Madras High Court
Dr.George Paul vs The Union Of India on 4 October, 2010
Author: D.Hariparanthaman
Bench: D.Hariparanthaman
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 04/10/2010
CORAM
THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN
W.P.NO.5102 OF 2010
AND CONNECTED MISCELLANEOUS PETITIONS
Dr.George Paul ... Petitioner
Versus
1.The Union of India
Rep.by its Secretary
Ministry of Health and Family Welfare
Nirman Bhavan, New Delhi.
2.The Chief Secretary
GNCT of Delhi, Delhi Secretariat
New Delhi 110 001.
3.The Tamil Nadu State Dental Council
Arihant Majestic Towers
5-0-3, 216, J.N.Salai,
Koyambedu, Chennai 600 107.
4.Dr.Anil Kohli
President
Dental Council of India
AIWAN E GALIB Marg,
Kotla Road, New Delhi.
5.Dental Council of India
Rep. by its Secretary
AIWAN E GALIB Marg,
Kotla Road, New Delhi. ... Respondents
PRAYER: Writ petition filed under Article 226 of the Constitution of India praying for the issuance of writ of Quo Warranto to show cause under what authority the fourth respondent is holding the office of the Member and consequently President, Dental Council of India, having office at AIWAN E _ GALIB Marg, Kotla Road, New Delhi.
For Petitioner : Mr.N.R.Chandran
Senior counsel for Mr.S.Yashwanth
For Respondent-1 : Mr.M.Ravindran
Additional Solicitor General
for Mr.K.Ravichandra Baabu
For Respondent2 : Mr.P.S.Raman
Advocate General
for Mr.A.S.Vijayaraghavan, CGSC
For Respondent-3 : Mr.Karthik Rajan
For Respondent-4 : Mr.R.Krishnamoorthy
Senior counsel for Mr.P.Chandrasekar
For Respondent-5 : Mr.Vijay Narayanan
Senior counsel for Mr.J.Ravindran, ASGI
O R D E R
This writ petition has been filed seeking for the issuance of Quo-Warranto against the fourth respondent to show cause under what authority he is holding the office of the Member and consequently the President, Dental Council of India.
2.The brief facts leading to the filing of the writ petition are as follows:
a) The petitioner is a Medical Practitioner in Tamil Nadu. It is stated that he is the Executive Trustee of HMT Trust, a Non-Governmental Organisation established with the object of promoting Medical and Dental education and protecting the professional interest of Dental practitioners.
b) The fourth respondent was nominated by the second respondent, the Government of National Capital Territory of Delhi (shortly "GNCT of Delhi"), by the proceedings dated 09.06.2009, under Section 3(e) of the Dentists Act 1948, as a Member of the Dental Council of India (shortly "the DCI"), the fifth respondent herein, up to 31.10.2011.
(c) He was already a nominated Member under Section 3(f) of the Dentists Act, 1948 (shortly "the Act") by the Union of India, the first respondent herein, from 21.10.2004, for a period of five years. Being a Member under Section 3(f) of the Act, he was selected as the President of the DCI.
d) While nominating the fourth respondent as a Member under Section 3(e) of the Act, the second respondent directed the petitioner to relinquish one membership, either from the quota of the second respondent or the first respondent, in the event of his being re-elected as President.
e) The election for the DCI took place on 18.07.2009. The petitioner contested the election as a Member under Section 3(e) of the Act, being nominated by the second respondent. He was successful in the election and got elected. He also submitted his resignation as a Member of the DCI under Section 3(f) of the Act.
f) According to the petitioner, the second respondent has no power to nominate a Member to the DCI under Section 3(e) of the Act. Hence, the fourth respondent has no authority to continue as a Member and consequently as President.
g) It is also stated that though the fourth respondent managed to get elected as a Member of the DCI in the election that took place on 08.04.2009, from the faculty of Dental Sciences of the Baba Farid University of Health Sciences, Faridkot (shortly "the University") under Section 3(d) of the Act, that could not help the fourth respondent to continue as President. The reason is that in spite of his election as a Member to the DCI under Section 3(d) of the Act, as stated above, the same was not approved and notified by the DCI.
h) According to the petitioner, there could not be dual membership and dual membership is not permitted under the Act.
i) Further, the fourth respondent contested the election only as a nominated Member by the second respondent, under Section 3(e) of the Act. Since the second respondent has no power to nominate a Member under Section 3(e) of the Act, the fourth respondent has no authority to continue as a Member/President. Unless he was elected in the re-election as contemplated under Section 7(2) of the Act, he could not be the President of the DCI. In this regard, Section 7(2) of the Act was relied on by the petitioner. Hence the present writ petition.
3.Notice was ordered on 12.03.2010. All the respondents filed counter affidavit, barring the third respondent.
4.All the respondents barring the third respondent filed counter affidavits refuting the allegations made by the petitioner. The respondents pleaded that NCT of Delhi is a "State" and therefore, the nomination of the fourth respondent to the DCI under Section 3(e) of the Act, by the second respondent, is valid and legal. The respondents relied on Article 12 and explanation to Article 54 of the Constitution of India and Section 3(58) of the General Clauses Act in support of their contention that the second respondent is a "State". Further, the respondents pleaded that after 69th amendment to the Constitution, the NCT of Delhi is provided with Legislative Assembly and that therefore, the second respondent is a "State". The respondents also relied on the notification dated 07.11.2008 issued by the first respondent under Article 239(1) of the Constitution empowering the Lt. Governor of NCT of Delhi to discharge the functions of the State Government under the Act. The respondents also relied on the earlier nominations of one Dr.Sabharwal and Dr.Anil Kumar Chandna made by the second respondent under Section 3(e) of the Act to the DCI. The respondents further pleaded that the fourth respondent was also elected by the University from the faculty of Dental Sciences to DCI under Section 3(d) of the Act. In view of the election of the fourth respondent on 08.04.2009 under Section 3(d) of the Act as stated above and also the nomination of the fourth respondent under Section 3(e) of the Act by the second respondent, the writ petition deserves to be dismissed. It is also their pleadings that dual membership is not prohibited under the Act. The respondents 2, 4 and 5 also pleaded that this Court has no territorial jurisdiction to enquire into the matter.
