DENTAL COUNCIL OF INDIA versus BIYANI SHIKSHAN SAMITI & ANR. on 12 April 2022

1. This Court finds that the Division Bench has failed totake into consideration clause (g) of sub-section (7) of Section10A 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 variousfactors, clause (g) thereof, which can be said to be a residualclause, enables the Council to take into consideration also anyother factor as may be prescribed. [Para 29][653-B-C]

2. This Court further finds that the Division Bench of theHigh Court has also failed to take into consideration clause (fb)of subsection (2) of Section 20 of the said Act. A conjoint readingof these provisions would reveal that the Council is alsoempowered to take into consideration any other factor as may beprescribed and also to make a Regulation with regard to any otherfactor under clause (g) of sub-section (7) of Section 10A of thesaid Act. It could thus be seen that it is within the competence ofthe 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 wouldbe permissible only on the ground of manifest arbitrariness. It isalso equally settled that the presumption is always with regard tothe validity of a provision. The burden is on the party whochallenges the validity of such provision. This Court finds thatthe respondent No.1 has failed to discharge the burden to showthat the impugned Notification suffers from manifest arbitrariness.[Para 30][653-C-F]

3. Secondly, the Division Bench of the High Court foundthe impugned Notification dated 21st May, 2012 to be violative AB

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Aof Article 14 of the Constitution, on the ground that the DentalColleges established prior to impugned Notification would notbe 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. Weare of the considered view that the Colleges established prior toBthe impugned Notification and the Colleges established/to beestablished after the impugned Notification would form twoseparate classes. The differential treatment for different classeswould not be hit by Article 14 of the Constitution of India. Theonly requirement would be, as to whether such a classificationChas a nexus with the object sought to be achieved by the Act. Forthe reasons given hereinafter, we find that the factors taken intoconsideration by the Council, while amending Regulation 6(2)(h)of the Regulations are relevant factors. The factors have a nexuswith the object sought to be achieved. It has been submitted onbehalf of the Council that the amended Regulation 6(2)(h) of theDRegulations was brought into effect so that it would facilitatetraining to the students of the proposed Dental Colleges as perthe syllabus/course curriculum prescribed. It, therefore, cannotbe said that the Council has taken into consideration the factors,which are not relevant or germane for the purpose to be achieved.EThe object to be achieved is to provide adequate teaching andtraining facilities to the students. If in the wisdom of the expertbody, this can be done by attaching a Dental College to the alreadyexisting Medical College, it cannot be faulted with. [Para 31][653-F-H; A-E]F4. The amended Regulation cannot be said to be one, whichis manifestly arbitrary, so as to permit the Court to interfere withit. On the contrary, this Court finds that the amended Regulation6(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]G

5. That leaves with the finding of the Division Bench of theHigh Court that the amended Regulation is violative of Article19(1)(g) of the Constitution. The Constitution Bench itself hasheld that the right to establish an educational institution can beregulated. However, such regulatory measures must, in general,H

be to ensure the maintenance of proper academic standards,atmosphere and infrastructure and the prevention ofmaladministration. [Paras 40 and 41][657-C, F-G]

6. Impugned judgment of the Division Bench of the HighCourt is also not sustainable on the ground of judicial propriety.In writ petition filed before division bench, the prayer was forchallenging the validity of the impugned Notification and for adirection to reconsider the proposal of the respondent No.1. Theimpugned Notification could have very well been challenged inthe earlier writ petition, which was filed in the year 2016 beforethe learned single judge of the High Court. However, having failedin that writ petition before the learned single judge, therespondent No.1 filed another writ petition before the DivisionBench of the High Court. Though one of the prayers challengesthe validity of the impugned Notification, another prayer claimsfor reconsideration of its proposal. It could thus be seen that theprayer for reconsideration of the proposal submitted by therespondent No.1, which was already rejected by the learned singlejudge of the High Court has been renewed in the fresh writpetition filed in the year 2017 and granted by the Division Benchof the High Court. Therefore, on the ground of judicial proprietyalso the Division Bench of the High Court ought not to haveentertained the writ petition for a prayer, which already stoodrejected. In that view of the matter, the impugned judgment andorder dated 24th April, 2018 passed by the Division Bench of theHigh Court is not sustainable. [ Paras 43 and 44][658-A-B; D-H]

Dental Council of India vs. Subharti K.K.B. CharitableTrust and Another (2001) 5 SCC 486 : [2001] 3 SCR149; Maharashtra State Board of Secondary andHigher Secondary Education and another vs. ParitoshBhupeshkumar Sheth and others (1984) 4 SCC 27 :[1985] 1 SCR 29; India Council for Technical Educationvs. Surinder Kumar Dhawan and others (2009) 11 SCC726 : [2009] 3 SCR 859; Indian Express NewspapersBombay) Private Ltd. and others vs. Union of India andothers (1985) 1 SCC 641 : [1985] 2 SCR 287 KhodayDistilleries Ltd. and others vs. State of Karnataka andothers (1996) 10 SCC 304 : [1995] 6 Suppl. SCR 759; AB

