Full Text
JUDGMENT
ABHISHEK KUMAR & ORS. ..... Petitioners
Through: Mr. Arun Kumar Varma, Senior Advocate with Mr. Aslam Ahmed, Mr. Rohit Jain, Ms. Shabiesa Nabi and Mr. Hari Lal S., Advocates.
Through: Mr. T. Singhdev, Mr. Abhijit Chakravarty, Mr. Bhanu Gulati, Mr.AabhasSukhramani, Mr. Tanishq Srivastava, Mr. Anum Hussain and
Ms. Ramanpreet Kaur, Advocates for respondent No.1.
Mr. Kirtiman Singh, CGSC with Mr.Waize Ali Noor, Mr. Madhav Bajaj& Ms. Shreya V. Mehra, Advocates for Respondent No.2/
NBE.
HON'BLE MR. JUSTICE SAURABH BANERJEE
1. The Petitioners before this Court are six persons holding professional degrees in dentistry i.e., Bachelor of Dental Surgery (“BDS”)/ Master of Dental Surgery (“MDS”)/ Doctor of Dental Surgery (“DDS”) or equivalent qualifications from foreign universities. The Petitioners have filed the Digitaaly present writ petition challenging the constitutional validity of Regulation 11 of the Dental Council of India Screening Test Regulations, 2009 (the “Regulations”).
2. The details regarding the Petitioners’ qualifications, accomplishments and work experience are highlighted as under: “Petitioner Qualifications Other Accomplishments No. of years of practice in Dentistry Abhishek Kumar Bachelor of Dental Surgery (BDS) from BP Koirala Institute of Health Sciences, Dharan. Nepal in 2007 Master of Dental Surgery (MDS) from Kathmandu University in Worked as an Assistant Professor in BP Koirala and Associate Professor in KIST Medical College, Kathmandu Several certificates of appreciation and participation in Dental conferences 16 years with provisional license to practice and teach dentistry in Nepal Kriti Rathi Bachelor of Dental (2013-2019) from College of Medical Sciences, Internship at College of Medical Sciences, Nepal (2019-2020) Volunteer at Annual Joint Meeting of Digitaaly Bharatpur, Nepal Nepalese association of Oral & Maxillofacial Surgeons in joint collaboration with Japanese society of Oral & Maxillofacial Surgeons in the year 2020. Shweta Singh Dental from M.B. Kedia Dental College, Chhapkaiya, Birgunj-2, Nepal (2007-2012) Internship from M.B. Kedia Dental College, Nepal (2012-2013) Practiced as a dentist in Birgunj, Nepal (2013-2014) Manjot Kaur Doctor of Dental Surgery (DDS) from Howard University College of Dentistry 2012-2016, Washington DC.USA Advanced Education in General Dentistry (AEGD) from Virginia Commonwealth University 2016- 2017 Virginia, USA Attended several continuing education courses, seminars and Practiced as a General Dentist for 5 years (2017-2022) in Virginia and California, USA Digitaaly dental conferences. Anisha Garg Dental from People's Dental College and hospital Kathmandu, Nepal (2016-2021) Internship from People's Dental College and hospital (2021- 2022) Several certificate of participation in hands on workshops Volunteered at a clinic for few months in Nepal Neha Sharan Dental from College of Medical Sciences, Bharatpur, Nepal (2013-
2019) Internship at College of Medical Sciences, Nepal (2019-2020) Certificates of appreciation and participation in Endodontic rotary instrument workshop Volunteered at a clinic for 2 years in Nepal.”
3. The Petitioners’ have stated that they have obtained their professional degrees from foreign universities. Resultantly, the Petitioners must undergo and pass the Foreign Dental Screening Test (“FDST”) envisaged under the 2009 Regulations in order to become eligible for registration with a State Dental Council in India. Digitaaly
4. The scheme of the FDST as per Regulation 11 of the Regulations contemplates 2 (two) written examinations and a Viva-Voce examination (“Viva”). Regulation 11 provides that a candidate must score 50% marks in both the written tests, i.e., Paper-I for a total of 100 marks and Paper-II for a total of 150 marks, individually, which would make the candidate eligible for appearing in the Viva. It is further provided that a candidate must score 50% marks separately in the Viva. It is only after obtaining 50% marks in the both the written examinations, individually, as well as scoring 50% marks in the Viva, that a candidate passes the FDST.
5. It is stated that a notification was issued on 11.10.2022 by the Dental Council of India (“DCI”)/ Respondent No.1 for conducting the FDST 2022. The Petitioners participated in the written examination and the result thereof was declared on 08.02.2023. Out of the 22 candidates who appeared in the written examination, 11 cleared the same, including all the Petitioners.
