The Tripura HC allowed the writ petition and quashed the impugned order dated 29.07.2022, by which the Petitioner’s nomination as the State Member of the Pharmacy Council of India (“PCI”) was canceled.
A single-judge bench of this Court comprising Hon’ble Justice Arindham Lodh held that the State has no absolute authority to cancel the nomination once one member is nominated as a State Member to PCI due to the contingencies ingrained under Section 7 of the Pharmacy Act, 1948 (“the Act”).
Brief Facts:
The Petitioner was a nominated member appointed under Section 3(h) of the Act. He was nominated as the PCI vide notification dated 29.11.2018 issued by Respondent no. 2. During his secured tenure, vide impugned order dated 29.07.2022 issued by respondent no. 2, Prof. (Dr.) Suvakanta Dash, respondent no. 6 herein, had been officially nominated as a member of the PCI under Section 3(h) of the Act, 1948, replacing the Petitioner. The Petitioner challenged the impugned order dated 29.07.2022 by submitting his representation before the Respondents on 01.08.2022, but, till date, Respondent no.2 failed to address the said representation. Hence, this writ petition was filed by the Petitioner against the impugned notification dated 29.07.2022 issued by the Secretary, Health & Family Welfare Department, Govt. of Tripura.
Contentions of the Respondents:
The learned Counsel for the Respondent submitted that there is no provision under Section 7 of the Act restricting the State government from cancelling the appointment of the nominated member of PCI before the expiry of tenure of five years. Echoing the above submission, learned Counsel appearing on behalf of Respondent no. 6 submitted that there are some allegations against the Petitioner, and for that reason, the State government had cancelled the nomination of the Petitioner.
Observations of the Court:
This Court referred to the counter-affidavit filed by the State in which they nowhere alleged that the Petitioner had misused or abused his position as a State Member of PCI. The only ground taken by the State government was that the Act does not restrict the State from cancelling the appointment/ nomination of its nominated Member to PCI before the expiry of the term of five years. In view of the counter-affidavit, the Court did not find any merit in the submission of learned Counsel appeared for Respondent no.6.
After the perusal of section 7 of the Act, the Court observed that this section manifests that term of the nominated member shall not be less than 5(five) years, and it may be extended beyond the period of 5(five) years till new member is nominated or elected. A casual vacancy will arise if the nominated member resigns and his seat becomes vacant. A casual vacancy shall also arise if a such nominated member is found absent from three consecutive meetings of the Central Council without any excuse. The words, ‘sufficient in the opinion of the Council’ mean and connote that if such member gives any excuse or assigns any reasons for such absence, the Central Council shall decide the merits of such excuse, and if the Council finds no merit and rejects the same, then, the seat of such member shall be deemed to have vacated.
In view of the above interpretation, this Court held that the State government has no absolute authority to cancel the nomination once one member is nominated as a State Member to PCI due to the contingencies ingrained under Section 7 of the said Act, 1948. Further, if there is any allegation against a nominated member prompting the State government to cancel/withdraw his nomination, in that case, such nominated member has the right to get the opportunity of being heard, which is also totally absent in the instant case. Therefore, the impugned order dated 29.07.2022 was quashed and set aside.
The decision of the Court:
The Tripura High Court disposed of the writ petition and quashed the impugned order dated 29.07.2022.
Case Title: Sri Nilimanka Das vs State of Tripura and others
Coram: Hon’ble Justice Arindham Lodh
Case no.: WP(C) 654/2022
Advocate for the Petitioner: Mr. P. Roy Barman and Mr. K. Nath
Advocate for the Respondents: Mr. M. Debbarma, Mr. A. Bhaumik and Mr. B. Majumder
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