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640SUPREME COURT REPORTS

AState of T.N. and another vs. P. Krishnamurthy andothers (2006) 4 SCC 517 : [2006] 3 SCR 396; SupremeCourt Employees’ Welfare Association. vs. Union ofIndia and another (1989) 4 SCC 187 : [1989] 3 SCR488; Shri Sitaram Sugar Company Limited and anothervs. Union of India and others (1990) 3 SCC 223 : [1990]B1 SCR 909; St. Johns Teachers Training Institute vs.Regional Director, National Council for TeacherEducation and another (2003) 3 SCC 321 : [2003] 1SCR 975; Rameshchandra Kachardas Porwal andothers vs. State of Maharashtra and other (1981) 2 SCCC722 : [1981] 2 SCR 866 ; Union of India and anothervs. Cynamide India Ltd. and another (1987) 2 SCC 720: [1987] 2 SCR 841 ; State of Haryana vs. Ram Kishanand others (1988) 3 SCC 416; T.M.A. Pai Foundationand others vs. State of Karnataka and others (2002) 8SCC 481 : [2002] 3 Suppl. SCR 587 – referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No.2912

Hof 2022.

From the Judgment and Order dated 24.04.2018 of the High Courtof Judicature for Rajasthan, Bench at Jaipur in D.B. Civil Writs No.3260of 2017.

Vikas Singh, Sr. Adv., Gaurav Sharma, Dhawal Mohan, PrateekBhatia, Advs. for the Appellant.

Ms. Aishwarya Bhati, ASG, Ms. Shobha Gupta, Rajendra KumarPanigrahi, Ms. Jessy Kurien, Nishant Bahuguna, Vidit Agarwal, ShubhamJalan, Ms. Prachi Sharma, Ms. Sakshi Tiwari, Gurmeet Singh Makker,Ms. Ruchi Kohli, Shailesh Madiyal, Digvijay Dam, Bhuvan Kapoor,Himanshu Satija, Ms. Shristi Misra, Ms. Poornima Singh, Advs. for theRespondents.

The Judgment of the Court was delivered by

B. R. GAVAI, J.

1. Leave granted.

2. The present appeal challenges the judgment and order of theDivision Bench of the High Court of Judicature for Rajasthan, Bench atJaipur, dated 24[th] April, 2018, passed in D.B. Civil Writ Petition No.3260 of 2017, thereby allowing the writ petition filed on behalf of therespondent No.1-Biyani Shikshan Samiti (hereinafter referred to as “therespondent No.1”) and striking down the Notification dated 21[st] May,2012 (hereinafter referred to as “the impugned Notification”), vide whichthe appellant-Dental Council of India (hereinafter referred to as “theCouncil”), had substituted Regulation 6(2)(h) of the Dental Council ofIndia (Establishment of New Dental Colleges, Opening of New or HigherCourse of Studies or Training and Increase of Admission Capacity inDental Colleges) Regulations, 2006 (hereinafter referred to as “theRegulations”), on the ground of the same being inconsistent with theprovisions of the Dentists Act, 1948 (hereinafter referred to as “the saidAct”) and also being violative of Articles 14 and 19(1)(g) of theConstitution of India.

3. The facts in the present case are not in dispute.

4. The respondent No. 1 had submitted an application to theGovernment of India for grant of permission for establishment of dentalcollege from academic year 2012-2013 on 24[th] September, 2011. Thiswas after the Letter of Intent was issued by the State Government on23[rd] September, 2011. The respondent No. 2 – Union of India, through A

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ASecretary, Ministry of Health and Family Welfare (Dental EducationSection) [hereinafter referred to as “the respondent No.2”), noticedcertain deficiencies in the proposal of the respondent No.1 and vide itsletter dated 7[th] October, 2011, required the respondent No.1 to cure thesaid deficiencies.

5. After exchange of certain communications, on 6[th] January, 2012,the respondent No.2, returned the application of the respondent No.1along with demand draft of Rs.6 lakh, on the ground that deficienciespointed out were not cured prior to 31[st] December, 2011, i.e., the lastdate for curing the deficiencies.

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C6. In the meantime, the Government of Rajasthan issuedEssentiality Certificate to the respondent No.1 on 11[th] January, 2012.However, on 17[th] February, 2012, the respondent No.2 declined toreconsider the application/request of the respondent No.1, on the groundsstated in its earlier letter, dated 6[th] January, 2012. As such, the requestof the respondent No.1 for reconsideration of its proposal came to beDrejected by the respondent No.2, vide its communication dated 17[th]February, 2012.

