- (1.) This is an intra court appeal filed by the respondents No.1 and 2 of W.P. No.452/2011 under Rule 134 of the Rajasthan High Court Rules against an order dated 21.4.2011 passed by Single Judge in aforementioned writ petition.
(2.) Facts of the case are these.
(3.) Instead of repeating the facts of the case in our order separately that are necessary for the disposal of this appeal, we consider it proper to reproduce the impugned order in verbatim Infra to appreciate the short controversy involved in the writ petition out of which this appeal arises and now raised by the appellant in this appeal. It is for this reason that necessary facts can be gathered from the impugned order itself which lie in a narrow compass. "In this writ petition, after hearing both the parties on 01.03.2011, following order was passed by the co-ordinate Bench of this Court : "The petitioner submitted an application to the Central Government seeking permission for starting eight higher courses relating to the course of Masters Degree in Dental Surgery. The application submitted was rejected as the petitioner was lacking qualifying criteria as prescribed in sub-clause (b) and (c) of Clause 13 of the Dental Council of India (Establishment of New Dental Colleges, Opening of New or Higher Course of Study or Training and Increase of Admission Caopacity in Dental Colleges) Regulations, 2006 (for short 'the Regulations, 2006' hereinafter). The deficiencies pointed out were subsequently satisfied by the petitioner. The petitioner at present satisfies all the qualifying criteria prescribed under Clause 13 of the Regulations of 2006. An application is preferred by the petitioner seeking an interim direction for respondents to inspect the institution in accordance with the procedure prescribed. Looking to the fact that the petitioner is presently having qualifying criteria as prescribed under clause 13 aforesaid, I am inclined to grant this application. Accordingly, the petitioner is directed to submit an application and deposit all necessary fees with the Central Government on or before 4.3.2011. The Central Government is directed to recommend claim of petitioner to the Dental Counsel of India on or before 9.3.2011. The Dental Counsel of India is directed to inspect the petitioner's institution provisionally on or before 15.3.2011, if the petitioner is otherwise eligible. The inspection so made shall not create any substantive right in favour of the petitioner." Thereafter, on 28.03.2011, coordinate Bench further passed the following order : "Mr. Ravi Bhansali, learned counsel for the respondents submits that necessary inspection in pursuant to order dated 1.3.2011 has been made though this fact is disputed by the counsel for the petitioner. Counsel for the respondents is directed to place on record and copy of inspection report. Put up on 1.4.2011 as prayed." In pursuance of the above order, learned counsel appearing on behalf of the respondents filed inspection report as well as communication dated 23.03.2011 addressed to the Secretary, Government of India, Ministry of Health & Family Welfare, New Delhi on the basis of inspection. In para 6 of the said communication, reasons have been disclosed to disapprove the application for starting MDS course, which are as follows : "The Executive Committee recommends to the Central Government to disapprove the application for starting MDS Courses in the specialities of (i) Periodontology (ii) Orthodontics & Dentofacial Orthopedics (iii) Prosthodontics and Crown & Bridge (iv) Oral & Maxillofacial Surgery (v) Conservative Dentistry and Endodontics (vi) Oral Pathology & Microbiology (vii) Oral Medicine & Radiology (viii)Paedodontics and Preventive Dentistry at Vyas Dental College & Hospital, Jodhpur (Rajasthan) from the academic session 2011-12, due to the following reasons :- 1. Clinical material is inadequate. Only 95 patients (old and new) were present against the minimum requirement of 100-150 new patients for BDS Course with an existing annual intake of 100 admissions. 2. There is deficiency of one Reader in the department of Anatomy since Dr. Champat Raj is not accepted as he is over-aged. 3. There is deficiency of one Intra Oral x-ray machine." Learned counsel for the petitioner pointed out that out of the above three reasons given for recommending to disapprove the application for starting MDS Courses in the aforesaid specialities, reasons No.1 and 2 are not tenable in view of the documents of the inquiry report itself. While inviting attention towards inspection proforma for BDS periodic, which is part of the inquiry report, it is submitted that during inspection, as per the own documents of the respondents, 95 patients were there up to 1.00 P.M. and as per requirement according to norms is 100 150 new patients for BDS Course with an existing annual intake of 100 patients. It is pointed out that in fact minimum requirement of patients is 75 100 patients per day in Dental Colleges in view of the note printed in the proforma of inspection which is mentioned in the bottom of the proforma which reads as under : "Minimum requirement of new patient's is 75 100 patients per day in Dental College Hospital." meaning thereby, the first reason for disapproving application is contrary to the record itself. In my opinion also, the first reason is not tenable in view of the fact that as per inspection proforma itself prepared by the respondents 95 patients were present up to 1.00 P.M. and requirement is 75 100 patients in whole of the day. With regard to reason No.2, it is admitted position of the case that Dr. Champat Raj is working on the post of Reader; but, at the time of inspection, due to being over-aged, the discrepancy has been shown and for this reason recommendation has been made for disapproving the application. In my opinion, in private college, if experienced retired Reader is appointed, then, it is to be accepted and it should not be treated reason for disapproving the application for starting the MDS Courses. More so, such appointment is to be accepted in medical field for betterment of patients. Learned Senior Advocate Mr. M.S. Singhvi, appearing on behalf of the poetitioner, submits that date of birth of Dr. Champat Raj is 20.07.1941 and no rule has been shown before this Court that application can be disapproved if over-aged appointments will be made by the institution. In my opinion, the second reason is also untenable because Reader/Professor is available as per report itself but unfounded objection is that he is over-aged, therefore, the application of the petitioner cannot be disapproved for such reason. For the reason No.3 given to disapprove the application, it is submitted by Mr. M.S. Singhvi, Sr. Advocate that although all the facilities and intra oral x-ray machine is available, despite that, the petitioner institution undertakes that before commencement of the course a new intra oral x-ray machine will be deployed. In this view of the matter, it is obvious that all these three reasons are not tenable for the purpose of disapproving the application of the petitioner institution for starting MDS Courses in the noted specialities. After considering the reply and documents for assessing the reasons, I am of the opinion that the reasons given by the Executive Committee while recommending to the Central Government to disapprove the application for starting MDS Courses by the petitioner institution are totally unfounded and contrary to factual record of the inquiry report. More so, on hypertechnical ground and even concealing the fact that 95 patients were present up to 1.00 P.M. disclosed wrong fact that 95 patients were present at the time of inspection the application of the petitioner institution has been disapproved. In view of the above discussion, the reasons for disapproving application of the petitioner institution mentioned in para No.6 of the communication dated 23.03.2011 are hereby over-ruled and the Dental Council of India is directed to recommend the case of the petitioner institution to the Central Government for approval for starting MDS Courses in the specialities of (i) Periodontology (ii) Orthodontics & Dentofacial Orthopedics (iii) Prosthodontics and Crown & Bridge (iv) Oral & Maxillofacial Surgery (v) Conservative Dentistry and Endodontics (vi) Oral Pathology & Microbiology (vii) Oral Medicine & Radiology (viii)Paedodontics and Preventive Dentistry at Vyas Dental College & Hospital, Jodhpur (Rajasthan) from the academic session 2011-12, within a period of one week from the date of receiving certified copy of this order. Compliance of the above order shall be made to this Court by 3rd of May, 2011. List the case on 03.05.2011." ;