TMI Blog2022 (4) TMI 1484X X X X Extracts X X X X X X X X Extracts X X X X ..... g the Dental Colleges to be attached with the Government/Private Medical College was beyond the scope of Sub-section (7) of Section 10A of the said Act and, therefore, inconsistent with the said Act. The Division Bench of the High Court found the impugned Notification dated 21st May, 2012 to be violative of Article 14 of the Constitution, on the ground that the Dental Colleges established prior to impugned Notification would not be required to be attached with the Medical Colleges, whereas, the Dental Colleges, established after the impugned Notification, will be compelled to be attached to such Medical Colleges - It cannot be said that the Council has taken into consideration the factors, which are not relevant or germane for the purpose to be achieved. The object to be achieved is to provide adequate teaching and training facilities to the students. If in the wisdom of the expert body, this can be done by attaching a Dental College to the already existing Medical College, it cannot be faulted with. The amended Regulation cannot be said to be one, which is manifestly arbitrary, so as to permit the Court to interfere with it. On the contrary, we find that the amended Regulati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of permission for establishment of dental college from academic year 2012-2013 on 24th September, 2011. This was after the Letter of Intent was issued by the State Government on 23rd September, 2011. The Respondent No. 2 - Union of India, through Secretary, Ministry of Health and Family Welfare (Dental Education Section) [hereinafter referred to as the Respondent No. 2 ), noticed certain deficiencies in the proposal of the Respondent No. 1 and vide its letter dated 7th October, 2011, required the Respondent No. 1 to cure the said deficiencies. 5. After exchange of certain communications, on 6th January, 2012, the Respondent No. 2, returned the application of the Respondent No. 1 along with demand draft of Rs. 6 lakh, on the ground that deficiencies pointed out were not cured prior to 31st December, 2011, i.e., the last date for curing the deficiencies. 6. In the meantime, the Government of Rajasthan issued Essentiality Certificate to the Respondent No. 1 on 11th January, 2012. However, on 17th February, 2012, the Respondent No. 2 declined to reconsider the application/request of the Respondent No. 1, on the grounds stated in its earlier letter, dated 6th January, 2012. As s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the Respondent No. 2 to reconsider the case of the Respondent No. 1 in the light of the observations made in the impugned judgment and order. Being aggrieved thereby, the present appeal has been preferred by the Council. 9. We have heard Shri Gaurav Sharma, learned Counsel appearing on behalf of the Council, Ms. Aishwarya Bhati, learned Additional Solicitor General ( ASG for short) appearing on behalf of the Respondent No. 2 and Ms. Shobha Gupta, learned Counsel appearing on behalf of the Respondent No. 1. 10. Shri Gaurav Sharma, learned Counsel, would submit that the Division Bench of the High Court has grossly erred in allowing the writ petition. He submits that the Council is an expert statutory body duly constituted under the said Act. He submits that the said Act empowers the Council to make Regulations for various aspects concerned with Dental Education, including prescribing requirement of minimum standards. He submits that the Council, after examining various aspects, had found it necessary to amend Regulation 6(2)(h) of the Regulations. He submits that this was done for providing better teaching facilities to the students and for improving the standards of educat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alify himself for the grant of recognized dental qualification; it also imposes a restriction on opening a new or higher course of study or training, or increase the admission capacity in any course of study or training, including a post-graduate course of study or training. It is provided that no person can establish an authority or institution for dental education and that no authority or institution can open a new or higher course of study or training, including a post-graduate course of study or training, or increase its admission capacity without the prior permission of the Central Government. Sub-sections (2) to (4) of Section 10A of the said Act deal with the procedure to be followed for making an application for permission to start a new or higher course of study or training or increase of intake capacity in any course of study or training. Sub-section (5) of Section 10A of the said Act is a deeming provision, which provides that if the Central Government fails to pass an order on the scheme/application submitted by the applicant within a period of one year from the date of submitting the scheme/application, such scheme/application shall be deemed to have been approved by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 dental qualifications; (f) the requirement of manpower in the field of practice of dentistry; and (g) any other factors as may be prescribed. 15. It could thus be seen that the Council, while making its recommendations and the Central Government, while passing an order, are required to take into consideration various factors as are enumerated in Clauses (a) to (g) of Sub-section (7) of Section 10A of the said Act. 16. Section 20 of the said Act empowers the Council, with the approval of the Central Government, to make Regulations. It will be apposite to refer to the relevant part of Section 20 of the said Act, which reads thus: 20. Power to make Regulations.-(1) The Council may, with the approval of the Central Government, by notification in the Official Gazette, make Regulations not inconsistent with the provisions of this Act to carry out the purposes of this Chapter. (2) In particular and without prejudice to the generality o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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; Regulation 6(2)(h) after the impugned Notification dated 21st May, 2012 6. Eligibility and qualifying criteria.- (1).................................................. (2) The organizations Under Sub-Regulation (1) shall qualify to apply for permission to establish a dental college if the following conditions are fulfilled: (a).................................................. (b).................................................. xxx (h) the applicant shall attach its proposed dental college with a Government/Private Medical College approved/recognised by the Medical Council of India which is located at the distance of 10 kms. by road from the proposed dental college and produce evidence of the said Medical College to the effect that it would facilitate training to the students of the proposed dental college as per syllabus/course curriculum prescribed in respective undergraduate and post graduate dental course Regulations as amended from time to time: Prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... questioned on the ground that it is unreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary. 23. It could thus be seen that this Court has held that the subordinate legislation may be questioned on any of the grounds on which plenary legislation is questioned. In addition, it may also be questioned on the ground that it does not conform to the statute under which it is made. It may further be questioned on the ground that it is contrary to some other statute. Though it may also be questioned on the ground of unreasonableness, such unreasonableness should not be in the sense of not being reasonable, but should be in the sense that it is manifestly arbitrary. 