Tripura High Court
Ms. Malabika Shil vs The Tripura Public Service Commission on 27 November, 2019
Equivalent citations: AIRONLINE 2019 TRI 190, 2020 LAB IC 266
Author: Arindam Lodh
Bench: Arindam Lodh
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HIGH COURT OF TRIPURA
AGARTALA
WP(C) NO.1310 OF 2017
Ms. Malabika Shil,
D/O Shri Ranjit Kumar Shil
R/O Badharghat, Agartala,
West Tripura, Pin-799 003.
----Petitioner
Versus
1. The Tripura Public Service Commission,
Represented by its Secretary,
Agartala, West Tripura, Pin-799 001.
2. The Secretary,
Tripura Public Service Commission,
Agartala, West Tripura, Pin-799 001.
3. The State of Tripura,
Represented by the Secretary/Commissioner,
Department of Health & Family Welfare,
Government of Tripura,
New Secretariat, Capital Complex, Pin-799 010.
4. Secretary/Commissioner,
Department of Health and Family Welfare,
Government of Tripura, New Secretariat,
Capital Complex, Pin 799 010.
------Respondents
For petitioner(s) : Mr. Kohinoor N. Bhattacharjee, Advocate For Respondent(s) : Mr. P. Dutta, Advocate Mr. D. Bhattacharjee, G.A. Mr. T. Debbarma, Advocate Date of hearing : 25.09.2019 Date of delivery of Judgment & Order : 27.11.2019 Whether fit for reporting : YES HON'BLE MR. JUSTICE ARINDAM LODH JUDGMENT & ORDER By means of filing the present writ petition, the petitioner, Smt. Malabika Shil has challenged the legality and propriety of Notification dated 09.12.2016 of reference Page - 2 of 25 No.F.11(26-17)-Rectt./TPSC/2013 and Notification dated 23.06.2017 of reference No.F.11(26-17)-Rectt./TPSC/2013.
2. The brief facts, arising out of the writ petition are that admittedly the petitioner had successfully completed her final BDS Examination in the year 2015. Having obtained the degree of BDS, the petitioner, pursuant to an Advertisement No.06/2016 dated 30.06.2016 for appointment to the post of Dental Surgeon, Ex- cadre, had submitted application for the said post. The relevant portion of the advertisement related to the post of Dental Surgeon, in Item No.01 is extracted here-in-below, for convenience:
"Item No.01:- 34(thirty-four)(SC-5, ST-10 & UR-19) permanent posts of Dental Surgeon, Ex-cadre Group-A Gazetted under Health and Family welfare Department, Government of Tripura in the scale of pay Rs. 15,600-39,100/- PB-4 with Grade Pay of Rs.5,400/-.
Educational Qualifications:
(a) Essential:- A recognized Dental qualification included in Part-I & III of the Schedule of the Dentist Act, 1948, as appended to this schedule.
(b) Preferable: (i) Recognized post-graduate degree as appended to this schedule.
(ii) Working knowledge of Bengali."
3. The petitioner had appeared at the screening(written) test and thereafter appeared for interview. Accordingly, the result was published by Notification dated 13.04.2017, in which the name of the petitioner was found at Sl. No.15 in order of merit, out of 23 selected and recommended candidates.
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4. The respondents No.1 and 2, i.e. the TPSC had issued a Notification dated 23.06.2017, wherein the recommendation in respect of the petitioner for being appointed as Dental Surgeon, Ex-cadre was cancelled on the ground that as on the last date of receipt of application i.e. 30.07.2016 she was not having the required Registration Certificate for being eligible to get appointed to the post of Dental Surgeon, Ex-cadre. The said Notification dated 23.06.2017 is reproduced here-in-below, for convenience, in extenso:
"NOTIFICATION No.F.11(26-17)-Rectt./TPSC/2013 Dated, Agartala, the 23rd June, 2017 Reference:- Advertisement No.06/2016(Item No.01), dated 27.06.2016 Notification dated 07.11.2016, Notification dated 09.12.2016, Notification dated 17.03.2017 and Notification dated 13.04.2017.
