakur, J.
1. These Writ Petitions filed by R. V. Dental College and the students, who have passed out from the same raise common questions for consideration and shall stand disposed of by this order.
2. In W.P. No. 8496/2000 filed by the College, a declaration to the effect that the permission granted by the Central Government under Section 10A of the Dentists Act should be treated as one under Section 10C of the Act has been prayed for. WPs. No. 31649/2000, 32720 & 21/2000, 2019-21/ 2001 and 2418/2001 have been filed by students of the petitioner-College, who have taken admission to different Post Graduate Courses in Dental Sciences, which admissions the University has declined to approve on the ground that the dental qualification acquired by them not being a recognised qualification, the petitioners are not entitled to pursue any such Course. In WPs No. 38437-39/2000, students who have passed out from the petitioner-College have assailed the denial of permission to appear in the competitive test held by the All India Institute of Medical Sciences for Admission to different Post Graduate Dental Courses.
3. The controversy arises in the following circumstances :--
Pursuant to an order dated 8th of June 1992 issued by the State Government, Rashtriya Shikshak Samithi Trust established what is known as R. V. Dental College at Jayanagar at Bangalore. Affiliation to the said Institution was granted by the Bangalore University in terms of a notification dated 28th of August 1992. With the introduction of Sections 10A, 10B and 10C in the Dentists Act, the petitioner-College submitted to the Central Government on 4th of April 1994 what it considers to be a Scheme in terms of Sections 10A and 10C of the Act. The Central Government did not however consider the scheme as one under Section 10C and forwarded the same to the Dental Council of India in August 1994 for evaluation and recommendations under Section 10A of the Act. On receipt of the recommendations made by the Dental Council and subject to the removal of deficiencies noted by the Central Government, a letter of intent was issued in favour of the petitioner-College on 11th of October 1995 with an intake of 40 admissions per year from the academic session 1995-96. This was followed by a formal permission granted in terms of an order dated 30th of October 1995. The permission was limited to a period of one year i.e. for the session 1995-96 only. Permission for the next academic session viz., 1996-97 was given only in January 1999, which was not extended to the 3rd year. The 4th year permission eventually came in terms of an order dated 9th of July 2000, granted pursuant to a new Scheme evolved by the Central Government, a reference whereto shall be made in greater detail at the appropriate stage. Suffice it to say that the permission for the 4th year was granted to the College upon its filing an undertaking, according to which the College has agreed not only to reduce the Management's share of seats by 50% but also to acquire a plot of land measuring five acres besides providing the necessary infrastructural facilities as stipulated under the Regulations of the Dental Council, within a period of two years. The College had in the meantime filed Writ Petition No. 8496/ 2000 for a declaration as noticed earlier that the permission granted in its favour under Section 10A of the Dentists Act, should be construed as one granted under Section 10C thereof. The rest of the writ petitions in this batch as noticed earlier assail the view taken by the Union of India, University of Health Sciences and All India Institute of Medical Sciences to the effect that the Dental Qualifications acquired by them are un-recognised, making the petitioners ineligible for admission to or continuance in any post graduate course in Dental Science.
4. I have heard Counsel for the parties at considerable length. The submissions made at the Bar throw up the following three questions for determination :--
1) Whether the petitioner R. V. Dental College is entitled to the benefit of Section 10C of the Dentists Act and in particular whether the permission granted in its favour under Section 10A of the said Act, can be related back to the academic session 1992-93.
2) Can the admissions made by the College for the academic sessions 1992-93 onwards till 1995-96 be regularised to avoid the disability flowing from Section 10B of the Dentists Act? and
3) Are the qualifications acquired by those admitted between 1992 and 1996 recognised Dental Qualifications in terms of Section 10 of the Dentists Act, entitling them to seek admission to or continue in the post graduate courses in Dental Sciences?
5. I shall deal with the questions ad seriatim :--
Re. Question No. 1 : Section 10C of the Dentists Act, 1948, deals with Institutions established after the 1st day of June, 1992 and on or before the commencement of the Dentists Amendment Act, 1993. The said Act came into force with effect from the 27th of August, 1992. Any Institution established between 1-6-1992 and 27th August, 1992, was in terms of Section 10C required to file a Scheme under Section 10A within a period of one year from the commencement of the Dentists Amendment Act, 1993. Sub-section (2) of Section 10C stipulates the consequences flowing from the failure of any such institution to seek the permission of the Central Government and inter alia provides that any such failure would tantamount to the refusal of the Central Government to grant permission which would in turn mean that no Dental qualification granted to any student admitted to any such institution shall be a recognised Dental Qualification for purposes of the Dentists Act.
6. Two critical requirements have therefore to be satisfied by an institution claiming the benefit of Section 10C. These are (1) the Institution should have been established between 1-6-1992 and 27th of August, 1992. (2) It should have sought the permission of the Central Government in accordance with the provisions of Section 10A of the Dentists Act, within a period of one year from 27th of August, 1992.
7. The Scheme in present case was submitted by the petitioner only on 4th of April, 1994 i.e., after the expiry of the Statutory period of one year as prescribed by Section 10C. The Central Government has therefore declined to consider the same on that ground and made the permission granted by it prospective in operation. That decision is justified by the Government on the additional ground that the College had not been established during the period prescribed under Section 10C so as to be entitled to the benefit thereof. It has pointed out that the College did not have the staff or the infrastructure in terms of the Regulations of the D.C.I. requisite for claiming benefit of Section 10C.