6. Thereafter, the Petitioners appeared for the Viva conducted on 05.04.2023. The results for the Viva were declared on 19.04.2023. All the Petitioners failed to meet the requirement of 50% marks in the Viva, and therefore, they were declared unsuccessful in clearing the FDST.
7. On 21.04.2023, Petitioner No. 4 submitted an application under the Right to Information Act, 2005 (“RTI Act”) seeking information related to FDST 2022 examination, including the results for the Viva conducted on 05.04.2023, and a separate RTI was filed to obtain the results of the candidates who had appeared in the FDST exams in the past 3 (three) years. Digitaaly
8. On 28.04.2023, the Petitioners requested the DCI to permit them to re-appear for the Viva so that they could clear the FDST. However, Petitioners were not granted any relief by the DCI, and in those circumstances, the Petitioners came up before this Court by filing the present Writ Petition praying for the following reliefs: “a) issue an appropriate writ, order or direction, inter alia, declaring the Regulation 11 of Dental Council of India Screening Test Regulations, 2009 as illegal, arbitrary and being in gross violation of the Article 14, 19 and 21 of the Constitution of India; b) issue an appropriate writ, order or direction, inter alia, declaring the notice dated 19th April 2023 as illegal and nonest; c) Issue an appropriate writ of or in the nature of Mandamus and/or orders or directions holding and declaring that the action of the Respondents in relation to considering the Vivavoce examination as the sole determining factor as arbitrary and illegal, being in gross violation of the Article 14, 19 and 21 of the Constitution of India, hence waive the score of viva and declare all petitioners pass based on written exam results itself as an exceptional case; d) Issue a Writ of or in the nature of Certiorari and/or orders or directions of like nature directing the Respondent No. 1 and Respondent no. 2 to consider the aggregate marks of all Petitioners and notify them pass and eligible to practice dentistry in India; e) Allow the petitioners to appear for Viva-voce without having to reappear for the written exam; f) Issue an appropriate writ thereby directing the Respondent No.1 to not to carry out viva-voceas a part of selection process as in the case of MBBS; Digitaaly g) to call the entire record from Respondent NO. 2 of all candidates who appeared for viva- voce on 05.04.2023 to find the facts on the instructions and process followed; and h) Pass such other and further order or orders as this Hon'ble Court may deem fit and proper under the facts and circumstances ofthe present case and in the interest of justice.”
9. Learned counsel for the Petitioners has vehemently argued before this Court that the procedure prescribed in Regulation 11 of the Regulations is arbitrary to the extent that it mandates 50% marks in the Viva separately for the purpose of registration with a State Dental Council. He argues that this renders the Viva as the sole factor of determination in the second leg of the FDST. He has further argued that undue weightage is given to the Viva and the candidates who have qualified in the written examination cannot be denied their right to register as dentists in India. Heavy reliance has been placed by the Petitioners upon the judgment delivered in the case of Anvita Singh Vs. Union of India & Ors, 2012 III AD (Delhi) 133; and Praveen Singh Vs. State of Punjab & Ors., AIR 2001 SC 152, to buttress his contentions.
10. Learned counsel for the Petitioners has vehemently argued before this Court that the process of Viva as prescribed under Regulations 11 of the Regulations is arbitrary; it is without sufficient safeguards; no proper record is maintained; the process of interview sabotages purity of proceedings; and a person cannot be declared unsuccessful based only upon their performance in the Viva. He places reliance upon the judgment delivered in the case of Dr. J.P. Kulshrestha & Others Vs. Chancellor, Allahabad University & Others, (1980)
11. Heard learned counsel for the Petitioners at length and perused the record. The Petitioners in the present case are praying for quashing of Regulation 11 of the Regulations on the ground that the same is, inter alia, arbitrary, discriminatory and in violation of Articles 14, 19 & 21 of the Constitution of India.
