Karnataka High Court
Dr. Harsangi Veerabhadrappa vs The State Of Karnataka And Anr on 10 November, 2021
1
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR.JUSTICE R. NATARAJ
WRIT PETITION NO.201302 OF 2021 (GM-RES)
BETWEEN:
DR. HARSANGI VEERABHADRAPPA
AGED ABOUT 71 YEARS,
OCC: MEDICAL PRACTITIONER,
R/O ASHIRWAD HOSPITAL,
GARDEN ROAD, KALABURAGI.
...PETITIONER
(BY SRI. AMEET KUMAR DESHPANDE, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA
REPRESENTED BY THE UNDER SECRETARY
DEPARTMENT OF HEALTH, FAMILY WELFARE
AND MEDICAL EDUCATION,
M.S.BUILDING, BENGALURU-01.
2. THE KARNATAKA MEDICAL COUNCIL
REPRESENTED BY ITS REGISTRAR,
NO.16/2, 2ND FLOOR,
MILLER TANK BED AREA,
VASANTH NAGAR,
BENGALURU-560 052.
...RESPONDENTS
2
(BY SRI. Y.H.VIJAYA KUMAR, ADDITIONAL ADVOCATE
GENERAL ALONG WITH SMT. ANURADHA M. DESAI,
GOVERNMENT ADVOCATE FOR RESPONDENT NO.1;
SMT. RATNA N. SHIVAYOGIMATH, ADVOCATE FOR
RESPONDENT NO.2;
SRI. DORE RAJ, ADVOCATE FOR INTERVENER)
THIS PETITION IS FILED UNDER ARTICLES 226 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE
NOTIFICATION DATED 28.01.2021 SERVED ON THE
PETITIONER ON 30.06.2021 BEARING FILE
NO.MED.327.MPS.2019 ISSUED BY THE RESPONDENT
NO.1 HEREIN IN SO FAR AS THE PETITIONER HEREIN IS
CONCERNED, THE COPY OF WHICH IS AT ANNEXURE-B.
THIS PETITION HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 08.10.2021 AND COMING ON
FOR PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
MADE THE FOLLOWING:
ORDER
The petitioner has challenged the validity of the notification bearing number MED.327.MPS.2019 dated 28.01.2021 issued by the respondent No.1, by which the nomination of the petitioner as a member of the respondent No.2 under Section 3(2)(d) of the Karnataka Medical Registration (Amendment) Act, 2017, (henceforth referred to as the "the Act of 2017") was withdrawn. 3
2. The petitioner is a medical practitioner specialized in pediatrics and was registered under the provisions of the Karnataka Medical Registration Act, 1961. He claimed that at the election to the respondent No.2 (henceforth referred to as 'the Council') held during the year 2014-15, he was elected as a member from amongst Teachers, and later on was elected as the President of the Council. He claimed that after the expiry of the term of the Council in the year 2019, elections were not held. Later election was scheduled during January 2020, which he contested from Kalaburagi Division. In the interregnum, the respondent No.1, in terms of a notification dated 20.01.2020, nominated the petitioner and others as members of the Council under Section 3(2)(d) of the Act of 2017. In view of his nomination, the petitioner withdrew from the contest. He claimed that though the election was held during January-February 2020, due to several illegalities in the conduct of election and in the preparation of the electoral list, it was set aside by this Court in 4 W.P.No.211065/2020 and a fresh election was ordered to be held.
3. He further contended that in terms of another notification dated 29.08.2020 issued by the respondent No.1, the nomination of two members under the notification dated 20.01.2020 was withdrawn and in their place, two members were again nominated. He claimed that though the respondent No.1 did not find any illegality in the nomination of the petitioner till 29.08.2020, yet, without hearing the petitioner, his nomination was withdrawn in terms of the impugned notification dated 28.01.2021, which was handed over to him allegedly on 30.06.2021. He contended that the respondent No.1 had no power to withdraw the nomination once done, since the term of such nominated members was five years from the date of nomination or election or until their successors were duly nominated or elected, whichever was longer. He contended that the nomination of the petitioner was not at 5 the pleasure of the respondent No.1 but was in compliance with the statutory requirement to constitute the Council.
4. Further, he contended that the circumstances under which a member of the Council could be removed is found in Sections 7 and 8 of the Act of 2017 and there was no provision in the Act of 2017, which enabled the respondent No.1 to withdraw the nomination of the petitioner before the expiry of the term. The petitioner therefore prayed that the impugned notification be quashed. He relied on the following judgments to contend that the appointment of persons at the pleasure of the respondent No.1 is not a rule of assumption but has to be tested on the anvil of the nature of such appointment, term of appointment etc.
