Dr. Tanmay Srivastava & Ors. vs Dental Council Of India & Anr.
2010 Latest Caselaw 153 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI


%                                                    Date of decision: 13.01.2010


+                WP (C) No.13080 of 2009 & CM No.14068 of 2009


DR. TANMAY SRIVASTAVA & ORS.       ...PETITIONERS
                   Through:  Mr. R.K. Saini, Advocate.


                                          Versus


DENTAL COUNCIL OF INDIA & ANR.            ...RESPONDENTS
                   Through:  Mr. Gaurav Sharma,
                             Mr. J.P. Karunakaran &
                             Mr. J.S. Kapur, Advocates
                             for R-1/DCI.

                                                Mr. Ritesh Kumar, Advocate
                                                for R-2/UOI.


CORAM:
HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
HON‟BLE MS. JUSTICE VEENA BIRBAL

1.        Whether the Reporters of local papers
          may be allowed to see the judgment?           No

2.        To be referred to Reporter or not?            No

3.        Whether the judgment should be
          reported in the Digest?                       No


SANJAY KISHAN KAUL, J. (Oral)

1. The petitioners numbering 30 are citizens of India who obtained BDS

Degree from the Universal College of Medical Sciences, Bhairahwa,

Nepal affiliated to Tribhuwan University of Nepal, Kathmandu,

Nepal. The petitioners had taken admission in and around the year

2002 and undisputedly when they took admission the BDS Degree

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awarded by the University was not recognized by respondent No.1,

Dental Council of India (for short „DCI‟) and the position remained

the same even after they had obtained the Degree.

2. The petitioners filed a WP (C) No.8659/2008 before this Court

seeking directions for recognition of the BDS Course of the aforesaid

University for purposes of practicing under The Dentists Act, 1948

(hereinafter referred to as the said Act) by process of issuance of a

notification in the Official Gazette to include the University in Part

III of the Schedule to the said Act. It may be noticed that the aspect

of recognition was pending with the Central Government and

respondent No.1 had been requesting the Central Government for

permission to inspect the Institution.

3. In the said petition the petitioners themselves filed an interlocutory

application inter alia praying that respondent No.1 be directed to

frame regulations for a screening test so that the persons who qualify

the said test can thereafter be put on the Register of Practicing

Dentists. The aspect of making regulation in this behalf was also

being examined by the respondents and The Dental Council of India

Screening Test Regulations, 2009 (hereinafter referred to as the said

Regulations) were notified by publication in the Gazette on

13.8.2009. The writ petition filed by the petitioners was accordingly

disposed of by the High Court on 21.10.2009 with the direction to

hold the screening test by January, 2010.

4. The petitioner plead that in the first week of November 2009 they

came across Information Bulletin on the website of respondent No.1

for the Screening Test for Indian nationals with foreign Dental _____________________________________________________________________________________________

Qualifications, March 2010. The petitioners are aggrieved by the

three aspects of the said Regulations which have been accordingly

incorporated in the Information Bulletin:

i. The provision of an examination fee of Rs.50,000.00 for

the BDS Course as per Regulation 8 (b) and of

Rs.35,000.00 & Rs.25,000.00 for the second and third

attempts respectively for the said Course.

ii. The provision of a viva-voce test as part of Regulation 11

of the said Regulations stipulating the examination pattern

of screening test and in the alternative the provision of

minimum pass marks of 50 per cent for the viva-voce.

iii. The stipulation in Regulation 12 of the said Regulations

that a maximum of three chances would be allowed to

appear and pass the test.

5. Learned counsel for the petitioners in his elaborate submissions

running over more than an hour and a half repeatedly sought to

emphasize the same aspects. It is pleaded that the amount of

Rs.50,000.00 prescribed as the screening test fee is exorbitant and in

respect of MBBS Course governed by the Medical Council of India

Act the screening test fee is only Rs.3,000.00 without any provision

for viva-voce or limiting the number of chances to appear in the

screening test. The screening test was to be held on 12.1.2010 and

the prescribed authority in terms of Clause 2 (1) (e) of the said

Regulations for holding the screening test is the Rajiv Gandhi

University of Health Sciences, Bangalore as appointed by the DCI. It

is, thus, submitted that the fee should have been determined by the _____________________________________________________________________________________________