5.It is stated that the fifth respondent received a letter dated 22.05.2009 from the University on 14.07.2009 informing them that the fourth respondent had been elected as a Member to the DCI under Section 3(d) of the Act, for a period of five years, in their meeting held on 08.04.2009. This letter was received after the notice, along with preliminary / main agenda including the list of electoral role of the Members of the DCI for General Body meeting, had already been despatched to all the Members of the DCI on 08.06.2009 and 02.07.2009. Hence in the electoral role of Members for the election on 18.07.2009, the vacancy against the University was shown as vacant. It is also pleaded that the said letter dated 22.05.2009 could not be discussed in the General Body Meeting held on 18 and 19/07/2009 for the reason that, there was no such agenda item of the meeting. It is also submitted that there was no restriction for dual membership from more than one constituencies under the provisions of the Act.
6.Since it was not clear as to whether such a dual member can cast his vote only from one constituency or from both the constituencies, the fifth respondent placed the matter before the General Body meeting held on 19 and 20/12/2009 and the General Body decided that dual membership is permitted, but the member shall cast only one vote for the election of any post of Councils office.
7.In these circumstances, the membership against the University under Section 3(d) of the Act was shown as vacant in the list of members of the DCI as on 13.11.2009 also, while furnishing answer to the writ petitioner under Right to Information Act 2005.
8.According to the fifth respondent, as soon as the fourth respondent was elected under Section 3(d) of the Act, he became the member of the DCI immediately in terms of Section 6(1) of the Act and issuance of Gazette Notification is not necessary. The fifth respondent relied on the decision of the Delhi High Court in DR.H.R.PREM SACHDEVA AND OTHERS VS. UNION OF INDIA AND OTHERS in W.P.No.3021 of 1995 (decided on 31.08.1995) in this regard. Therefore, when the fourth respondent was elected by the Members of the General Body, in its meeting held on 18.07.2009, by virtue of being a valid member, both from under Section 3(d) and (e) of the Act concurrently, the writ petition deserves to be rejected.
9.Heard the submissions made on either side and perused the materials available on record.
10.The learned senior counsel for the petitioner vehemently contended that the second respondent has no power under Section 3(e) of the Act to nominate a Member to the DCI. Since the fourth respondent was shown in the electoral role as a Member representing the second respondent, under Section 3(e) of the Act alone, he could not be a Member of the DCI and consequently he could not be elected as President. According to the learned senior counsel, the second respondent is only a Union Territory as per Article 1(3)(b) read with the first schedule of the Constitution. The 69th Amendment to the Constitution does not make any change in the status of the second respondent as Union Territory, though Legislative Assembly was provided under the 69th Amendment to the Constitution. He relied on the statement and objects for the Amendment of the Constitution in this regard.
11.According to the learned senior counsel for the petitioner, the second respondent is a "State" only for the purpose of election of President as provided under Articles 54 and 55 of the Constitution and not for any other purpose. This is made clear by way of explanation to Article 54 of the Constitution. He has brought to the notice of this Court the Constitution Bench judgment of the Honourable Apex Court reported in New Delhi Municipal Council vs. State of Punjab reported in 1997 (7) SCC 339 holding that the second respondent continues to be Union Territory repelling the argument that as per Section 3(58) of the General Clauses Act "State" includes Union Territory.
12.The learned senior counsel for the petitioner contended that the notification dated 07.11.2008 of the Union of India under Article 239(1) of the Constitution, notifying that the Lt. Governor of the GNCT of Delhi shall exercise the power and discharge the functions of a State under the Act was for the purpose of various roles assigned under the Act, such as withdrawal of recognition and appointment of Commission for enquiry and to supervise the maintenance of registers etc., and that could not grant power to the second respondent to act under Section 3(e) of the Act for nominating a member to the DCI. Otherwise, the notification would amount to amending Section 3(e) of the Act which specifically excludes the Union Territory from exercising its power under Section 3(e) of the Act.
13.The learned senior counsel for the petitioner also contended that the Scheme of the Act contemplates membership from various categories and if dual / multiple membership is permitted that could defeat the very purpose of the Act.
14.The learned senior counsel for the petitioner further contended that as per the records of the DCI itself, the membership relating to University was shown as vacant as on 18.07.2009, as per the electoral role and also, it was shown as vacant as per the list of members of the DCI as on 13.11.2009 as furnished by the DCI in their letter dated 22.12.2009 under the Right to Information Act and that therefore, the fourth respondent could not claim that he was a member of the DCI under Section 3(d) of the Act when the election took place on 18.07.2009.
15.In this regard, the learned senior counsel for the petitioner relied on the minutes of the Executive Committee meeting held on 15.05.2010. According to him, as per the minutes, even as on 15.05.2010, the DCI did not receive the Gazette Notification from the first respondent, about the election of the fourth respondent as a Member under Section 3(d) of the Act.
16.The learned senior counsel for the petitioner heavily relied on Section 7 of the Act and submitted that once the fourth respondent was not a member under Section 3(e) of the Act as on 18.07.2009, he has no authority to hold the post of President, even if he was elected as a Member of DCI under Section 3(d) of the Act, since he should become President only by re-election.
17.The learned senior counsel for the petitioner relied on a Division Bench judgment of the Kerala High Court in DR.JOSEPH ISSAC VS. UNION OF INDIA AND OTHERS in W.A.NO.808 OF 2010 (decided on 21.07.2010) wherein it is held that the second respondent is not a State under Section 3(e) of the Act to nominate a member to the DCI.