1. Kumari Shrilekha Vidyarthi etc. vs. State of U.P. and others [AIR 1991 SC 537]
2. B.P. Singhal vs. Union of India and another [(2010) 6 SCC 331]
5. On 19.08.2021, this Court noticed that the respondent No.1 was protracting the issue and therefore 6 granted an interim order of stay of the impugned notification. Following this, an application in I.A. No.1/2021 was filed under Order I Rule 10 (2) read with Section 151 of the Civil Procedure Code (for short, 'the CPC') to come on record in this writ petition as an intervener. The applicant in I.A.No.1/2021 claimed that he was a proper and necessary party to the writ petition. The applicant was heard with the understanding that I.A.No.1/2021 would be disposed off along with the main writ petition.
6. The applicant in I.A. No.1/2021 contended that the nomination of the petitioner and others on 20.01.2020 was questioned by him in a public interest litigation in W.P.No.3758/2020. It was contended therein, that after a protracted litigation before this Court, election was held to the Council on 23.01.2020 and the results were declared on 25.01.2020. However, even before the elections were held, the petitioner and others were nominated as members of the respondent No.2. The applicant claimed 7 that while nominating the petitioner, the respondent No.1 had failed to comply with Section 3(3) of the Act of 2017, which inhered the respondent No.1 to consider the claims of women and also practitioners/representatives of other streams of medicine who were not elected under clauses
(a)(b) and (c) of Section 3(2) of the Act of 2017.
7. The applicant claimed that the petitioner herein was the respondent No.6 in the W.P.No.3758/2020 and he contested it by filing his statement of objections contending that he had filed his nomination to contest the elections that were held to the Council during January- February 2020. However, in view of his nomination by the respondent No.1 on 20.01.2020, he withdrew from the contest. He claimed that there was no provision in the Act of 2017 which provided for reservation to women in the respondent No.2 and the claim of a lady named Dr.Prabhavathi H.S, was on 26.01.2020 which was later than the elections held to the Council. The applicant in I.A. No.1/2021 claimed that the Division Bench of this Court 8 castigated the respondent No.1 for blindly nominating the petitioner, following which, the respondent No.1 filed a memo dated 23.12.2020 in W.P.No.3758/2020 stating that it had taken steps to withdraw the notification dated 20.01.2020 and that it would take steps to nominate the members in accordance with Section 3(3) of the Karnataka Medical Registration Act, 1961 (for short, 'the Act of 1961'). In view of the said memo, the Division Bench of this Court in terms of the Order dated 23.12.2020, held that W.P.No.3758/2020 was rendered infructuous. It is thereafter that the nomination of the petitioner was withdrawn in terms of the notification impugned in this writ petition.
8. The learned counsel for the applicant in I.A. No.1/2021 submitted that the petitioner had deliberately suppressed the proceedings in W.P.No.3758/2020. He also submitted that a similar nomination made on 30.12.2019 ignoring Section 3(3) of the Act of 1961, was withdrawn by the respondent No.1 and in their place, the petitioner and 9 others were nominated. Therefore, he claimed that the petitioner cannot contest the right of the respondent No.1 to withdraw the nomination. He also submitted that the respondent No.1 had a right to undo its acts under Section 21 of the Karnataka General Clauses Act, 1897. He contended that withdrawal of a nomination in not stigmatic and therefore, there was no need to issue prior notice to the petitioner or hear him. He also contended that the petitioner had no right to be nominated or continue to be a member. During the course of the writ petition, he brought to the notice of this Court that the notification dated 29.08.2020 relied upon by the petitioner was withdrawn by the respondent No.1 by a notification dated 24.09.2021, as the notification dated 29.08.2020 was issued without complying Section 3(3) of the Act of 2017 and nominated other members. He therefore contended that the petitioner is alive to the fact that the respondent No.1 had retained the power to withdraw a nomination and therefore cannot challenge the withdrawal of his nomination. He therefore submitted that the nomination of the petitioner was illegal 10 and without complying the mandatory provisions of law and therefore, the petitioner cannot claim any right to continue. The applicant in I.A. No.1/2021 relied upon the Judgment of the Hon'ble Supreme Court of India in State of Bihar and others vs. Devendra Sharma [(2020) 15 SCC 466] where it was held as follows:
"44. In view of the aforesaid judgments, it cannot be said that the appointment of the employees in the present set of appeals were irregular appointments. Such appointments are illegal appointment in terms of the ratio of the Supreme Court judgment in Sate of Karnataka vs. Umadevi [(2006) 4 SCC 1]. As such appointments were made without any sanctioned post, without any advertisement giving opportunity to all eligible candidates to apply and seek public employment and without any method of recruitment. Such appointments were back door entries, an act of nepotism and favouritism and thus from any judicial standards cannot be said to be irregular appointments but are illegal appointments in wholly arbitrary process."
