Delhi High Court

D.Y.Patil Vidyapeeth vs Union Of India And Anr on 13 September, 2012

Author: G. S. Sistani

68 $~
*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+      WP(C) 5422/2012 & CM 11045/2012.

%                                                   Judgment dated 13.09.2012

       D.Y.PATIL VIDYAPEETH                              ..... Petitioner
                     Through :         Mr.Vikas Singh, Sr. Adv. with Ms.Nanda
                                       Devi Deka, Mr.Sanket & Mr.Aman, Adv
                      versus
       UNION OF INDIA AND ANR                        ..... Respondents

Through : Mr.Amrit Pal Singh, Adv. for respondent no1.

Mr.Gaurav Sharma, Advocate for the respondent no.2.

CORAM:

HON'BLE MR. JUSTICE G.S.SISTANI

G.S.SISTANI, J (ORAL) CM 11045/2012.

1. This is the second round of litigation between the petitioner and the respondents. The present writ petition is filed against the impugned letters dated 27.08.2012 issued by respondent no.1 and respondent no.2 rejecting the scheme of the petitioner university without following due procedure of law enumerated under Section 10 A(3) and (4) of the Dentist Act, 1948, whereby, the respondents are under a legal duty to give a reasonable opportunity to rectify deficiencies raised in the scheme/ application of the petitioner for the establishment of a new dental college in the name of "Dr.D.Y. Patil Dental School, Pune" with annual intake of 100 students for the academic year 2012-13, and also grant an opportunity of hearing before rejecting such scheme. By a detailed order dated 20.07.2012 this court had disposed of an application [IA.No.8754/2012]

for interim relief filed in the WP(C)No.4219/2012. Paragraphs 24 and 25 of the order dated 20.07.2012 passed in the application [IA.No.8754/2012] read as under:

"24. In this case, the application of the petitioner was complete in all respects prior to the cut off date. The only deficiency in the Essentiality Certificate also stood made up by 13th June, 2012. The minutes of the meeting dated 10.7.2012, extracted hereinabove, have also recorded that the corrigendum was issued by the Maharashtra Government on 13.6.2006. The minutes have also recorded the submission of the petitioner that the Dental Council of India vide their communications dated 22.2.2012 and 1.5.2012 did not raise the issue of Essentiality Certificate or else the petitioner would have rectified the same. Based on this submission of the petitioner and while recording that since no inspection has been carried out by the Dental Council of India the claim of the petitioner for establishment of dental college cannot be considered. Even, at that stage, respondent no.1 did not reject the application of the petitioner and recommended to the Dental Council of India to look into the matter and submit a report after completing due formalities in the case. The meeting was held prior to the cut off date i.e. 15.7.2012. There is no explanation as to why the college was not inspected prior to the cut off date and a report was not submitted to respondent no.1. At this stage till inspection is carried out respondent no.1 cannot consider the case of the petitioner.

Having regard to the facts of this case, the fact that the petitioner had completed all the formalities prior to the cut off date and taking into consideration the minutes of the meeting of respondent no.1 dated 10.7.2012 wherein the committee recommended to respondent no.2 to look into the matter and submit a report after completing due formalities respondent no.2 is directed to conduct an inspection of the dental college of the petitioner within ten days and thereafter send its recommendation based on its inspection to the Central Government within one week thereafter to consider the same in accordance with law."

2. After passing of the order dated 20.07.2012 in WP(C)No.4219/2012, on 28.07.2012 an inspection was carried out by respondent no.2. By a communication dated 11.08.2012 various deficiencies were pointed out to the petitioner and the aforesaid communication was also forwarded to the Government of India for information and necessary action, and the petitioner was asked to furnish requisite compliance with necessary documents in person on 13.08.2012, failing which it would be assumed that the petitioner had nothing to say in the matter and the final appropriate recommendations in the matter would be forwarded to the Government of India. The deficiencies so pointed out inter alia were that the land initially was owned by Dr.D.Y. Patil Educational Enterprises Pvt. Ltd. and thereafter the land was gifted to Dr.D.Y. Patil Vidyapeeth (DU) to establish Dr.D.Y. Patil Dental College, Knowledge Cities, Lohagaon, Pune, however, the exact address of Dr.D.Y. Patil, Vidyapeeth (DU) was not mentioned anywhere on record. The deficiencies were pointed out with respect to the essentiality certificate, building plans were required and some of the professors did not have relieving orders from the ex employers. There was deficiency in the dental chairs as out of 25 chairs, 20 chairs did not have the compressor arrangements, except the bio- chemistry department all other departments were not organized. Some of the instruments were old and probably used. Non-availability of the dead body preservation. The dental college was not attached to a medical college, the blood bank facility was not available and the admitted patients were few. Besides that there were deficiencies in journals in the library.