7. In the meantime, vide the impugned Notification, existingRegulation 6(2)(h) of the Regulations was substituted by amendedRegulation 6(2)(h) on 21[st] May, 2012. Respondent No.1 again submittedEits fresh application on 28[th] September, 2012 for academic year 2013-2014. The same was returned by the respondent No.2 vide its orderdated 31[st] December, 2012, on the ground that the proposal/applicationwas not in compliance with the amended Regulation 6(2)(h) of theRegulations. On 23[rd] January, 2013, the respondent No.1 thereafter wroteFa letter to the respondent No.2, stating therein that since EssentialityCertificate was issued to it on 11[th] January, 2012, the impugnedNotification was not applicable to it and requested for reconsideration ofits application under the unamended Regulation 6(2)(h) of the Regulations.The respondent No.2 rejected the application of the respondent No.1vide its order dated 5[th] March, 2013.G

8. The respondent No.1 challenged the order passed by therespondent No.2 rejecting the request for reconsideration of its applicationbefore the learned single judge of the High Court of Judicature forRajasthan, Bench at Jaipur, by way of S.B. Civil Writ Petition No.15090of 2016. The respondent No.1 further sought a direction to reconsiderHthe application submitted by it on 24[th] September, 2011 for establishment of a new dental college for academic session 2017-2018. The learnedsingle judge of the High Court, vide judgment and order dated 3[rd]November, 2016, finding no merit in the writ petition, dismissed the same.The respondent No.1 thereafter filed a writ petition before the DivisionBench being D.B. Civil Writ Petition No. 3260 of 2017, challenging theimpugned Notification amending Regulation 6(2)(h) of the Regulations.The respondent No.1 also sought a prayer for direction to the respondentNo.2, for reconsidering its application, dated 28[th] September, 2012, forestablishment of a new Dental College for academic session 2018-2019and for subsequent academic sessions. By the impugned judgment andorder dated 24[th] April, 2018, the Division Bench of the High Court allowedthe said writ petition by striking down the impugned Notification anddirected the respondent No. 2 to reconsider the case of the respondentNo.1 in the light of the observations made in the impugned judgment andorder. Being aggrieved thereby, the present appeal has been preferredby the Council.

9. We have heard Shri Gaurav Sharma, learned counsel appearingon behalf of the Council, Ms. Aishwarya Bhati, learned Additional SolicitorGeneral (“ASG” for short) appearing on behalf of the respondent No.2and Ms. Shobha Gupta, learned counsel appearing on behalf of therespondent No.1.

10. Shri Gaurav Sharma, learned counsel, would submit that theDivision Bench of the High Court has grossly erred in allowing the writpetition. He submits that the Council is an expert statutory body dulyconstituted under the said Act. He submits that the said Act empowersthe Council to make Regulations for various aspects concerned withDental Education, including prescribing requirement of minimumstandards. He submits that the Council, after examining various aspects,had found it necessary to amend Regulation 6(2)(h) of the Regulations.He submits that this was done for providing better teaching facilities tothe students and for improving the standards of education. He submitsthat the Division Bench has grossly erred in holding that it was beyondthe powers of the Council to make delegated legislation. He submitsthat, in any case, the finding of the High Court that the impugnedNotification was violative of Articles 14 and 19(1)(g) of the Constitutionof India, is totally erroneous.

11. Ms. Aishwarya Bhati, learned ASG also supports thesubmission made on behalf of the Council. Relying on the judgment of AB

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Athis Court in the case of Dental Council of India vs. Subharti K.K.B.Charitable Trust and Another[1],she submits that the High Court oughtnot to have interfered with the impugned Notification, since theRegulations were made by the expert body in accordance with theprovisions of the said Act.

B12. Ms. Shobha Gupta, learned counsel appearing on behalf ofthe respondent No.1, on the contrary, would submit that the High Courthas rightly quashed the impugned Notification. She submits that theimpugned Notification has no nexus with the object sought to be achieved.She submits that there is a huge shortage of Dentists in the country andtherefore, the object of the legislation should be to encourage establishmentCof more Dental Colleges rather than providing a requirement which willrestrict the number of new Dental Colleges. On facts, she submits thatthere is no medical college within the vicinity of 100 kms. from the placeat which the respondent No.1 proposes to start a new Dental College.She submits that the impugned Notification, therefore, violates theDfundamental rights of the students to take dental education as well asthe fundamental right of the respondent No.1 to establish an educationalinstitution under Article 19(1)(g) of the Constitution of India.

13. For considering the rival submissions, it will be appropriate torefer to certain provisions of the said Act. Section 3 of the said ActErequires the Central Government to constitute a Council consisting ofmembers named therein. Section 10 of the said Act deals with recognitionof dental qualifications. Section 10A of the said Act deals with permissionfor establishment of new dental college, new courses of study, etc. Sub-section (1) of Section 10A of the said Act puts restriction on theestablishment of an authority or institution for a course of study or trainingFwhich would enable a student of such course or training to qualify himselffor the grant of recognized dental qualification; it also imposes a restrictionon opening a new or higher course of study or training, or increase theadmission capacity in any course of study or training, including a post-graduate course of study or training. It is provided that no person canGestablish an authority or institution for dental education and that noauthority or institution can open a new or higher course of study ortraining, including a post-graduate course of study or training, or increaseits admission capacity without the prior permission of the CentralGovernment. Sub-sections (2) to (4) of Section 10A of the said Act deal

with the procedure to be followed for making an application for permissionto start a new or higher course of study or training or increase of intakecapacity in any course of study or training. Sub-section (5) of Section10A of the said Act is a deeming provision, which provides that if theCentral Government fails to pass an order on the scheme/applicationsubmitted by the applicant within a period of one year from the date ofsubmitting the scheme/application, such scheme/application shall bedeemed to have been approved by the Central Government in the formin which it was submitted. It also provides that the permission of theCentral Government required under sub-section (1) shall also be deemedto have been granted. Sub-section (6) of Section 10A of the said Actprovides for extension of the period provided in sub-section (5) by entitlingan applicant for the extension of the period for furnishing the particularscalled for by the Council or by the Central Government.