Whereas, Dr. Malabika Shil D/O- Ranjit Kumar Shil, Sripalli, Badharghat, PO-Madhuban, Dukli, PS-A. D Nagar, Dist.-West Tripura, Pin -700003, Roll No.00163(UR) was recommended by the Commission for the Post of Dental Surgeon, Ex-cadre under Health & Family Welfare Department, Govt. of Tripura;
And Whereas, on further scrutiny it is found that Dr. Malabika Shil D/O- Ranjit Kumar Shil, Sripalli, Badharghat, PO- Madhuban, Dukli, PS- A.D Nagar, Dist.-West Tripura, Pin- 799003, Roll No. 00163(UR) does not possess required qualification to be eligible on the last date of receipt of application(i.e. 30.07.2016). As per section 46 & 48 of Dental Act 1948 and revised BDS course regulations, 2007, registration under Dental Council is compulsory for being eligible for the post of Dental Surgeon.
Now, therefore, the Commission is pleased to treat the recommendation in respect of Dr. Malabika Shil as cancelled.
Sd/-
(S. Riyan) Secretary, Tripura Public Service Commission"
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5. On 03.07.2017, the petitioner had submitted a representation to the Secretary, Tripura Public Service Commission, Agartala stating inter alia that being called on by the Health & Family Welfare Department for verification of all the relevant original documents, she had produced all the relevant documents, as sought for by the concerned authority, but, even after elapse of 3 months, she was not communicated about the latest status of her selection and appointment, neither from the TPSC nor from the Health & Family Welfare Department, Government of Tripura. In response to that representation, the Controller of Exams, Tripura Public Service Commission vide letter dated 05.07.2017 had informed the petitioner about the said notification dated 23.06.2017 cancelling her recommendation.
6. Here, it is pertinent to mention that the petitioner had received the Dentist Registration Certificate on 03.10.2016 having Registration No.057.
7. It is noticed that the respondent No.1 through its Secretary had issued a Notification dated 09.12.2016 under reference No.F.11(26-17)-Rectt./TPSC/2013 in reference to its Advertisement No.06/2016 dated 27.06.2016, wherein it is stated that the Health & Family Welfare Department, Govt. of Tripura by issuing a letter dated 07.12.2016 under Reference No.F.3(479)- HFW/2016 informed the TPSC that after completion of BDS/MDS Page - 5 of 25 Registration Certificate was essential for appointment to the post of Dental Surgeon.
8. In view of the said letter dated 07.12.2016, it appears that the TPSC had issued the said Notification dated 09.12.2016 stating inter alia that the candidates, who did not submit Registration Certificate on or before the closing of receipt of application i.e. 30.07.2016 will be summarily rejected.
From the said Notification dated 09.12.2016, it manifests that the recruitment rule for the post of Dental Surgeon, Ex-cadre under Health & Family Welfare Department, Government of Tripura did not contain any specific guideline for submission of Registration Certificate with application form.
For convenience, the said Notification dated 09.12.2016 may be reproduced here-in-below, in extenso:
"NOTIFICATION No.F.11(26-17)-Rectt./TPSC/2013 Agartala Dated, 9th December, 2016 Ref:- Commission's Advt.No.06/2016 dated, 27.06.2016.
The recruitment rule for the post of Dental Surgeon, Ex- Cadre under Health & Family Welfare Department, Govt. of Tripura contains no specific guide line for submission of registration Certificate with application form.
The Health & Family Welfare Dept. vide its letter No.F.3(479)-HFW/2016 dated 07.12.2016 informed that Registration Certificate after completion of BDS/MDS is essential for appointment to the post of Dental Surgeon.
It is for information of all concerned that the candidates who did not submit Registration Certificate along with the application form will be provisionally allowed to sit in the written screening test.