18.The learned Additional Solicitor General representing the first respondent and the learned Advocate General representing the second respondent submitted that the second respondent is a "State" in view of the explanation to Article 54 of the Constitution as well as Section 3(58) of the General Clauses Act. The learned senior counsels also heavily relied on the notification dated 07.11.2008 issued by the first respondent under Article 239(1) of the Constitution, empowering the second respondent to discharge its functions as State Government for the purposes of the Act. According to him, after 69th Amendment to the Constitution creating Legislative Assembly for GNCT of Delhi and providing powers to legislate, the second respondent has power to nominate persons for the DCI under Section 3(e) of the Act.
19.Though the second respondent questioned the jurisdiction of this Court, no argument was advanced by the learned Advocate General on the question of jurisdiction at the time of hearing.
20.The learned senior counsel for the fourth respondent advanced his arguments in addition to the elaborate arguments made by the learned senior counsel for the fifth respondent. The learned senior counsel submitted that dual membership is not prohibited under the Act, while the Medical Council of India Act prohibits dual membership specifically under Section 5 of the said Act. Hence, there was no statutory prohibition to hold dual membership under Section 3(d) and (e) of the Act. According to him, as on 18.07.2009, he was a member of the Dental Council of India as (i) a nominee of the first respondent under Section 3(f) of the Act (ii) a nominee of the second respondent under Section 3(e) of the Act and as (ii) a elected member of the University under Section 3(d) of the Act. There is no prohibition for being a member representing various constituencies under the Act. That is, multiple membership is not prohibited. Even assuming that the second respondent has no power under Section 3(e) of the Act to nominate the fourth respondent as a member of the DCI, that could not invalidate the election to the office of the President of the DCI on 18.07.2009, since he was elected as a member of the DCI on 08.04.2009 from the faculty of University, under Section 3(d) of the Act. The election held on 08.04.2009 to DCI under Section 3(d) of the Act would validate the selection as President as on 18.07.2009, even if this Court comes to the conclusion that the second respondent has no power to nominate a member under Section 3(e) of the Act. In these circumstances, issuing Quo-Warranto against the fourth respondent is futile as per the following decisions:
1) DR.S.BALASUNDARAM AND ANOTHER VS. DR.S.MAHADEVAN reported in 1991 (1) MLJ 451
2) GUNANIDHI MOHAPATRA VS. THE CHAIRMAN, N.A.C., BHUBANESWAR reported in AIR 1976 ORISSA 181
3) P.L.LAKHANPAL VS. A.N.RAY reported in AIR1975 DELHI 66
21.In the counter affidavit filed by the fourth respondent, though it was pleaded that this Court has no jurisdiction to entertain the writ petition, the learned counsel for the fourth respondent did not make submissions on the maintainability of the writ petition.
22.The learned senior counsel for the fifth respondent submitted that Delhi is a "State" as per Section 3(58) of the General Clauses Act and explanation to Article 54 of the Constitution. The learned senior counsel also relied on the notification dated 07.11.2008 of the first respondent issued under Article 239(1) of the Constitution delegating power to Lt. Governor of the GNCT of Delhi to exercise the powers of the State Government under the Act.
23.The learned senior counsel for the fifth respondent submitted that the second respondent has power to nominate its representative under Section 3(e) of the Act. He also relied on the earlier two nominations made by the second respondent in this regard. It was submitted that even if the nomination under Section 3(e) of the Act was bad due to want of power, this Court could not issue writ of Writ of Quo-Warranto, since the fourth respondent was elected as a member to the DCI under Section 3(d) of the Act on 08.04.2009. The learned senior counsel strenuously contended that while considering the writ petition in the nature of quo-warranto, the Court should not interfere, even if the person was not eligible to hold the office under Section 3(e) of the Act if he was otherwise eligible to hold the office under Section 3(d) of the Act. He heavily relied on the Constitution Bench judgment of the Delhi High Court in DR.H.R.PREM SACHDEVA AND OTHERS VS. UNION OF INDIA AND OTHERS in W.P.No.3021 of 1995 (decided on 31.08.1995) in this regard and contended that issuing Writ of Quo-Warranto ousting the fourth respondent from the office of the President of DCI is an exercise in futility in view of his election to DCI on 08.04.2009 under Section 3(d) of the Act. The learned senior counsel relied on the meeting of the General Body of the Dental Council of India held on 19 and 20/12/2009 permitting dual membership and that therefore, as on 18.07.2009, if the membership of the fourth respondent under Section 3(e) of the Act was bad, his membership under Section 3(d) of the Act could save him.
24.The learned senior counsel for the fifth respondent relied on Section 6(1) of the Act and contended that as soon as the fourth respondent was elected on 08.04.2009, he became the member of the DCI and Section 6 of the Act does not contemplate the issuance of notification. The learned senior counsel relied on the judgment of the Delhi High Court in DR.H.R.PREM SACHDEVA AND OTHERS VS. UNION OF INDIA AND OTHERS in W.P.No.3021 of 1995 (decided on 31.08.1995) in this regard.
25.I have considered the submissions made on either side.
26.According to the petitioner, the fourth respondent has no legal authority to hold the public office of Member of DCI and consequently as President of DCI.
27.The crux of the arguments advanced by the learned senior counsel for the petitioner is that since the second respondent has no power to make nomination to DCI under Section 3(e) of the Act, the nomination of fourth respondent by the second respondent, by the order dated 09.06.2009, is invalid and illegal. As the fourth respondent contested the election that took place for the post of President on 18.07.2009, representing his Membership under Section 3(e) of the Act, his election to the post of President also invalid. Further, according to the petitioner, since the election of the fourth respondent under Section 3(d) of the Act from the University was not notified as on 18.07.2009, his election under Section 3(d) could not save the election of the fourth respondent as President. It is also the case of the petitioner that the Act prohibits dual membership. Hence, the following issues arise for consideration:
1) Whether the second respondent is "State" under Section 3 of the Act having power to nominate the fourth respondent as a Member to DCI?
2) Whether dual membership is prohibited under the Act ?
3) Whether notification of election / nomination of members under Section 3 of the Act is mandatory for a member to become a member of DCI?
