A. K. Ganguly, J. 1. The subject matter of challenge in this writ petition is an order dated 7th February, 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.
3. 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 fulfilment 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 18th June, 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 17th December, 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 16th May, 1987, the Deputy Secretary Department of Education wrote to the Registrar, Magadh University communicating the Government's decision to agree to the proposal of granting temporary affiliation to the said Institute for four sessions starting from 1985-86 subject to the fulfilment 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 Council's 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 9th October, 1990, and inspection the said team found that the facilities available in the said Institute satisfies the requirement laid down by the Dental Council of India, for conducting the B.D.S. Course. The said Inspecting team also found that the B.D.S. course offered in the said Institute was in accordance with the regulation prescribed by the said Council and the teaching programme was satisfactorily conducted according to the required standards. The said team recommended for recognition of the B.D.S. degrees offered by the said Institute. Prior thereto a sub-committee was constituted by the Academic Council of the said University and after due examination and inspection recommended that the said Institute will be granted permanent affiliation though in respect of other seven non-professional Colleges it did not agree to grant permanent affiliation. The same will appear from page 56-57 of the writ petition.
5. Thereafter, by letter dated 8th March, 1991 the Secretary of the said Council wrote to the petitioner's Institute quoting the recommendation made by the Council's visitors for recognising the B.D.S. Course offered in the said Institute. The Secretary of the said Council also wrote to the said Institute for approaching the Magadh University to write directly to the Government of India for issue of Gazette notification about the recognition of the B.D.S. degree course of Magadh University under Section 10(2) of the Dentists Act, 1948 (hereinafter referred to as the said Act). Thereafter on 4th April, 1991 the Secretary of the said Council issued a Press release in leading Newspapers giving the names of the recognised/approved Dental College, stating therein, that the students who want to seek admission in the B.D.S. Course in Dental College should seek their admission only in the approved, recognised Dental Colleges. The name of the said Institute appears at serial No. 27 of the said list. Again on 9th April, 1991 the Academic Council of the Magadh University recommended to the State Government for grant of permanent affiliation of the said Institute. Thereafter, on or about I7th/22nd April, 1991 the Registrar of the said University wrote to the Joint Secretary, Education Department, Government of Bihar that the said Institute has all the requisite infrastructure for conducting the said B.D.S. courses, and the Registrar, therefore, requested the Government to extend the affiliation. The letter also stated that the inpection carried out by the said Council and its sub-committe certifies that the said Institute is recognised/approved by the said Council, and as such, the Registrar requested the State Government to extend the affiliation. The said documents is at page 58/59 of the paper book.
6. In the background of those facts, a press communique was printed in the leading Newspaper by the Controller of Examination or the said University on behalf of the Vice-Chancellor stating that no further examination will be conducted by the said University in respect of the students of the said Institute in B.D.S. course as no extension of affiliation was granted by the State Government. The said communique is at page 61 of the paper book and was initially challenged by the petitioner by filing the writ application. These facts have not been disputed by the respondents.
7. When the matter was subjudice before this Hon'ble Court on 13th August, 1991, the State Government extended the affiliation to the said Institute for B.D.S. Course for the Sessions 1989-90 until further orders. The said communication is at page 177 of the paper book. On the said dale, another
communication comes from the Secretary of the said Council to the said Institute asking it to confirm the date for inspection for the purpose of ascertaining whether the said Institute can start Post Graduate Course in oral surgery and in various other discipline of Dental medicines. Thereafter, during the pendency of this writ application, the petitioner was served on or about 28th Sept, 1991 with a show cause notice issued by the State Government asking it to show cause as to why the affiliation granted by memo No. 461(1) dated 13th August, 1991 be not cancelled for non-fulfillment of certain conditions laid down by the Dental Council of India, and the Government of India. Thereafter, on 5th October, 1991 the State Government cancelled the affiliation which was granted to the said Institute. The said impugne order is annexed as Annexure 20 to the amendment petition filed by the petitioner in connection with the said writ application.
8. It may be stated that the petitioner by way of amendment petition challenged the show cause notice dated 28th Sept. 1991, and the order dated 5th Oct. 1991. The petitioner's case is that the said show cause notice dated 28th Sept. 1991 ought to be quashed at least on the ground of violation of principles of natural justice in as much as the petitioner was asked to file its reply by 31st Oct. 1991 even the same was served upon the petitioner by the repondents on 28th Sept. 1991.