Page - 6 of 25 The candidates will have to submit Registration Certificate issued on or before the closing date of receipt of application i.e. 30.07.2016 during the interview process failing which his/her candidature will be summarily rejected.
Other terms and condition shall remain unchanged. For Further details please visit-wwe.tpsc.gov.in.
Sd/-
(S. Riyan) Secretary, TPSC"
9. Most importantly, it should be mentioned herein that the respondent No.3 through Director of Health Services, Government of Tripura had issued a Memo. dated 20.04.2017 in favour of the petitioner in view of her recommendation asking her to appear before the concerned person of the said Directorate on 24.04.2017(Monday) at 11.00 am along with the following documents in original for verification:
(i) Age proof certificate(Madhyamik Admit Card or equivalent certificate)
(ii) Mark Sheet of BDS/MDS
(iii) Internship Completion Certificate
(iv) Valid Dental Registration Certificate
(v) Citizenship Certificate/PRTC.
10. On the aforesaid facts, heard Mr. Kohinoor N. Bhattacharjee, learned counsel appearing for the petitioner and Mr. Paramartha Datta, learned counsel accompanied by Mr. Tanmoy Debbarma, learned counsel appearing for the respondents No.1 and 2(TPSC for short) and Mr. D. Bhattacharjee, learned G.A. appearing for the State respondents, i.e. respondents No.3 and 4.
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11. Mr. Kohinoor N. Bhattacharjee, learned counsel appearing for the petitioner contended that the Memo. dated 09.12.2016 is arbitrary, irrational and inconsistent to any legal sanction. Consequently, the learned counsel for the petitioner had criticized the issuance of Notification dated 23.06.2017 cancelling the recommendation of the petitioner by the TPSC. In support of his submission, Mr. Bhattacharjee, learned counsel drew the attention of this Court that in the Notification dated 09.12.2016 it was clearly written that the recruitment rule for the post of Dental Surgeon, Ex-cadre under Health & Family Welfare Department, Government of Tripura i.e. respondents No.3 and 4 of this writ petition did not contain any specific guideline for submission of Registration Certificate with application form. It is further submitted that the letter dated 07.12.2016 made it clear that Registration Certificate after completion of BDS/MDS was only essential for appointment to the post of Dental Surgeon and there was no embargo for his or her selection against any post. The learned counsel, next contended that the petitioner had received Registration Certificate much prior to the issuance of the said Notification dated 09.12.2016. The petitioner had received the Registration Certificate on 03.10.2016. Furthermore, the respondents No.3 and 4 had asked the petitioner to appear before a competent authority along with all the relevant particulars, including the Registration Certificate, and accordingly, she Page - 8 of 25 appeared before the competent authority with the Registration Certificate along with other required documents.
12. Per contra, Mr. Paramartha Datta along with Mr. Tanmoy Debbarma, learned counsels appearing for the respondents No.1 and 2 i.e. the TPSC contended that the recommendation of the petitioner was cancelled because of the fact that she was not having the required Registration Certificate, being one of the essential conditions for appointment to the post of Dental Surgeon which was duly notified under Notification dated 09.12.2016.
13. Mr. D. Bhattacharjee, learned G.A. participating in the hearing adapted the submission of the learned counsels appearing for the respondents-TPSC.
14. The learned counsels for the respondents have heavily relied upon Sections 46 and 48 of the Dentists Act, 1948 and relied upon a decision of the Supreme Court in (1991) 3 SCC 47(Shankarsan Dash vs. Union of India).
15. On the basis of the aforesaid submissions advanced by the learned counsels of the respective parties, in my opinion, following points are emerged out:
(i) Whether the petitioner had acquired the requisite educational qualification as on the date of submission of application?
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(ii) Whether there is distinction between recruitment/selection and appointment?
(iii) Whether Sections 46 and 48 of the Dentists Act, 1948 prohibit any candidate who completed BDS/MDS degree successfully to apply for selection or recommendation by a competent statutory authority to get appointed to the post of Dental Surgeon?
