Kerala High Court
Ramesan vs Dental Council Of India on 24 January, 2002
Author: B.N. Srikrishna
Bench: B.N. Srikrishna, G. Sivarajan
JUDGMENT B.N. Srikrishna, C.J.
1. These two appeals arise out of a common judgment of the learned Single Judge dated 30.3.1995 dismissing O.P. Nos. 13105 and 13131 of 1994. The facts are identical; the question of law is the same; the judgment is common. Hence, it would be convenient to dispose of these two appeals by a common judgment.
2. For the purpose of discussing the legal issues we shall take the facts in W.A. No. 600 of 1995.
3. The appellant hails from Varkala in Thiruvananthapuram District. He had his education in the State of Madhya Pradesh. He applied for and got registration in Part B of the Register of Dentists maintained by Madhya Pradesh State Dental Council under Section 33(1)(b) of the Dentist Act, 1948 (hereinafter referred to as 'the Act'). He had actually started his practice as Dentist on 1.11.1974 and his name was included in the register of Dentists first prepared in the Madhya Pradesh State and published by the State Government under Section 32(2) of the Act. The name of the appellant is at Sl. No. 341 in Part B register which was notified in the Madhya Pradesh official Gazette dated 13.4.1979. On 5.3.1993, the appellant submitted an application under Section 46A of the Act accompanied by clearance certificate No. 56 dated 13.1.1993 to the first respondent for transfer of his registration from Part B of Madhya Pradesh State Dentists' Register to Part B of Kerala State Dentists' Register as by then he had shifted his practice from Madhya Pradesh to his native place at Varkala. The Dental Council made an order dated 7.9.1993 (Ext. P3) and forwarded it to the Registrar, Kerala State Dental Council (second respondent before) requesting him to transfer the registration of the appellant under Section 46A of the Act from Part B of Madhya Pradesh State Dentist's Register to Part B of Kerala State Dentists' Register. A copy of that letter was simultaneously forwarded to the Madhya Pradesh Dental Council for deleting the name of the appellant from the register maintained in Madhya Pradesh. The appellant's application was rejected by the second respondent by the order dated 27.7.1994 (Ext. P6). The reason given in the orders is that the Kerala Dental Council at its meeting held on 26.6.1994 had examined the matter, but as a matter of fact, the registration under Part B was stopped on 15.5.1976 and after that date no registration under Part B was being issued by the Kerala State Dental Council. If the registration under Part B of the Madhya Pradesh State Council pertaining to the appellant was transferred to the Kerala State, more registrations would have to be given under Part B in effect. The Kerala Dental Council was not, therefore, in favour giving new registration under Part B. Hence, the request for transfer under Part B was refused. Being aggrieved by this order, petitioner filed O.P. No. 13131 of 1994 to direct the Kerala Dental Council to grant transfer of his registration from Madhya Pradesh State Dentist Register to Kerala State Dentist Register. Similar is the case of the other Appellant.
4. The learned Single Judge, by the impugned judgment, dismissed the Original Petitions. Hence, the appeals.
5. The Dentist Act, 1948 was enacted to make provisions for the regulation of the profession of Dentists and for that purpose to constitute a Dental Council. Apart from setting up the Dental Council for regulating the profession of Dentists, it also provides for registration of Dentists. Chapter IV deals with registration of Dentists. Sub-section (1) of Section 31 requires the State Government to cause to be prepared in the manner provided a register of dentists for each State. A duty in cast on the State Dental Council under Sub-section (3) of Section 31 to maintain a register in two parts, A and B. Part A would contain registration of persons possessing recognised dental qualifications. Part B would contain the registration of persons not possessing such qualifications. Certain particulars, as prescribed in Sub-section (4) of Section 31, are to be maintained in the register. Section 32 of the Act enjoins upon the State Government to appoint a date on or before which the application for registration shall be made to the Registration Tribunal. The Registration Tribunal is required to follow certain procedure prescribed in the Section and finalise the names of dentists to be included in the register. The date is of some relevance because that is the cut-off date for inclusion of names of the existing Dentists for the purpose of first preparing the register of Dentists. Sub-section (4) of this section requires the Registrar to publish the names of the Dentists incorporated in the first prepared register of Dentists. There is provision for objections thereto and manner for determining disputes with regard to the particulars of the published first register. Section 33 of the Act provides for the qualifications necessary for entry in the first preparation of register. A person is entitled to have his name entered on the register when it is first prepared, if he resides or carries on the profession of dentistry in that State and, if he (a) holds a recognised dental qualification, or (b) does not hold such a qualification, but being a citizen of India has been engaged in practice as a dentist as his principal means of livelihood for a period of not less than five years prior to the date appointed under Sub-section (2) of Section 32. There are certain other provisions in the Act which need not detain us.