Prescribed Authority especially as the purpose of conducting the

screening test as specified in Regulation 3 of the said Regulations is

primarily to determine the eligibility of a candidate for his or her

registration with any State Dental Council. Learned counsel

emphasizes that in terms of Section 10 (4) (b) of the said Act the

dental qualification granted by an Authority or Institution outside

India had to be included in Part III of the Schedule to be recognized

as the dental qualification for the purposes of the said Act and only a

citizen of India was entitled for a registration. It is thereafter that in

terms of Section 31 of the said Act, Register of Dentists is maintained

by the State Council. Learned counsel also drew the attention of this

Court to Section 20 (2) (h) of the said Act to contend that the power

to make Regulations was conferred under Section 20 (1) of the said

Act while under sub-section (2) (h) of Section 20 of the said Act the

standards of examinations and other requirements to be satisfied to

secure for qualifications for recognition under the said Act were

provided.

6. We may note at this stage itself that sub-section (2) of Section 20 of

the said Act begins with „in particular and without prejudice to the

generality of the foregoing power such regulations may‟.

Regulations can, thus, be made not inconsistent with the said Act

under the provisions of sub-section (1) of Section 20 of the said Act

and the specific areas without affecting the generality of such power

has been specified in sub-section (2) of Section 20 of the said Act and

Clause (h) of sub-section (2) of Section 20 of the said Act deals with

prescribing the standards of examinations and other requirements to _____________________________________________________________________________________________

be satisfied for qualifications which would entitle to recognition. The

plea sought to be advanced is that there is no provision to levy the

fee.

7. We find no such absence of power to prescribe the fee. The

prescription of the fee is not inconsistent with the said Act. The fee

is provided for in the said Regulations which have been made in

pursuance to the powers conferred under Section 20 of the said Act.

Powers are extremely wide and some of the powers have been

enumerated in sub-section (2) of Section 20 of the said Act which

include prescribing the standards of examination "and other

requirements to be satisfied" to secure for qualifications for

recognition under the said Act.

8. As far as the plea about the amount being exorbitant is concerned, in

the counter affidavit filed by respondent No.1, it has been explained

that respondent No.1 Council does not receive any grant from the

Central Government for purposes of conducting the screening test.

Thus, expenses are involved in respect of the following:

"i. Salaries etc. of additional man power to be created at DCI.

ii. Purchase of equipment i.e. computer, printer, photocopier, stationery, etc.

iii. Fee to be remitted to Rajiv Gandhi University of Health Sciences, Karnataka for conducting the screening test.

iv. Expenditure to be incurred on exchange of correspondence with identified institutions in which the candidates have to undergo Compulsory Clinical Training.

v. Scrutiny of applications by members of PG & UG Committee including TA & DA.

vi. Expenditure on hiring examination halls and invigilators.

_____________________________________________________________________________________________

vii. Litigations and other miscellaneous expenses."

9. It is pointed out that the fee structure has, thus, to be quite different

from the one of National Board of Examination while conducting the

screening test as per the MCI Screening Test Regulations, 2002,

which is an organization under the control of the Central Government

and is in receipt of financial aid from the Central Government. Not

only that the said Regulations provided for Compulsory Clinical

Training as per Regulation 11 which reads as under:

"11. Examination Pattern of Screening Test: The Screening Test shall include the following papers and each paper shall carry the number of marks as shown against each:-

I. MDS Course Paper Subject Duration Maximum Marks Paper-I Applied Basic Sciences 2 Hour 100 Paper-II Concerned Clinical Speciality 2 Hour 150 Paper-III Viva-voce ½ Hour 50

II. PG Diploma Course Paper Subject Duration Maximum Marks

Science Paper-II Concerned Clinical Speciality 2 Hour 150

Compulsory Clinical Training The candidate who qualifies the Screening Test for recognition of his MDS Degree/PG Diploma shall, before issue of the necessary passing certificate to him/her, have to undergo a compulsory clinical competence training for a period of 12 weeks under the guidance of a specialist in the concerned speciality at a dental institution specified by the Dental Council of India for the purpose.

                                    III. BDS Course
    Paper           Subject                              Duration       Maximum
                                                                        Marks
    Paper-I         Basic Medical Sciences               2 Hour         100
    Paper-II        Dental Science                       2 Hour         150
    Paper-III       Viva-voce                            ½ Hour         50

_____________________________________________________________________________________________

Note: - (1)Syllabus for the Screening Examination shall be as per the Council‟s BDS, PG Diploma and MDS Courses Regulations as amended from time to time.