16. Dealing with the 1st point, as set out here-in-above, I find that Clause (6) of the Advertisement No.06/2016 issued by the TPSC prescribes the closing date of submitting application as on 30.07.2016. Now, from the Fourth Professional Examination Marks-sheet for Bachelor in Dental Surgery in respect of the petitioner, it is apparent that the petitioner had successfully passed the Fourth Professional Examination held in the month of June, 2015. The final marks-sheet was issued on 01.08.2015 by Srimanta Sankaradeva University of Health Sciences, Guwahati:
Assam. In terms of the Advertisement No.06/2016, the educational qualification for the post of Dental Surgeon, Ex-cadre, as prescribed, is that a candidate must have a recognized dental qualification included in Part-I & Part-III of the Schedule of the Dentists Act, 1948(for short, the Act), as appended to this Schedule. In my opinion, the petitioner had acquired the required qualification as soon as she successfully completed her final year Dental course with the issuance of Fourth Professional Examination mark-sheet. Indisputably, BDS is a four-year degree course.
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17. If this Court enters into the root of the subject in dispute, it is necessary to deal, what is „recognized dental qualification‟? Section 10 of the Dentists Act, 1948 deals with the question. In the case in hand, the relevant provision is sub-section (1) of section 10, which reads as under:
"10.Recognition of dental qualifications.--(1) The dental qualifications, granted by any authority or institution in India, which are included in Part I of the Schedule shall be recognised dental qualifications for the purposes of this Act."
The above provision leads me to harmoniously read Part I of the Schedule, which speaks as follows:
"PART I [See sub-sections (1) and (2) of section 10] RECOGNISED DENTAL QUALIFICATIONS GRANTED BY THE AUTHORITIES OR INSTITUTIONS IN INDIA"
Part III of the Schedule stipulates thus:
"PART III [See sub-sections (4) of section 10] RECOGNISED DENTAL QUALIFICATIONS GRANTED BY AUTHORITIES OR INSTITUTIONS OUTSIDE INDIA ONLY WHEN GRANTED TO A CITIZEN OF INDIA"
Part III of the Schedule is not related to the present case, as because admittedly the petitioner had obtained the degree from a Dental Institution in India.
Section 2(j) of the Act defines recognized dental qualification as any of the qualifications included in the Schedule to the Act.
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18. A bare reading of section 10(1) of the Act makes it clear that a recognized dental qualification means, such qualification which is granted by a recognized institution in India as per Part I of the Schedule.
For further clarification, I may profitably refer the case of Soham Mayankkumar Vyas v. Union of India, MANU/SC/1322/2010 : (2010) 13 SCC 137 where the Apex Court interpreting the definition of "recognized dental qualification"
had stated thus:
"12. A „recognized dental qualification‟ could be either (i) a dental qualification granted on completion of a course of study in an institution(University or deemed University) whose dental qualification is recognized by the Central Government; or (ii) a dental qualification granted by an authority(whose dental qualifications are recognized by the Central Government) to those who undergo a course of study in an affiliated dental college/institution, which was established with the previous permission of the Central Government. Thus, where the dental qualification is granted by an authority( that is, a University in India) to which several dental colleges are affiliated, the term "recognized dental qualification" refers to the dental qualification granted by a University(whose dental qualifications are recognized by the Central Government) by undergoing a course of study in an affiliated college or institution established with the prior permission of the Central Government".
19. As I said earlier, the petitioner had completed her course study from a College under the "Regional Dental College, Guwahati", an uncontroverted recognized dental institution in Page - 12 of 25 India. After such successful completion of four-year degree course, the said Institute also had issued final mark-sheet and, in my considered view, with the issuance of Fourth Professional Examination mark-sheet, the petitioner had acquired dental qualification granted by the Institution as aforestated.