6. Section 34 deals with registration after the date appointed under Sub-section (2) of Section 32. In order to get registration after the date appointed under Section 32(2), a person must reside or carry on profession of dentistry in the State and (a) hold a recognised dental qualification, or (b) without holding such a qualification, but being a citizen of India, has been engaged in practice as a dentist as his principal means of livelihood for a period of not less than two years prior to the date appointed under Sub-section (2) of Section 3, and has passed within a period of ten years after the said date, an examination recognised for this purpose by the Central Government. We are not concerned with the rest of the provisions in Section 34, nor with the other provisions in Chapter IV.
7. We then come to Section 46A which provides for transfer of registration. This Section reads as under:
"46A. Transfer of registration.- Where a dentist registered in one State is practising dentistry in another State, he may, on payment of the prescribed fee which shall not exceed the renewal fee for registration in such other State, make an application in the prescribed form to the Council for the transfer of his name, from the register of the State where he is registered, to the register of the State in which he is practising dentistry, and on receipt of any such application, the Council shall, notwithstanding anything contained elsewhere in this Act, direct that the name of such person be removed from the first mentioned register and entered in the register of the second mentioned State and the State Councils concerned shall comply with such directions:
Provided that such a person shall be required to produce a certificate to the effect all dues in respect of his registration in the former State have been paid;
Provided further that where any such application for transfer is made by a dentist against whom any disciplinary proceeding is pending or where for any other reason it appears to the Council that the application for transfer has not been made bona fide and the transfer should not be made, the council may, after giving the dentist a reasonable opportunity of making a representation in this behalf, reject the application".
We notice that Section 46A does not seem to leave much discretion to the Dental Council in the matter of registration. In our view, therefore, once the question has been examined by the Dental Council of India at the national level, and the Dental Council of India directs that the name of a person be removed from the Dentist's Register in any State and transferred to the register of any other State, notwithstanding anything contained elsewhere in the Act, the State Council is obliged to comply with such a direction. We are, therefore, surprised that, inspite of a clear direction in Section 46A, the State Council has taken a view which is neither consistent with the Act, nor otherwise reasonable.
8. The appellants were both registered in Part B of the Madhya Pradesh State Register of Dentists and they were practising there. They made applications in the prescribed form to the Kerala State Dental Council for transfer of their names to the register in Part B maintained by them and they have also paid the fees. The only other thing that they should have done was to produce a certificate to the effect that all dues in respect of the registration in Madhya Pradesh State have been paid by them. It is nobody's case that there is any disciplinary proceeding pending, nor is it pointed out to us that the applications for transfer were not made bona fide or that the transfer should not be made for any other valid and substantial reason. The only reason indicated is in the order at Ext. P6, which, according to us, is wholly arbitrary and unsustainable.
9. Both the appellants were included in Part B register which was first prepared and published in the Madhya Pradesh official Gazette dated 13th April, 1979. While the name of the appellant in W.A. No. 600 of 1995 (Ramesan Velayudhan) is at Sl. No. 341, the name of the appellant in W.A. No. 597 of 1995 (P.V. Prasannan) is at Sl. No. 329, both in Part B register which was first published on the date as indicated. Thus, it appears to us that both the appellants were entitled to have their registrations transferred to the State of Kerala for being registered on the Part B register maintained by the Kerala State Dental Council by the reason of Section 46A provided they fulfil the conditions prescribed by the said section. The stand taken by the Kerala State Dental Council is unwarranted by the provisions of the Act. Their stand is that, after a particular date, the State Dental Council had stopped granting registration in Part B and, therefore, the transfer sought for could not be granted. We are not concerned with the correctness or legality of the decision of the Kerala State Dental Council in stopping grant of registration in Part B on and from any particular date. The applications made by the appellants were obviously not for a registration subsequent to the date appointed under Sub-section 2 of Section 32. Their cases were not covered by Section 34, but squarely covered by Section 32 read with Sections 33 and 46A of the Act. The reason given by the Kerala State Dental Council for refusing to register the names of the appellants is, therefore, totally without any basis in law and appears to be a wholly arbitrary decision. On this ground alone, the appellants are entitled to succeed.
10. In the result, we set aside the judgment of the learned Single Judge in O.P. Nos. 13131 and 13105 of 1994 and direct the second respondent Kerala State Dental Council to register the names of the appellants in Part B of the register maintained by it subject to production of certificates to the effect that all dues in respect of their registration in the State of Madhya Pradesh have been paid.
Writ Appeals are accordingly allowed. No order as to costs.