9. The learned Additional Advocate General who represented the respondent No.1 reiterated the 11 contentions urged by the impleading applicant and claimed that the petitioner had suppressed the proceedings in W.P.No.3758/2020. He submitted that the petitioner had no right to be heard before withdrawal of his nomination as it was not stigmatic. In this regard, he sought support from the Judgment of the Hon'ble Supreme Court in Krishna vs. State of Maharashtra and others [(2001) 2 SCC 441], where it was held as follows:
"8. In the present case, the appellant was appointed under sub-section (2) of Section 4 read with clause (e) of sub-section (1) of Section 4 and was removed by order dated 9-2-2000 under Section 6 of the Act. Having considered the submissions for the parties and after perusing the language of the sections, we have no hesitation to hold, that the field of Section 6 and Section 10 are separate. The removal spoken under Section 6 is removal without any stigma while the removal under Section 10 is removal with penal consequences attaching stigma. If submission for the appellant is accepted, viz., Section 6 empowers and Section 10 lays down the conditions and procedure to remove, then removal of trustee could only be for penal consequences and not otherwise. If that be so, there could be no reason to enact Section 6 as Section 10 covers such cases. It 12 is significant, the removal under Section 6 is confined only to such trustees who are covered under clause (e) of sub-section (1) of Section 4 and who are also nominated by the State Government. Rights of trustees falling under the aforesaid clause
(e) are rights created under a statute and hence that very creator can always limits or curtail such right.
In such cases, if a trustee is removed, he cannot project any grievance that no opportunity was given to him. If any right which is creature of statute, is limited or curtailed by that very statute, in the absence of any other right under that very statute or the Constitution of India, such trustee cannot claim any right based on the principle of natural justice.
9. The removal spoken here neither casts any stigma nor leads to any penal consequences. This clearly reveals the doctrine of pleasure which is implicit in this section. In any statute expression of the will of the legislature may be explicit or it may be implicit. It is open for the courts, while interpreting any provision to spell or read with other provisions of the statute if so intended to read implicitly, in the absence of any explicit words that subserve the intent of the legislature.
10. In the present statute Section 6 refers to the trustee falling under clause (e), sub-section (1) of Section 7 refers to trustees falling under 13 clauses (b) and (c) and sub-section (2) refers to trustees falling under clause (d) and sub-section (3) refers to trustees falling in clause (f) of sub-section (1) of Section 4 and Section 10 refers to cases of removal of trustees by way of stigma, and Section 11 refers to the disability of such removed trustees. In view of this we have no hesitation to hold that the removal of trustee under Section 6 is based on the principle of doctrine of pleasure. We may only strike a note here if the legislature would have used some other words for the word 'removed' for expressing curtailment of the tenure of such trustee in Section 6, this possible confusion would not have arisen.
11. Once doctrine of pleasure is applicable neither the principle of natural justice would step in nor any question of giving an opportunity before removal would arise. It is significant when stigma is cast then sub-section (3) of Section 10 specially provides for giving an opportunity to such incumbent before passing an order of removal under Section 10, while there is no such corresponding sub-section under Section 6. Thus intent of legislature is very clear which reinforces the inference which we have drawn that doctrine of pleasure is implicit under Section 6. In Om Narain Agarwal v. Nagar Palika, Shahjahanpur [[1993] 2 SCC 242] this Court was considering the provisions of Section 9 of the U.P. Municipalities Act, 1916 as introduced by U.P. Act 19 14 of 1990, which made provision for the nomination of two women members by the State Government, and the fourth proviso provides that the nomination of such two members is at the pleasure of the State Government. This Court held: (SCC p.254, paras 11-
12) "The initial nomination of the two women members itself depended on the pleasure and subjective satisfaction of the State Government.
If such appointments made initially by nomination are based on political considerations, there can be no violation of any provision of the Constitution in case the legislature authorised the State Government to terminate such appointment at its pleasure and to nominate new members in their place. The nominated members do not have the will or authority of any residents of the Municipal Board behind them as may be present in the case of an elected member......But so far as the nominated members are concerned, the legislature in its wisdom has provided that they shall hold office during the pleasure of the Government. It has not been argued from the side of the respondents that the legislature had no such power to legislate the fourth proviso. The attack is based on Articles 14 and 15 of the Constitution.
In our view, such provision neither offends any article of the Constitution nor the same is against any public policy or democratic norms enshrined in the Constitution. There is also no question of any violation of principles of natural justice in not affording any opportunity to the nominated members before their removal nor the removal under the pleasure doctrine contained in the fourth proviso to Section 9 of the Act puts any stigma on the performance or 15 character of the nominated members. It is done purely on political considerations."