14. It will be apposite to reproduce sub-section (7) of Section 10Aof the said Act, since the same fell for consideration before the DivisionBench of the High Court while allowing the writ petition. It reads thus:

“10A. Permission for establishment of new dental college, new courses of study, etc.—(1)

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(2) ………………………………………………

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(7) The Council, while making its recommendations under clause(b) of sub-section (3) and the Central Government, while passingan order either approving or disapproving the scheme under sub-section (4), shall have due regard to the following factors,namely:—

(a) whether the proposed authority or institution for grantof recognised dental qualification or the existingauthority or institution seeking to open a new or highercourse of study or training, would be in a position tooffer the minimum standards of dental education inconformity with the requirements referred to in Section16-A and the regulations made under sub-section (1) ofSection 20; A

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(b) whether the person seeking to establish an authority orinstitution or the existing authority or institution seekingto open a new or higher course of study or training orto increase its admission capacity has adequateresources; A

B(c)whether necessary facilities in respect of staff,equipment, accommodation, training and other facilitiesto ensure proper functioning of the authority or institutionor conducting the new course of study or training oraccommodating the increased admission capacity havebeen provided or would be provided within the time-Climit specified in the scheme; (d)whether adequate hospital facilities, having regard tothe number of students likely to attend such authorityor institution or course of study or training or as a resultof the increased admission capacity have been providedDor would be provided within the time-limit specified inthe scheme; (e)whether any arrangement has been made orprogramme drawn to impart proper training to studentslikely to attend such authority or institution or course ofEstudy or training by persons having the recognised dentalqualifications; (f)the requirement of manpower in the field of practice ofdentistry; and (g)any other factors as may be prescribed.”

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15. It could thus be seen that the Council, while making itsrecommendations and the Central Government, while passing an order,are required to take into consideration various factors as are enumeratedin clauses (a) to (g) of sub-section (7) of Section 10A of the said Act.

G16. Section 20 of the said Act empowers the Council, with theapproval of the Central Government, to make Regulations. It will beapposite to refer to the relevant part of Section 20 of the said Act, whichreads thus:

“20. Power to make regulations.-(1) The Council may, withHthe approval of the Central Government, by notification in the DENTAL COUNCIL OF INDIA v. BIYANI SHIKSHAN SAMITI& ANR. [B. R. GAVAI, J.]

Official Gazette, make regulations not inconsistent with theAprovisions of this Act to carry out the purposes of this Chapter.

(2) In particular and without prejudice to the generality of theforegoing power such regulations may- (a)……………………………………………

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(b) ……………………………………………

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(fb) prescribe any other factors under clause (g) of sub-section(7) of section 10A”

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17. It could thus be seen from the conjoint reading of clause (g) ofsub-section (7) of Section 10A and clause (fb) of sub-section (2) ofSection 20 of the said Act that the Council is also empowered to takeinto consideration any other factors as may be prescribed and also entitledto make Regulations for prescribing any other factor under clause (g) ofsub-section (7) of Section 10A.

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18. It will also be relevant to refer to the provision of Regulation6(2)(h) as it existed prior to the impugned Notification and the amendedprovision after the impugned Notification was given effect to. They readthus:

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“Regulation 6(2)(h) prior to impugned Notification dated21stMay, 2012

6. Eligibility and qualifying criteria.-

(1) …………………………………………..

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(2) The organizations under sub-regulation (1) shall qualify to applyfor permission to establish a dental college if the followingconditions are fulfilled:- (a)…………………………………………..

(b) …………………………………………..

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(h) the applicant owns and manages a General Hospital of notless than 100 beds as per Annexure I with necessary infrastructurefacilities including teaching pre-clinical, para-clinical and alliedmedical sciences in the campus of the proposed dental college, H

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or

the proposed dental college is located in the proximity of aGovernment Medical College or a Medical College recognised bythe Medical Council of India and an undertaking of the said MedicalCollege to the effect that it would facilitate training to the studentsof the proposed dental college in the subjects of Medicine, Surgeryand Allied Medical Sciences has been obtained, or where no Medical College is available in the proximity of theproposed dental college, the proposed dental college gets itselftied up at least for 5 years with a Government General Hospitalhaving a provision of at least 100 beds and located within a radiusof 10 K.M. of the proposed dental college and the tie-up isextendable till it has its own 100 bedded hospital in the samepremises. In such cases, the applicant shall produce evidence thatnecessary infrastructure facilities including teaching pre-clinical,para-clinical and allied medical sciences are owned by the proposeddental college itself; Regulation 6(2)(h) after the impugned Notification dated21stMay, 2012

6. Eligibility and qualifying criteria.-

(1) …………………………………………..

