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1994 Supreme(Pat) 357
PATNA HIGH COURT
K.Venkataswami and Asok Kumar Ganguly JJ.
Governing Body Of The Budha Institute Of Dental Science
Versus
State Of Bihar
Civil Writ Jurisdiction Case No. 3582 of 1991 ;
Decided On : NOVEMBER 10, 1994
Headnote:Bihar State Universities Act, 1976, Sec 21 (2) & Sec 10(2) of the Dentist Act, 1948 power to grant affiliation-Dental Council of India recognising and granting affiliation to the University for Teaching BDS Course and only one College namely the petitioner institution notified as eligible to teach B.D.S. Course-the State Govt. cancelling the affiliation granted to the Institution earlier- it is no longer open for the State Govt. To cancel affiliation to the Institution earlier - it is no longer open for the State Govt. to cancel affiliation to the Institute when it is recognised by the Central Govt. in consultation with Dental council of India provision to sub section (2) of Sec 21 must to read subject central legislation ( Paras 16, 17)
Constitution of India, Art, 245, 366(1) (10) - repugnancy between the Central Act and State Act - Dentist Act is Central Act and an existing law within the meaning of Art 366 (1) (10) and squarely occupies the field covered by entry 66-list-1 of the seventh schedule to the constitution the right and authority of the State Govt. to interfare on the basis of a later state legislation becomes highly questionable and suspect-State Act does not contain any provisions comparable to the Central Act had any provision comparable to the Central Act been there in the State Act those would not have been operative and such provision being repugment would be void - as there is repugnancy between earlier Central Act and later state Act, though not directly, it is not open to State Govt. to issue show cause for withdrawal of affiliation and the same is quashed and provision of sec 21 (2) and its provision, in so far as it relates to grant of affiliation of dental college is void to the extent of it. Repugnancy with the provisions in so far as it relates to grant of affiliation of dental college is void to the extent of it. Repugnancy with the provisions of dentist Act AIR 1984 SC 982, AIR 1987 2304? AIR SC 703 & AIR 1991 Mad 240 rel. on, 1994 (1) PLJR 1 dist. (paras 22, 24, 25, 26, 27, 29, & 32)
Dentist Act, 1948, Sec 10(2), 16, 16A - Dental Council of India granting recognition and affiliation to the institute and also affiliating the Magadh University for conferring teaching and degree to B.D.S. course - State Govt. granting temporary affiliation which was subsequently withdrawn and a show cause notice issued and after considering the show cause the State Govt. cancelled affiliation-propriety of -powers f the State Govt. to interfere- Dentist Act -object of the Act was enacted for regulation of the profession of dentistry and to constitute Dental Councils - Dental Council of India is constituted for prescribing the standard of teaching and training in the field of dentistry, condition for admission etc.-Sec 16, 16A make the provision for withdrawal of recognition and as such the recognition granted to an institute can be withdrawal of recognition and as such the recognition granted to an Institute can be withdrawn by the council in accordance with procedure prescribed u/s 16A- the State Govt. has a limited role and has no independent power to Cancel the recognition of an Institute. (Paras 13, 14, 11, 19, & 20)
A.K.GANGULY, J.
1. The subject matter of challenge in this writ petition is an order dated 7/02/1993. The said order is passed by the Government of Bihar, Health Medical Education and Family Welfare Department wherein it is stated that the Additional Secretary of the Department is satisfied that Buddha Institute of Dental Science and Hospital, Kankarbagh does not have the minimum requirement and facility laid down by the Government of India and Indian Dental Council and so the affiliation granted to the said institute stands cancelled.
2. The factual aspects of the case are not much in dispute and are narrated below.
3. The case of the petitioner is that the Buddha Institute of Dental Science and Hospital (hereinafter called the said Institute) established by Gautam International Pratisthan, a society of Buddist Minority Community, is the second Institute of its kind in the State of Bihar. The only other institute of its kind is the Government Dental College Patna. Some time on or before 19th Sept. 1984, the Secretary of the said Institute requested the Vice-Chancellor of the Magadh University (hereinafter called the said University) for grant of affiliation and pursuant thereto, the Registrar of the said University informed the authorities of the said Institute that action will be taken to affiliation the same subject to fulfillment of the conditions laid down in the University Act, statute and the Rules. Simultaneously, the authorities, of the said Institute also applied to the Dental Council of India (hereinafter called the said Council) for its permission to run B.D.S. Course in Dental Surgery.
4. The said Council by its letter dated 18/06/1985 granted provisional permission to the said Institute to run the B.D.S. course. Thereafter, by resolution of its General body dated 26/27th Nov. 1985, the said Council resolved that all earlier permission be regularised on permanent footing for the time being. A copy of the said resolution is at page 33 of the writ petition. Thereafter, on 17/12/1986, the Joint Secretary to the Health Department, Government of Bihar also wrote to the Inter University Board to the effect that if the University Board takes a decision to permit the students of First year in Dental Surgery of the said Institute to sit for in the examination, the Government will have no objection in the matter. Thereafter, again on 16/05/1987, the Deputy Secretary Department of Education wrote to the Registrar, Magadh University communicating the Governments decision to agree to the proposal of granting temporary affiliation to the said Institute for four sessions starting from 1985-86 subject to the fulfillment of all conditions. This document is annexed at page 44 to the writ application. Pursuant to the said resolution, the Joint Secretary, Health and Family Welfare Department, Government of Bihar granted permission to the Professors and other staff of Government Nalanda Medical College, Patna to perform teaching work in the said institute. Thereafter, in the year, 1989, on 1st Sept. 1989 the Magadh University formed an Inspecting team for inspecting the said Institute. The said team consisted of Dr. B.P. Singh, Head of the Department of Dentistry of Banaras, Dr. Gurudeva Narayan and Dr. B.N. Pandey and two other, members. The said team inspected the said Institute on 20th Sept. 1989, and after satisfying themselves inter alia, with the facilities, financial viability, availability of space, and other related facts about the said Institute recommended its permanent affiliation up to B.D.S. standard. Simultaneously, on 10th Nov. 1989, the President of the said Council appointed Councils visitor/ Inspector to jointly inspect the standards of final year B. D. S. Examination of the said Institute, and pursuant thereto, the said Institute was inspected by the visitors of the team of the Council on 9/10/1990, and inspection the said team found that the facilities available in the said Institute satisfies the requirem