3. It is the case of the petitioner that by 13.08.2012 all the deficiencies were cured and the respondents informed about the same, as according to the petitioner some of the deficiencies were purely technical in nature and the

others were so minor that the petitioner had no difficulty in curing and in making the necessary arrangements including obtaining letters from the ex-employers of Professors, replacement of chairs, providing essentiality certificate, clarifying what is the exact address of Dr.D.Y. Patel Vidyapeeth and others. However, by letter dated 14.08.2012 the case of the petitioner was rejected and the statement of fact was submitted by the Dental Council of India to the Central Government. Paragraph 5 of the communication dated 14.08.2012 is reproduced below:

"5. The Executive Committee of the Dental Council of India, by circulation on 13th & 14th August, 2012, considered letter No.PDDYPV/1135/12 dated 13.08.2012 from the Registrar, Dr.D.Y. Patil Vidyapeeth Deemed University, Navi Mumbai and furnished their reply that the verification of the compliance should be conducted but there is no time for the same in pursuance to the Order dated 20.07.2012 passed by the Hon'ble High Court of Delhi."

4. As per paragraph 5 of the letter dated 14.08.2012 which has been reproduced above, the Dental Council of India accepted the fact that a compliance report had been submitted and noticed that there was no time to verify the compliance report, in view of the order dated 20.07.2012.

5. Mr.Vikas Singh, learned senior counsel for the petitioner submits that as per Section 10(A) (3) & (4) of the Dentist Act, the petitioner was entitled to a reasonable opportunity to rectify the defects. Section 10(A) (3) & (4) of the Dentist Act, are reproduced below:

"(3) On receipt of a scheme by the Council under sub-section (2), the Council may obtain such other particulars as may be considered necessary by it from the person, authority or institution concerned, granting recognised dental qualification and thereafter, it may:-

(a) if the scheme is defective and does not contain any necessary particulars, give a reasonable opportunity to the person, authority or institution concerned for making a written representation and it shall be open to such person, authority or institution to rectify the defects, if any, specified by the Council;

(b) consider the scheme, having regard to the factors referred to in sub-section (7), and submit the scheme together with its recommendations thereon to the Central Government,

(4) The Central Government may, after considering the scheme and the recommendations of the Council under subsection (3) and after obtaining, where necessary, such other particulars as may be considered necessary by it from the person, authority or institution concerned, and having regard to the factors referred to in sub- section (7), either approve (with such conditions, if any, as it may consider necessary) or disapprove the scheme and any such approval shall be a permission under subsection (1):

Provided that no scheme shall be disapproved by the Central Government except after giving the person, authority or institution concerned granting recognised dental qualification a reasonable opportunity of being heard:"

6. It is submitted that on 14.08.2012 respondent no.2 submitted a delayed report on the basis of the mandatory inspection directed by this Hon'ble Court, to respondent no.1 causing a delay of fifteen days to the detriment of the petitioner college who diligently co-operated in and complied with the inspection process carried out by the inspecting officers, asking for its further necessary action, thereby, committing a contempt of the order dated 20.07.2012 passed by this Hon'ble Court. Counsel for the petitioner submits that respondent no.2 failed to verify the compliance furnished by the petitioner vide letter dated 13.08.2012 on the ground of paucity of time and submitted its inspection report to respondent no.1, central government, without verifying the said compliance thereby, violating the

petitioners right as guaranteed under section 10A (3) of The Dentist Act, 1948.

7. It is also submitted that on 27.08.2012 respondent no.2 without verifying the compliance submitted by the petitioner, vide letter dated 27.08.2012, wrote a letter to Respondent no.1 recommending to the central government to disapprove the scheme/ application of the petitioner college for the academic year 2012-13. On the same date, respondent no.1, government, in complete violation of Section 10A (4) of the aforementioned Act, simply on the basis of above recommendation by respondent no.2, issued a letter of rejection/ disapproval to the petitioner college intimating its disapproval to the scheme / application of the petitioner college for the academic year 2012-13.