(2) The organizations under sub-regulation (1) shall qualify to applyfor permission to establish a dental college if the followingconditions are fulfilled:- (a)…………………………………………..

(b) …………………………………………..

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(h) the applicant shall attach its proposed dental college with aGovernment/Private Medical College approved/recognised by theMedical Council of India which is located at the distance of 10kms. by road from the proposed dental college and produceevidence of the said Medical College to the effect that it wouldfacilitate training to the students of the proposed dental college as per syllabus/course curriculum prescribed in respectiveundergraduate and post graduate dental course regulations asamended from time to time:- A

Provided that not more than one dental college shall be attachedwith the medical college.”

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19. It could thus be seen that the change that has been brought bythe impugned Notification is that, though under the unamended Regulation6(2)(h), an applicant was entitled to apply if he/she/it owned and manageda General Hospital of not less than 100 beds; by the impugned Notification,it has been made mandatory that the applicant has to attach its proposedDental College with the Government/Private Medical College, approved/recognized by the Medical Council of India, which is located at a distanceof 10 kilometers by road from the proposed Dental College. The distanceof 10 kilometers has now been increased to 30 kilometers, videamendment dated 5[th] July, 2017.

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20. The Division Bench of the High Court vide the impugnedjudgment and order dated 24[th] April, 2018, has allowed the writ petitionand quashed the impugned Notification on three grounds, viz., D

(i) that it is violative of Article 19(1)(g) of the Constitution ofIndia;

(ii) that it is beyond the scope of the powers of the Council toEmake delegated legislation as provided under sub-section(7) of Section 10A of the said Act; and

(iii) that it is violative of Article 14 of the Constitution of India,inasmuch as the Dental Colleges established prior toimpugned Notification would be permitted to run withoutattachment with Medical Colleges, whereas, the DentalColleges established after the impugned Notification willbe compelled to have such an attachment with the MedicalColleges.

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21. We find that the learned judges of the Division Bench haveerred on all counts.

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22. It will be relevant to refer to the following observations of thisCourt in the case of Indian Express Newspapers (Bombay) PrivateLtd. and others vs. Union of India and others[2].

2 (1985) 1 SCC 641

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A“75. A piece of subordinate legislation does not carry the samedegree of immunity which is enjoyed by a statute passed by acompetent Legislature. Subordinate legislation may be questionedon any of the grounds on which plenary legislation is questioned.In addition it may also be questioned on the ground that it does notconform to the statute under which it is made. It may further beBquestioned on the ground that it is contrary to some other statute.That is because subordinate legislation must yield to plenarylegislation. It may also be questioned on the ground that it isunreasonable, unreasonable not in the sense of not being reasonable, but in the sense that it is manifestly arbitrary.”C23. It could thus be seen that this Court has held that thesubordinate legislation may be questioned on any of the grounds on whichplenary legislation is questioned. In addition, it may also be questionedon the ground that it does not conform to the statute under which it ismade. It may further be questioned on the ground that it is contrary toDsome other statute. Though it may also be questioned on the ground ofunreasonableness, such unreasonableness should not be in the sense ofnot being reasonable, but should be in the sense that it is manifestlyarbitrary.

24. It has further been held by this Court in the said case that forEchallenging the subordinate legislation on the ground of arbitrariness, itcan only be done when it is found that it is not in conformity with thestatute or that it offends Article 14 of the Constitution. It has furtherbeen held that it cannot be done merely on the ground that it is notreasonable or that it has not taken into account relevant circumstanceswhich the Court considers relevant.F

25. The judgment of this Court in the case of Indian ExpressNewspapers (Bombay) Private Ltd. (supra) has been followed by athree-judge Bench of this Court in the case of Khoday Distilleries Ltd.and others vs. State of Karnataka and others[3]. It will be apposite torefer to the following observations of this Court in the said case:G

“13. It is next submitted before us that the amended Rules arearbitrary, unreasonable and cause undue hardship and, therefore,violate Article 14 of the Constitution. Although the protection ofArticle 19(1)(g) may not be available to the appellants, the rules must, undoubtedly, satisfy the test of Article 14, which is a guaranteeagainst arbitrary action. However, one must bear in mind thatwhat is being challenged here under Article 14 is not executiveaction but delegated legislation. The tests of arbitrary action whichapply to executive actions do not necessarily apply to delegatedlegislation. In order that delegated legislation can be struck down,such legislation must be manifestly arbitrary; a law which couldnot be reasonably expected to emanate from an authority delegatedwith the law-making power. In the case of Indian ExpressNewspapers (Bombay) (P) Ltd. v. Union of India [(1985) 1 SCC641 : 1985 SCC (Tax) 121 : (1985) 2 SCR 287] (SCR at p. 243)this Court said that a piece of subordinate legislation does notcarry the same degree of immunity which is enjoyed by a statutepassed by a competent legislature. A subordinate legislation maybe questioned under Article 14 on the ground that it is unreasonable;“unreasonable not in the sense of not being reasonable, but in thesense that it is manifestly arbitrary”. Drawing a comparisonbetween the law in England and in India, the Court further observedthat in England the Judges would say, “Parliament never intendedthe authority to make such Rules; they are unreasonable and ultravires”. In India, arbitrariness is not a separate ground since it willcome within the embargo of Article 14 of the Constitution. Butsubordinate legislation must be so arbitrary that it could not besaid to be in conformity with the statute or that it offends Article14 of the Constitution.”

