EDUCARE CHARITABLE TRUST Vs U.O.I
Bench: K.S. RADHAKRISHNAN,A.K. SIKRI
Case number: SLP(C) No.-022910-022910 / 2013
Diary number: 21483 / 2013
Advocates: E. M. S. ANAM Vs
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[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
SPECIAL LEAVE PETITION (Civil) No. 22910 OF 2013
Educare Charitable Trust ……Petitioner
Vs.
Union of India & Anr. ….Respondents
J U D G M E N T
A.K.SIKRI,J.
1. In this petition, invoking the provisions of Article 136 of the Constitution of
India, the petitioner seeks leave to appeal against the judgment dated 2nd July 2013
passed by the High Court of Kerala. Writ Petition of the petitioner has been
dismissed by the aforesaid judgment.
2. The petitioner, which is a Charitable Trust working in the field of education,
has established a Dental College which was established few years ago. During the
Academic Year 2007-08, course in Bachelor of Dental Surgery (BDS) was started
by it with an annual intake of 50 students. This was done after taking due --
permission from the Central Government under Section 10-A of the Dentists Act,
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1948 on the recommendation of Dental Council of India (DCI). The Government
of Kerala has issued requisite Essentiality Certificate. The college run by the
petitioner is affiliated with University of Calicut as that University had granted
necessary Consent of Affiliation. The Dental College also stands affiliated to the
Kerala University of Health Sciences, established by the Kerala University of
Health Science Act, 2010.
3. In the year 2012, the petitioner wanted to expand the size of BDS, being
desirous of increasing the capacity from 50 to 100 seats. Intention was to do so
with effect from current Academic Year i.e. 2013-14. The scheme was rejected by
the Government vide order dated 31.12.2012 on the ground that it did not fulfil the
eligibility criteria for such an increase. Against this order of refusal of the Central
Government, the petitioner had approached the High Court of Kerala seeking
quashing of the said order and for issuance of Writ of Mandamus commanding the
Central Government to forward the application of the petitioner for intake of
students, to the DCI for technical scrutiny and further to direct the DCI to make
appropriate recommendation to the Central Government for issuance of letter of
permission during the Academic Year 2013-14 itself. As pointed out in the
beginning of this order, the said Writ Petition has been dismissed by the High
Court.
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4. In order to appreciate the controversy and the grievance of the petitioner, it
would be necessary to traverse few facts.
5. On 8th August 2012, the petitioner had submitted the scheme to the
Government of India for increasing the admission capacity. This request of the
petitioner was considered but the Central Government could not process the
same as at the time of submission of the application, the petitioner had yet to get
the recognition of the BDC course with 50 seats i.e. the existing capacity, which is
a pre-condition for forwarding the application. The Central Government had
issued various letters, last of which was dated 19th December 2012, asking the
petitioner to obtain the recognition. Last date for forwarding the application by the
Central Government to DCI for approval of such scheme was 31.12.2012. Since
the petitioner could not bring the said “Essential Documents” even upto the last
date i.e. 31-12-2012, the Central Government returned the application with liberty
to the petitioner to apply afresh in the next Academic Year i.e. 2014-15.
6. As per the petitioner, its college fulfilled all the norms required for increase
of intake of students from 50 to 100 seats. In so far as matter of recognition is
concerned, the petitioner squarely blames the DCI for dragging its feet and,
therefore, it is pleaded that the petitioner could not be made to suffer for no fault
on its part. In this behalf, it was pointed out that the Executive Committee of the
DCI in its meeting held on 26.11.12 had duly recommended to accord recognition.
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-Recommendation of the Executive Committee was considered by the General
Council of the DCI which met on 27/28.11.2012. This Governing Council also
approved the proposal. Nothing further was to be done by the DCI but to send
letter of recommendation to the Central Government. Had it been done
immediately or within few days thereafter, the petitioner could have got the
recognition of the BDS course much before 31st December 2012, which was the
last date. The grudge of the petitioner is tht the DCI slept over the matter and sent
the communication regarding recognition of the petitioner –college to the Central
Government only on 7th January 2013 thereby causing the last date to expire. The
Central Government had notified the recognition on 23rd January 2013 but with
effect from July 2012. In this conspectus, it was the submission of the petitioner
that the right of the petitioner to seek enhancement of seats from 50 to 100 could
not be defeated by the respondents when the delay was at their end. It was pleaded
that thought as per the time frame set out in the Schedule, last date for forwarding
the application was 31st December, 2012, Note (2) appended beneath the said
Schedule enables the Central Government to modify the same in respect of any
class or category of applicants. In the present case, there was valid reason to
exercise such discretion but it was not done. For this reason, another prayer was
made in the Writ Petition to the effect that the Central Government be directed to --
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modify the time schedule for the petitioner by invoking the power under Note (2)
to the Regulations.