4) If the nomination of the fourth respondent under Section 3(e) of the Act is invalid, could it affect his election to the office of President on 18.07.2009?ISSUE NO. 1
28.It is not in dispute that as per the minutes of the meeting of the 118th Session of the DCI held on 18 and 19/07/2009 states that the fourth respondent would exercise his one vote for the election of President as a Member under Section 3(e) of the Act. The relevant passage found in the minutes is extracted hereunder:
"As stated above, Dr.Anil Kohli, President of the Council offered his resignation from the post of President to the Secretary. He, accordingly rendered his resignation from the office of the President of the Council to contest the election for the office of the President of the Council as a new member of the Council under Section 3(e) of the Dentists Act, 1948 and he will also exercise his one vote as a member under Section 3(e) of the Dentists Act, 1948."
29.According to the petitioner, the second respondent has no power to nominate the fourth respondent to DCI under Section 3(e) of the Act, whereas the case of the respondents is that the second respondent has power to nominate. Hence, it has to be resolved as to whether the second respondent is a "State" so as to exercise its power under Section 3(e) of the Act to nominate its member to DCI. In this regard, it is relevant to extract Section 3 of the Act whereunder the DCI has been constituted.
"3.Constitution and composition of Council The Central Government shall, as soon as may be, constitute a Council consisting of the following members, namely:-
(a) one registered dentist possessing a recognised dental qualification elected by the dentists registered in Part A of each [State] register;
b) one member elected from amongst themselves by the members of the Medical Council of India;
(c) not more than four members elected from among themselves, by -
(a) Principals, Deans, Directors and Vice-Principals of dental colleges in the States training students for recognised dental qualifications:
Provided that not more than one member shall be elected from the same dental college;
(b) Heads of dental wings of medical colleges in the States training students for recognised dental qualifications; ]
(d) one member from each University established by law in the States which grants a recognised dental qualification, to be elected by the members of the Senate of the University, or in case the University has no Senate, by the members of the Court, from amongst the members of the Dental Faculty of the University or in case the University has no Dental Faculty, from amongst the members of the Medical Faculty thereof;
(e) one member to represent [each State] nominated by the Government of each such State from among persons registered either in a medical register or a dental register of the State;] [Explanation. - In this clause, "State" does not include a Union territory;]
(f) six members nominated by the Central Government, of whom at least one shall be a registered dentist possessing a recognised dental qualification and practising or holding an appointment in an institution for the training of dentists in a [Union territory] and at least two shall be dentists registered in Part B of a [State] register;
[(g) the Director General of Health Services, ex officio:] Provided that pending the preparation of registers the [State] Governments may nominate to the first Council members referred to in parts (a) and (e) and the Central Government members referred to in part (f) out of persons who are eligible for registration in the respective registers and such persons shall hold office for such period as the [State] or Central Government may, by notification in the Official Gazette, specify."
The explanation to Section 3(e) of the Act makes it very clear that "State" does not include a "Union Territory". Thus, it has to be seen whether the second respondent is a "State" or "Union Territory".
30.The reference to Article 12 of the Constitution by the respondents in support of their contention that the second respondent is a State, has no merit. Article 12 of the Constitution is wide enough to include all public authorities for the purpose of enforcement of fundamental rights under Part III of the Constitution. That could not help to decide as to whether the second respondent is "State" or "Union Territory" for the purpose of Section 3(e) of the Act.
31.In this regard, Article 1 of the Constitution is extracted hereunder:
"1.Name and territory of the Union.- (1) India, that is Bharat, shall be a Union of States.
[(2) The States and the territories thereof shall be as specified in the First Schedule] (3) The territory of India shall comprise -
(a) The territories of the States;
[(b) the Union territories specified in the First Schedule; and]
(c) such other territories as may be required."
32.The First Schedule contains the list of States and list of Union Territories. While the second respondent is not shown in the list of States under the First Schedule, the second respondent is shown at Serial No.1 in the list of Union Territories.
33.The respondents heavily relied on Section 3(58) of the General Clauses Act in support of their contention that the second respondent is State. Section 3(58) of the General Clauses Act is extracted hereunder:
"[(58) "State"-
(a) as respects any period before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean a Part A State, a Part B State or a Part C State; and
(b) as respects any period after such commencement, shall mean a State specified in the First Schedule to the Constitution and shall include a Union territory;]"
34.The definition made under the General Clauses Act could be applied, if there is nothing repugnant to the definition under Section 3(58) is provided in a particular enactment. But, as stated above, Section 3(e) of the Act contains a repugnant provision to Section 3(58) of the General Clauses Act. The explanation to Section 3(e) of the Act makes it very clear that the State does not include a Union Territory.
35.In fact, on considering Section 3(58) of the General Clauses Act, a Division Bench of the Kerala High Court in DR.JOSEPH ISSAC VS. UNION OF INDIA AND OTHERS in W.A.NO.808 OF 2010 (decided on 21.07.2010) categorically held that the second respondent is a Union Territory and not a State. Paras 19 and 21 of the said judgment are extracted hereunder:
"19.The expressions either "State" or "Union Territory" are not defined under the Act. Article 1 of the Constitution of India declares "India" to be a "Union of States" and, further, declares that the territory of India is comprised of the territories of the States and the Union territories specified in the First Schedule to the Constitution. In Schedule 1 of the Constitution, there are two parts. Part I deals with the various States and Part II deals with the Union Territories. Part VI of the Constitution deals with the "States" and their constitutional set up, whereas Part VIII deals with the Union Territories and their constitutional set up. The General Clauses Act, 1897, which is applicable both to the interpretation of the Constitution and the Dentists Act, defines the expression "State" under Section 3(58) as follows:
"(58) "State"-
(a) as respects any period before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall mean a Part A State, a Part B State or a Part C State; and
(b) as respects any period after such commencement, shall mean a State specified in the First Schedule to the Constitution and shall include a Union territory;"
It can be seen from the above definition that subsequent to the Constitution Seventh Amendment Act, 1956, the expression "State" occurring in any Central Act is to be understood to mean not only a "State" specified in the 1st Schedule to the Constitution, but also Union Territories specified in the said Schedule. However, the opening clause of Section 3 of the General Clauses Act declares that the definitions contained in the said Act are valid so long as there is nothing repugnant in the subject or context of the enactment in which those expressions are used. Coming to the Dentists Act, Section 3(e) Explanation makes it explicit that in the context of Section 3(e) of the Act, the expression "State" occurring therein does not include a Union Territory. In other words, the legislature did not intend that the definition of the expression "State" occurring in the General Clauses Act should govern the meaning of the expression "State" occurring in Section 3(e) of the Act.