10. The learned Additional Advocate General further contended that the word 'nomination' itself indicated that it was at the pleasure of the respondent No.1, so that its policies and the Act of 2017 are properly implemented and also to ensure that the respondent No.1 had a say in the functioning of the Council. He contended that the petitioner had no right to be nominated and / or continued. He relied upon the Judgments of the Hon'ble Supreme Court in Om Narain Agarwal and Others vs. Nagar Palika, Shahjahanpur and Others [AIR 1993 SC 1440] and Suzuki Parasrampuria Suitings Private Limited vs. Official Liquidator [(2018) 10 SCC 707]. He contended that the reliance of the petitioner on the judgment of the Apex Court in the case of Kumari Shrilekha Vidyarthi (supra) was misplaced as in that case there was a process of selection but in the present case, there was no such process. He relied upon the Judgment of the Hon'ble Supreme Court in State of U.P. 16 and Others vs. U.P. State Law Officers Association and Others [(1994) 2 SCC 204], where the Apex Court refused to apply the principle in Kumari Shrilekha Vidyarthi's case to the case of Law Officers in the High Courts. He submitted that the nomination of the petitioner was without considering the mandatory provision under Section 3(3) of the Act of 2017 but was made prior to the election to the Council itself. Therefore, he submits that the petitioner cannot hinge his case on an illegal order.
11. He further contended that the petitioner had contested the election to the Council during January 2020 but was successful in gaining entry through the back door by his nomination dated 20.01.2020. He therefore claimed that the petitioner somehow wanted to gain access to the respondent No.2 and hence exploited the route of nomination and thereafter withdrew from the contest. The learned Additional Advocate General therefore prayed that the writ petition be dismissed.
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12. Since this Court felt that the respondent No.1 had capriciously nominated members and removed them at its sweet will on the ground that it had failed to comply Section 3(3) of the Act of 2017, this Court in terms of the interim direction dated 12.08.2021 directed the respondent No.1 to disclose the methodology that it would henceforth adopt in respect of nomination of members to the Council. The respondent No.1 filed a response, though belatedly, stating that it was bound to follow the mandate laid down in Section 3(3) of the Act of 2017 while nominating a person as a member of the respondent No.2 under Section 3(2)(d) of the Act of 2017.
13. Before adverting to the arguments canvassed by the learned counsel for the parties, it is appropriate to capture the 'Statement of Objects and Reasons' that compelled the State legislature to promulgate the Karnataka Medical Registration Act, 1961:
"There are different enactments in force in the several areas of the State governing the registration of practitioners of modern system of medicine. As a 18 result of the adaptations made in these enactments, the Mysore Medical Council-constituted under the Mysore Medical Registration Act, 1931, as adapted - is empowered to perform the functions of a Medical Council throughout the State in respect of the several enactments, while the Medical Registers under each enactment are kept separate. Thus there is a single Medical Council and several Medical Registers.
Since under the Indian Medical Council Act, 1956 (Central Act No.102 of 1956) one member has to be elected to the Medical Council of India by the members included in the State Medical Register, it is necessary to have one Medical Register for the entire State.
In the circumstances, it is proposed to have a uniform law relating to registration of practitioners practising the modern system of medicine throughout the State."
14. It is equally appropriate to extract the following provisions of the Act of 1961 as amended by the Act 43 of 2003 and the Act 19 of 2017 that are relevant for the purpose of this writ petition:
3. Establishment, incorporation and constitution of Council.--(1) The State Government shall by notification establish a Council 19 to be called "the Karnataka Medical Council for the purposes of carrying out the provisions of this Act.
Such Council shall be a body corporate having perpetual succession and a common seal with power, subject to the provisions of this Act, to acquire, hold and dispose of property and to contract and may by the same name sue and be sued.
(2) The Council shall consist of the following seventeen members, namely:-- (a) two members from each of the four Revenue Divisions of the State to be elected from amongst themselves by the Medical Practitioners who are registered under this Act;
(b) four members one from each of the Revenue Division to be elected from amongst themselves by the "teachers" and "teachers of the University" as defined in clauses (m) and (n) respectively of section 2 of the Rajiv Gandhi University of Health Sciences Act, 1994 (Karnataka Act 44 of 1994) and who are registered under this Act.
(c) four members one from each of the Revenue Division to be nominated by the State Government from among registered practitioners.
(d) one member to be nominated by the State Government from amongst the members of the Karnataka State Dental Council, the Karnataka 20 Pharmacy Council, the Karnataka Nursing Council, the Karnataka Ayurvedic and Homoeopathy Council, by rotation for a period of one year.
(3) In making nomination under clause (c) of sub-section (2), the State Government shall have due regard to the claims of women and of other groups of practitioners, representatives of whom have not been elected under clauses (a) and (b).
(4) The President and Vice-President of the Medical Council shall be elected by the by the members other than a member referred to in clause
(d), from amongst themselves.
(5) The election of the President and Vice- President and other members shall, subject to the provisions of this Act, be held at such time and place and in such manner as may be prescribed by rules.
4. Nomination of members in default of election.--If any of the electorates referred to in section 3 does not, by such date as may be prescribed by rules, elect a person to be a member of the Council, the State Government shall, by notification, nominate to the vacancy a person qualified for election thereto; and the person so nominated shall be deemed to be a member of the Council as if he had been duly elected by the said electorate.