9. In course of hearing the instant writ petition on 10th October 1991, one Division Bench of this Hon'ble Court was pleased to quash the said order dated 5th Oct. 1991, inter alia, on the ground of failure to comply with the principles of natural justice. The relevant extract from the said judgment is set out below:--
'When the case was taken up today, we were informed by another amendment petition that just on the 7th day from the date of the aforesaid show cause notice, i.e. on 5th Oct. 1991 the final order has been passed by the State Government cancelling the said order of approval dated 13th Aug. 1991. It would thus appear that the order of cancel-lation dated 5th Oct. 1991 (Annexure 20) has been passed when the matter was being heard in this Court, and the hearing had been adjourned at the instance of the State Counsel. We depricate the manner in which the Government and its officials have acted. We are also satisfied that no reasonable opportunity of hearing was allowed before the order as contained in Annexure 20 is penal in nature since it visits the petitioner Institute with eveil consequences, therefore, the same cannot be sustained. We, accordingly quashed the order as contained in letter No. 1/M-22/91 164 dated 5th Oct. 1991 (Annexure 20) here and now.'
10. The petitioner then pursuant to the aforesaid direction of the Hon'ble Court, filed its reply to the show cause notice without prejudice to its rights and contentions to challenge the jurisdiction of the State Government to issue such a show cause notice in the facts of the case. Thereafter, on 7th Feb. 1992, the State Government passed an order stating therein that as the Institute does not fulfill the standard norms and conditions laid down by the said Council and the Central Government, hence the affiliation granted earlier stands cancelled. The said order dated 7-2-1992 was also challenged by way of amendment in this writ application.
11. It is very strange that even though the State Government purports to cancel the affiliation granted to the said Institute on the ground that it does not fulfill the requirements laid down by the Government of India and the Dental Council of India, the Government of India Ministry of Health and Family Welfare, after consulting the said Council issued notification on 8th July, 1992 under Section 10(2) of the said Act amending the Schedule I of the said Act by including the B.D.S. Degree being given by the said Magadh University as a recognised Dental qualification. It is not in dispute that the said Institute is the only one Institute under the Magadh University to impart Dental Education, and as such, the effect of this amendment is that the degree of B.D.S. offered by the said Institute is recognised both by the Central Government and the said Council. Therefore, the stand of the State Government that the said Institute cannot be affiliated on the purported ground that it does not fulfill the required standard laid down by the said Council of the State Government is contradicted by the aforesaid notification dated 8th July, 1992 (Page 254/255) of the paper book). Thereafter, again on 3rd. June, 1993 the Secretary of the said Council issued a Press release issuing a list of 39 recognised Dental Institutions whose B.D.S. course was recognised by it. The name of the said Institute appear at serial No. 27. The said press release is at pages 261-264 of the paper book
12. In the background of these facts, the
stand of the State Government has to be
examined with particular reference to the
provisions of Section 21(2) of the Bihar State
University Act, 1976 (hereinafter referred to
as the State Act.).
13. The learned Advocate General appearing on behalf of the State Government in Court was fair enough to accept the position, that once the said Council, namely, the Dental Council of India recognised the Institute permanently, the State has nothing further to do with this matter. In fact, the learned Advocate General in course of his submission has relied upon a decision reported in 1994 Pat LJ R.1 and made particular reference to paragraph Nos. 24 and 29 of the said judgment. The other submissions of the learned Advocate General on behalf of the State is that the State's power of interference in this matter rests on the provisions contained under the proviso to Sub-section (2) of Section 21 of the Bihar State Universities Act, 1976 (hereinafter referred to as the said State Act). The-relevant provisions of the said Act are set out below:--
'21. Powers and duties of the Senate:--(1) Subject to the provisions of this Act and statutes, the Senate shall be the supreme governing body of the University and shall exercise control over all the affiars and properties of the University, and shall exercise all such powers as are not otherwise specified by this Act.