8. Two issues assume importance in the context of the above. These are:
i) Whether the delay in the submission of the Scheme under Section 10A was justified so as to entitle the College to claim the benefit of Section 10C? and
ii) Whether the College could be said to have been established during the relevant period?
9. In so far as the question of delay is concerned, it was argued on behalf of the College that since the Regulations prescribing format of the Scheme to be submitted in terms of Section 10A were not published in the Official Gazette, till September, 1993, the question of the Colleges submitting such Schemes within a period of one year from the date the amendment Act, came into force did not arise. The period of one year prescribed for submitting a scheme under Section 10A read with Section 10C, could according to Mr. Naik, start only from the date the Regulation prescribing the format of the Scheme was first published. So reckoned, the Scheme submitted by the petitioner College in April, 1994, was within a period of one year and could not therefore have been ignored by the Central Government on the ground of limitation. The argument is no doubt attractive but cannot in my opinion prevail in the light of the decision of this Court in Citizen of India v. State of Karnataka W.P. No. 22316/1996, D.D. 1st of October, 1996, (reported in) : ILR1996KAR3136 , to which the petitioner College was also a party. One of the issues that arose for consideration there was whether the Schemes should have been submitted within a period of one year as required under Section 10C having regard to the fact that the Regulations prescribing the same had not been published till September, 1993. This Court took the view that although law does not compel the performance of an impossible act, yet, the Colleges established between 1-6-1992 and 27th of August, 1992 ought to have applied for permission of the Central Government by filing the statutory Scheme within a reasonable time from the date of publication of the 1993 Regulations. This period could in the opinion of this Court, be up to three months from the date of publication. The delayed publication of the Regulation could not, observed the Court, exonerate the concerned Colleges from filing the Schemes and seeking permission under Section 10A. The following passage from the said judgment is in this regard relevant:--
'Therefore, applying the said principle in the present case, it is reasonable to construe that the colleges established between 1-6-1992 and 27-8-1992 ought to have applied for seeking permission of the Central Government by filing statutory schemes with all due informations and documents within a reasonable time from the date of publication of the '1993 Regulations', say, within 3 months therefrom or so. But delayed publication of Regulation cannot be construed as exonerating the concerned colleges from filing the Schemes and seeking permission under Section 10A or filing the same at an unreasonably delayed stage and in the meantime go ahead with admission of students at their predicaments and thereby frustrate the Parliamentary intent.'
10. The view taken in the above decision holds good till date and sitting simply I am bound to follow the same. Applying the norms evolved by this Court, there is no gainsaid that the petitioner could and ought to have submitted its Scheme latest by December, 1993. The Scheme was actually submitted by the College only in April, 1994 which fell beyond the period considered reasonable by this Court in Citizen's case (supra).
11. Even in regard to the second aspect namely whether the College had been established between 1-6-1992 and 27-8-1992, the Institution has considerable difficulty to face. That is because although permission to establish a college had been granted by the State Government on 8th of June, 1992, the College had no affiliation from the Bangalore University till the date the Dentists Amendment Act, came into force. The University affiliation, it is not disputed came a day later i.e., on 28th of August, 1992. The question then is whether an Institution which did not have the requisite affiliation from the University could be said to have been established within the meaning of Section 10C of the Dentists Act. According to Mr. Naik, in the absence of any definition of the term 'establish' used in the said provision, the same should be given the widest possible meaning. The question then is whether an Institution can be said to be legally established even without an affiliation from the University which has to confer Degrees to the students admitted to the same taking the most liberal view of what may constitute, 'establishing of an Institution'.
12. Section 53 (10 (a)) of the Karnataka Universities Act, 1976, provides thus :--
'No admission of students shall be made by a new college seeking affiliation to any University or by an existing college seeking affiliation to a new course of study to such course, unless, as the case may be, affiliation has been granted to such new college or to the existing college in respect of such course of study.'
13. It is evident from the above that an Institution cannot make any admission till such time it is granted affiliation in respect of the course of study which it proposes to offer. The above provision came up for interpretation before this Court in Indian Medical Association v. State of Karnataka, : ILR1985KAR1202 where Rama Jois J. as his Lordship then was, observed :--
'Section 53 covers not only the case of colleges proposed to be established in respect of which affiliation is sought for, for the first time, but also colleges in respect of which affiliation had already been granted for a period, but are seeking affiliation for a further period and also in respect of colleges which are already affiliated, but are seeking affiliation in respect of new course. In so far as it relates to fresh affiliation, what Section 53 contemplates is that before the college is established and the students are admitted to the college, the application has to be made to the University seeking affiliation and only after affiliation is received the college can be established. It is also pertinent to point out that though Section 53 speaks of a college applying for affiliation to the University, actually it is the management of the college which has to submit the application as is evident from Section 52 (2) (b) which provides that the college has to be under the management of a duly constituted governing body..... The reasonable construction of Section 53 (3) of the Act would be that the application contemplated by the said provision, insofar as it relates to a fresh affiliation is concerned, the body of persons who propose to open a particular type of college at a particular place have to apply under Section 53 (2) of the Act seeking affiliation to the proposed college. This interpretation would also be in conformity with the clear and unambiguous language of Section 4 (11) (a) of the Act, according to which, only the students who had pursued the study in a University college or an affiliated college could be admitted to the University examination and it is only on such persons, degrees and diploma of the University could be conferred. To sum up, according to Section 53 of the Act, affiliation is a condition precedent for establishing a new college and for inviting applications for admissions to courses leading to a degree or diploma or any academic distinction of a University of such college.'