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5. Term of Office.--The President, Vice- President and other members of the Medical Council other than a member referred to in clause (d) of sub-section (2) of section 3 shall, subject to the provisions of this Act, hold office for a term of five years from the date of their nomination or election or until their successors have been duly nominated, or elected, whichever is longer, and shall be eligible for re-nomination, or re-election, as the case may be.
xxx
7. Disqualifications.--A person shall be disqualified for being chosen as and for being a member of the Medical Council,--
(a) if he has been sentenced by a criminal court for an offence involving moral turpitude and punishable with imprisonment for a term exceeding three months, such sentence not having been subsequently reversed, quashed or remitted, unless he has, by order, which the State Government is hereby empowered to make in this behalf, been relieved from the disqualification arising on account of such sentence;
(b) if he is an undischarged insolvent;
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(c) if he is of unsound mind and stands so declared by a competent court;
(d) if he is a whole time officer or servant of the Council.
xxx
33. Control.--(1) If at any time it shall appear to the State Government that the Council has failed to exercise, or has exceeded or abused any of the powers conferred upon it by or under this Act, or has failed to perform any of the duties imposed upon it by or under this Act, the State Government may, if it considers such failure, excess or abuse to be of a serious character, notify the particulars thereof to the Council, and if the Council fails to remedy such default, excess or abuse, within such time as the State Government may fix in this behalf, the State Government may dissolve the Council and cause all or any of the powers and duties of the Council to be exercised and performed by such person and for such period as it may think fit and thereupon the funds and property of the Council shall vest in the State Government for the purpose of this Act until a new Council shall have been constituted under section 3.
(2) When the State Government has dissolved the Council under sub-section (1), it shall take steps 23 as soon as may be convenient to constitute a new Council under section 3 and thereupon the property and funds referred to in sub-section (1) shall revest in the Council so constituted.
(3) Notwithstanding anything contained in this Act, rules or regulations, if, at any time, it shall appear to the State Government that the Council or any other authority empowered to exercise any of the powers or to perform any of the functions under this Act, has not been validly constituted or appointed, the State Government may cause any of such powers or functions to be exercised or performed by such person in such manner and for such period not exceeding six months and subject to such conditions as the State Government thinks fit.
15. It is also relevant to note Section 3 of the Indian Medical Council Act, 1956, which reads thus:
"3. Constitution and composition of the Council.--(1) The Central Government shall cause to be constituted a Council consisting of the following members, namely:--
(a) one member from each State other than a Union Territory, to be nominated by the Central Government in consultation with the State Government concerned;24
(b) one member from each University, to be elected from amongst the members of the medical faculty of the University by members of the Senate of the University or in case the University has no senate, by members of the court;
(c) one member from each State in which a State Medical Register is maintained, to be elected from amongst themselves by persons enrolled on such Register who possess the medical qualifications included in the First or the Second Schedule or in Part II of the Third Schedule;
(d) seven members to be elected from amongst themselves by persons enrolled on any of the State Medical Registers who possess the medical qualifications included in Part I of the Third Schedule;
(e) eight members to be nominated by the Central Government.
(2) The President and Vice-President of the Council shall be elected by the members of the Council from amongst themselves.
(3) No act done by the Council shall be questioned on the ground merely of the 25 existence of any vacancy in, or any defect in the constitution of, the Council."
16. The contentions urged by the learned counsel for the parties has thrown up the following questions for consideration:
(i) Whether the nomination of members to the respondent No.2 by the respondent No.1 is for a fixed term or is it at the pleasure of the Government?
(ii) Whether, the nominated member is entitled to be heard before his nomination is withdrawn simplicitor ?
(iii) Whether, the State Government is entitled to undo the nomination under Section 21 of the General Clauses Act, 1897 ?
(iv) Whether, the petitioner is guilty of suppression of material fact and whether it should result in the dismissal of the writ petition for non disclosure ?
(v) Whether the impleading applicant is entitled to come on record in this writ petition ?
17. I have answered the questions seriatim in the following manner:
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Question No.(i):
A reading of the aforesaid provisions of law makes it clear that the State government is entitled to nominate four persons from amongst the registered practitioners and one member from amongst the members of the Karnataka State Dental Council, the Karnataka Pharmacy Council, the Karnataka Nursing Council, the Karnataka Ayurvedic and Homeopathy Council, by rotation for a period of one year.