20.....
21.Comiing to the 2nd limb of the submission made by the learned counsel for the petitioner assuming for the sake of argument that the Government of India had opined in the year 2001 that the National Capital Territory of Delhi is to be considered as "State" for the purpose of Section 3(e) of the Act, nothing prevents the Government of India from reconsidering its understanding of the law. The issue is whether the current understanding of the Government of India that the National Capital Territory of Delhi is "Union Territory" is in accordance with the scheme and language of the Dentists Act, 1948 or not? We have already noted earlier that for the purpose of the Constitution, the National Capital Territory of Delhi is a Union Territory, as declared under Article 1 of Schedule 1 to the Constitution of India. We also noted that the definition of the expression "State" occurring in the General Clauses Act is to be applied to such an expression occurring in other enactments of the Parliament subject to the condition that there is nothing repugnant or inconsistent with the subject or context of the enactment in which such expression occurs. In the context of both Sections 3(e) and 3(f) of the Dentists Act, the expression "Union Territory", in our opinion, must be understood in the sense it is understood in the Constitution, but not under the General Clauses Act. The fact that the Government of India at an earlier point of time wrongly understood the expression "State" occurring in Section 3(e) of the Act as "including the National Capital Territory of Delhi" does not make such understanding binding for all time on the Government of India and certainly does not bind this Court while examining the legality of Exhibit P1."
36.Hence, this concludes the issue that the second respondent is only a Union Territory and has no power under Section 3(e) of the Act to nominate a person as Member to DCI.
37.However, the explanation to Article 54 of the Constitution, 69th amendment to the Constitution and the notification dated 07.11.2008 issued by the first respondent under Article 239 of the Constitution were not considered by the Kerala High Court in the aforesaid judgment. Those provisions are considered hereunder.
38.Article 54 of the Constitution relates to election of President. Article 55 of the Constitution relates to the manner of election of President. Articles 54 and 55 of the Constitution are extracted hereunder:
"54.Election of President.- The President shall be elected by the members of an electoral college consisting of -
(a) the elected members of both Houses of Parliament; and
(b) the elected members of the Legislative Assemblies of the States.
[Explanation In this article and in article 55, "State" includes the National Capital Territory of Delhi and the Union Territory of Pondicherry.]
55.Manner of election of President. - (1) As far as practicable, there shall be uniformity in the scale of representation of the different States at the election of the President.
(2) For the purpose of securing such uniformity among the States inter se as well as parity between the States as a whole and the Union, the number of votes which each elected member of Parliament and of the Legislative Assembly of each State is entitled to cast at such election shall be determined in the following manner.-
(a) every elected member of the Legislative Assembly of a State shall have as many votes as there are multiples of one thousand in the quotient obtained by dividing the population of the State by the total number of the elected members of the Assembly;
(b) if, after taking the said multiples of one thousand, the remainder is not less than five hundred, then the vote of each member referred to in sub-clause (a) shall be further increased by one;
(c) each elected member of either House of Parliament shall have such number of votes as may be obtained by dividing the total number of votes assigned to the members of the Legislative Assemblies of the States under sub-clauses (a) and (b) by total number of the elected members of both Houses of Parliament, fractions exceeding one-half being counted as one and other fractions being disregarded.
(3) The election of the President shall be held in accordance with the system of proportional representation by means of the single transferable vote and the voting at such election shall be by secret ballot.
[Explanation.- In this article, the expression "population" means the population as ascertained at the last preceding census of which the relevant figures have been published:
Provided that the reference in this Explanation to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year [2026] have been published, be construed as a reference to the 1971 census.]"
39.While the case of the petitioner is that the second respondent is State for the purpose of Articles 54 and 55 of the Constitution, the case of the respondents is that in view of explanation to Article 54, the second respondent is a "State" for all purposes. In my view, the learned senior counsel for the petitioner is correct in his submission that the second respondent is a "State" only for the purpose of Articles 54 and 55 of the Constitution.
40.The Constitution Bench judgment of the Honourable Apex Court in New Delhi Municipal Council vs. State of Punjab reported in 1997 (7) SCC 339 declared that the second respondent continues to be a Union Territory, even after the 69th amendment to Constitution provides Legislative Assembly for the NCT of Delhi. The statement of objects and reasons for 69th amendment to the Constitution makes it very clear that the second respondent continues to be a Union Territory even after 69th amendment to the Constitution. The statement of objects and reasons for amending the Constitution is extracted hereunder:
"The question of re-organisation of the Administrative set-up in the Union Territory of Delhi has been under the consideration of the Government for some time. The Government of India appointed on 24.12.1987 a Committee to go into the various issues connected with the administration of Delhi and to recommend measures inter alia for the streamlining of the administrative set-up. The Committee went into the matter in great detail and considered the issues after holding discussions with various individuals, associations, political parties and other experts and taking into account the arrangements in the national Capitals of other countries with a federal set-up and also the debates in the Constituent Assembly as also the reports by earlier Committees and Commissions. After such detailed inquiry and examination, it recommended that Delhi should continue to be a Union Territory and provided with a Legislative Assembly and a Council of Ministers responsible to such Assembly with appropriate powers to deal with matters of concern to the common man. The Committee also recommended that with a view to ensure stability and permanence the arrangements should be incorporated in the Constitution to give the National Capital a special status among the Union territories."
Thus, it is very clear that neither Article 54 of the Constitution nor 69th amendment to the Constitution would make the second respondent a "State" for the purpose of Section 3(e) of the Act.