(2) In particular and without prejudice to the generality of the foregoing powers, the Senate shall exercise the following powers and perform the following duties, namely:--
(a) of making the statutes and amending or
repealing the same;
(b) of considering the statutes and the Regulations, and amending or repealing the same; (c) of passing resolution after having considered the annual report, the annual account the financial estimates and audit report on such accounts;
(d) of exercising the powers for the purpose of control in Colleges and Tols, and of superintendence which include affiliation and disaffiliation of Colleges;
Provided that affiliation or disaffiliation of Colleges or Tols shall not take effect, unless it is approved by the State Government.
Provided further that no medical college shall be affiliated except without the prior approval of the State Government.
Before granting such an approval, the State Government shall consider the financial viability of the College, the nature and form of the proposed management of the College, the viability of the academic standard and all other conditions which are likely to have adverse effect on the interests of students admitted to such a College;'
A further submission was also made by the learned Advocate General to the effect that as a result of Amendment of the Dentist Act 1948 by the Dentists (Amendment) Ordinance, 1992 Sections 10A to 10C have been inserted in the principal Act and as such, under the provisions of the said Act, the State Government is authorised to interfere.
14. From a perusal of the provisions of the amended sections of the said Act, it appears that the same has no application to the facts of the present case, in as much as, Section 10C will apply only to an institute established between 1-6-1992 and before commencement of the Ordinance which is 27th August, 1992. Apart from that the authority under the said Ordinance is the Central Government and not the State Government.
15. It is a common ground that the said institute was established in the year, 1985 and the State Government granted affiliation to the same for four sessions from the year 1985.
16. On an examination of the argument advanced by the learned Advocate General, it is clear that this argument is contradicted by the facts of the case. The learned Advocate General has argued that the State Government is not willing to interfere with the establishment and management of the said institute, if its establishment and management is recognised by the said Council. The admitted factual position is that the Dental Council of India has recognised the said Institute and also granted recognition to it and the degree offered by it. Further more even after issuance of the show cause notice, and also after the State Government has passed the impugned final order dated 17th February, 1992 purporting to cancel the affiliation granted to the said Institute on the alleged ground that the said Institute does not fulfill the standard norms and conditions laid down by the Dental Council of India and the Central Government, the Central Government itself issued notification Sated 8th July, 1992 to the following effect:--
'(To be published in Part II, Section 3, Sub-section (ii) of the Gazette of India).
Government of India
Ministry of Health and Family Welfare. Nirman Bhawan, New Delhi, the 8th July, 1992.
NOTIFICATION
S.O. In exercise of the powers conferred by Sub-section (2) of Section 10 of the Dentist Act, 1948 (16 of 1948), the Central Government, after consulting the Dental Council of India, hereby makes the following further amendments in the Schedule to the said Act, namely:--
In Part 1 of the said Schedule, after serial number 36 and the entries relating thereto, the following serial number and entries shall be added, namely:--
'37. Magadh University Bachelor of B.D.S. Magadh' Dental Bodh Gaya (Bihar)Surgery.(A. Srinivasan)Under Secretary to the Govt. of India.'
The said notification is a statutory one having been issued in exercise of the power under Section 10(2) of the said Demists Act, Section 10(2) of the said Act is set out below:
'10. Recognition of dental qualifications:-- (1) The dental qualifications, granted by the authority or institution in India, which are included in Part 1 of the Schedule shall be recognised dental qualification for the purposes of this Act.
(2) Any authority or institution in India which grants a dental qualification not included in Part I of the Schedule may apply to the Central Government to have such qualification recognised and included in that part and the Central Government, after consulting the Council, and alter such inquiry, if any, as it may think fit for the purpose, may, by notification in the official Gazette, amend Part I of the Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in Part I of the Schedule against such dental qualification declaring that it shall be a recognised dental qualification only when granted after a specified date.'
17. It is common ground that in Magadh University the said Institute is the only one which carries on B.D.S. course and in consequence of the said notification the said Institute becomes recognised as a Denial College for B.D.S. degree. Therefore, it is no longer open to the State Government to cancel the affiliation to the said Institute when the Dental College run by the said Institute, as an affiliated College of the Magadh University is recognised by the Central Government in consultation with the Dental Council and the aforesaid notification was issued by the Central Government. Therefore in view of the said legal position the State Government cannot in exercise of its power under proviso to Sub-section (2) of the said Act, withhold or cancel the affiliation of the said Institute. The power of the State Government under the proviso to Sub-section (2) of Section 21 of the said State Act must be read subject to Central Legislation, namely, the Dentist Act which is already occupying the field much prior to the enactment of the said State Act of 1976.