14. The question whether an Institution could be said to have been established under Section 10C of the Dentists Act, even when it did not have the requisite affiliation from the University concerned, fell directly for consideration of this Court in Jeevatha Reddy v. State of Karnataka D.D. 10th Sept. 1999. This Court held that in the absence of any statutory definition of what would constitute 'establishing an Institution', the term 'establish' shall have to be given its ordinary meaning. The Court observed :
'It is evident that given its ordinary meaning of the expression establish implies ratification and official recognition by the State and/or its authorities. In the instant case the college could not be deemed to have been established till such time it was officially recognised by the authorities concerned specially the University, alone was competent to award a recognised qualification at the end of the course,'
15. The argument of Mr. Naik, that the term 'establish' under Section 10C, must imply something different from what this Court has said in the above two decisions must therefore be noticed only to be rejected.
16. The net result of what has been said above is that the Scheme submitted by the petitioner under Section 10A of the Dentists Act, could not be considered to be one under Section 10C not only because the Scheme was submitted beyond the period prescribed, but also because the College could not be said to have been established, within the meaning of the said provision between first of June, 1992 and 27th of August, 1992. Reliance upon the decision of this Court in the Father Muller's Charitable Institution Kanakanadi v. Union of India, is therefore misplaced. That was a case where not only had a scheme been submitted within the period stipulated but the Institution was found to have been established during the relevant period. The question then was whether grant of permission under Section 10A could be related back to the academic session during which the Institution had first come into existence. The Court answered the same in the affirmative and held that the permission granted by the Central Government should be operative retrospectively with effect from the academic session 1992-93. The ratio of the said case cannot obviously apply to cases where even one of the two crucial requirements for the application of Section 10C fails. In the present case, since both the requirements have failed, the decision referred to above, can be of no help to the petitioner. Question No. 1, is accordingly answered in the negative.
Re. Question No. 2 :
17. The answer to this question assumes greater importance in view of what has been said while dealing with the question No. 1, above. In the ordinary course, if the permission granted to the petitioner College was related back and treated as one under Section 10C, the question of regularisation of admissions would not arise for in that case the admissions would be deemed to have been made to a College validly established. The denial of permission under Section 10C for the reasons set-out earlier, does not however conclude the matter. The question is whether the consequence that Section 10B read with Section 10-C(2) envisages, can and should be prevented by directing regularisation of such admissions and if so, the conditions subject to which that ought to be done.
18. Regularisation of admissions made against Rules or vitiated by any irregularity is a matter which the Courts are often called upon to consider. Once admissions are found by the Court to be faulty, the next question that arises for consideration is whether those admitted need to be removed from the rolls or denied the benefit of the training that they have undergone. The profusion of judicial pronouncement on the subject has failed to provide any cut and dried formula applicable in all situations. Each case has therefore to be considered on its own facts while balancing equities to prevent failure of justice. The decision of the Supreme Court in Punjab Engineering College, Chandigarh v. Sanjay Gulati, : 2SCR801 , Rajendra Prasad Mathur v. Karnataka University, : 2SCR912 and A. Sudha v. University of Mysore, : 1SCR368 deal with cases where the admission of students were either against the Rules or those admitted were ineligible for the same. Even when the Court declared the admissions to be legally unsustainable, the students were allowed to continue on equitable considerations. Those cases are symbolic of only one end of specturm. The other is covered by cases like State of Punjab v. Renuka Singla : AIR1994SC595 and Dental Council of India v. Harpreet Kaur Bai, 1995 Supplement (1) SCC 304 where the Apex Court has that the High Courts cannot disturb the balance between the capacity of the Institutions and the number of admission that can be made to the same on compassionate grounds and that adherence to the academic standards was as important as the need to avoid injustice. I had an occasion to deal with the question of regularisation in Dr. Arpinder Singh v. Union of India, D.D. 17th of November 1998, W. Ps. Nos. 2948-55/1998 where after noticing the decision of the Supreme Court, this Court observed:--
'Suffice it to say that Courts have to tread cautiously while examining issues which involve competing claims of equity and justice on the one hand and an equally compelling need to maintain standards in professional education at the other. That is however far from saying that compassion and considerations of equity and justice have been banished from proceedings under Article 226 nor indeed that can be done without emasculating the power exercisable by a writ Court which in its very nature, is aimed at doing substantial if not complete justice between the parties. In the words of Krishna Iyer J., rule of law is not to petrify life or be inflexibly mulish. It is tempered by experience mellowed by principles compromise informed by the anxiety to avoid injustice and to soften the blow within the marginal limits of equality. What is necessary, if I may respectfully add, is to ensure that compassion or benevolence do not masquerade as a failure of the system in keeping authorities and institutions within the bounds of law. That it does not tempt others to deliberately create situations in the confidence that the Court's equitable jurisdiction can be invoked to overlook the violations nor should the exercise of power be in such patent defiance of law as to defeat the very object sought to be achieved by it.'