20. On perusal of the First Professional Examination Marks- sheet to the Fourth Professional Examination Marks-sheet of the petitioner, it is apparent that the petitioner had completed the "course studies" which are affiliated by the Dental College of the petitioner. There is no dispute that the college of the petitioner, i.e. Srimanta Sankardeva University of Health Sciences, Guwahati:
Assam is a Regional Dental College established with the prior permission of the Central Government and recognized accordingly.
Having regard to this legal position as prescribed under section 10(1) coupled with Part I of the Schedule, I hold that the petitioner had obtained recognized dental qualification as on the closing date of submitting application i.e. 30.07.2016.
21. Clause (5) of the Advertisement No.06/2016 further has widened the scope of submitting application when it prescribed that "applicants must be in possession of the prescribed minimum qualification(s) for the post on the closing date for submission of application as mentioned in the advertisement". Thus, an applicant only needs the minimum qualification to apply and participate in Page - 13 of 25 the process of selection/recruitment for an identified post, which, in the present case, is the post of Dental Surgeon, Ex-cadre.
22. The Dentists Act, 1948 was enacted with the object of regulating the profession of dentistry and for that purpose to constitute the Dental Councils. To achieve the object in view, appropriate provisions have been made requiring the State Government to prepare a register of dentists for the State.
Chapter IV of the Act deals with the matter of registration. Section 31 of the Act mandates the State Government to prepare a register of dentists for the State and sub-section (3) of section 31 provides that the said register of dentists shall be maintained in two Parts, A and B persons possessing recognized dental qualifications being registered in Part A and persons not possessing such qualifications being registered in Part B. Section 33 of the Act prescribes "recognized dental qualification" as the qualification for entering a person‟s name in the register when it was first prepared.
Section 34 of the Act prescribes the qualification for subsequent registration. To find out the object, the legislators wanted to achieve in enacting the provision of registration as encrypted in Section 34 of the Act, which reads as under:
"34. Qualification for subsequent registration.--(1) After the date appointed under sub-section (2) of section 32 a person shall, on payment of the prescribed fee, be entitled to have his name entered Page - 14 of 25 on the register of dentists, if he resides or carries on the profession of dentistry in the 2[State] and if he--
(i) holds recognised dental qualification, or
(ii) 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 [two years before the date appointed under sub-section (2) of section 32] and has passed, within a period of [ten years after the said date], an examination recognised for this purpose by the [Central Government]:
Provided that no person other than a [citizen of India] shall be entitled to registration by virtue of a qualification:
(a) specified in Part I of the Schedule unless by the law and practice of the State or country to which such person belongs persons of Indian origin holding dental qualifications registrable in that State or country are permitted to enter and practise the profession of dentistry in such State or country, or [(b) recognised in pursuance of a scheme of reciprocity, under sub-section (5) of section 10]:
Provided further that a person registered in Part B of the register shall be entitled to be registered in Part A thereof, if within a period of [ten years after the date of his registration in Part B] he passes an examination recognized for the purpose by the [Central Government]."
23. A conscious reading of the said provisions under Chapter IV, it has come to light that the purpose of registration is to register the name of the person to enter his name into the register of the State allowing him to practice or to engage in the profession of dentistry.
Page - 15 of 25 From the above analysis, it is now clear that the recruitment rule for the post of Dental Surgeon does not prescribe for Registration Certificate as one of the criteria for applying to the post of Dental Surgeon, Ex-cadre and, in my considered view, the framers of the rule consciously did not incorporate the requirement of registration certificate for the purpose of inviting applications to enable a candidate having recognized dental qualification eligible to participate in the selection process which is consistent with Section 10(1) read with Part I of the Schedule of the Act.
24. It is made clear that registration is necessary for the purpose of appointment or to get engaged in the profession of dentistry and not for participation in the selection process. Perhaps, it was the reason the respondents No.3 and 4, being the appointing authority had informed the TPSC that registration certificate of a candidate is necessary for the purpose of appointment to the post of Dental Surgeon.
