Dentists Act, 1948 – ss. 10A & 20 – Dental Council of India (Establishment of New Dental Colleges, Opening of New or Higher Course of Study or Training and Increase of Admission Capacity in Dental Colleges) Regulations, 2006 – r. 6(2)(h) – Power to make regulations – Permission for establishment of dental college was denied to the respondent no.1 – Respondent no. 1 submitted fresh application which was returned by the respondent no. 2 on the grounds that the application was not in compliance with the amended Regulation 6(2)(h) of the Regulations – Single Bench of the High Court dismissed the writ petition filed by the respondent no. 1 challenging the rejection order of its application – However, Division Bench of High Court allowed the writ petition by striking down the impugned notification dated 21 May, 2012 amending regulation 6(2)(h) and directed the respondent no. 2 to reconsider the application of respondent no. 1 – The impugned notification was, inter-alia, quashed on the ground that it is beyond the scope of the powers of the Council to make delegated legislation as provided under sub-section (7) of section 10A of the Act – Held: It is settled that subordinate legislation may 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 – In the instant case, the Division Bench of the High Court has failed to take into consideration clause (g) of subsection (7) of s. 10A of the Act – Whereas clauses (a) to (f) of subsection (7) of s. 10A of the said Act deal with various factors, clause (g) thereof, which can be said to be a residual clause, enables the Council to take into consideration also any other factor as may be prescribed – Conjoint reading of ss. 10A(7)(g) and 20(2)(fb) of the Act would reveal that it is within 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 – Respondent no.1 failed to discharge burden that impugned notification suffered from manifest arbitrariness – Subordinate legislation. Constitution of India – Art. 14 – Dental Council of India (Establishment of New Dental Colleges, Opening of New or Higher Course of Study or Training and Increase of Admission Capacity in Dental Colleges) Regulations, 2006 – r. 6(2)(h) – Whether the impugned Notification dated 21 May, 2012 amending r. 6(2) (h) was violative of Article 14 of the Constitution? – Held: Tests of arbitrary action which apply to executive actions do not necessarily apply to delegated legislation – In order that delegated legislation can be struck down, such legislation must be manifestly arbitrary; a law which could not be reasonably expected to emanate from an authority delegated with the lawmaking power – Colleges established prior to the impugned Notification and the Colleges established/to be established after the impugned Notification would form two separate classes – The differential treatment for different classes would not be hit by Article 14 of the Constitution of India – Factors taken into consideration by the Council, while amending Regulation 6(2)(h) of the Regulations are relevant factors – The factors have a nexus with the object sought to be achieved which is to provide adequate teaching and training facilities to the students – 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 and it is not violative of art. 14 of the Constitution. Constitution of India – Art. 19 (1)(g) – Dental Council of India (Establishment of New Dental Colleges, Opening of New or Higher Course of Study or Training and Increase of Admission Capacity in Dental Colleges) Regulations, 2006 – r. 6(2)(h) – Whether the impugned Notification dated 21 May, 2012 amending r. 6(2) (h) was violative of Art. 19(1)(g) of the Constitution? – Right to establish an educational institution can be regulated – Such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure and the prevention of maladministration – Impugned Notification is made in order to ensure the maintenance of proper academic standards and infrastructure – Impugned notification is not violative of art. 19(1) (g).
& ANR.
Court practice and procedures – Judicial Propriety – Prayer for reconsideration of the proposal submitted by the respondent No.1, which was already rejected by the single judge of the High Court, was renewed in the fresh writ petition filed and granted by the Division Bench of the High Court – On the ground of judicial propriety also the Division Bench of the High Court ought not to have entertained the writ petition for a prayer, which already stood rejected.