19. It is time now to recall the circumstances relevant to the question of regularisation of the admissions made during 1992-96.
20. The first and foremost circumstance is that the Institution had the permission of the State Government, no matter at the relevant time, the latter had ceased to be the authority competent to grant such a permission in the light of the amendment introduced to the Dentists Act. Not only that the Bangalore University to which the Institution was to be affiliated had upon evaluation of its infrastructural facilities found the college to be entitled to affiliation. It is therefore not a case where an Institution is established without the semblance of an authorisation in its favour.
21. The second and an equally important circumstance that needs to be kept in view is that the Dental Council of India had upon evaluation of the standards of Examinations leading to the award of B.D.S. Degrees at the end of the 4th year course of the first batch of students admitted for the session 1992-93, recommended the grant of recognition in accordance with Section 10 of the Dentists Act. This is evident from a communication dated 3rd of August, 1997 addressed to the petitioner College by the Dental Council of India, as regards the recognition of the B.D.S. Degree, awarded by the Bangalore University to the students of the petitioner College. The relevant part of the communication reads as under:--
The General Body of the Dental Council of India at its meeting held from 30th of July, 1997 to 2nd of August, 1997 at New Delhi considered the above Joint Inspection Report of the Council's Visitor/Inspector along with the recommendations of the E. C. (Nov. 96) and after some discussion decided as under:--
'That the Joint Inspection Report is accepted. The recognition of the BDS degree of the Bangalore University in respect of BDS students of R.V. Dental College, Bangalore be granted with 40 students from the academic year 1996-97.
The permission of the Central Govt. to establish a new Dental College namely R.V. Dental College, Bangalore from the retrospective effect 1992-93 is under consideration with Govt. of India, Ministry of Health and F.W. New Delhi.'
The above decision of the General Body of the Dental Council of India is communicated to you for your information and necessary action.'
22. From the above, it would appear that insofar as the standard of examinations offered to students admitted by the College from 1992-1993 onwards, is concerned, the Dental Council of India, had found the same to be satisfactory and accordingly decided to recognise the Degree awarded by the Bangalore University awarded from the year 1996-97 onwards. Stated differently, the Dental Council of India, did not find any deficiency insofar as the standard of instructions and the Examination conducted for purposes of recognition of the qualification awarded to students from the very first session is concerned.
23. The third circumstance that need be kept in view is the bulk of the admissions made between 1992 and 1996 are all students selected by the C.E.T. Cell on the basis of a competitive examination. These students some of whom are petitioners in these writ petitions, were allotted to the College by the Cell, on the basis of their merit. The students had no reason to believe or even suspect that the institution to which they were being allotted did not have authority to make admissions or offer the course to which they were being admitted. The fact that a State Agency had made selections and allotments of seats was enough for any bona fide student to believe that the Institutions to which he is being allotted was a validly established institution for otherwise it would not appear in the CET seat matrix or be recognised for purposes of such admissions. In other words, the students admitted to the Institution from 1992 to 1996 were not to be blamed in any way for their admission to the Institution. They had continued to pursue their studies in the belief that the Degree which may eventually be conferred upon them will be a recognised Dental Qualification for all intents and purposes.
24. The fourth circumstance worthy of notice is that after the controversy regarding the recognition of the Institutions had come to light, students who apprehended denial of recognition to their qualification approached this Court and secured order for their transfer from such Institutions to other recognised institutions only to avoid the consequence flowing from Section 10B of the Act. There is no gainsaying that if the controversy regarding recognition of qualifications had surfaced at an earlier point of time, those admitted between 1992 to 1996 could also have similarly sought a transfer to some other recognised institution. Suffice it to say that those admitted earlier in point of time and who have completed their courses and passed out cannot be at a disadvantage vis-a-vis others admitted in similar circumstance at later stages.
25. The fifth and an equally important circumstance is that the period between 1992 to 1996 was a period of transition during which the legal position as regards the authority of the State Government to permit new institution and the effect of the Amendment of the Central Legislation, was in a state of flux and was being judicially examined at various levels. The confusion relating to the authority of the State Government to permit new Institutions was removed only when this Court in a Public Interest petition, also known as the CITIZEN'S case cleared all doubts as regards the competence of the State Government to permit such Institutions. The fact that even after a Single Judge of this Court had taken a view, some amount of confusion continued because of the Division Bench taking a different view only shows that the area of controversy was not all too clear till the authoritative pronouncement of the Supreme Court in Medical Council of India v. State of Karnataka 7, : 3SCR740 where the Apex Court finally declared that in the light of the Central Legislation, the State Government could neither permit new Institutions nor allow enhancement of their intake capacities.
26. The sixth circumstance worthy of notice is that the question whether the excess admissions made on the basis of orders Issued by the State Government would suffer de-recognition at the hands of the academic bodies under the Central Legislation, was also considered by the Supreme Court and resolved on the basis of a statement made before it on behalf of the MCI. The Court observed that MCI had fairly stated that it will not de-recognize the qualification acquired by students admitted in excess of the authorised intake. The Court also held that what was said by it about the MCI will hold good about the Dental Council also.