12. DCI with the prior sanction of the Central Government has brought out the Regulations in exercise of powers conferred upon it under the Dentists Act, 1948. The Regulations provide for a screening test, i.e., FDST, and prescribes the pattern of examination of the FDST. Regulation 11 of the Regulations reads as under:
15. The Supreme Court in State of Tamil Nadu v. K. Shyam Sunder and Ors., (2011) 8 SCC 737, notes that Courts lack expertise especially in disputes relating to policies of purely academic matters by relying upon a series of judgements that have already cemented this view. The paragraph reiterating this observation is as follows:-
42. Undoubtedly, the court lacks expertise especially in disputes relating to policies of pure academic educational matters. Therefore, generally it should abide by the opinion of the expert body. The Constitution Bench of this Court in University of Mysore v. C.D. Govinda Rao [AIR 1965 SC 491] (AIR p. 496, para 13) held that “normally the courts should be slow to interfere with the opinions expressed by the experts”. It would normally be wise and safe for the courts to leave such decisions to experts who are more familiar with the problems they face than the courts generally can be. This view has consistently been reiterated by this Court in Neelima Misra v. Harinder Kaur Paintal [(1990) 2 SCC 746: 1990 SCC (L&S) 395: (1990) 13 ATC 732: AIR 1990 SC 1402], Victoria Memorial Hall v. Howrah Ganatantrik Nagrik Samity [(2010) 3 SCC 732: AIR 2010 SC 1285], Basavaiah (Dr.) v. Dr. H.L. Ramesh [(2010) 8 SCC 372: (2010) 2 SCC (L&S) 640] and State of H.P. v. H.P. Nizi Vyavsayik Prishikshan Kendra Sangh [(2011) 6 SCC 597].” (emphasis supplied)
16. Similarly, in a Judgement dated 28.02.2022 in Mahesh Kumar v. Staff Selection Commission and Anr., SLP NO. 1951/2022, the Supreme Court upheld a Judgement of this Court and stated that the High Court had rightly refused to entertain the writ petition by observing that “when the conscious decisions has been taken by the experts and the courts have no expertise in the matter and academic matters are best left to academics, we see no reason to interfere with the same”.
17. It is settled law that High Courts while exercising its jurisdiction under Article 226 of the Constitution of India cannot sit in appeal over a decision taken by experts in the manner of conducting examination and fixing marks/ qualifying marks in the examination. Other than stating that fixing a Digitaaly minimum of 50% marks in each of the papers is arbitrary, there is nothing in the writ petition to demonstrate as to why it is arbitrary. As stated earlier, the purpose of Screening Test is to ensure that only persons who are well versed in the field of dentistry are registered with the Dental Council of India and the decision of the Dental Council of India to fix a minimum of 50% marks in each of the written test cannot be interfered with by Courts while exercising its jurisdiction under Article 226 of the Constitution of India.
18. With the above observations, the Writ Petition is dismissed, along with pending application(s), if any.”
15. The aforesaid judgment makes it very clear that a similar challenge in respect to constitutional validity of Regulation 11 of the Regulations has been looked into by this Court in the said case. This Court has declined to interfere in the matter by taking cognizance of judgments delivered by the Hon’ble Supreme Court which state that Courts lack expertise in disputes relating to policies in purely academic matters.
16. A Division Bench of this Court in the case of Dr. Tanmay Srivastava &Ors. Vs. Dental Council of India &Anr., 2010:DHC:151-DB, while deciding a similar controversy has held in paragraphs 13 & 14 as under:
17. In Dr. Tanmay Srivastava (Supra), again the requirement of minimum benchmark of 50% in each test paper as also Viva-Voce has been looked into and the Division Bench has held that there is no infirmity in either prescribing a Viva-Voce, or the requirement of a minimum benchmark of 50% in each of the test papers as also the Viva-Voce. The said judgment also explains the necessity for conducting a Viva-Voce examination for those candidates who have obtained their qualifications from foreign dental institutes, as is the case for the Petitioners-herein.
18. It is needless to mention that the DCI is an expert body. The DCI consists of experts in the field of dentistry and those experts have decided on the pattern of examination, the marks to be allotted in each of the examinations, if any, as well as the cut-off marks required by a candidate to clear the FDST. Therefore, in the considered opinion of this Court, when a conscious decision has been taken by the experts and the Courts have no expertise in the matter, academic matters should be left to the experts and Digitaaly should not be interfered with by the High Court while exercising its writ jurisdiction under Article 226 of the Constitution of India.
19. During the course of the hearing, learned counsel for the DCI has submitted before this Court that the FDST is held after every six months and the petitioners can again appear in the examination in question, and they have not been deprived of an opportunity to clear the FDST. The grievance of the Petitioners that the DCI has denied their request to conduct a fresh viva and re-appear for the same thus, does not hold any ground.
20. The Petitioners have failed to show how Regulation 11 of the Regulations is arbitrary or in violation of Articles 14, 19 and 21 of the Constitution of India and have thus, not been able to make out any ground for declaring Regulation 11 of the Regulations as unconstitutional. This Court finds no infirmity in the examination pattern of the FDST and the same has been decided by a body of experts and there is no reason for this Court to interfere with the same in exercise of its writ jurisdiction under Article 226 of the Constitution of India. This Court does not find any reason to grant relief to the Petitioners as prayed for. Accordingly, the present writ petition stands dismissed. (SATISH CHANDRA SHARMA)
CHIEF JUSTICE (SAURABH BANERJEE)