26. In the case of State of T.N. and another vs. P. Krishnamurthyand others[4] after considering the law laid down by this Court earlier inthe cases of Indian Express Newspapers (Bombay) Private Ltd.(supra), Supreme Court Employees’ Welfare Association. vs. Unionof India and another[5], Shri Sitaram Sugar Company Limited andanother vs. Union of India and others[6], St. Johns Teachers TrainingInstitute vs. Regional Director, National Council for TeacherEducation and another[7], Rameshchandra Kachardas Porwal andothers vs. State of Maharashtra and others[8], Union of India and 4 (2006) 4 SCC 5175 (1989) 4 SCC 187

6 (1990) 3 SCC 223

7 (2003) 3 SCC 321

8 (1981) 2 SCC 722

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Aanother vs. Cynamide India Ltd. and another[9] and State of Haryanavs. Ram Kishan and others[10], this Court has laid down certain grounds,on which the subordinate legislation can be challenged, which are asunder:

“Whether the rule is valid in its entirety?

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15. There is a presumption in favour of constitutionality orvalidity of a subordinate legislation and the burden is upon himwho attacks it to show that it is invalid. It is also well recognisedthat a subordinate legislation can be challenged under any of thefollowing grounds:

C(a) Lack of legislative competence to make the subordinatelegislation.

(b) Violation of fundamental rights guaranteed under theConstitution of India.

D(c) Violation of any provision of the Constitution of India.

(d) Failure to conform to the statute under which it is made orexceeding the limits of authority conferred by the enabling Act.

(e) Repugnancy to the laws of the land, that is, any enactment.

(f) Manifest arbitrariness/ unreasonableness (to an extentEwhere the court might well say that the legislature never intendedto give authority to make such rules).”

27. In the light of these guiding principles, we will have to examinethe correctness of the findings of the learned judges of the DivisionBench in the impugned judgment and order.F

28. One of the grounds on which the impugned Notification hasbeen struck down is that it is beyond the scope of powers of the Councilunder Section 10A(7)(d) of the said Act. The Division Bench of theHigh Court has relied on clause (d) of sub-section (7) of Section 10A ofthe said Act to come to a conclusion that clause (d) refers to adequateGhospital facilities, having regard to the number of students likely to attendthe institution. It has held that a requirement of hospital was alreadyfulfilled in the pre-amended Regulation 6(2)(h) of the Regulations. It hasfurther held that clause (d) does not refer to Medical College. It was 9 (1987) 2 SCC 720H10 (1988) 3 SCC 416

therefore held that the impugned Notification requiring the Dental Collegesto be attached with the Government/Private Medical College was beyondthe scope of sub-section (7) of Section 10A of the said Act and, therefore,inconsistent with the said Act.

29. We find that the Division Bench has failed to take intoconsideration clause (g) of sub-section (7) of Section 10A of the saidAct. It is to be noted that whereas clauses (a) to (f) of sub-section (7) ofSection 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 takeinto consideration also any other factor as may be prescribed.

30. We further find that the Division Bench of the High Court hasalso failed to take into consideration clause (fb) of sub-section (2) ofSection 20 of the said Act. A conjoint reading of these provisions wouldreveal that the Council is also empowered to take into consideration anyother factor as may be prescribed and also to make a Regulation withregard to any other factor under clause (g) of sub-section (7) of Section10A of the said Act. It could thus be seen that it is within the competenceof the Council to make Regulations prescribing any other conditions,which are otherwise not found in clauses (a) to (f) of sub-section (7) ofSection 10A of the said Act. Challenge to the same would be permissibleonly on the ground of manifest arbitrariness. It is also equally settled thatthe presumption is always with regard to the validity of a provision. Theburden is on the party who challenges the validity of such provision. Wefind that the respondent No.1 has failed to discharge the burden to showthat the impugned Notification suffers from manifest arbitrariness.