18. On a perusal of the different provisions of the said Central Act, it would appeal that the said Act was enacted for regulation of the profession of dentistry and to constitute Dental Councils. Under Section 3 of the said Act, Dental Council of India is constituted for prescribing the standard of teaching and training in the field of dentistry and also for prescribing conditions for admission to different courses for trainees and also for establishment of professional standard in various teaching centres.
19. An executive committee has also been created under Section 9 of the said Act for discharging such powers and functions as may be prescribed. The provisions of Section 10(2) of the said Act has already been referred to. Under Sections 15 and 15A of the said Act, provisions have been made for inspection relating to examination held by various institutes, and Section 15A is for appointment of visitors. Sections 16 and 16A make the provision for withdrawal of recognition of recognised dental qualification. Therefore, recognition granted to the said institute by the said Council is to be withdrawn, if at all, by the said council in accordance with the prescribed procedure under Section 16A of the said Act. The provisions of Section 16A of the said Act are set out hereinbelow:--
'16A. Withdrawal of recognition of recognised dental qualification:- (1) When, upon report by the Executive Committee or the visitor, it appears to the council:--
(a) that the course of study and training or the examination to be undergone in order to obtain a recognised dental qualification from any authority or institution in a State, or the conditions for admission to such course or the standards of proficiency required from the candidates at such examinations are not in conformity with the regulations made under this Act or fall short of the standards required thereby, or
(b) that an institution does not in the matter of staff, equipment, accommodation, training and other facilities satisfy the requirements of the Council, the Council shall send a statement to that effect to the Central Government.
(2) After considering such a statement, the Central Government may send to the Government of the state in which the authority exercises power or the institution is stated, and the State Government shall forward it, along with such remarks as it may think fit to make, to the authority or institution concerned, with an intimation of the period within which the authority or institution may submit its explanation to the State Government.
(3) After considering the explanation, or where no explanation is submitted within the period, fixed then on the expiry of that period, the State Government shall make its recommendations to the Central Government.
(4) The Central Government may, after considering the recommendations of the State Government and after making such further inquiry, if any, as it may think fit, by notification in the official Gazette, direct that an entry shall be made in Part I of the Schedule against the qualification granted by the authority or institution declaring that it shall be a recognised dental qualification only when granted before a specified date or that the said recognised dental qualification if granted to students of a specified college or institution affiliated to any University shall be a recognised dental qualification only when granted before a specified date or, as the case may be, that the said recognised dental qualification shall be a recognised dental qualification in relation to a specified college or institution affiliated to any University only when granted after a specified date.'
20. Under the said provisions of Section 16A the State Government has a limited role to play. It is clear from perusal of Sections 16A that the State Government has no independent power to cancel the recognition of an institute which is a recognised one by the said Council as a leaching Centrol for pursuing the course of Dental Science. It is nobody's case that in respect of the said institute any statement as indicated in Section 16A of the said Act is in existence or that the State Government acted on the basis of any such statement in purporting to pass the impugned order dated 7th February, 1993.
21. Under Sub-section (4) of Section 16A of the Central Act, State Government is merely a recommendatory authority to the Central Government for derecognising any dental qualification granted by such an institute after a certain date. The said Central Act also provides for establishment of State Dental Council. This Court has not been told by either of the parties whether or not the State Dental Council is in existence in Bihar. However, one thing is clear that the petitioner does not impugn any action of the State Council even if it is in existence.
22. The Central Act in question herein is the Dentist Act, 1948. The said Central Act is an existing law within the meaning of Article 366(10) of the Constitution of India. The said Central Act squarely occupies the field covered by Entry 66 of List I of the Seventh Schedule to the Constitution of India. The said entry of List I of the Seventh Schedule is set out below:--
'66. Co-ordination and determination of standard in institution for higher education or research and scientific and technical institutions.'
23. In the decision of Supreme Court in the case of Prem Chandra Jain v. R.K. Chandra, reported in AIR 1984 SC 981, almost similar provisions of University Grant Commission Act, 1956 have been construed and found to be a legislation covering the field occupied by the said Entry 66 of List I of the Seventh Schedule. The said decision in the case of Prem Chandra Jain (surpa) has been followed by Supreme Court subsequently in the case of Osmainia University Teachers Association v. State of Andhra Pradesh reported in AIR 1987 SC 2034.