27. It was all the same argued by Mr. Ashok Haranahalli, that no statement like the one made by the MCI having been made by Dental Council or the Union of India, any concession made before the Supreme Court, could not be extended to bind the said two authorities. The question however is not whether the statement made by one Statutory Authority, should bind another without the latter itself making a statement. The question is whether what was considered by the Supreme Court to be fair qua one Statutory Authority could be considered unfair qua the other where the issue arising for consideration was identical. If the Supreme Court found the statement made before it to be fair having regard to the circumstances in which students were admitted in excess of the intake capacity of the Medical Colleges, it could not have found otherwise in regard to students admitted in similar circumstance to Dental Colleges, even assuming, no statement like the one made by MCI was made by the Dental Council of India. Suffice it to say, that the haze that hung over the competence to permit new institutions and to increase intake capacity in the same as also the consequences flowing from the evaluation of the provisions contained in the Central Act, was cleared by the judgment of the Supreme Court without annulling the admissions made contrary to the said provision or de-recognizing the qualification acquired on the basis thereof.
28. Whether or not there is any qualitative difference between admissions made on the basis of orders passed by the State Government after the Amendment of the Central Act and those made by the Institutions that were established on the basis of the State Government's Order after the said Act, may at this stage be considered. It was argued by Mr. Ashok Haranahalli, that there was a difference between regularisation or recognition of admissions made in excess of the intake, permitted by the State Government and those made to Colleges established without the permission of the competent authority. The case before the Supreme Court, according to the learned Counsel, fell in the first category, hence could not provide an analogy to what falls for determination in these petitions. I do not think so. Section 10B of the Dentists Act, deals with recognition of Dental Qualifications. While Sub-section (1) thereof, governs Dental Qualifications granted to students by any authority or Institutions established without the previous permission of the Central Government. Sub Sections (2) and (3) deal with cases where such Authority or Institution opens a new or higher Course of study or training or increases the admission' capacity in any course of study or training without the permission of the Central Government. The consequence in each one of the three situations is that no Dental qualification granted to any student of such authority or Institution shall be a recognised Dental qualification. It is true that the cases before the Supreme Court, related to the consequences flowing from Section 10B qua the increase in the admission capacity whereas the cases in hand relate to consequences flowing from establishment or an Institution covered by Sub-section (1) of Section 10B but the difference in the context in which the question arises has no significance whatsoever. In either case what is important is that the establishment of the Institution or the increase in the admission capacity suffers the adverse consequences envisaged by Section 10B in the form of non-recognition of the qualification awarded to the student. Any attempt to distinguish the case before the Supreme Court, from the cases in hand is therefore futile. What was true in regard to excess admissions falling under Section 10B must also hold good in regard to the establishment of the Institution without the permission of the Central Government falling under Section 10B.
29. The circumstances enumerated by me above make out a case for appropriate directions not only to prevent grave hardship and palpable injustice (sic) degree qualification but to give a quietus to the raging controversy. The question however is of the procedure to be followed in that regard. The question in particular is whether this Court should itself issue appropriate directions or leave the matter to be considered by the Central Government and the Dental Council. We are not on virgin ground in so far as the second option is concerned. This Court had in almost identical circumstances directed the Government to consider regularisation of admissions made during 1992-96 in K.L.E. Society v. Union of India, (WPs. No. 325/1998 and connected matters disposed of on 3rd of September 1998. The Central Government did examine the matter pursuant to the direction of the Court but declined the relief on the ground that it was not competent to grant the same. WPs. No. 29551-580/1999 have been filed by the College and the students challenging the said order.
30. Reference to a Division Bench decision of this Court in J, N. Medical College v. Rajiv Gandhi University of Health Sciences/ ILR 2000 Kar. 506/may also be made at this stage. That was also a case where the regularisation of the admissions made in excess of the Intake capacity of the College had arisen for consideration. A single Bench of this Court had taken the view that Regularisation could not be granted either by the University or by the Government and even by a Court under Article 226 of the Constitution. The Division Bench, did not find favour with that view. It held that the Court has to strike a balance between the future of the students and the legal provisions, the effect whereof was determined only recently. While upholding the single Judge's view that Sections 10A, 10B and 10C were mandatory and no authority other than the MCI/ DCI or the Central Government had the power to regulate admissions to Medical/ Dental Colleges, the Court set-aside the order made by the MCI, rejecting the regularisation of the students and directed the College to file a fresh Scheme for regularisation which the Government was required to consider. Pending disposal of the matter by the Central Government, the result of the students was directed to be published by the University. That procedure was followed even in Father Muller Charitable v. Union of India W.A. No. 5510/1999 and connected matters disposed of on 7th of September, 2000. In that case too, the single Judge, had declined to regularise the admissions in excess of the permissible limit which order was set-aside by the Division Bench on terms and conditions similar to the ones issued in J. N. Medical College's case.
31. The question then is whether the procedure evolved for regularisation of admissions made contrary to Section 10B whether on account of the admissions being in excess of the intake capacity or on account of the Institution being established without the permission of the Central Government need be followed in the present batch of cases. Sitting singly I am bound by what the Division Bench had stated in regard to the legal position vis-a-vis Sections 10A, 10B and 10C of the Act. The procedure which the Division Bench had directed in the aforesaid two cases could also be adopted in the present batch of cases leaving the question of regularisation to be considered by the MCI. and the Government of India in terms of a fresh Scheme as envisaged in the said judgments. What makes the submission of any such scheme unnecessary at this stage is the fact that the Government have during the pendency of these petitions, evolved a new Scheme, reference to which has been made by me no matter briefly, in the beginning of this judgment.