8. Mr.Gaurav Sharma, counsel appearing on behalf of respondent no.2/ Dental Council of India while relying on the letter dated 11.08.2012, submits that the respondent, upon reading of the order passed by this Court, was of the view that a time frame of 10 days was fixed to inspect the Dental College and thereafter based on the inspection, recommendation was to send to the Central Government within one week, to enable them to consider the same in accordance with law. It is contended that based on this observation of the Court since the period of 10 days plus one week was over, they did not get an opportunity to verify the compliance submitted by the petitioner, as duly informed to the petitioner vide communication dated 11.08.2012.

9. Another submission made by Mr.Gaurav Sharma, counsel for respondent no.2 is that in fact it was not necessary for respondent no.2 to grant another opportunity to the petitioner, to rectify the defects, as ordered, as another inspection was conducted only based on the order passed by this Court and once the defects were detected and forwarded to the Central

Government the permission sought, was liable to be rejected.

10. Mr.Vikas Singh, learned senior counsel for the petitioner has laboured hard to urge before this court that the petitioner cannot be made to suffer on account of the inaction or the delay which has been caused by respondent no.2, which is evident from the manner in which the deficiencies have been pointed out at different points of time. The attention of the court is drawn to the deficiencies pointed out on 22.02.2012, 01.05.2012, 01.06.2012 and thereafter finally on 27.08.2012. It is submitted that respondent no.2 should have pointed out all the deficiencies at the first opportunity available and they cannot point out deficiencies in a piecemeal manner. Counsel has relied on the case of Al- Karim Educational trust & Anr. Vs. State of Bihar and Ors. (1996) 8 SCC 330, and more particularly on paragraphs 11 (i) & (j) and 12, which are reproduced below, to buttress his argument that a practical view should be taken, especially in cases where substantial compliance has been made:

11. xxxxx

(a) to (h) xxxxxxx

(i) In the final analysis, the question to be posed, is whether there exists the minimal and satisfactory requirements to keep the matter going, and not whether better arrangements that will render the set up more efficient and more satisfactory, should be insisted as "a wooden" rule.

(j) It may be that there are some minor deficiencies here and there which call for rectification. Time can certainly set right such matters. What is required is a total, practical, overall view in the light of the latest tabular statement filed along with the affidavit dated 4.9.1995. material placed before the Court goes to show that there has been "substantial" though not literal compliance with the deficiencies pointed out in the latest report dated 28.6.1995.

12. In the totality of the circumstances disclosed in the case and having regard to the fact that at each stage new deficiencies are being pointed out, the latest being the report dated 28.6.95 (explained by the subsequent affidavit of the appellants dated 4.9.95), we are satisfied beyond any manner of doubt, that the deficiencies have been substantially complied with and minor deficiencies pointed out in the last mentioned report of 28.6.95 are not such as to permit withholding of the affiliation to which the appellants' institution is entitled, From the manner in which the deficiencies have been pointed out from time to titne,each time the old deficiencies are shown to have been removed, new deficiencies are shown, gives the impression that the affiliation is unnecessarily delayed. For the removal, of the minor deficiencies pointed out in the report of 28.6.95, a compliance affidavit dated 4.9.1995 is filed. Once the institution feels secure on the question of affiliation, we have no doubt that these minor deficiencies, if they exist, shall be taken care of by those in charge of the institution.For taking such further steps, the grant of affiliation need not wait. We make this position clear. The steps for the grant of affiliation to the appellants' institution may now be expedited and we direct the respondents to issue the necessary orders without loss of time. The appeal is disposed of accordingly. In the facts and circumstances of the case, we make no order as to costs."

11. Counsel for the petitioner has also relied in the case of Indian Council for Enviro-Legal Action Vs. Union of India & Ors. (2011) 8 SCC 161 and more particularly paragraph 149, which is reproduced below, in support of his plea that the respondent cannot take advantage of its own wrong:

"149. It is settled principle of law that no one can take advantage of his own wrong. Unless courts disgorge all benefits that a party availed by obstruction or delays or non-compliance, there will always be incentive for non-compliance, and parties are ingenious enough to come up with all kinds of pleas and other tactics to achieve their end because they know that in the end the benefit will remain with them."

12. For the same submission, reliance has also been placed in the case of Kusheshwar Prasad Singh Vs. State of Bihar and Ors. (2007) 11 SCC 447, on paragraph 15 wherein Broom's Legal Maxims (10 th Edn.) p. 191 was extracted. Relevant portion of the judgment reads as under:

"It is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in Courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure".