41.The notification of the first respondent dated 07.11.2008 issued under Article 239(1) of the Constitution is extracted hereunder:
"Government of India Ministry of Home Affairs Notification New Delhi, the 7/11/2008 S.O. (E) In pursuance of clause (1) of article 239 of the Constitution, the President hereby directs that the Lieutenant Governor of the National Capital Territory of Delhi shall, subject to the control of the President and until further orders, also exercise the powers and discharge the functions of the State Government under the Dentists Act, 1948 (16 of 1948) and the rules made thereunder. "
42.In my view, as rightly contended by the learned senior counsel for the petitioner, the notification gives power to the second respondent to exercise certain powers, such as, withdrawal of recognition to institutions, appointment of Commission of enquiry, supervising the maintenance of various registers etc., under the Act and not for the purpose of Section 3(e) of the Act. As rightly contended by the learned senior counsel for the petitioner, if interpretation on the notification dated 07.11.2008 is understood as sought for by the respondents, the same would amount to amending Section 3(e) of the Act. Hence, I hold that the second respondent is not State and has no power to nominate a member under Section 3(e) of the Act to DCI. Accordingly, issue No.1 is answered against the respondents.
ISSUE NO. 2:
43.The nomination made by the second respondent in the order dated 09.06.2009 under Section 3(e) of the Act is invalid. If the matter rests at this juncture, the writ petitioner could succeed. But it is no so.
44.The petitioner does not dispute the election of the fourth respondent to the DCI under Section 3(d) of the Act from the faculty of Dental Sciences of the University on 08.04.2009, as seen from para 9 of his affidavit filed in support of the writ petition. The relevant passage from para 9 of his affidavit is extracted hereunder:
"9) Probably apprehending the legal objections the fourth respondent managed to "get elected" as a member from Baba Farid University of Health Sciences, Faridkot (hereinafter called the University) on 18.12.2009 while functioning as the President of Dental Council of India........."
45.But, the learned senior counsel for the petitioner sought to argue that the scheme and spirit of the Act prohibits dual membership. According to the learned senior counsel, permitting dual membership / multiple membership in DCI goes against the very Section 3 of the Act. While Section 3 of the Act provides for membership through nomination / election from various sources, one person could not be a member under various categories. The learned senior counsel described the same as "undemocratic".
46.On the other hand, the learned senior counsels representing the respondents argued that there is no prohibition for dual membership in the Act, while there is a specific prohibition in the Indian Medical Council Act, 1956.
47.The DCI is clothed with enormous powers. It is created to regulate the profession of dentistry in the entire country. The prior permission of the Government of India as contemplated under Section 10-A of the Act for establishment of an Institution for imparting training for grant of recognized dental qualification is required to be given only in consultation with the Dental Council of India. Further, in the days of liberalized economy, now private players have come into existence all over India. Therefore, it is all the more now relevant to have more effective and democratic functioning of the DCI.
48.In this case, as on 18.07.2009, the fourth respondent had multiple membership viz., (i) he was a member nominated under Section 3(f) of the Act in 2004 for a period of five years i.e. from 21.10.2004 to 20.10.2009 (ii) he was nominated under Section 3(e) of the Act from 09.06.2009 to 31.10.2011 (iii) he was elected on 08.04.2009 under Section 3(d) of the Act for a period of five years.
49.While nominating the fourth respondent by the order dated 09.06.2009, the second respondent directed the fourth respondent to relinquish one membership either from the quota of the second respondent or the first respondent. Thus, the second respondent understood that the Scheme of the Act does not permit dual membership. But, a contrary view / argument was advanced before this Court. The relevant passage from the letter dated 09.06.2009 of the second respondent, in this regard, is extracted hereunder:
"....... Now, the Government of National Capital Territory of Delhi has decided to nominate Dr.Anil Kohli, whose bio data is enclosed herewith for appointment as Member of Dental Council of India to represent the NCT of Delhi for the remainder of term of Dr.Anil Chandans i.e. up to 31.10.2011. Further Dr.Anil Kohli will relinquish one Membership either from the quota of GNCTD or Central Govt., in the event of his being re-elected as President of the Council. You are requested to notify the appointment."
It seems that the second respondent was not aware of the election of the fourth respondent under Section 3(d) of the Act on 08.04.2009. The second respondent sought the fourth respondent to hold only one membership. However, it is quite surprising that the holding of the membership in DCI is related to re-election as President.
50.The letter dated 29.11.1967 of the first respondent to the fifth respondent also states that no one can have dual membership. The said letter is extracted hereunder:
"Copy of letter No.F.3-3/67-MPT dated 29/11/67 from Government of India, Ministry of Health & Family Planning, New Delhi, to the Secretary, Dental Council of India, New Delhi.
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Subject: D.C.I. - Election of a member under section 3(d) of the Dentists Act, 1948 Casual vacancy vice Dr. S.J.Vazirani:
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With reference to the correspondence resting with your letter No.P-I-67/5022, dated the 9th November, 1967, on the subject mentioned above, I am directed to say that Dr.Joginder Singh, Professor and Head of the Department, Dental Wing, Government Medical College, Patiala, was elected as a member of the Dental Council of India under Section 3(d) of the Dentists Act, 1948, with effect from the 27th March, 1967 to fill the vacancy of Dr.S.J.Vazirani. It is seen that Dr.Joginder Singh was a sitting member of the Dental Council under section 3(c) of the Act and that his membership expired on the 31st July, 1967. Therefore, when he was elected under section 3(d) on 27th March, 1967 he was already a sitting member representing the constituency under section 3(c). The Act does not contemplate the election of one and the same person from two different constituencies. As such the election of Dr.Joginder Singh under section 3(d) on 27th March, 1967 was not in order. A fresh election to fill the vacancy of Dr.Vazirani would therefore appear to be necessary. I am to request that the position may kindly be examined and necessary action taken under advice to this Ministry."
51.However, in my view, there is no explicit prohibition of dual / multiple membership under the Act. If one member occupies membership under all the categories like in this case, that could defeat the very purpose of the Act. In our Country, there is no dearth of persons to occupy membership in the DCI.