32. This scheme is spelt out from the correspondence exchanged on the subject between the Government of India and the State Government. Two communications, from which the outline of the Scheme is available have been placed on record. One of these is a letter dated 30th of June 2000 from the Government to the College. A reading of the first of these communications would show that the scheme envisaged the following:--
(1) That 11 Dental Colleges of Karnataka described as Un-recognized Colleges will voluntarily surrender 50% of the annual intake capacity of payment/NRI seats from the academic year 2000-2001 to compensate for the illegal admissions made from 1992-93 onwards till they were formally given permission to start the College under Section 10A of the Act.
(2) After the College files an affidavit agreeing to the proposed surrender of seats, modalities for giving renewal of permission can be worked out and the Colleges recognised from the date they are due for recognition and
(3) The Rajiv Gandhi University of Health Sciences and State Government shall enforce the various conditions stipulated in the undertaking/affidavit to be furnished by the College.
33. What is significant in the above communication is that the same did not envisage retrospective recognition of the College or the qualification even when the Colleges had agreed to surrender of the seats to offset the admission made by them between the year 1992 and the date when formal permissions were given in their favour Communication dated 9th of July 2000 referred to earlier however makes a departure and purports to justify the requirement for surrender of seats from 1992 onwards to save the career prospects' of the students admitted during that period. This is evident from para-5 of the said communication the relevant part whereof is as under:--
'Incidentally, it may be mentioned that the college had been admitting students from 1992 to 1994 without the formal permission of the Central Government, thereby bringing these admissions under the tag of 'irregular admissions'. Since it is the future prospects of the affected students that is at stake, a scheme has been evolved after great deliberations within the Ministry in consultation with all concerned to find a solution to the problem.'
34. The communication goes on to state that BDS degree of the College could be recognised only after the infrastructure stipulated in the affidavit filed by the College is provided. Superadded to the above is the understanding of the Central Government in regard to the scope and the purport of the Scheme as set out in para 13 of the objections filed on its behalf. Where the preparation of the scheme has been justified by reference to the admissions made by the Colleges before grant of formal permission in their favour. This is evident from the following lines extracted from the said paragraph:--
'It had been reiterated by the Government that the benefit of 10C was available only for a limited period of one year upto 27-8-1993 on merits. But due to late submission of scheme by the concerned dental colleges, they were not granted permission under Section 10C. However, in order to resolve the cases of colleges claiming permission under Section 10C of the Dentists (Amendment) Act and to recognize the Degree of the students admitted before granting of formal permission, a scheme has been evolved whereby the concerned dental college will voluntarily surrender 50% of the annual intake capacity of Payment and NRI seats from future years over a period of time to neutralize the illegal admissions made from 1992-93 onwards till they were formally given permission to start college under Section 19(A) of the Dentists (Amendment) Act, 1993 by the Central Government.'
35. It is in the light of the above, reasonable to understand the Scheme as a step in the direction of recognising the Decree awarded to students admitted during the period the colleges did not have the requisite permission from the Central Government.
36. It was argued by Mr. Naik that even when the college had agreed to abide by the Scheme evolved by the Government and submitted an undertaking, the scheme in so far as the same required the colleges to give up 50% of their intake capacity in NRI category of seats was wholly irrational. The reduction of the capacity had, according to the learned Counsel, no correlation whatsoever with the question of regularisation of the admissions or recognition of the degree and was no more than a punitive measure prescribed by the Central Government, without appreciating the consequence that would flow from the same.
37. Mr. Haranahalli on the other hand argued that the petitioner-College had not questioned the Scheme nor could any such challenge be maintained after the College had agreed to abide by the terms thereof. He urged that since the Colleges were not complying with the requirements of infrastructure prescribed under the Regulations and since limited permissions granted in their favour had not been extended on that ground, the scheme meant not only to ensure that infrastructure is provided, but also resolve the controversy regarding the recognition of the degrees awarded to the students after the college came up to the prescribed standards.
38. Two aspects need to be considered in so far as the implementation of the Scheme and the consequences flowing from the same are concerned. The first relates to the refusal of the Government to continue the permission for subsequent years while the second to the recognition of the qualification acquired by students admitted between 1992-96. In so far as the grant of permission is concerned, the Government could upon an evaluation of the progress made by the College, decline further permission till such time the deficiencies were removed or prescribe a time frame within which such deficiencies had to be removed. The scheme to the extent it requires the Institutions to remove the deficiencies within a period of two years by acquiring a piece of land measuring 5 acres and constructing a building with the prescribed covered area in the same cannot be found fault with. The Scheme in fact operates for the benefit of the Colleges by giving to them an extended period to acquire a piece of land of the required dimensions, construct a building and provide other infrastructure facilities in the same. The argument that the requirement of five acres of land was stipulated in the Regulations made subsequent to the establishment of the College, hence could not be insisted upon is not available to the College after when it has voluntarily agreed to comply with the said requirement and filed an undertaking to that effect.