7. The aforesaid plea of the petitioner did not cut any ice with the High Court.
It held that as per Regulation 18 of the DCI (Establishment of New Dental
Colleges, Opening of New Higher Course of Study or Training and Increase of
Admission Capacity in Dental Colleges) Regulations, 2006, the applicant has to
submit application in Form 3 when it wants to increase of seats. Qualifying criteria
is laid down in Regulation 19 and as per Clause (a) thereof, it is mandatory that the
college is recognized with the existing admission capacity. This condition was not
fulfilled by the petitioner and it was not possible for the Central Government to
forward the application to the DCI for technical scrutiny. In these circumstances, if
the Central Government did not exercise its discretion to modify the time schedule,
in terms of Note (2) of the Regulations, direction could not be issued to the Central
Government to exercise that power in a particular manner as it was purely within
the discretion of the Central Government and Central Government refused to
exercise the discretion for valid reason.
8. Before us as well, the case was argued on the same lines which was taken
before the High Court. It was submitted by Mr. Patwalia, the learned senior
counsel appearing for the petitioner that in the absence of any fault of the petitioner
and when the petitioner has taken all steps well within time, it was a fit case for --
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exercising discretion by the Central Government and non-exercise of such a
discretion was clearly arbitrary. Mr. Patwalia emphasized and reemphasized, with
lots of vehemence that when the Governing Council had approved the case of
recognition of the petitioner-college in respect of existing seats on 27/28
November 2012, there was no reason for it to delay forwarding of this proposal to
the Central Government. Had it been done immediately thereafter, the Central
Government would have granted the recognition much before 31st December, 2012
thereby removing the only handicap which was coming in the way of the petitioner
and its scheme containing proposal of increase of seats from 5o to 100 could have
been forwarded to the DCI well in time. He, thus, made a passionate plea that it
was a fit case for exercise of power to extend the time Schedule under Note (2) of
the Regulations, 2006.
9. We are not persuaded by these submissions of the petitioner. Regulations,
2006 are framed by the DCI, with the previous approval of the Central
Government, in exercise of powers conferred by Section 10A read with Section 20
of the Dentists Act, 1948. These Regulations, thus, have statutory force. These
Regulations deal with the procedure for obtaining permission of the Central
Government to establish new Dental College, for starting new or higher courses or
training in a Dental College as well as for increase in admission capacity in a
Dental College. Regulation 18 deals with “Permission of the Central Government
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-to increase admission capacity in the dental college” which is the subject matter of
the present proceedings. Under Regulation 18, the applicant, a Dental College
desirous to increase the admission capacity has to make requisite application in
Form 3. Regulation 19 lays down the qualifying criteria and the conditions which
are to be necessarily fulfilled to enable that college to apply under Regulation 18.
As per Regulation 20, application is to be submitted in Form 3 and the application
fee with the particulars mentioned in the said Regulation. Relevant portions of
Regulations 18,19 and 20, with which we are concerned, are reproduced herein
below:
“18. Application for increasing the admission capacity:-
For increasing the admission capacity (number of seats) at the under-graduate or post-graduate level (degree or diploma), a dental college shall, subject to regulation 19, submit to the Central Government the scheme in this regard in Form 3, as annexed, for obtaining its permission.
19. Qualifying Criteria:-
A dental college shall qualify to apply under regulation 18, if the following conditions are fulfilled:
(a) the dental qualification granted to the students of the college and in respect of which the capacity is sought to be increased is recognized with the existing admission capacity;
(b) xxxxxxxxxxxxxxxxxxx
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- (c) xxxxxxxxxxxxxxxxxxxx
(d)xxxxxxxxxxxxxxxxxxxx
(e)xxxxxxxxxxxxxxxxxxx
20. Submission of the application in Form 3 and the application fee:-
(1) xxxxxxxxxxxxxxxxxxx
(2) Incomplete application or scheme will not be accepted and will be returned by the Central Government to the applicant along with enclosures and processing fee.
(3)xxxxxxxxxxxxxxxxx”
7. It is clear from the above that Regulation 18 is made subject to Regulation
19. Regulation 19 states, in no uncertain terms, that a dental college “shall qualify
to apply under regulation 18” if the conditions stipulated in Regulation 19 are
fulfilled. It clearly follows that a dental college which does not satisfy the
conditions laid down in Regulation 19 is not qualified to make an application under
Regulation 18. Clause (a) of Regulation 19 lays down a specific condition, namely
existing admission capacity should be recognized
8. Admittedly, as on the date of application, the petitioner did not have this
recognition and thus, it did not fulfill the stipulations contained in Clause (a) of
Regulation 19. In the absence thereof, it was not qualified to make the --
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application. It, thus, clearly follow that on the date of application i.e. 8th August
2012, the application was incomplete. As per regulation 20(2) incomplete
application or scheme can be returned by the Central Government to the applicant,
9. No doubt, instead of returning the application, the Central Government gave
chances to the petitioner to obtain the recognition from DCI and furnish the same
to it. Mr. Patwalia may be correct, to some extent, that had such a recommendation
been forwarded by the DCI before December 2012, probably Central Government
would have acted thereupon. It is also correct that the Governing Council in its
meeting held on 27/28 November 2012 approved the case of the petitioner and sent
the same to the Central Government only on 7.1.2013. However, merely from
these facts, the blame cannot be foisted upon the DCI. It has been duly explained
by the DCI that there are about 40 Members of the Governing Council spread
throughout the country. The Governing Council meets twice a year and in every
meeting the business transacted by the Governing Council is huge. After the
meeting, minutes are to be prepared in respect of all the items in the agenda. By
the time minutes are prepared, the Members go back to their respective places of
residence. Getting signatures of the Members of the Council is, therefore, a time
consuming process. It was pointed out also by the learned counsel for the DCI,
which could not be disputed by the petitioner, that 40 days time is earmarked for
sending the recommendation to the Central -Government, after it is approved by
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the Governing Council. In the instant case, the Governing Council did its job
within the stipulated time. Therefore, there is no delay in sending its approval to
the Central Government on 7th January 2013.