25. Here, the word „appointment‟ carries enough significance, which I will discuss later on. Importantly, needless to say, the recruitment rule is framed under Article 309 of the Constitution of India. True it is, that the legislators or the framers of the policy are empowered to alter, amend or change any of the conditionalities in the recruitment rule to achieve a particular object in view. But, it becomes apparent from the Notification dated 09.12.2016 that the Health & Family Welfare Department Page - 16 of 25 had issued only a letter informing the TPSC that for appointment Registration Certificate after completion of BDS/MDS is essential for the post of Dental Surgeon. It is also consciously observed by this Court that in the said notification that there is no specific guideline for submission of Registration Certificate with application form. What makes it clear to the Court is that in the recruitment rule there is no specific eligibility criteria to submit Registration Certificate at the time of filing of the application to participate in the selection process for the post.
26. It is well settled that a recruitment rule framed under Article 309 of the Constitution of India cannot be amended, changed, altered in any manner whatsoever by issuing only a memorandum and mere making a communication. If any recruitment rule requires to be amended, then, it has to be done only by way of exercising the power conferred under Article 309 of the Constitution of India. No executive instruction can change or amend the recruitment rule. It is further observed by this Court that while issuing the Memo. dated 20.04.2017 the Director of Health Services, Government of Tripura had asked the petitioner to submit some documents including internship completion certificate and valid dental certificate.
27. According to me, the said Memo. dated 20.04.2017 further clarifies the intention of the Government that the Registration Certificate is necessary only for the purpose of appointment and not for the purpose of selection of any candidate.
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28. Now, I will discuss, as it was said in the preceding paragraph about the significance of the word, „appointment‟ from the letter dated 07.12.2016. Mr. Khohinoor N. Bhattacharjee, learned counsel appearing for the petitioner has submitted that there is clear distinction between „selection‟ and „appointment‟.
Here, I may profitably refer the case of Vijay Kumar Mishra & Ors. vs. High Court of Judicature of Patna & Ors., MANU/SC/0878/2016 : AIR 2016 SC 3698, where the Apex Court had an opportunity to deal with a similar situation. In the case of Vijay Kumar Mishra(supra), the challenge was in regard to a communication dated 16.02.2016 whereby the representation of the petitioners to appear in the interview for the post of District Judge Entry Level(Direct from Bar) Examination, 2015, was rejected and a condition was imposed that the petitioners will have to tender their resignation, first, from the Subordinate Judicial Service of the State of Bihar and only, thereafter, they could appear in the interview. Their Lordships dealing with the question had observed thus:-
"7. It is well settled in service law that there is a distinction between selection and appointment. Every person who is successful in the selection process undertaken by the State for the purpose of filling up of certain posts under the State does not acquire any right to be appointed automatically. Textually, Article 233(2) only prohibits the appointment of a person who is already in the service of the Union or the State, but not the selection of such a person. The right of such a person to participate in the selection process Page - 18 of 25 undertaken by the State for appointment to any post in public service (subject to other rational prescriptions regarding the eligibility for participating in the selection process such as age, educational qualification etc.) and be considered is guaranteed Under Art. 14 and 16 of the Constitution.
8. The text of Article 233(2) only prohibits the appointment of a person as a District Judge, if such person is already in the service of either the Union or the State. It does not prohibit the consideration of the candidature of a person who is in the service of the Union or the State. A person who is in the service of either of the Union or the State would still have the option, if selected to join the service as a District Judge or continue with his existing employment. Compelling a person to resign his job even for the purpose of assessing his suitability for appointment as a District Judge, in our opinion, is not permitted either by the text of Article 233(2) nor contemplated under the scheme of the constitution as it would not serve any constitutionally desirable purpose."