18. The Act of 1961 as amended by Act 19 of 2017 does not contain any provision which indicates that the nomination of members to the respondent No.2 is at the pleasure of the respondent No.1. It also does not indicate that the respondent No.1 is empowered to terminate the nomination before the completion of the term. The order nominating the petitioner does not indicate that such nomination is until "further orders" of the respondent No.1. The Legislature had consciously denied to the State Government, right to nominate persons to the respondent No.2, at its pleasure. The reasons are not far to seek and 27 can be found in the Statement of Objects and Reasons to the Act of 1961. The nominated members should be medical practitioners registered under the Act of 1961, and are entitled to contest to the post of President or Vice- President of the respondent No.2-Council and can also be elected to the Medical Council of India from amongst the members included in the State Medical Register. If a nominated member is elected as the President or Vice- President or if he is elected to the Indian Medical Council, then withdrawal of his nomination by the State Government would affect his position in the Council as well as at the Medical Council of India. It is for this reason that the term of a nominated member is fixed for a period of five years but could extend till a new member is nominated. If it was at the pleasure of the respondent No.1, then that would result in turmoil in the Council of the respondent No.2 due to political wrangling and would be another atoll of sycophants. It is in order to avoid this mischief, the nominated members have a fixed tenure. Even otherwise, the constitution of a professional body 28 bestowed with immense duties to discharge and to steer the respondent No.2, cannot be left to the whim and caprice of unpredictable political heads. This understandably is the reason why even in the Indian Medical Council Act, 1956, the term of nominated members is not subject to the pleasure of the Government. The legislative wisdom and intent in denying the privilege to State Government to nominate at its pleasure is justified.
19. In the case on hand, the nomination of the petitioner on 20.01.2020 does not indicate that his nomination was at the pleasure of the respondent No.1 or that the respondent No.1 reserved its right to withdraw the nomination "before the term expired" or that it was subject to "further orders". The contention that the word "nomination" inheres it to be at the pleasure of the respondent No.1 is not acceptable for the simple reason that the nominees are not outsiders but are all registered practitioners who are registered with the respondent No.2. 29 It is no doubt true that the common law doctrine of appointment by the Crown at pleasure is incorporated in sufficient measure in the Constitution of India and various other enactments. At the same time, an impregnable protection is provided against arbitrary termination of civil servants under Article 311 of the Constitution of India. Therefore, unless a statute prescribes that the nomination is at the pleasure or that the nominating authority retains power to withdraw the nomination pre-term, it cannot be generalised that all cases of nomination are at the pleasure of the respondent No.1. The Supreme Court in Om Narain Agarwal's case (referred supra) underscored the legislative authorisation to terminate the nomination in the following words:
"The initial nomination of the two women members itself depended on the pleasure and subjective satisfaction of the State Government. If such appointments made initially by nomination are based on political considerations, there can be no violation of any provision of the Constitution in case the legislature authorised the State Government to 30 terminate such appointment at its pleasure and to nominate new members in their place."
20. It is also profitable to refer to a Judgment of a learned Single Judge of this Court in Channabasappa vs State of Karnataka and another [ILR 2001 KAR 681] where this Court was considering whether a nomination could be termed as during the pleasure of the Government, even though by an amendment to the extant Statute, deprived the State Government in treating such nomination as one at its pleasure. This Court held that the nomination cannot be construed as one at pleasure but was for a fixed tenure. In the present case too, the nomination of the petitioner cannot be construed as one at the pleasure of the respondent No.1.
21. The Judgments relied upon by the learned Additional Advocate General were all rendered in cases where the nomination was at the pleasure of the Government or was until further orders or where the Government had reserved its right to terminate it before 31 the term and are therefore not applicable to the facts of this case.
22. In view of the aforestated reasons, it is held that the nomination of the petitioner under the Act of 2017 was for a fixed tenure and not at the pleasure of the respondent No.1 and therefore was not terminable at the pleasure of the respondent No.1.
Question (ii):
23. A nominated member is not a civil servant within the definition under Article 311 of the Constitution of India. In the case on hand, the reason for withdrawal of the nomination of the petitioner was due to the non- compliance of a statutory mandate under Section 3(3) of the Act of 2017. The petitioner did not deny the fact that his nomination was before the elections that was held on 23.01.2020 and also the fact that the respondent No.1 did not consider the claim of women and other practitioners who were not represented in the Council. The impugned order does not impute any stigma and therefore, the 32 petitioner was not entitled to be heard before withdrawal of his nomination. The Apex Court while considering the aforesaid issue in the case of Krishna vs. State of Maharashtra (referred supra) held that if the withdrawal of a nomination is not stigmatic then there is no need to comply with the principles of natural justice. However, in the ordinary course he was entitled to be notified prior to withdrawal of his nomination. But in the present case, since the petitioner had participated in W.P.No.3758/2020, he was aware of the stand of the respondent No.1 and therefore was impliedly notified.