16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non- performance he has occasioned. To put it differently, "a wrong doer ought not to be permitted to make a profit out of his own wrong".

13. The petitioner in these circumstances has prayed that a direction be issued to respondent no.2 to consider the compliance dated 13.08.2012 submitted by the petitioner, which could not be considered by them as mentioned in their communication dated 14.08.2012 addressed to the Central Government on account of paucity of time.

14. Counsel for the respondent no.2 submits that a time schedule has been fixed by the Dental Council of India regulations according to which all applications for the BDS are to be received by the Central Government between 1st August to 30th September; the applications are to be forwarded by the Central Government to Dental Council of India upto 31st December; the recommendations of the Dental Council of India to the Central Government are to be made upto 15th June and the issuance of letter of permission by the Central Government is to be made latest by 15th July each year. Counsel also submits that various decisions of the Apex Court have clearly laid down that the time frame cannot be

extended. Reliance has been placed in the case of Priya Gupta Vs. State of Chhattisgarh & Ors. (2012) 7 SCC 433.

15. In support of his submission that in deserving cases, the Central Government and the Court can extend the time, Mr.Vikas Singh, learned senior counsel for the petitioner has placed reliance in the case of Priyadarshini Dental College And Hospital Vs. Union of India & Ors. (2011) 4 SCC 623 and more particularly paragraphs 20, 25 and 27, which are reproduced below:

"20. If the Central Government was of the view that a dental college deserved renewal of permission in accordance with the Act and Regulations, it should grant such permission. If it was of the view that the dental college did not deserve renewal of permission, it should refuse the permission. If the Central Government felt that the last date for granting renewal of permission was over and there was no justification for extending the time schedule, it could refuse the renewal of permission on that ground. On the other hand, if the Central Government was of the view that the applicant college had complied with the requirements and was not at fault, and it was not responsible in any manner for the delay in considering the application, and there were other applicants of similar nature, it could have recorded those reasons in writing and extended the time schedule for that category of applicants and then granted the renewal of permission, provided the last date for admissions had not expired. Note (2) to the schedule to the DCI Regulations enables the Central Government to modify the time schedule, for reasons to be recorded in writing, in respect of any class or category of applications. Applicants for renewal of permission for the fourth or fifth year, where there is compliance with the requirements relating to infrastructure, equipment and faculty, could be such a class or category of applications. Similarly, applications where High Courts have directed consideration beyond 15th July in view of special circumstances, can also constitute a class or category of applicants.

25. The need for renewal of permission emanates from the fact that a newly established college is not required to have in place, full complement of the teaching faculty and complete infrastructure in

the first year itself. This is because, during the first year, the college will be catering only to a limited number of first year students. During the second, third and fourth and fifth years, the student strength will increase. If the permitted intake is 100, usually there will be 100 students in the first year, 200 students in the second year, 300 students in the third year, 400 students in the fourth year and 500 students in the fifth year. Thereafter, the strength may remain constant. As the strength increases gradually every year, correspondingly the infrastructure and faculty will have to be increased.

27. In view of the fact that the inspection and verification in regard to renewal of permission for the second, third, fourth and fifth years will be restricted only to the consideration of the additional faculty and additional infrastructure, it may not be necessary to apply the lengthy time schedule prescribed for initial permission, to renewal of permissions during the next four years. The DCI Regulations presently contemplate almost similar time schedules in regard to applications for establishment of new dental colleges, for opening of higher courses of study, for increase of admission capacity, and for renewal of permissions, with 15th July being the last date both for grant of permission or renewal of permission. DCI and Central Government may consider amendment to the DCI Regulations suitably to provide for a shorter and distinct time schedule for renewal of permissions, so that the dental colleges could file applications till end of February and the process of grant or refusal of renewal is completed by 15th of June."

16. Counsel for the petitioner submits that in a recent decision Asha Vs. Pt.

B.D. Sharma University of Health Sciences and Ors. (2012) 7 SCC 389, the Apex Court has held as under:

"30. There is no doubt that 30th September is the cut-off date. The authorities cannot grant admission beyond the cut-off date which is specifically postulated. But where no fault is attributable to a candidate and she is denied admission for arbitrary reasons, should

the cut-off date be permitted to operate as a bar to admission to such students particularly when it would result in complete ruining of the professional career of a meritorious candidate, is the question we have to answer."

17. Mr.Sharma, counsel for the respondent no.2 also submits that even recently in another matter the Apex Court has reiterated that the observations made in the case of Priya Gupta(Supra), should be followed.