24. Relying on the aforesaid judgments this Court, holds that the said Central Act, being an existing law, is a legislation which covers the field occupied by Entry 66 of List I of the Seventh Schedule, namely, 'Coordination and determination of standards' ...... 'for scientific and technical institutions.'
25. That being the position in law, the right and the authority of the State Government to intefere, on the basis of a later state legislation, with the grant of recognition of the said institute when the qualification granted by it enjoys the status of recognised dental qualification granted by the recognised authorities and forms part of the schedule of the Central Act, becomes highly questionable and suspect.
26. A perusal of the State Act would show that it does not contain any provisions comparable to those contained under the Central Act. In fact if any such provisions comparable to the Central Act had been there in the State Act those would not have been operative in view of the earlier Central law and any repugnant provision would be void. That is the clear mandate of Part XI of the Constitution. Therefore, in the facts of this case, following position emerges:
(a) The Central Act is an existing law;
(b) It is an earlier law,
(c) It covers the field occupied by Entry 66 of List I of the Seventh Schedule and in respect of which State Legislature cannot make any law;
(d) The requirement of prior approval of the State Government about affiliation of a medical College in the State of Bihar under the proviso to Sub-section (2) of Section 21 of the State Act is a provision which is repugnant to the Central Law;
(e) Such provision, as indicated in para (d) above was not reserved for the assent of the President under Article 254(2) of the Constitution;
(f) As such the State Law to the extent of repugnancy namely, the requirement of prior approval of the State Government for the affiliation of a medical college vis-a-vis the Central Act is void and cannot prevail.
27. The considerations which are supposed to weigh with the State Government under the State Act before grant of its approval certainly fall within the scope of 'Co-ordination and determination of standards' for higher education in 'Scientific and technical institutions'. As such there is repugnancy between the earlier Central Act and later State law. It is well settled that in order to constitute repugnancy direct conflict is not necessary and if we go by the pith and substance rule, the repugnancy between the two act is apparent.
28. Almost similar question arose in the case of Gujarat University v. Sri Krishna reported in AIR 1963 SC 703 and the relevant observations from the said judgment are extracted below (at p 716):--
'..... If there be Union Legislation in respect of co-ordination and determination of standards, that would have paramountcy over the State law by virtue of the first part of Article 254(1); even if that power be not exercised by the Union Parliament the relevant legislative entries being in the exclusive lists, a State law trenching upon the Union field would still be invalid.'
29. Here there is a Central Act on the subject and under the same the Dental Council of the India, the apex body, has been constituted. The recognition of the said institute has been repeatedly sanctioned and granted by the said apex council and as such it is not open to the State Government to sustain the impugned order.
30. The case cited by the learned Advocate General reported in 1994 (1) Pat LJR 1 has no relevance to the facts of the present case. In that case the question relating to the right of minorities under Articles 29 and 30 of the Constitution of India to establish an institution came up for consideration. Provisions of Sections 10A, 10B and 10C of Indian Medical Council of India Act also fell for consideration in that case but here we are not concerned with those questions.
31. On the other hand, the case cited by the petitioner's counsel reported in AIR 1991 Mad 246 (Adhiyaman Educational and Research Institutions v. State of Tamil Nadu) deals with the question with which we are concerned her and we find that the view we are taking has been taken in the said Madras decision to which incidentally the Hon'ble Chief Justice is a party. 32. For the reasons aforesaid, it is no longer open to the State Government to issue the impugned show, cause notice dated 29th Sept. 1991 for the purpose of withdrawal of its affiliation and the same is hereby set aside. We are also of the view that the provision of Section 21 Sub-section (2) and its proviso in so far as it relates to grant of affiliation to a dental college is void to the extent of its repugnancy with the provisions of Dentist Act, 1948. We also held that the final order dated 7th February 1992 on the basis of the said show cause notice is bad and is also set aside.
33. It is further declared that the said Institute will continue as an Institute of Dental Science, and can hold examination in respect to B.D.S. course as long as it is recognised by the Dental Council of India.
34. In view of the aforesaid order passed by us, no further order need be passed on the application made by the students of the said Institute. The writ application is thus allowed. There will be no order as to costs.
K. Venkataswami, C. J.
35. I Agree..
.