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HIGH COURT OF DELHI
Date of Decision: 03rd MARCH, 2023 IN THE MATTER OF:
SHAIKH SHABIR ALI & ORS ...... Petitioners
Through: Mr. R.K. Saini, Mr. Dharmesh Tripathi, Advocates
Through: Mr. T. Singhdev, Ms. Anum Hussain, Mr. Abhijit Chakravarty, Mr. Tanishhq Srivastava, Mr. Bhanu Gulati, Advocates for R-1
Mr. Naginder Benipal, Advocate for UOI
HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD
JUDGMENT
1. By way of this writ petition, the Petitioners seek to quash Regulation No.11 of the Dental Council of India Screening Test Regulations, 2009, which provides that a candidate in order to register himself with a State Dental Council has to take an examination and score 50% in each of the two papers (first stage) individually to qualify for appearing for viva-voce (second stage) of the examination as arbitrary, discriminatory and violative of Articles 14, 19 and 21 of the Constitution of India.
2. It is stated that Petitioner No.1 herein had obtained Degree/Diploma in Stomatology (five year course), which is equivalent to Bachelor of Dentistry (BDS) from the State Educational Institution of Higher Professional Education “Tver State Medical Academy of the Federal Agency for Community Health and Social Development” 2007, Russia.
3. It is stated that Petitioner No.2 herein had obtained Degree/Diploma in Bachelor of Dentistry (BDS) (five year course) from the Universal College of Medical Sciences Bhairahawa, Nepal (Tribhuvan University) in the year 2013, Nepal with one year rotatory internship.
4. It is stated that Petitioner No.3 herein had obtained Degree/Diploma in Stomatology (five year course), which is equivalent to Bachelor of Dentistry (BDS) from the Nizhny Novgorod State Medical Academy in the year 2015, Russia.
5. It is stated that the Petitioners are desirous of getting themselves registered with the State Dental Council and were in the process of registration. The Dental Council of India with the previous sanction of the Central Government has brought out the Dental Council of India Screening Test Regulations, 2009 (hereinafter referred to as 'the Screening Test Regulations, 2009). Clause 11 of the Screening Test Regulations, 2009, prescribes the pattern of the examination of Screening Test. Clause 11 of the Screening Test Regulations, 2009 reads as under:- “Distribution of subject and marks for BDS graduates Subject No. of MCQs for BDS Subject No. of MCQs for BDS Paper I Paper II Anatomy 10 Dental Anatomy & Histology Physiology 10 Dental Materials 10 Biochemistry 10 Oral Pathology 10 Microbiology 10 Oral Microbiology Pathology 10 Oral Medicine 10 Pharmacology 10 Oral Radiology 10 General Medicine 20 Oral Surgery 10 General Surgery 20 Periodontics 10 Orthodontics 10 Community/Public Heath Dentistry Pedodontics and Preventive Dentistry Prosthodontics Crown & Bridge Conservative Dentistry & Endodontics Total Questions 100 Total Questions 150 BDS Paper II- Speciality Questions in the respective subjects -- 150
(i) Duration of Paper-I is 120 Minutes & paper II is
(ii) Each question carries one mark.
(iii) There will be no negative marking.
(iv) There will be no grace marks.
(v) The candidate has to score 50% in each paper individually to qualify for appearing in the vivavoce examination. BDS- Viva-voce examination - 50 The candidate has to separately score 50% in the vivavoce examination Examiners for Viva-Voce Examination for BDS There shall be two examiners for Viva-Voce, out of whom, one internal from examining university and one external from any other university. The qualification of examiners appointed for viva-voce for recognition of foreign UG/PG dental qualification would be at par with the qualification prescribed for examiners in the DCI Revised BOS Course Regulations, 2007 and MOS Course Regulations, 2007 and 2017, as amended from time to time. The criteria to declare pass the Screening Test The candidate shall have to pass both the theory paper and Viva-Voce separately. In case, any candidate does not qualify a theory paper shall not be allowed to appear in the Viva-Voce and the candidate who fails in Viva-Voce or in one paper of theory shall have to reappear in both the theory paper and Viva-Voce also. The PG students who have to undergo and complete the 12th weeks Compulsory Clinical Competence Training shall be entitled for his add on qualification for its registration with respective State Dental Council. The following in the Regulations No. 12 of the of the Principal Dental Council of India Screening Test Regulations, 2009 has been deleted and substituted by the following new clause - in terms of 2nd Amendment published in the Gazette of India on 19.9.2018.”
6. The requirement prescribed under the said Regulation that a candidate has to score 50% in each paper individually in the written examination to pass Paper-I & Paper-II of the Screening Test conducted by the Dental Council of India has been challenged in the writ petition as being discriminatory, unjust and having no nexus with the object sought to be achieved by the Dental Council of India by holding Screening Test in two parts.