31. Secondly, the Division Bench of the High Court found theimpugned Notification dated 21[st] May, 2012 to be violative of Article 14of the Constitution, on the ground that the Dental Colleges establishedprior to impugned Notification would not be required to be attached withthe Medical Colleges, whereas, the Dental Colleges, established afterthe impugned Notification, will be compelled to be attached to suchMedical Colleges. We are of the considered view that the Collegesestablished prior to the impugned Notification and the Colleges established/to be established after the impugned Notification would form two separateclasses. The differential treatment for different classes would not be hitby Article 14 of the Constitution of India. The only requirement wouldbe, as to whether such a classification has a nexus with the object soughtto be achieved by the Act. For the reasons given hereinafter, we find A

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Athat the factors taken into consideration by the Council, while amendingRegulation 6(2)(h) of the Regulations are relevant factors. The factorshave a nexus with the object sought to be achieved. It has been submittedon behalf of the Council that the existing recognized Medical Collegealready has a facility to impart education to about 500-700 students.Such Medical Colleges have a full-fledged teaching faculty. Such a facultyBwould enable providing a proper education to the students of the Dentalcolleges on various aspects of pre-clinical, para-clinical and alliedmedicine, etc. The Council has also taken into consideration the factthat the General Hospitals having bed-capacity of 100 beds or more donot have experts on full-time basis. They usually engage the services ofCconsultant doctors, who visit the Hospital for a very limited period. TheCouncil has also taken into consideration the fact that the private hospitalsdo not have adequate clinical facilities and/or clinical material andtherefore, it is unlikely that they will be able to impart education andtraining to students. It has been submitted on behalf of the Council thatthe amended Regulation 6(2)(h) of the Regulations was brought intoDeffect so that it would facilitate training to the students of the proposedDental Colleges as per the syllabus/course curriculum prescribed. It,therefore, cannot be said that the Council has taken into considerationthe factors, which are not relevant or germane for the purpose to beachieved. The object to be achieved is to provide adequate teaching andEtraining facilities to the students. If in the wisdom of the expert body, thiscan be done by attaching a Dental College to the already existing MedicalCollege, it cannot be faulted with.

32. The reason given for not permitting more than one DentalCollege to be attached to the existing recognized Medical College is thatFif one Dental College is permitted to be attached to a recognized MedicalCollege, which is already having 500-750 students in different semestersof their 5-year MBBS course, the additional students of the Dental Collegemay very well be absorbed in the facilities that are already available inthe recognized Medical College. However, if more than one DentalCollege is permitted to be attached, it will lead to overcrowding of studentsGin the Medical College.

33. We are, therefore, of the considered view that the amendedRegulation cannot be said to be one, which is manifestly arbitrary, so asto permit the Court to interfere with it. On the contrary, we find that theHamended Regulation 6(2)(h) has a direct nexus with the object to be achieved, i.e., providing adequate teaching and training facilities to thestudents.

34. It will be apposite to refer to the following observations of theDivision Bench of the High Court in the impugned judgment:

“We fail to understand as to how the earlier provisions, in anymanner, were not sufficient for the object sought to be achieved.A careful reading of the unamended Regulation 6(2)(h) showsrequirement of attachment with General Hospital owned andmanaged by the applicant in the campus of the proposed DentalCollege. It was with infrastructure facilities including teachingpre-clinical, para-clinical and allied medical sciences.

If we talk about practical training, it would be more in thehospital, therefore, the unamended provision of Regulation 6(2)(h)provided both i.e. attachment with General Hospital or with aMedical College with required facilities of teaching.”

35. In this respect, we would gainfully refer to the followingobservations of this Court in the case of Maharashtra State Board ofSecondary and Higher Secondary Education and another vs.Paritosh Bhupeshkumar Sheth and others[11]:

“14. ….. whether a rule or regulation or other type of statutoryinstrument — is in excess of the power of subordinate legislationconferred on the delegate has to be determined with referenceonly to the specific provisions contained in the relevant statuteconferring the power to make the rule, regulation, etc. and alsothe object and purpose of the Act as can be gathered from thevarious provisions of the enactment. It would be wholly wrongfor the Court to substitute its own opinion for that of the Legislatureor its delegate as to what principle or policy would best serve theobjects and purposes of the Act and to sit in judgment over thewisdom and effectiveness or otherwise of the policy laid down bythe regulation-making body and declare a regulation to be ultravires merely on the ground that, in the view of the Court, theimpugned provisions will not help to serve the object and purposeof the Act. So long as the body entrusted with the task of framingthe rules or regulations acts within the scope of the authority A

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656SUPREME COURT REPORTS

Aconferred on it, in the sense that the rules or regulations made byit have a rational nexus with the object and purpose of the statute,the court should not concern itself with the wisdom orefficaciousness of such rules or regulations.”

36. This Court in unequivocal terms has held that it would beBwholly wrong for the Court to substitute its own opinion for that of theLegislature or its delegate as to what principle or policy would best servethe objects and purposes of the Act. It has been held that it is notpermissible for the Court to sit in judgment over the wisdom andeffectiveness or otherwise of the policy laid down by the regulation-Cmaking body and declare a regulation to be ultra vires merely on theground that, in the view of the Court, the impugned provisions will nothelp to serve the object and purpose of the Act.

37. We find that the observations quoted herein above of theDivision Bench of the High Court are totally contrary to the viewDexpressed by this Court in the case of Maharashtra State Board ofSecondary and Higher Secondary Education and another (supra).