10. As per Regulation 4 of Regulations, 2006, the scheme or proposal has to be
submitted within the time frame as appended in the Schedule annexed to the said
Regulations. The Schedule gives the following time frame:
SCHEDULE
(See Regulation 4(2))
Schedule for receipt of Applications for Establishment of New Dental Colleges, Opening of Higher Course of Study & Increase of admission capacity in the recognized Dental Colleges and processing of the applications by the Central Government and the Dental Council of India.
S.No. Stage of Processing Time Schedule for Time Schedule BDS for MDS
---------------------------------------------------------------------------------------------------- 1 2 3 4 --------------------------------------------------------------------------------------------------- 1. Receipt of applications by From 1st August to 30th From 1st May
the Central Govt. Sep.(both days inclusive) to 30th June of any year. (both days
inclusive)of any year
2. Forwarding of applications Upto 31st October Upto 31st July by the Central Government to the Dental Council of India for technical scrutiny.
3. Recommendations of DCI Upto 15th June Upto 28th February to the Central Govt.
4. Issue of Letter of Permission Upto 15th July Upto 31st March by Central Government
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Note (1)If any clarification is sought by the Central Government on the recommendation of the Council, the same will be furnished by the Council forthwith, if necessary after conducting inspection.
(2) The time-schedule indicated above may be modified by the Central Government, for reason to be recorded in writing, in respect of any class or category of applications.”
8. As per the aforesaid time-schedule, the applicant-college desirous of
increasing the admission capacity is to submit the application from 1st August to
30th September. This was done by the petitioner. However, what was found that
the petitioner was not meeting the qualifying criteria as on that date because with
respect to existing admission capacity, it had not been recognized so far. The
applications are to be forwarded by the Central Government, once they are found
to be in order and meeting the qualifying criteria laid down in Regulation 19, by
31st October in respect of BDS course. This time was extended upto 31st December
in this year. After an application is forwarded to the DCI, DCI is supposed to
evaluate the scheme for increasing admission capacity as per the procedure laid
down in Regulation 21 which lays down that the DCI is required to ascertain the
desirability and prima facie feasibility for increasing the admission capacity at the
Dental College. It is also required to satisfy itself about the capability of the
Dental College to provide necessary resources and infrastructure for the scheme.
DCI is even required to conduct physical inspection of the college before forming
an opinion as to whether the applicant satisfies the condition of -feasibility of
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increasing the admission capacity. This process, naturally, is time consuming. As
per the time-schedule referred to above, time upto 15th June is given for the DCI to
make recommendation to the Central Government. Such a report containing its
recommendation is to be given in terms of Regulation 22. Thereafter, Central
Government is required to go into the said recommendation and if it is found that
applicant-college deserves the permission to increase the admission capacity,
Letter of Permission is to be issued by 15th July. This time frame is to ensure
timely admissions of students.
9. Having regard to the above, it is not possible to accede to the request of the
petitioner to change the time-schedule when the last date for admitting the
students, which was July 15, 2013, expired long ago. If the Central Government
forwards the application to the DCI at this juncture, DCI shall hardly have any time
to look into the feasibility of the scheme as per the requirements contained in
Regulation 21. We have to keep in mind that in the schedule annexed to the
Regulations 2006, six to eight months time is given to the DCI for this purpose.
We are, thus, of the view that the High Court did not commit any error in holding
that in the given circumstances mandamus could not be issued to the Central
Government to exercise its discretionary powers in a particular manner to modify
the time-schedule. Sanctity to the time-schedule has to be attached. It is too late
in the day, in so far as present academic session is concerned, to give any
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direction.- This Court has highlighted the importance of cut off date for starting
the professional courses, particularly medical courses, and repeatedly impressed
upon that such deadline should be tinkered with. (See: Priya Gupta vs. State of
Chhattisgarh (2012) 7 SCC 433 and Maa Vaishno Devi Mahila Mahavidyalaya vs.
State of U.P. (2013) 2 SCC 617.
10. We, thus, do not find any error in the impugned judgment of the High Court.
This petition is bereft of any merit and is accordingly dismissed.
……………………………….J. (K.S.Radhakrishnan)
……………………………….J. (A.K. Sikri)
New Delhi, September 17, 2013
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