(2) To qualify the Screening Test the minimum pass marks shall be 50% in each paper. The minimum qualifying marks shall apply to all categories of candidates without any exception.

(3) The language of the test shall be English.

(4) The person who obtains such minimum qualifying marks in the written Test shall be called for Viva-voce."

10. It has also been emphasized that the number of candidates appearing

for the examination under the said Regulations is much smaller than

under the MCI Regulations and thus the cost per candidate is much

more.

11. The aforesaid, thus, gives a clear picture of the various expenses to

be incurred and the fee has been determined keeping in mind the

expenses for holding the examination.

12. We are unable to accept the contention of the learned counsel for the

petitioners that it is only the prescribed authority which can fix the

fee. The prescribed authority under Regulation 2 (1) (e) being the

dental institution or any other examining body authorized by the DCI

with prior approval of the Central Government to conduct screening

test. The prescribed authority is, thus, appointed by the DCI and the

power of DCI to prescribe the fee is in no manner taken away.

13. The second grievance is in respect of the provision for viva-voce

examination. The requirement is of a minimum of 50 per cent marks

in each of the two written test papers of 100 & 150 marks each and

any person meeting this eligibility condition would have to appear in

the viva-voce where also 50 per cent marks would have to be _____________________________________________________________________________________________

obtained. It has been explained by the counsel for respondent No.1

by reference to the counter affidavit that the Dental Qualifications are

often obtained from foreign dental institutes in the native language of

the concerned foreign country after going through a primary language

course in the language of that country. It has, thus, been found

necessary that such candidates be examined by way of viva-voce so

as to ensure that they understand various concepts/parameters of

dental education as imparted in India since their knowledge and skills

have to be implemented to treat dental patients in India. The ability

of a candidate to objectively diagnose and treat dental patients in

India is also determined in this viva-voce to ensure that there is no

communication gap with the patient in this process.

14. We also find that out of the total marks of 300, only 50 marks are

reserved for viva-voce. It is not a large percentage. We find no

infirmity in either prescribing a viva-voce for the reasons set out

hereinabove or the requirement of a minimum benchmark of 50 per

cent in each of the test papers as also the viva-voce.

15. The last challenge is to the number of attempts that a candidate can

take for qualifying the test which has been prescribed as three

attempts. We cannot lose sight of the fact that in most education

curriculums there is a maximum period prescribed for completing a

course or maximum number of attempts permissible. The same is the

position with qualifying examinations. The screening test is in the

form of a qualifying examination to ensure that the candidate

obtaining a Degree from a foreign country is, at least, at par with

those who have qualified within the country.

_____________________________________________________________________________________________

16. An important aspect explained in the counter affidavit is that the

students of BDS in Indian dental institutions are liable to have their

examinations cancelled if they fail three times in BDS Course and

thus on a para materia basis the maximum number of chances

available for taking the screening test have been prescribed.

17. In the end we must note that the petitioners herein are candidates who

have preferred a foreign dental institution over a domestic one, have

paid higher fees and incurred expenses. Yet when it comes to paying

the examination fee, objections are being raised. The candidates in

India pursuing a BDS Course have a maximum limit of three

opportunities to clear the examination but the petitioners do not want

to go through the same rigours of clearing the screening test even in

three attempts which they can take at their leisure. The objective of

bringing the test was to ensure proper quality and competence of

doctors who would be unleashed on the patients in India requiring

treatment. The objective is to ensure quality doctors in the country.

The screening test is not merely a qualifying test but a selection test

to ensure due competence of the doctors. The petitioners instead of

appearing in the examination and showing their ability and

competence to be at par with doctors in India are more busy in

making these fruitless challenges to the Regulations. These are

petitioners who had taken admission in colleges with their eyes open

since the Institutes were not recognized at the relevant stage of time

when they took the admission or even when they qualified from these

Institutes.

_____________________________________________________________________________________________

18. We find the petition misconceived and without any merit or

substance.

19. The petition and the application are dismissed with costs quantified at

Rs.7,500.00 per petitioner to be paid to respondent No.1.

SANJAY KISHAN KAUL, J.

JANUARY 13, 2010                                            VEENA BIRBAL, J.
b'nesh

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