39. In so far as the recognition of the decree awarded to the students between 1992 and '96 is concerned, the Scheme as explained by the Central Government in its affidavit purports to make any such recognition dependent upon removal of the deficiencies which the college has undertaken to ensure and surrender of the requisite number of seats as envisaged by the Scheme. The question is whether the Central Government is justified in making the recognition of the degrees dependent upon future developments in the Institution. My answer is in the negative. I say so because no amount of improvements in the infrastructure of the College over the period of next two years or even later can make any qualitative difference in terms of benefit to the student, who have already passed out from the Institution. Any such improvement may be relevant only for those, who are currently studying in the Institution or who may be admitted to the same in future. Making the removal of deficiencies a condition precedent for recognition of the degrees of those, who had already passed out from the same does not therefore stand to reason. For the same reason, it is doubtful whether the surrender of 50% of NRI seats is justifiable on any reasonable basis if the surrender is meant only to offset the admissions made between 1992 and '96. As to how could any reduction cure the irregularity in the admissions made during the said period is difficult to appreciate. The surrender could perhaps be justified on the ground that the existing facilities are insufficient for the full intake of 40 students per annum. That however does not appear to be the basis on which the surrender has been insisted upon. Such being the position, the argument of the College that the surrender is presented only as a measurement of punishment cannot be brushed aside lightly. Suffice it to say that there is a certain amount of irrationality in the scheme, inasmuch as the same makes regularisation of admissions of students between 1992 and 1996 and recognition of their qualifications dependent upon the college giving up 50/o of its NRI seats and removal of deficiencies pointed out by the Government.
40. The question then is whether this Court can while directing regularisation of admissions do so subject to such terms and conditions as may be considered necessary to smoothen the rough edges of the scheme formulated by the Government. Mr. Naik, Counsel for the petitioner has in this regard filed a memo on behalf of the College stating that for an immediate validation and recognition of the degrees of students admitted during the non-permission period, the college is prepared to stop all future admissions from the academic sessions 2002-03 if upon a Joint inspection by the Central Government, the DCI and the Rajiv Gandhi University of Health Sciences it is found that the college has not removed the deficiencies in terms of the extent of land required under the Regulations, the covered area to be built over the same and other infrastructural facilities prescribed for the dental colleges.
41. Mr. Haranahalli, counsel for the respondents, was unable to consent to any such arrangement, but did not offer any serious opposition to the Course suggested by the petitioner-college. In that view, therefore, I see no reason why the admissions made during 1992-96 cannot be directed to be regularised having regard to the circumstances set out in the earlier part of this order and in particular the Scheme, which the Central Government has formulated to save those admitted during the said period from the disability flowing from Section 10B of the Dentists Act. Directions for regularisation of the admissions shall have however to be subject to terms and conditions that I propose to stipulate. Question No. (2) is answered accordingly.
Re. Question No. (3):
42. Section 10 of the Dentist Act deals with recognition of dental qualifications and inter alia provides that dental qualifications granted by any authority or institution in India and included in Part-I to the schedule to the Act shall be recognised dental qualification for the purposes of the Act. The terms 'authority' and 'institution' have not been defined in the Act. When seen in the light of Part-I of the schedule, it is evident that dental qualifications can be recognised by reference to the authority or the institution granting the same. That is so notwithstanding the fact that in the ordinary course, a degree qualification in any discipline can be granted only by a University established under an enactment of the Parliament or the State Legisalture, No degree qualifications can be awarded by any educational Institution on its own unless such an institution is either constituted as a University or deemed to be one. It is however unnecessary to go into the rationale underlying the provisions of Section 10 according to which dental qualifications may be granted even by an Institution. Suffice it to say that the scheme of Section 10 read with Part-I of the schedule appears to be that the dental qualification may be recognised either by reference to the University awarding the same or the institution affiliated to any such University. The inclusion of institutions like the City Dental College and Hospital, Calcutta, the College of Physicians and Surgeons. Bombay in Part-I of the schedule as Institutions competent to grant a recognised dental qualification shows that recognition may be by reference to an institution regardless of the University to which it is affiliated. In so far as the State of Karnataka is concerned, the schedule before its amendment in the year 1999, recognised degree qualifications in dental sciences awarded by the Mysore and Bangalore Universities. The Post Graduate Degrees in some of the disciplines awarded by the said two Universities are also recognised. On a conjoint reading of Section 10 and Part-I of the schedule, it would appear that any degree awarded by the Bangalore University to which the petitioner-College was affiliated from the year 1992 onwards till the Rajiv Gandhi University of Health Sciences came into existence is a recognised dental qualification. The schedule does not qualify the recognition of degrees awarded by the said two Universities by reference to the Institutions offering such degree Courses.
43. Mr. Haranahally however argued on the basis of the notifications dated 10th of August 1999 issued by the Govt. of India in terms of Section 10(2) of the Dentist Act that dental qualifications awarded by Bangalore University and three other Universities in the State of Karnataka were recognised only by reference to the Institutions mentioned in the notifications. He submitted that the modification of the schedule by the said notification limited the recognition to only such students as had acquired the same from the Institutions mentioned in the notification that too with effect from the dates shown against each one of them. The Institutions mentioned in the notification, according to the learned Counsel, constitute a class by themselves, inasmuch as the said Institutions, have come into existence after the incorporation of Sections 10A, 10B and 10C in the Dentists Act.