29. Here, again I will try to trace out the meaning and effect of the words „recruitment‟ and „appointment‟. The term „recruitment‟ connotes and clearly signifies enlistments, acceptance, selection or approval for appointment. Certainly, this is not actual appointment or posting in service. In contradistinction the word „appointment‟ means an actual act of posting a person to a particular office. Recruitment is just an initial process. They may lead to eventual appointment in the service. But, that cannot tantamount to an appointment. It is now well settled that a person who is selected does not, on account of being empanelled alone, acquire any indefeasible right of appointment. Empanelment is at Page - 19 of 25 the best a condition of eligibility for purposes of appointment, and by itself does not amount to selection or create a vested right to be appointed unless relevant service rule says to the contrary[Shankarsan Dash vs. Union of India, (1991) 3 SCC 47 and Sabita Prasad & Ors. vs. State of Bihar & Ors., MANU/SC/0752/1992].
30. Agreeing with the said reasoning and conclusion of one Ld. Judge of the Bench(Jasti Chelameswar, J), another Ld. Judge of the Bench(Abhay Manohar Sapre, J) in Vijay Kumar Mishra (supra) had further added that:
"It is a settled principle of Rule of interpretation that one must have regard to subject and the object for which the Act is enacted. To interpret a Statute in a reasonable manner, the Court must place itself in a chair of reasonable legislator/author. So done, the Rules of purposive construction have to be resorted to so that the object of the Act is fulfilled. Similarly, it is also a recognized Rule of interpretation of Statutes that expressions used therein should ordinarily be understood in the sense in which they best harmonize with the object of the Statute and which effectuate the object of the legislature.(See-Interpretation of Statute 12th Edition, pages 119 and 127 by G.P.Singh)."
31. Here also I find from the statement of objects and reasons for the purposes of enactment of the act is that the Legislature found that there was no legal provision for the regulation of the education and training of dental practitioners or for the registration of qualified persons. There is also no restriction on the practice of dentistry by persons without scientific training.
Page - 20 of 25 So, to achieve the object of regulating the subject in regard to education and training, the Indian Dental Council was constituted which had given the authority to lay down minimum standards of training, and Provisional Councils, which will maintain registers of persons entitled to practice dentistry. It is further observed that for the purposes of the preparation of the first register, persons holding certain specified qualifications and persons who do not hold such qualifications but have practiced dentistry for a minimum period of two years will be entitled to registration. Thereafter entry to the profession will be restricted to persons who have undergone a minimum standard of training. As the Indian Dental Council will have the responsibility of laying down standards of education and training, only dentists who have undergone such training and possess recognized qualifications will be entitled to be elected to the Council.
32. A careful reading of the statement of objects and reasons of the Dentists Act, 1948, it reveals that the Legislature wanted to restrict the unqualified persons to enter into the profession of dentistry, and for the purpose of entering into the profession and in practice of dentistry one must have registered under the respective Council. It is not the object that for appearing in the selection process and for applying for the post one must have registered with the Council.
33. A harmonious reading of Section 10 and the provisions under Chapter IV manifests that after obtaining required dental Page - 21 of 25 qualification a person is to get his name registered under a Council to practice as a Dentist or to enter into the profession of dentistry. After harmonious reading of the statement of objects and reasons and Section 10 and the various provisions under Chapter IV read with Sections 46 and 48 of the Dentists Act, 1948, according to me, the sum and substance is that registration is not necessary to apply and to participate in the selection process to enter into the service as a professional dentist, but, registration under a Council is obligatory to a candidate for entering into the service as a professional dentist or otherwise to practice in the profession of dentistry. Both the sections do not lay any such legal embargo that a person having recognized dental qualification has to be registered for participating in the selection process but as criteria to practice or enter in the profession of dentistry. The object of the Act is only to stop unscrupulous persons to enter into the service fraudulently or to practice and engage in dentistry profession by unqualified and unregistered persons
34. Asking for production of registration certificate vide Memo. dated 20.04.2017 is actually to effectuate the object of the Legislature under the Act and to harmonize the object of the Statute. The Memo. dated 20.04.2017 was issued in conformity and consistent with the object of the Act. The TPSC, in my considered view, has misinterpreted and misconstrued the communication dated 07.12.2016 issued by the Director, Health & Family Welfare Department vide its letter No.F.3(479)-HFW/2016 Page - 22 of 25 and, thus, the Notification dated 23.06.2017, which was issued in consequence to Notification dated 09.12.2016, cancelling the selection and subsequent recommendation of the petitioner for the post of Dental Surgeon, Ex-cadre, is misconceived and inconsistent with the object of the Act as well as contrary to the legislative intent which they wanted to achieve under the Act. Furthermore, such interpretation amounts to adding or amending the relevant provisions of the Act. The intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also to what has not been said. It is wrong and dangerous to proceed by substituting some other words for words of the statute. Speaking briefly the Court cannot reframe the legislation for the very good reason that it has no power to legislate[Principles of Statutory Interpretation, Justice G.P. Singh, 13th Edition, 2012]. As such, the Notifications dated 09.12.2016 and 23.06.2017 are hereby quashed and set aside having force in the eye of law.
