TaxTMI 
TaxTMI 
2022 (4) TMI 1484
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.... Respondent No. 1") and striking down the Notification dated 21st May, 2012 (hereinafter referred to as "the impugned Notification"), vide which the Appellant-Dental Council of India (hereinafter referred to as "the Council"), had substituted Regulation 6(2)(h) of the Dental Council of India (Establishment of New Dental Colleges, Opening of New or Higher Course of Studies or Training and Increase of Admission Capacity in Dental Colleges) Regulations, 2006 (hereinafter referred to as "the Regulations"), on the ground of the same being inconsistent with the provisions of the Dentists Act, 1948 (hereinafter referred to as "the said Act") and also being violative of Articles 14 and 19(1) (g) of the Constitution of India. 3. The facts in the present case are not in dispute. 4. The Respondent No. 1 had submitted an application to the Government of India for grant 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) [here....
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....ent of a new dental college for academic session 2017-2018. The learned Single Judge of the High Court, vide judgment and order dated 3rd November, 2016, finding no merit in the writ petition, dismissed the same. The Respondent No. 1 thereafter filed a writ petition before the Division Bench being D.B. Civil Writ Petition No. 3260 of 2017, challenging the impugned Notification amending Regulation 6(2)(h) of the Regulations. The Respondent No. 1 also sought a prayer for direction to the Respondent No. 2, for reconsidering its application, dated 28th September, 2012, for establishment of a new Dental College for academic session 2018-2019 and for subsequent academic sessions. By the impugned judgment and order dated 24th April, 2018, the Division Bench of the High Court allowed the said writ petition by striking down the impugned Notification and directed 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, le....
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....the fundamental rights of the students to take dental education as well as the fundamental right of the Respondent No. 1 to establish an educational institution Under Article 19(1)(g) of the Constitution of India. 13. For considering the rival submissions, it will be appropriate to refer to certain provisions of the said Act. Section 3 of the said Act requires the Central Government to constitute a Council consisting of members named therein. Section 10 of the said Act deals with recognition of dental qualifications. Section 10A of the said Act deals with permission for establishment of new dental college, new courses of study, etc. Sub-section (1) of Section 10A of the said Act puts restriction on the establishment of an authority or institution for a course of study or training which would enable a student of such course or training to qualify 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....
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....king to establish an authority or institution or the existing authority or institution seeking to open a new or higher course of study or training or to increase its admission capacity has adequate resources; (c) whether necessary facilities in respect of staff, equipment, accommodation, training and other facilities to ensure proper functioning of the authority or institution or conducting the new course of study or training or accommodating the increased admission capacity have been provided or would be provided within the time-limit specified in the scheme; (d) whether adequate hospital facilities, having regard to the number of students likely to attend such authority or institution or course of study or training or as a result of the increased admission capacity have been provided or would be provided within the time-limit 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 fac....
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....tal college, or the proposed dental college is located in the proximity of a Government Medical College or a Medical College recognised by the Medical Council of India and an undertaking of the said Medical College to the effect that it would facilitate training to the students of the proposed dental college in the subjects of Medicine, Surgery and Allied Medical Sciences has been obtained, or where no Medical College is available in the proximity of the proposed dental college, the proposed dental college gets itself tied up at least for 5 years with a Government General Hospital having a provision of at least 100 beds and located within a radius of 10 K.M. of the proposed dental college and the tie-up is extendable till it has its own 100 bedded hospital in the same premises. In such cases, 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 organ....
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....he Division Bench have erred on all counts. 22. It will be relevant to refer to the following observations of this Court in the case of Indian Express Newspapers (Bombay) Private Ltd. and Ors. v. Union of India and Ors. (1985) 1 SCC 641. 75. A piece of subordinate legislation does not carry the same degree of immunity which is enjoyed by a statute passed by a competent Legislature. 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. That is because subordinate legislation must yield to plenary legislation. It may also be 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 sta....
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.... of not being reasonable, but in the sense that it is manifestly arbitrary". Drawing a comparison between the law in England and in India, the Court further observed that in England the Judges would say, "Parliament never intended the authority to make such Rules; they are unreasonable and ultra vires". In India, arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. But subordinate legislation must be so arbitrary that it could not be said to be in conformity with the statute or that it offends Article 14 of the Constitution. 26. In the case of State of T.N. and Anr. v. P. Krishnamurthy and Ors. (2006) 4 SCC 517 after considering the law laid down by this Court earlier in the cases of Indian Express Newspapers (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) ....
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.... be noted that whereas Clauses (a) to (f) of Sub-section (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. 30. We further find that the Division Bench of the High Court has also failed to take into consideration Clause (fb) of Sub-section (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 s....
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....s 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. 32. The reason given for not permitting more than one Dental College to be attached to the existing recognized Medical College is that if one Dental College is permitted to be attached to a recognized Medical College, which is already having 500-750 students in different semesters of their 5-year MBBS 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 pe....
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....onal nexus with the object and purpose of the statute, the court should not concern itself with the wisdom or efficaciousness of such Rules or Regulations. 36. This Court in unequivocal terms has held that it would be wholly wrong for the Court to substitute its own opinion for that of the Legislature or its delegate as to what principle or policy would best serve the objects and purposes of the Act. It has been held that it is not permissible for the Court to sit in judgment over the wisdom and effectiveness or otherwise of the policy laid down by the Regulation-making body and declare a Regulation to be ultra vires merely on the ground that, in the view of the Court, the impugned provisions will not help to serve the object and purpose 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 re....
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....unacceptable restrictions. 41. It can thus clearly be seen that the Constitution Bench itself has held that the right to establish an educational institution can be regulated. However, such regulatory measures must, in general, be to ensure the maintenance of proper academic standards, atmosphere and infrastructure and the prevention of maladministration. 42. The impugned Notification, undoubtedly, is made in order to ensure the maintenance of proper academic standards and infrastructure and as such, the judgment of the Constitution Bench of this Court in the case of T.M.A. Pai Foundation and Ors. (supra), rather than supporting the case of the Respondent No. 1, would support the case of the Council. 43. We further find 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 Sep....