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CASE NO.: Appeal (civil)  2036-2307 of 2004

PETITIONER: Dental Council of India

RESPONDENT: S.R.M. Institute of Science & Technology & Anr.

DATE OF JUDGMENT: 05/04/2004

BENCH: S. RAJENDRA BABU & G.P. MATHUR.

JUDGMENT: J U D G M E N T

[Arising out of SLP(Civil) Nos.2014-2015 of 2004]

RAJENDRA BABU, J. :

       Leave granted.

       A writ petition was filed by the first respondent  seeking for quashing an order dated 06.06.2003 made by  the Ministry of Health and Family Planning, Government of  India and direct it to process the proposal dated 28.03.2003  of the first respondent to start MDS course in six specialties  in its Dental College and grant permission for the academic  year 2003-2004 without insisting on permission or  essentiality certificate from the State Government of Tamil  Nadu and pass such further orders as the High Court may  deem fit.  Curiously enough, the High Court made an  interim order in the following terms:-

"Considering the facts and circumstances of the  case, I direct the respondent to complete the  processing of the application including  inspection and not to pass orders until further  orders from this Court.  The respondent is  directed to carry out the said exercise within a  period of four weeks from the date of receipt of  a copy of this order."

       On passing of the interim order, the Government of  India sent a letter to the Dental Council adverting to the  interim order made by the High Court to take further  necessary action in terms of the order of the High Court.  However, it was stated that the findings of the inspection  ought to be kept in a sealed cover until the final orders of  the High Court are passed in the matter.

       Thereafter, on 25.9.200 the High Court made an order  stating as follows:

" In view of the consensus among counsel, I  am of the view, without going into the  merits of the case, the respondent  Government of India may be directed to  pass appropriate orders within a period of  four weeks from the date of receipt of copy  of this order."

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       Further a direction was also issued to the Dental  Council in the following terms:

"Hence a direction is hereby issued to the  Dental Council to forward the inspection  report prepared as per the direction of this  Court along with its recommendations to  the Ministry of Health and Family Welfare,  New Delhi forthwith on production of copy  of this order and the respondent is hereby  directed to pass appropriate orders on the  report and recommendations of the Dental  Council in accordance with law within a  period of four weeks from the date of  receipt of copy of this order."

       With these observations, the writ petition was  disposed of.  It was against this order that a writ appeal  was filed, which was dismissed.  That order was result of  consensus amongst counsel and hence these appeals by  special leave.

       Establishment of new Dental Colleges or opening of  higher courses of study and increase of admission capacity  in Dental Colleges are governed by appropriate regulations  framed by the Dental Council of India in terms of Section  10A read with Section 20 of the Dentists Act, 1948 with the  previous approval of the Central Government.  The scheme  relating to Section 10A(2)(a) and (b) of the Dentists Act is  set out in the regulations itself.  For starting higher courses  in dental subjects in Dental Colleges, the applicant should  conform to the guidelines prescribed by the Dental Council  of India and they should apply to the Central Government  for permission along with the State Government’s  permission, University affiliation and in conformity with the  Dental Council of India regulations and  documentary  evidence to show that the applicant has additional financial  allocation and provision for additional space for additional  equipment and infrastructural facilities and provision for  recruitment of additional staff as per the relevant norms or  regulations.  The Central Government on the  recommendation of the Dental Council of India may issue a  letter of intent for starting higher courses with such  condition or modification on the original proposal as may be  considered necessary.

       The learned Additional Solicitor General submitted on  behalf of the Dental Council that permission or essentiality  certificate by the State Government has to be furnished  along with application proposing to start a higher course in  the Dental College; that the Dental Council is a statutory  body constituted under the Dentists Act and has been  attached with statutory duties and hence ought to have  been impleaded as a party in the proceedings; that when  the permission or essentiality certificate had to be given by  the State Government with certain obligations arising  thereunder such as assessment of the desirability and  feasibility, it was also necessary to implead the State  Government as a party; that in the absence of these two  parties, the High Court ought not to have granted any relief  to the first respondent, either interim or final.  The learned  counsel also emphasised that unless all requirements as per

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the Regulations are conformed to by the Dental College, no  permission can be granted to start a higher course.