52.While the first respondent took a stand in the aforesaid letter dated 29.11.1967 that dual / multiple membership is not permitted under the Act and the second respondent took a stand in the letter dated 09.06.2009 that dual membership is not permitted, the counter affidavits filed before this Court reflects a contra view. It is not known as to why the respondents 1 and 2 took such contra views. In fact, it came for condemnation by the Division Bench of the Kerala High Court in the aforesaid judgment. While holding that the second respondent is Union Territory for the purpose of Section 3(e) as well as under Section 3(f) of the Act, the Kerala High Court found that one member was frequently appointed by the respondents 1 and 2 under Section 3(f) and (e) of the Act and such an appointment is arbitrary. Before the Kerala High Court, the first respondent took a stand that the nomination of a member made as on 15.02.2010 under Section 3(f) of the Act was on the basis that the second respondent is a Union Territory. But herein, the first respondent took a stand that the second respondent is a "State". Is it not obviously to support the candidature of an individual? The same thing has happened before the Kerala High Court. The first respondent should not take such a stand relating to dual / multiple membership and on other issues, such as, whether the second respondent is Union Territory or State. In my view, it is high time that it should be made explicitly clear as made in Section 5(2) of the Indian Medical Council Act, 1956 prohibiting dual membership, by amending the Act.
53.In this regard, Section 5 of the Indian Medical Council Act, 1956 is extracted hereunder:
"5.Restrictions on nomination and membership. - (1) No person shall be eligible for nomination under clause (a) of sub-section (1) of section 3 unless he possesses any of the medical qualifications included in the First and Second Schedules, resides in the State concerned, and, where a State Medical Register is maintained in that State is enrolled on that register.
(2) No person may at the same time serve as a member in more than one capacity."
54.Therefore, the first respondent should take it with all seriousness for bringing an amendment to the Dentists Act, 1948 also, in line with Section 5(2) of the Indian Medical Council Act, 1956, so that dual membership is prohibited. Here, it is not even a dual membership. The petitioner on one occasion possessed three membership i.e. multiple membership. Such thing is not an healthy trend in the functioning of the institution such as the fifth respondent.
55.In my view, there is no statutory prohibition for holding dual membership. Hence, the submissions of the learned senior counsel for the petitioner is rejected in this regard. But as stated above, permitting dual / multiple membership would defeat the very purpose of the Act and the first respondent should take efforts to bring an amendment in line with Indian Medical Council Act, 1956. Issue No.2 is answered accordingly.
ISSUE NO.3
56.The learned senior counsel for the petitioner sought to argue that though the fourth respondent could be a member under Section 3(d) of the Act, the same was not notified as on 18.07.2009, when the election took place, his election to the office of President is invalid, as his membership under Section 3(e) of the Act was bad. Though at first blush the argument looks attractive, on scrutiny, there is no merit in the submission.
57.As rightly contended by the learned senior counsel for the fifth respondent, Section 6 of the Act makes it very clear that as soon as the person is elected or nominated, he is entitled to participate in the proceedings of the DCI, without any requirement of notification. Neither the Act nor the Rules and Regulations made thereunder provide for notification of nomination / election under Sections 3(c) (d) and (f) of the Act and. In this regard, Section 6 of the Act is extracted hereunder:
"6.Term of office and casual vacancies. - (1) Subject to the provisions of this section an elected or nominated member shall hold office for a term of five years from the date of his election or nomination or until his successor has been duly elected or nominated, whichever is longer:
[Provided that a member nominated under clause (e) or clause (f) of section 3, shall hold office during the pleasure of the authority nominating him.] (2) An elected or nominated member may at any time resign his membership by writing under his hand addressed to the President, and the seat of such member shall thereupon become vacant.
(3) An elected or nominated member shall be deemed to have vacated his seat if he is absent without excuse, sufficient in the opinion of the Council, from three consecutive ordinary meetings of the Council or, in the case of a member whose name is required to be included in a [State] register, if his name is removed from such register, or if he has been elected under clause (c) of section 3 [if he ceases to hold his appointment as the [Principal, Dean, Director or Vice-Principal] of a dental college, or as [the Head of the dental wing] of a medical college], or if he has been elected under clause (b) or (d) of section 3, if he ceases to be a member of the Medical Council of India or [the Dental or Medical Faculty] of the University, as the case may be.
(4) A casual vacancy in the Council shall be filled by fresh election or nomination, as the case may be, and the person elected or nominated to fill the vacancy shall hold office only for the remainder of the term for which the member whose place he takes was elected or nominated.
(5) Members of the Council shall be eligible for re-election or re-nomination.
(6) No act done by the Council shall be called in question on the ground merely of the existence of any vacancy in, or defect in the constitution of, the Council."
58.Further, as rightly contended by the learned senior counsel for the fifth respondent, notification of election / nomination is not mandatory for participating in the proceedings of the DCI. Such a notification is required only in the case of Section 3(a) of the Act.
59.In this regard, the relevant passage from the judgment of the Delhi High Court in DR.H.R.PREM SACHDEVA AND OTHERS VS. UNION OF INDIA AND OTHERS in W.P.No.3021 of 1995 (decided on 31.08.1995) is extracted hereunder:
"...... We, therefore, hold that no Gazette notification is necessary under the Regulations for a person nominated / elected under the provisions of clauses (b), (c), (d) and (e) of Section 3 and that they could act as members immediately on their nomination / election. In the light of the aforesaid view that we have taken the members who have been nominated under clauses (c), (d) and (e) of section 3 of the Act would continue to be members of the Council even if in their case no notification is issued by the Central Government and published in the Gazette. In our view, in such cases a notification by the Council shall be sufficient."
60.I am of the view that notification of Membership is only a formality with regard to the constitution of DCI, barring notification in the case of Section 3(a) of the Act. Notification is not mandatory. Only such a view would advance the cause of the nomination/election to DCI. Otherwise, the elected / nominated Members could not discharge their functions. The plain reading of Section 6 of the Act also leads to the said conclusion. Accordingly, issue No.3 is answered.