18. I have heard counsel for the parties. A detailed order was passed by this court on 20.07.2012. The basic facts need not be repeated since the question which arises for consideration before this court in the present writ petition is the effect of order dated 20.07.2012 passed by this Court in the earlier writ petition filed by the petitioner. The respondent No.2 upon reading of the order dated 20.07.2012 was of the view that since 10 days period had elapsed there was no time for them to verify the compliance of the petitioner. In my view this was not the correct reading of the order passed by this court on 20.07.2012. Once the inspection was carried out and a compliance was called from the petitioner, then the respondent no.2 was duty bound to consider the compliance report and then forward the observations to the Central Government. By not considering the compliance report, the order passed by this Court stands frustrated as there is nobody to consider whether the petitioner has rectified all the deficiencies or not. Reading of the letters dated 11.08.2012 and 14.08.2012 copies of which have been placed on record, would show that the respondent no.2 had called upon the petitioner to furnish the compliance report by 13.08.2012. It is also reflected in the letter dated 14.08.2012 that reply was furnished by the petitioner but there was no time to consider the same. Relevant para of letter dated

11.08.2012 and 14.08.2012 are reproduced below:

" Dated the 11th August, 2012

The applicant of the proposed dental college be asked to furnish the requisite compliance with necessary documents in respect of following points as observed by Council's Inspectors during inspection, in person on Monday i.e. 13.08.2012 at 10:00 a.m. in the Secretary's Chamber of DCI office for furtherance in the subject matter, failing which it will be assumed that you have nothing to say in the matter and the final appropriate recommendations in the matter will be forwarded to GOI."

" Dated the 14th August, 2012

3. The Executive Committee of the Dental Council of India, by circulation on 10.08.2012 considered the above Joint Inspection Report of the Councils Inspectors Dr.T.K. Saha, Kolkata and Dr.Reena R. Kumar, Modinagar carried out on 28.07.2012 and furnished their concurrence in the matter. In view of the concurrences received from the Members, the applicant was provided an opportunity to furnish- compliance on the observations made by Council's Inspectors in their Inspection Report, as per u/s. 10A(3)a of Dentists (Amendment) Act, 1993, vide DCI's letter No.DE22 (365)- 2012/11082012 dated 11.08.2012. Being Saturday and Sunday on 11th & 12th August, 2012, the applicant was asked to furnish the compliance report on Monday i.e. 13th August, 2012.

4. In response to DCI's letter dated 11.08.2012, the Registrar, Padmashree Dr.D.Y. Patil Vidhyapeeth Deemed University, Navi Mumbai vide his letter No.PDDYPV/1135/12 dated 13.08.2012 furnished the Compliance Report and same was circulated to all the Executive Committee members to furnish their decisions in the matter to enable the DCI to forward the necessary appropriate recommendations in the subject matter to the Central Government, in order to comply with the Order dated 20.07.2012 passed by the Hon'ble High Court of Delhi.

5. The Executive Committee of the Dental Council of India, by circulation on 13th & 14th August, 2012, considered vide letter No.

PDDYPV/1135/12 dated 13.08.2012 from the Registrar, Dr.D.Y. Patil Vidyapeeth Deemed University, Navi Mumbai and furnished their reply that the verification of the compliance should be conducted but there is no time for the same in pursuance to the Order dated 20.07.2012 passed by the Hon'ble High Court of Delhi."

19. In my view to carry out the inspection and thereafter to grant time to the petitioner upto 13.8.2012 to make up the deficiencies and file a compliance report and then not to consider the same, amounts to a useless formality. In case the compliance was not to be looked into there was no reason to call upon the petitioner to furnish the compliance by 13.8.2012.

20. It has been pointed out by counsel for the petitioner that respondent no.2 has pointed out deficiencies which are not serious in nature and all the deficiencies have been cured. The question as to whether the deficiencies have been cured or not lie in the domain of the respondent no.2 and not for this court to comment upon. However, keeping in view the facts and circumstances of this case and the earlier order passed by this court in another writ petition between the same parties and the communications dated 11.08.2012 and 14.08.2012, more particularly paragraphs reproduced above, the application is disposed of within the following directions:

(1) Respondents will consider the compliance report dated 13.08.2012 filed by the petitioner within ten days from today and will thereafter submit report to the Central Government within two weeks thereafter, to enable the Central Government to take final decision in the matter within one week thereafter.