Question (iii):
24. In the instant case, the respondent No.1 had nominated the petitioner even before elections to the Council of the respondent No.2 was held. The respondent No.1 could not have done so in view of Section 3(3) of the Act of 1961 which mandated that the respondent No.1 should consider the claims of women and practitioners of other streams of medicine who were not elected under 33 clauses (a), (b) and (c) of Section 3(2) of the Act of 2017 to the Council. After election is held to the Council, the respondent No.1 would have clear statistics as to whether women are represented and the practitioners of streams of medicine who are not represented in the Council. This would have aided the respondent No.1 in deciding the persons to be nominated. Therefore, nomination of the petitioner and others before the election was clearly not in line with the provisions of the Act of 2017. The question therefore that arises is whether, the respondent No.1 could invoke Section 21 of the General Clauses Act, 1897 to withdraw the nomination claiming that it was done wrongly?
25. Section 21 of the General Clauses Act, 1897 reads as follows:
"21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws.- Where, by any Central Act or Regulations a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to 34 the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued."
26. Section 21 of the General Clauses Act, 1897 embodies a rule of construction and the nature and extent of its application is determined by the relevant Statute which confers the power to nominate.
27. In the present case, Section 3(2)(d) of the Act of 2017 governs the nomination of members to the Council. It is the respondent No.1 who is empowered to nominate and there are no "sanctions" or "conditions" stipulated in the Act of 2017 for withdrawal of the nomination. Under the circumstances, the respondent No.1 is entitled to exercise power under Section 21 of the General Clauses Act, 1897 to rescind the notification issued to nominate the petitioner. However, while doing so, since the notification nominating the petitioner specified the term to be five years but by revocation order, the tenure would be cut short, and as, there is nothing in the Act of 1961 prohibiting / dispensing an opportunity of 35 being heard and as held by the Supreme Court in The Scheduled Caste and Weaker Section Welfare Association (Regd.) and another vs State of Karnataka and others [AIR 1991 SC 1117], it was imperative that before withdrawing the nomination, the person affected had to be notified. Any other argument or taking a contra position would amount to indirectly bringing in the doctrine of pleasure which the State legislature preferred avoiding to confer upon the respondent No.1. Notwithstanding the above, the nomination of members to the respondent No.2 - Council is based on the satisfaction of the respondent No.1 and is not on an application by any member. Therefore, when the respondent No.1 nominated a person, it ordinarily indicated that it was for the full term of five years, lest such person would or would not have accepted it. If the respondent No.1 were to remove such nominated member at its whim and fancies, then no person would accept to be nominated. Under the circumstances, it is incumbent upon the respondent No.1 to notify the reasons for withdrawal of 36 the nomination. Such reasons should not be arbitrary or whimsical but should stand to reason. Therefore, it is held that the respondent No.1 is entitled to exercise power to withdraw the nomination, subject however to the condition that the reason for withdrawal of the nomination is not arbitrary, stigmatic and the affected person is notified before the nomination is withdrawn. In the present case, the petitioner was put on notice in W.P.No.3758/2020 that his nomination was not in accordance with law and the respondent No.1 conceded to that position, following which the nomination of the petitioner was withdrawn. Therefore, the petitioner was impliedly notified of the withdrawal of his nomination. Further, the reason assigned for withdrawal of the nomination is neither arbitrary nor stigmatic.
Question (iv):
28. The respondent No.1 as well as the impleading applicant have imputed suppression of proceedings in W.P. No.3758/2020 which resulted in the withdrawal of the 37 nomination of the petitioner. The orders passed in W.P. No.3758/2020 were verified from the website of the Court. It was found that the nomination of the petitioner was challenged and that the petitioner herein, was arrayed as respondent No.6 in the said writ petition and he filed his statement of objections. It is seen from the Order sheet in W.P.No.3758/2020 that this Court had passed the following interim order on 09.12.2020:
"Learned Government Advocate seeks two weeks' time to make submissions with regard to sub-Section (3) of Section 3 of the Karnataka Medical Registration Act, 1961 (for short "Act"). A perusal of the said provision would indicate that, sub-Section (2) of Section 3 consisted of Clauses (a) to (d). This came to be substituted by Act No.43 of 2003, whereunder Clauses (b), (c) and (d) were substituted. Thus, under Clause (d), 'five members' who are required to be nominated by State Government was restricted to 'four members'. Subsequently, by Act No.19 of 2017, after the words 'four members' the words 'one from each of the Revenue Division' came to be inserted.
However, fact remains that sub-Section (3) of Section 3 of the Act has remained unaltered, which mandates that, due regard shall be had to claims of Women 38 while making nomination under Clause (c) of sub- Section (2) of Section 3 by State Government. In this background, learned Government Advocate has sought for time. Contending that this has been ignored by Government while making nomination to the Karnataka State Medical Council present writ petition has been filed, challenging the nomination made on 20-01-2020. In fact this order of nomination has got spent itself or is not in force, inasmuch as, after 2017 amendment having come into force, a fresh nomination has been made as on 20.01.2020 vide Annexure R-1. When the mandate of sub-Section (3) of Section 3 of the Act indicates while making nomination that, due regard should be had to the claims of Women, under the impugned order, same seems to have been ignored by the appropriate Government. As such, learned Government Advocate has sought for time. At his request, we direct this matter to be listed on 23-12-2020. However, we make it clear that issue regarding maintainability of the writ petition is kept open."