Allowing the appeal, the Court
HELD:
1. This Court finds that the Division Bench has failed to take into consideration clause (g) of sub-section (7) of Section 10A of the said Act. It is to be noted that whereas clauses (a) to
(f) of subsection (7) of Section 10A of the said Act deal with various factors, clause (g) thereof, which can be said to be a residual clause, enables the Council to take into consideration also any other factor as may be prescribed. [Para 29][653-B-C]
2. This Court further finds that the Division Bench of the High Court has also failed to take into consideration clause (fb) of subsection (2) of Section 20 of the said Act. A conjoint reading of these provisions would reveal that the Council is also empowered to take into consideration any other factor as may be prescribed and also to make a Regulation with regard to any other factor under clause (g) of sub-section (7) of Section 10A of the said Act. It could thus be seen that it is within 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. This Court finds that the respondent No.1 has failed to discharge the burden to show that the impugned Notification suffers from manifest arbitrariness. [Para 30][653-C-F]
3. 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 Notification would form two separate classes. The differential treatment for different classes would not be hit by Article 14 of the Constitution of India. The only requirement would be, as to whether such a classification has a nexus with the object sought to be achieved by the Act. For the reasons given hereinafter, we find that the factors taken into consideration by the Council, while amending Regulation 6(2)(h) of the Regulations are relevant factors. The factors have a nexus with the object sought to be achieved. It has been submitted on behalf of the Council that the amended Regulation 6(2)(h) of the Regulations was brought into effect so that it would facilitate training to the students of the proposed Dental Colleges as per the syllabus/course curriculum prescribed. It, therefore, 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. [Para 31][653F-H; A-E]
4. 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, this Court finds 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. [Para 33][654-G-H; 655-A]
5. That leaves with the finding of the Division Bench of the High Court that the amended Regulation is violative of Article 19(1)(g) of the Constitution. The Constitution Bench itself has held that the right to establish an educational institution can be regulated. However, such regulatory measures must, in general, & ANR.
be to ensure the maintenance of proper academic standards, atmosphere and infrastructure and the prevention of maladministration. [Paras 40 and 41][657-C, F-G]
6. Impugned judgment of the Division Bench of the High Court is also not sustainable on the ground of judicial propriety. In writ petition filed before division bench, 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 before the learned single judge of the High Court. However, having failed in that writ petition before the learned single judge, the respondent No.1 filed another writ petition before the Division Bench of the High Court. Though one of the prayers challenges the validity of the impugned Notification, another prayer claims for reconsideration of its proposal. It could thus be seen that the prayer for reconsideration of the proposal submitted by the respondent No.1, which was already rejected by the learned single judge of the High Court has been renewed in the fresh writ petition filed in the year 2017 and granted by the Division Bench of the High Court. Therefore, on the ground of judicial propriety also the Division Bench of the High Court ought not to have entertained the writ petition for a prayer, which already stood rejected. In that view of the matter, the impugned judgment and order dated 24th April, 2018 passed by the Division Bench of the High Court is not sustainable. [ Paras 43 and 44][658-A-B; D-H] Dental Council of India vs. Subharti K.K.B. Charitable Trust and Another (2001) 5 SCC 486 : [2001] 3 SCR 149; Maharashtra State Board of Secondary and
Higher Secondary Education and another vs. Paritosh Bhupeshkumar Sheth and others (1984) 4 SCC 27 : [1985] 1 SCR 29; India Council for Technical Education vs. Surinder Kumar Dhawan and others (2009) 11 SCC
726 : [2009] 3 SCR 859; Indian Express Newspapers Bombay) Private Ltd. and others vs. Union of India and others (1985) 1 SCC 641 : [1985] 2 SCR 287 Khoday Distilleries Ltd. and others vs. State of Karnataka and others (1996) 10 SCC 304 : [1995] 6 Suppl. SCR 759; State of T.N. and another vs. P. Krishnamurthy and others (2006) 4 SCC 517 : [2006] 3 SCR 396; Supreme Court Employees’ Welfare Association. vs. Union of India and another (1989) 4 SCC 187 : [1989] 3 SCR 488; Shri Sitaram Sugar Company Limited and another vs. Union of India and others (1990) 3 SCC 223 : [1990]
1 SCR 909; St. Johns Teachers Training Institute vs. Regional Director, National Council for Teacher Education and another (2003) 3 SCC 321 : [2003] 1 SCR 975; Rameshchandra Kachardas Porwal and
others vs. State of Maharashtra and other (1981) 2 SCC
722 : [1981] 2 SCR 866 ; Union of India and another vs. Cynamide India Ltd. and another (1987) 2 SCC 720 : [1987] 2 SCR 841 ; State of Haryana vs. Ram Kishan and others (1988) 3 SCC 416; T.M.A. Pai Foundation and others vs. State of Karnataka and others (2002) 8 SCC 481 : [2002] 3 Suppl. SCR 587 – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.