35. It is clear that the petitioner had obtained the "Dentist Registration Certificate" on 03.10.2016 being Registration No.057 i.e. prior to the process of appointment which was initiated by the Director of Health Services, Government of Tripura i.e. the respondents 4 vide Memo. dated 20.04.2017, whereby and whereunder the petitioner after being selected and recommended by the TPSC was asked for production of certain documents including valid "Dental Registration Certificate" which she had Page - 23 of 25 produced before the appropriate authority of the respondents No.3 and 4.
36. Another important aspect to be dealt before conclusion is that the respondents-TPSC had issued the notification asking the participating candidates including the petitioner for selection to the post of Dental Surgeon, Ex-cadre only on 09.12.2016, much later than that of the letter originally notified, which was dated 27.06.2016 for submission of Registration Certificate on or before the closing date of receipt the applications i.e. 30.07.2016. From the Registration Certificate in regard to the petitioner, it is apparent that she obtained the Registration Certificate prior to the issuance of the Notification dated 09.12.2016. In the instant case, the petitioner became successful in the recruitment process and was accordingly recommended being found suitable to get appointed to the post of Dental Surgeon under the respondents No.3 and 4. Applying the ratio as analyzed above that recruitment and appointment are two distinct stages of appointment recruitment is the process of selection, and appointment is an actual act of appointment by posting a person to a particular office. After completion of initial process of recruitment by the TPSC, the subsequent stage is the process of appointment by the recruiting department i.e. the employer and this process would be completed when a candidate fulfils all the criterias for appointment to a particular office.
(emphasis supplied) Page - 24 of 25
37. In the case in hand, I reiterate that the petitioner had obtained the valid Registration Certificate before starting of the process of appointment and she fulfilled all the criterias for appointment in conformity with the object of the Act and consistent with the legislative intention which the Legislature wanted to achieve by way of enacting the said Act.
38. Having regard to the aforesaid factual and legal positions, this Court does not find any reason for cancelling the selection and subsequent recommendation of the petitioner for her appointment to the post of Dental Surgeon, Ex-cadre under the respondents No.3 and 4.
39. As such, this Court in exercise of its power under Article 226 of the Constitution of India directs the TPSC to recall its Notifications dated 09.12.2016 and 23.06.2017 which were communicated to the petitioner vide letter dated 05.07.2017. This Court further directs the respondents No.1 and 2 to act upon in accordance with the Memo. dated 20.04.2017 for providing all service benefits including the issuance of appointment letter and consequential seniority to the post of Dental Surgeon, Ex-cadre in terms of the select list prepared by the TPSC on the basis of its recommendation vide Notification dated 13.04.2017. It is made clear that the entire process for appointment of the petitioner is to be completed within a period of two months from the date of receipt of a copy of this judgment.
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40. In the result, the instant writ petition is allowed in the above terms.
JUDGE