24. It has further been held by this Court in the said case that for challenging the subordinate legislation on the ground of arbitrariness, it can only be done when it is found that it is not in conformity with the statute or that it offends Article 14 of the Constitution. It has further been held that it cannot be done merely on the ground that it is not reasonable or that it has not taken into account relevant circumstances which the Court considers relevant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Bombay) Private Ltd. (supra), Supreme Court Employees' Welfare Association. v. Union of India and Anr. (1989) 4 SCC 187, Shri Sitaram Sugar Company Limited and Anr. v. Union of India and Ors. (1990) 3 SCC 223, St. Johns Teachers Training Institute v. Regional Director, National Council for Teacher Education and Anr. (2003) 3 SCC 321, Rameshchandra Kachardas Porwal and Ors. v. State of Maharashtra and Ors. (1981) 2 SCC 722, Union of India and Anr. v. Cynamide India Ltd. and Anr. (1987) 2 SCC 720 and State of Haryana v. Ram Kishan and Ors. (1988) 3 SCC 416, this Court has laid down certain grounds, on which the subordinate legislation can be challenged, which are as under: Whether the Rule is valid in its entirety? 15. There is a presumption in favour of constitutionality or validity of a subordinate legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognised that a subordinate legislation can be challenged under any of the following grounds: (a) Lack of legislative competence to make the subordinate legislation. (b) Violation of fundamental rights guaranteed under the Constitution of India. (c) Violation of any pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the competence of the Council to make Regulations prescribing any other conditions, which are otherwise not found in Clauses (a) to (f) of Sub-section (7) of Section 10A of the said Act. Challenge to the same would be permissible only on the ground of manifest arbitrariness. It is also equally settled that the presumption is always with regard to the validity of a provision. The burden is on the party who challenges the validity of such provision. We find that the Respondent No. 1 has failed to discharge the burden to show that the impugned Notification suffers from manifest arbitrariness. 31. Secondly, the Division Bench of the High Court found the impugned Notification dated 21st May, 2012 to be violative of Article 14 of the Constitution, on the ground that the Dental Colleges established prior to impugned Notification would not be required to be attached with the Medical Colleges, whereas, the Dental Colleges, established after the impugned Notification, will be compelled to be attached to such Medical Colleges. We are of the considered view that the Colleges established prior to the impugned Notification and the Colleges established/to be established after the impugned Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... BBS course, the additional students of the Dental College may very well be absorbed in the facilities that are already available in the recognized Medical College. However, if more than one Dental College is permitted to be attached, it will lead to overcrowding of students in the Medical College. 33. We are, therefore, of the considered view that the amended Regulation cannot be said to be one, which is manifestly arbitrary, so as to permit the Court to interfere with it. On the contrary, we find that the amended Regulation 6(2)(h) has a direct nexus with the object to be achieved, i.e., providing adequate teaching and training facilities to the students. 34. It will be apposite to refer to the following observations of the Division Bench of the High Court in the impugned judgment: 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 pre-clinical, para-cli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Act. 37. We find that the observations quoted herein above of the Division Bench of the High Court are totally contrary to the view expressed by this Court in the case of Maharashtra State Board of Secondary and Higher Secondary Education and Anr. (supra). 38. The Division Bench of the High Court has erred in substituting its wisdom with that of the rule-making body, which is an expert body. In this respect, it will also be apposite to refer to the observations of this Court in the case of All India Council for Technical Education v. Surinder Kumar Dhawan and Ors. (2009) 11 SCC 726. After considering various judgments on the issue, this Court observed thus: 16. The courts are neither equipped nor have the academic or technical background to substitute themselves in place of statutory professional technical bodies and take decisions in academic matters involving standards and quality of technical education. If the courts start entertaining petitions from individual institutions or students to permit courses of their choice, either for their convenience or to alleviate hardship or to provide better opportunities, or because they think that one course is equal to ano ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that the impugned judgment of the Division Bench of the High Court is also not sustainable on the ground of judicial propriety. The Respondent No. 1 had already filed a writ petition being S.B. Civil Writ Petition No. 15090 of 2016, challenging the action of the Council and the Respondent No. 2 in returning the application of the Respondent No. 1 for grant of recognition to new Dental College and for a direction to reconsider its application submitted on 24th September, 2011. The said writ petition was filed in the year 2016. The said writ petition was dismissed by the learned Single Judge of the High Court by the judgment and order dated 3rd November, 2016. After the said writ petition was rejected on 3rd November, 2016, the Respondent No. 1 filed the present writ petition being D.B. Civil Writ Petition No. 3260 of 2017 before the Division Bench of the High Court on 1st March, 2017. In the said writ petition, the prayer was for challenging the validity of the impugned Notification and for a direction to reconsider the proposal of the Respondent No. 1. The impugned Notification could have very well been challenged in the earlier writ petition, which was filed in the year 2016 be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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