38. The Division Bench of the High Court has erred in substitutingits wisdom with that of the rule-making body, which is an expert body. Inthis respect, it will also be apposite to refer to the observations of thisECourt in the case of All India Council for Technical Education vs.Surinder Kumar Dhawan and others[12]. After considering variousjudgments on the issue, this Court observed thus:

“16. The courts are neither equipped nor have the academic orFtechnical background to substitute themselves in place of statutoryprofessional technical bodies and take decisions in academicmatters involving standards and quality of technical education. Ifthe courts start entertaining petitions from individual institutionsor students to permit courses of their choice, either for theirconvenience or to alleviate hardship or to provide betterGopportunities, or because they think that one course is equal toanother, without realising the repercussions on the field of technicaleducation in general, it will lead to chaos in education anddeterioration in standards of education.

17. The role of statutory expert bodies on education and the roleof courts are well defined by a simple rule. If it is a question ofeducational policy or an issue involving academic matter, the courtskeep their hands off.”

39. We are, therefore, of the considered view that it was notpermissible for the Division Bench of the High Court to enter into anarea of experts and hold that the unamended provisions ought to havebeen preferred over the amended provisions.

40. That leaves us with the finding of the Division Bench of theHigh Court that the amended Regulation is violative of Article 19(1)(g)of the Constitution. Reliance in this respect is placed on the Eleven-Judge Constitution Bench judgment of this Court in the case of T.M.A.Pai Foundation and others vs. State of Karnataka and others[13]. Inthis respect, it will be relevant to refer to the following observations ofthe Eleven-Judge Constitution Bench of this Court in the said case:

“54. The right to establish an educational institution can beregulated; but such regulatory measures must, in general, be toensure the maintenance of proper academic standards,atmosphere and infrastructure (including qualified staff) and theprevention of maladministration by those in charge of management.The fixing of a rigid fee structure, dictating the formation andcomposition of a governing body, compulsory nomination ofteachers and staff for appointment or nominating students foradmissions would be unacceptable restrictions.”

41. It can thus clearly be seen that the Constitution Bench itselfhas held that the right to establish an educational institution can beregulated. However, such regulatory measures must, in general, be toensure the maintenance of proper academic standards, atmosphere andinfrastructure and the prevention of maladministration.

42. The impugned Notification, undoubtedly, is made in order toensure the maintenance of proper academic standards and infrastructureand as such, the judgment of the Constitution Bench of this Court in thecase of T.M.A. Pai Foundation and others (supra), rather thansupporting the case of the respondent No.1, would support the case ofthe Council.

13 (2002) 8 SCC 481

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A43. We further find that the impugned judgment of the DivisionBench of the High Court is also not sustainable on the ground of judicialpropriety. The respondent No.1 had already filed a writ petition beingS.B. Civil Writ Petition No. 15090 of 2016, challenging the action of theCouncil and the respondent No.2 in returning the application of theBrespondent No.1 for grant of recognition to new Dental College and fora direction to reconsider its application submitted on 24[th] September,2011. The said writ petition was filed in the year 2016. The said writpetition was dismissed by the learned single judge of the High Court bythe judgment and order dated 3[rd] November, 2016. After the said writ

petition was rejected on 3[rd] November, 2016, the respondent No.1 filedCthe present writ petition being D.B. Civil Writ Petition No.3260 of 2017before the Division Bench of the High Court on 1[st] March, 2017. In thesaid writ petition, the prayer was for challenging the validity of theimpugned Notification and for a direction to reconsider the proposal ofthe respondent No.1. The impugned Notification could have very wellDbeen challenged in the earlier writ petition, which was filed in the year2016 before the learned single judge of the High Court. However, havingfailed in that writ petition before the learned single judge, the respondentNo.1 filed another writ petition before the Division Bench of the HighCourt. Though one of the prayers challenges the validity of the impugnedNotification, another prayer claims for reconsideration of its proposal.EThe said prayer has been granted by the Division Bench of the HighCourt by its impugned judgment and order dated 24[th] April, 2018. Itcould thus be seen that the prayer for reconsideration of the proposalsubmitted by the respondent No.1, which was already rejected by thelearned single judge of the High Court vide order dated 3[rd] November,F2016 in S.B. Civil Writ Petition No.15090 of 2016, has been renewed inthe fresh writ petition filed in the year 2017 and granted by the DivisionBench of the High Court.

44. We, therefore, find that on the ground of judicial propriety alsothe Division Bench of the High Court ought not to have entertained theGwrit petition for a prayer, which already stood rejected. In that view ofthe matter, the impugned judgment and order dated 24[th] April, 2018 passedby the Division Bench of the High Court is not sustainable.

45. In the result, the appeal is allowed. The impugned judgmentand order dated 24[th] April, 2018 passed by the Division Bench of theH

DENTAL COUNCIL OF INDIA v. BIYANI SHIKSHAN SAMITI& ANR. [B. R. GAVAI, J.]

High Court is quashed and set aside. The D.B. Civil Writ Petition No.3260of 2017 filed by the respondent No.1 before the Division Bench of theHigh Court stands dismissed. No order as to costs.

46. Pending application(s), if any, shall stand disposed of.

Ankit Gyan

Appeal allowed.

(Assisted by : Preetam Bharti, LCRA)

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