29. Following the above, the nomination of the petitioner was withdrawn in terms of the impugned notification. The petitioner was aware of the fact that the respondent No.1 did not comply with the requirement under Section 3(3) of the Act of 2017. He also knew the 39 fact that the respondent No.1 decided to withdraw the nomination for the very same reason. The petitioner did not disclose the proceedings in W.P.No.3758/2020 which culminated in the withdrawal of his nomination. The petitioner did not choose to challenge the findings recorded by the Division Bench of this Court in W.P.No.3758/2020, referred above. He did not even disclose the aforesaid order dated 09.12.2020, which was a material fact. It was therefore incumbent upon him to disclose the same in the present writ petition. This definitely amounts to suppression of a material fact and the petitioner has not approached this Court with clean hands. The question whether this was a material fact or not to has to be considered in the light of the consequences that would ensue due to non-disclosure. Having regard to the finding recorded by this Court while answering question (ii), this Court would have allowed the writ petition if the proceeding in W.P. No.3758/2020 was not disclosed. Hence, it is held that the non-disclosure of this fact is fatal to the case of the petitioner.
40Question (v):
30. The impleading applicant claims that he had challenged the nomination of the petitioner by filing W.P.No.3758/2020 and that since the Division Bench of this Court felt that the nomination of the petitioner was not in accordance with Section 3(3) of the Act of 1961, the respondent No.1, to make amends for the mistake, issued the impugned notification withdrawing the nomination of the petitioner. He submitted that since the petitioner had deliberately suppressed the proceedings in W.P.No.3758/2020, the applicant must be permitted to come on record, so as to enable him to place all the relevant facts.
31. Per Contra, the learned counsel for the petitioner submitted that the role of the petitioner came to an end, once his cause of action in W.P.No.3758/2020 was liquidated, by the withdrawal of the nomination. He submitted that now the dispute is between the petitioner and the respondent No.1. He further submitted that none 41 of the rights of the impleading applicant is at stake and therefore, he is not a necessary party.
32. It is seen that the Division Bench of this Court had kept open the question of maintainability of writ petition No.3758/2020 by Order dated 09.12.2020. This Court did not consider the said question. However, in the meanwhile, the nomination of the petitioner was withdrawn and the petition was dismissed as having become infructuous by order dated 23.12.2020. Thus, the cause of action if any, of the impleading applicant stood sufficiently liquidated. When the withdrawal of the nomination of the petitioner is questioned in the present writ petition, the dispute is essentially between the petitioner and the respondent No.1. By virtue of the impugned notification, no right is vested or divested in / from the impleading applicant. Therefore, he is not interested in the litigation between the petitioner and the respondent No.1. It is not the case of the impleading applicant that the respondent No.1 and the petitioner are 42 colluding with each other to dilute the impugned notification and it is not even his case that the respondent No.1 would not effectively defend the writ petition.
33. Under the circumstances, while this Court appreciates the vigilantism of the impleading applicant to place on record the material available with him, but that does not cloth him with sufficient interest to come on record as an additional respondent. Hence I.A. No.1/2021 is rejected.
34. In view of the above, it is held that the nomination of the petitioner by the respondent No.1 was not at the pleasure of the respondent No.1. The withdrawal of the nomination of the petitioner by the impugned notification was justified as the petitioner was impliedly notified prior to withdrawal of his nomination. Further, since the petitioner had deliberately suppressed the material fact regarding the proceedings in W.P.No.3758/2020, he is not entitled for any reliefs in this writ petition. Hence this Writ Petition is dismissed. 43
35. Since the respondent No.1 in its affidavit dated 05.10.2021 has stated that it would henceforth strictly comply with the provisions of Section 3(3) of the Act of 2017, the following directions are issued:
(i) The nomination of members by the respondent No.1 to the respondent No.2 - Council under Section 3(2)(d) of the Act of 2017 shall be done only after the members are duly elected under clauses (a) to (c) of sub-section (2) of Section 3 of the Act of 2017;
(ii) After the members are elected as above, the respondent No.1 shall consider the claims of women members of the Council and also ascertain the streams of medicine which are not represented from amongst the elected members under Section 3(2)(d) and thereafter nominate members strictly in accordance with Section 3(3) of the Act of 2017;44
(iii) Once nominations are done as above, the respondent No.1 shall not be entitled to withdraw the nomination except for reasons that are not arbitrary or stigmatic and shall be only after issuing prior notice.
(iv) However, the respondent No.1 shall be entitled to exercise power under Section 7 or 8 of the Act of 2017 against any member, after issuing appropriate notice to him and conducting an enquiry in accordance with law and after hearing the affected member.
Sd/-
JUDGE sma