7. According to the Petitioners, the first part consists of written examination consisting of two papers. It is stated that the division in two papers is only for the sake of convenience and the nature and character of the said two papers is not different from each other. It is stated that the second part of the examination is viva voce which is different in nature. It is stated that insistence of 50% marks in each of the paper is arbitrary and the Dental Council of India is only acting as an autocratic and authoritative body ignoring the welfare of the students.
8. Heard Mr. R.K. Saini, learned Counsel for the Petitioners, Mr. T. Singhdev, learned Counsel for Respondent No.1/Dental Council of India and Mr. Naginder Benipal, learned Counsel appearing for Union of India, who are appearing on advance notice; and perused the material on record.
9. The Petitioners have done their course in Dentistry outside the country which are said to be equal to graduation in dentistry from institutions outside the country. The Dental Council of India in consultation with the Central Government has brought out the “Dental Council of India Screening Test Regulations, 2009". These Regulations are applicable to those India citizens or Persons of Indian Origin or Overseas Citizens of India possessing primary dental qualifications/PG Diploma/ Post Graduate Dental qualification awarded by any dental institution outside India who desire to get themselves registered with any State Dental Council. The purpose of these Regulations is to standardise the quality of dentists who desire to practice dentistry in the country and for achieving this purpose, it has been decided to hold a Screening Test which has to be passed by students having dental qualifications from institutes outside the country.
10. A perusal of the Regulation 11 of the Screening Test Regulations, 2009 shows that as far as graduates who desire to register themselves with State Dental Council are concerned, they have to clear a Screening Test which is divided into two parts. The first part being a written examination and the second part being a viva voce. The written examination is further divided into two papers, i.e., Paper-I consisting of subjects like Anatomy, Physiology, Biochemistry, Microbiology, Pathology, Pharmacology, General Medicine, General Surgery. These papers are generic in nature and deal with the entire body. Paper-II consists of specific subjects directly concerned with dentistry like Dental Anatomy & Histology, Dental Materials, Oral Pathology, Oral Microbiology, Oral Medicine, Oral Radiology, Oral Surgery, Periodontics, Orthodontics, Community/Public Heath Dentistry, Pedodontics and Preventive Dentistry, Prosthodontics Crown & Bridge, Conservative Dentistry & Endodontics.
11. As stated above, the subjects are carefully demarcated into two parts and Paper-I dealing with general subjects and Paper-II specifically dealing with subjects connected with dentistry. The total number of questions in Paper-I is 100 and Paper-II which is more specific to dentistry has 150 questions. The said Regulation specifies that a candidate has to score 50% in each paper individually and only then is a candidate will be eligible to appear in the viva voce examination. A perusal of the material on record also shows that a candidate can take any number of attempts to appear for the Screening Test.
12. The Dental Council of India is a Statutory Body incorporated under the Dentists Act to regulate dental education and profession of dentistry throughout the country. The purpose of Dentists Act is to regulate dental education, dental profession and dental ethics.
13. Regulation 3 of the Screening Test Regulations, 2009 states that the purpose of conducting the screening test is to determine the eligibility of a candidate for his or her registration to the State Dental Council. This Court can take judicial notice of the fact that in many countries mode of instruction is in the native language of the concerned foreign country. It can also be said that in certain countries, the standard of education is much lower than the standard of education in this country. The experts in the field of dentistry have, therefore, formulated this test to ensure that only persons who have obtained degrees outside the country who can match up to the dental education in the country and that they understand various concepts and parameters of dental education as imparted in India should be permitted to get registered themselves with the State Dental Council. The purpose of the test is to ensure the ability of a candidate to objectively diagnose and treat dental patients.
14. The Dental Council of India consists of experts in the field of dentistry and those experts have decided on the pattern of examination, the papers, the marks to be allotted in each of the paper and this decision has been taken to ensure that persons who have obtained degrees from outside the country match up to the standard of our country. It is well settled that Courts should normally refrain themselves from interfering in matters wherein opinions have been rendered by experts and deference should be given to their knowledge on a subject matter. In Basavaiah (Dr.) v. Dr. H.L. Ramesh and Ors., (2010) 8 SCC 372, the Supreme Court had observed this proposition that Courts have to show deference and consideration to the recommendations of the Expert Committee consisting of distinguished experts. The relevant portion of the said judgment reads as under:-
21. It is the settled legal position that the courts have to show deference and consideration to the recommendation of an Expert Committee consisting of distinguished experts in the field......”
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 Selectioin 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 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.
SATISH CHANDRA SHARMA, C.J. SUBRAMONIUM PRASAD, J MARCH 03, 2023