ISSUE NO.4
61.The learned senior counsel for the petitioner submitted that since the nomination of the fourth respondent under Section 3(e) of the Act became invalid, his election as President has become invalid. The election of the fourth respondent under Section 3(d) of the Act on 08.04.2009 could be of no avail. I am not in agreement with the submissions made by the learned senior counsel for the petitioner. Had he not been elected under Section 3(d) of the Act on 08.04.2009, it could have been a different matter. In view of his election under Section 3(d) of the Act on 08.04.2009, the election of fourth respondent to the post of President is valid. The election took place on 18.07.2009, while he was elected under Section 3(d) of the Act on 08.04.2009.
62.As rightly contended by the learned senior counsels for the respondents 4 and 5 that holding the election of the fourth respondent to the post of President on 18.07.2009 was invalid, in view of his nomination under Section 3(e) of the Act was invalid, could be a futile exercise, as he was elected as a member to DCI on 08.04.2009 under Section 3(d) of the Act. The judgments reported in 1991 (1) MLJ 451; AIR 1976 ORISSA 181 and AIR 1975 DELHI 66 relied on by the learned senior counsels for the respondents 4 and 5 are squarely applicable to the facts of this case. As per the Full Bench judgment of Delhi High Court reported in AIR 1975 DELHI 66, writ of Quo-Warranto ousting the fourth respondent from the office of the President could be futile, as he was elected as a Member to the DCI under Section 3(d) of the Act. The said judgment was also considered in detail by the Division Bench of the Orissa High Court in the judgment reported in AIR 1976 ORISSA 181.
63.In this regard, para 13 of the judgment reported in AIR 1976 ORISSA 181 is extracted hereunder:
"13.In AIR 1954 All 227 (FB) (Hari Shankar Prasad Gupta v. Sukhdeo Prasad) the writ of quo warranto was refused as the holder of the office though not qualified on the date of his appointment thereto acquired the necessary qualification during the pendency of the writ petition. In AIR 1975 Delhi 66 (FB), (P.L. Lakhanpal v. Ajit Nath Ray, Chief Justice of India, New Delhi) the petitioner prayed for a writ of quo warranto against the present Chief Justice of India on the ground that his Lordship's appointment was in violation of the provisions of Article 124(2) of the Constitution as the mandatory consultation was not made and as the rule of seniority which inheres in that Article was not followed. After the appointment was made, Justices J.M.Shelat, K.S.Hegde and A.N.Grover who were senior to the present Chief Justice resigned their office as Judges of the Supreme Court and by the time the writ petition was filed, Justice A.N. Ray became the seniormost puisne Judge. In the circumstances, the Full Bench held that the issue of a writ of quo warranto would be futile because as a result of the resignations of the Judges who were senior to him, Justice A.N.Ray became the seniormost puisne Judge and he was not only eligible for reappointment as Chief Justice of India but was entitled to be so reappointed and hence a writ of quo warranto ousting his Lordship from the office of the Chief Justice of India would be futile and such a writ could not be issued. We are in respectful agreement with the views expressed in these decisions."
64.In this regard, para 11 of the judgment of this Court in DR.S.BALASUNDARAM AND ANOTHER VS. DR.S.MAHADEVAN reported in 1991 (1) MLJ 451 is extracted hereunder:
"11..... The Court's power under Art.226 of the Constitution of India to inquire into the facts on which a writ of certiorari and consequential mandamus is asked for is not different from its jurisdiction to inquire into such facts in a case in which a writ of quo warranto is asked for. A Court may refuse to issue a writ of quo warranto if it is found that the person whose appointment is under challenge could be re-appointed under the law in force at the time of the issuance of the writ or on account of his becoming qualified for such appointment on that day............"
65.The learned senior counsel sought to distinguish those judgments on the ground that those judgments did not involve election to the office that was in issue. He relied on Section 7 of the Act and submitted that once it was held that the membership of the fourth respondent under Section 3(e) of the Act was invalid, his election to the office of President under Section 3(e) could become invalid and that unless he was re-elected, he could not hold the office of the President. I am not in agreement with his submissions. His election on 18.07.2009 is saved in view of his election to DCI under Section 3(d) of the Act from 08.04.2009, though his membership to DCI under Section 3(e) by the order dated 09.06.2009 of the second respondent was declared as invalid.
66.The Division Bench of Patna High Court in SUKHDEO NARAYAN VS. MAHADEVANANDA GIRI reported in AIR 1961 PATNA 475 also applied the theory of futility even in the case of election matters. Hence, I reject the contentions raised by the learned senior counsel for the petitioner. However, I make it clear that since the fourth respondent sought election to the office of the President on 18.07.2009, up to 31.10.2011 as his Membership under Section 3(e) of the Act expires on 31.10.2011, the fourth respondent could seek re-election as per Section 7 of the Act before the said date so as to continue thereafter, otherwise he could vacate the office. That is, he could not cling on to the office of the President up to 07.04.2014 based on his election to DCI as Member under Section 3(d) of the Act on 08.04.2009.
67.In the result, the writ petition is dismissed. No costs. Consequently, connected miscellaneous petitions are closed.
04/10/2010 Index : Yes Internet : Yes TK To
1.The Secretary The Union of India Ministry of Health and Family Welfare Nirman Bhavan, New Delhi.
2.The Chief Secretary GNCT of Delhi, Delhi Secretariat, New Delhi 110 001.
3.The Tamil Nadu State Dental Council Arihant Majestic Towers, 5-0-3, 216, J.N.Salai, Koyambedu, Chennai 600 107.
4.Dr.Anil Kohli President - Dental Council of India AIWAN E GALIB Marg, Kotla Road, New Delhi.
5.The Secretary Dental Council of India AIWAN E GALIB Marg, Kotla Road, New Delhi.
D.HARIPARANTHAMAN, J.
TK PRE-DELIVERY ORDER MADE IN W.P.NO.5102 OF 2010 04 / 10 / 2010