44. The notification relied upon by Mr. Haranahalli purports to add in Part-I of the schedule to the Act certain entries at the serial numbers mentioned in column No. 1 thereof. Serial No. 17 in the original schedule was assigned to Bangalore University. The notification purports to add once more under the same serial number. Bangalore University and four Institutions affiliated to it. What is important is that the notification does not substitute the original entry for a new entry. It simply adds another entry under the very same serial number. Whatever may have been the compulsion behind the addition of yet another entry under a serial number already assigned to Bangalore University, the earlier entry does not get obliterated by any such addition. Reading original entry No. 17 with the newly added entry under the same serial number, one can say that all degree qualifications awarded by Bangalore University in dental sciences are recognised qualifications except those awarded to students admitted to the four Institutions mentioned in column-2 of the notification in regard to whom the qualification is recognised only if awarded after the dates mentioned against each. Any other interpretation will give rise to patent anomalies that need to be avoided. As for instance, if the newly added entry under Sl. No. 17 is to be taken as a substitution of the old entry, it would mean that the qualifications awarded by the Bangalore University earlier to the notifications that were recognised under Section 10 had lost the benefit of recognition, for no reason whatsoever. It may also mean that all Colleges other than the four Institutions mentioned in column No. 2 are ineligible for awarding recognised dental qualification or offering a course leading to the same. That could not, in my opinion, be the intention underlying the issue of the notification nor is there anything to show that the notification deals with only such Institutions as were established after the amendment of the Act. No assertions in regard to the dates on which Institutions mentioned in Column-2 of the notification were established have been made by the respondents. This was necessary especially when according to the petitioner-Co liege the Institutions mentioned in column-2 have been established earlier to the amendment and do not therefore constitute a class by themselves as argued by Mr. Haranahally.
45. That apart, if the Intention was to deny recognition to degrees awarded by Bangalore University by reference to certain Institutions affiliated to it, the Central Government could make the same clear by suitably amending Part-I of the schedule and specifying that degrees awarded by Bangalore University will not be recognised in regard to such of the Institutions as may have been identified for that purpose generally or by reference to the dates from which such recognition would be available. No such amendment having been brought about by the Central Govt., the degrees awarded cannot be held to be Un-recognized till such time a proper notification amending the schedule is issued.
46. Mr. Haranahally argued that the degrees awarded to students, who had been admitted to Institutions established without the permission of the Central Govt. could not be treated as recognised qualifications in view of provisions of Section 10B of the Act. There can be no quarrel with that proposition. The provisions of Section 10B are much too clear to admit of any equivocation. Any qualification awarded to any person admitted to an Institution which has been established without the permission of the Central Government cannot be a recognised dental qualification. The position would however materially change where admissions made to such an Institution are regularised pursuant to a scheme that may be submitted by the Institution to the Central Government as has been done in Jawaharlal Nahru-Medical College, ILR 2000 Kar 506 and Father Muller's cases or where such admissions are directed to be regularised pursuant to the scheme formulated by the Central Govt. as is the position in the instant case. The disqualification flowing from Section 10B in any such case will disappear and the degree award continue as a recognised dental qualification under Section 10 read with schedule provided the University, which has awarded the same is included therein.
47. In the result, these writ petition succeed and are hereby allowed but only to the following extent:--
(1) Admissions made by the petitioner-R V Dental College and Hospital between 1992 and 96 (both years inclusive) shall stand regularised and the dental qualifications awarded by the Bangalore University in favour of those who have passed out from the Institution on the basis of admissions made during the said period treated as recognised dental qualification for purpose of the Dentist Act.
(2) Orders and communications issued by the Rajiv Gandhi University of Health Sciences, the Director General of Health Services, Govt. of India and the All India Institute of Medical Sciences holding the petitioner-students to be ineligible for admission to P.G. Courses in Dental Sciences or to sit in the competitive examination for admission to such Courses shall stand quashed. The petitioners shall be allowed to complete their Courses if they are already admitted or considered for admission to such Courses in cases, where they have applied for such admissions.
(3) The benefit of regularisation of admission and recognition of the dental qualifications awarded to them shall be extended to all candidates admitted between 1992 and '96 regardless whether or not they have approached this Court for the grant of any such relief.
(4) The petitioner-College shall in keeping with the undertaking filed by it remove the defects pointed out by the Central Govt. and the Dental Council within the period stipulated by the Govt. and the undertaking furnished by it.
(5) The availability of infrastructure and the removal of deficiencies in the same shall be verified by a Committee comprising five persons, two each to be nominated by the Govt. of India and the Dental Council whereas the fifth shall be nominated by the Rajiv Gandhi University of Health Sciences. The said Committee shall conduct a preliminary inspection in or around the month of July 2001 and clearly indicate the deficiencies that the College suffers from, so that the College has time enough till May 2002 to remove all such deficiencies. A final inspection of the Institution shall thereafter be conducted in or around May 2002. In case the College is found to be deficient in any respect having regard to the requirements of the Regulations, it shall not for the academic session 2002-03 onwards make any admissions till such time the deficiencies are removed to the satisfaction of the Committee. The opinion of the Committee in regard to the existence and removal of deficiencies shall be final and binding upon the College. The College shall deposit a sum of Rs. 50,000/- representing the inspection fees for both the inspections and co-operate with the inspection committee.
(6) After the submission of the first inspection report, the petitioner may, if so advised, make an application for restoration of its intake capacity, which representation the Central Govt. may consider having regard to the nature of the deficiencies that may be reported and subject to such other terms as the Government may consider fit and appropriate to impose.
48. In the circumstances of the case, the parties are left to bear their own costs.