       Sri P.P.Rao, learned Senior Advocate appearing for the  first respondent, submitted that the appellant having  complied with the directions of the learned Single Judge  made in the interim order without demur cannot now  complain against the final order directing it to forward its  report to the Central Government and the Dental Council of  India is bound to forward its report with its  recommendations to the Government of India in terms of  Section 10A(3) of the Dentists Act, 1948; that, the order  made by the learned Single Judge is a consent order to  which the Union of India was a party and the Dental Council  was only an advisory body which is bound to consider the  scheme forwarded to it by the Government of India; that  the first respondent has invested about Rs.10 crores in the  college for starting MDS course and is spending about Rs.10  lakhs a month on staff and maintenance; that it has already  established the infrastructure and reports of inspection are  available with the authorities; that no deficiency has been  pointed out by any one and it would serve no useful  purpose to insist upon the permission or essentiality  certificate by the Central Government at this belated stage  in the case and for this purpose placed reliance on the  decision in Thirumuruga Kirupananda Variyar  thavathiru Sundara Swamigal Medical Educational &  Chairtable Trust vs. State of Tamil Nadu & Ors., 1996  (3) SCC 15.

       In this case, the High Court made an interim order to  complete the processing of the application including  inspection even in the absence of the permission or  essentiality certificate from the State Government in terms  of the regulations framed by the Dental Council of India.   The process of the courts or the process of law should not  be allowed to subvert the law.  In cases of recognition of  dental colleges or starting of higher courses, this Court  has  in several cases including Islamic Academy of Education  and Anr.  vs.  State of Karnataka & Ors., 2003 (6) SCC  697; State of Maharashtra vs. Indian Medical  Association & Ors., 2002 (1) SCC 589, etc. held that they  are of mandatory character and have got to be complied  with.  When that is the position in law, the High Court ought  not to have made an interim order to process the  application even in the absence of the permission or  essentiality certificate because the application will not be  complete without being accompanied by permission or  essentiality certificate by the State Government along with  certain other documents.  An incomplete application cannot  be processed either by the Central Government or the  Dental Council.  The argument advanced on behalf of the  respondents will set at naught the law that in certain cases  the courts need not insist on production of permission or  essentiality certificate of the State Government,  particularly, when the regulations insist upon the same.  To  decide such a matter even in the absence of the Dental  Council and the State Government as if they have no role to  play in the matter is only to by-pass the law, when  statutory duties have been assigned and each one of those  authorities have got separate roles to play.  It may be that  the Government of India takes the ultimate decision in the  matter but to state that these authorities only aid the  Government of India and hence it is not necessary to make  them a party to the proceedings is not at all appropriate or

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acceptable to us.  However, that would not be the end of  the matter.  In the present case, pursuant to the interim  direction issued by the High Court, inspection has taken  place and a report has been submitted by an inspection  team appointed by the Dental Council of India which is kept  in a sealed cover by the Dental Council of India.  It would  be more appropriate to process the application on the first  respondent furnishing the permission or essentiality  certificate and other relevant documents as provided under  the relevant regulations and the scheme framed for the  purpose of filing an application for starting a new or higher  course in the college. On furnishing such permission or  essentiality certificate, the Dental Council and the  Government of India shall take appropriate steps as  provided under the relevant Act and rules or regulations.   Sri P.P.Rao submits that a time of eight weeks may be  granted to furnish the permission or essentiality certificate  to the Government of India.  We, therefore, direct that if  such permission or essentiality certificate issued by the  State Government is furnished within a period of eight  weeks, the proposal of 1st respondent for starting  new/higher courses shall be processed by the Dental  Council of India and the Government of India and  appropriate orders made thereon within eight weeks  thereafter.  The appeals are, therefore, partly allowed and the  order made by the High Court is modified as aforesaid.