Delhi High Court
Dr V K Prajapati vs Union Of India And Ors. on 13 November, 2017
$~45
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 9982/2017 & CM Nos.40716-40718/2017 & 40748/2017
DR V K PRAJAPATI ..... Petitioner
Through: Mr Nidhesh Gupta, Sr. Advocate with
Mr Rajesh Kumar, Advocates.
versus
UNION OF INDIA AND ORS. ..... Respondents
Through: Mr Dev P. Bhardwaj, CGSC with Mr
Satya Prakash Singh, Advocates for
UOI.
Mr T. Singhdev, Mr Michelle
Biakthansangi Das, Mr Tarun Verma,
Ms Puja Sarkar and Mr Abhijit
Chakravarty, Advocates for R-2
CORAM:
HON'BLE MR. JUSTICE VIBHU BAKHRU
ORDER
% 13.11.2017
VIBHU BAKHRU, J
1. The petitioner has filed the present petition, inter alia, impugning the
letter dated 24.10.2017 issued by the Dental Council of India (hereafter
‗DCI'). The petitioner also impugns the letter dated 23.10.2017 issued by
respondent no.1 to the Secretary, DCI.
2. It is stated that respondent no.4 (Dr Vivek Kumar) was nominated as
a Member of DCI under Section 3(e) of the Dentist Act, 1948 (hereafter ‗the
Act') by the State of Jharkhand (respondent no.3) vide notification dated
20.08.2014.
3. The petitioner claims that for certain reasons (which are not necessary
to be taken note of in this order), respondent no.3 exercised its powers to
replace the petitioner with Dr Vivek Kumar as its nominee member of the
DCI under Section 3(e) of the Act.
4. The principal question that falls for consideration by this Court is
whether a notification by the Government of India is necessary for the
petitioner to be appointed as a member of DCI. The petitioner also impugns
an order dated 19.05.2015 passed by respondent no.1, which indicates that
the Central Government has decided to notify in the Official Gazette
election/nomination of all members of DCI as provided in various
provisions under Section 3 of the Act.
5. It is the petitioner's case that the said notification is contrary to the
provisions of the Act and the decision rendered by this Court in Dr H. R.
Prem Sachdeva and Others v. Union of India and Others: 1995(3) AD
(Delhi) 1061.
6. Aggrieved by the decision of respondent no. 3 in nominating the
petitioner as a member of DCI in his place, Dr Vivek Kumar has preferred a
writ petition (being W.P.(S) 711/2016) before the Jharkhand High Court,
inter alia, challenging the petitioner's nomination as a member of DCI. It is
Dr Vivek Kumar's case that the said decision of respondent no. 3 is violative
of the principles of natural justice as it was without issuance of any prior
notice and without affording him an opportunity to be heard. The said
petition was considered by the Jharkhand High Court on 19.03.2016 and the
Court passed an ad interim order, inter alia, directing that "status quo as on
today shall be maintained."
7. In the aforesaid context, the controversy sought to be raised before
this Court is that on the date of the said order, Dr Vivek Kumar was no
longer a member of the DCI and had been replaced by the petitioner. Thus,
it is the petitioner's contention that the aforesaid order of status quo would
not protect Dr Vivek Kumar's position as member of DCI since he had
already ceased to be one on respondent no. 3 nominating the petitioner in his
place.
8. Before proceeding further to address the aforesaid question it is
necessary to refer to the provisions of Section 3 and Section 6(1) of the Act
which are set out below:-
―3. Constitution and Composition of Council - The Central
Government shall, as soon as may be, constitute a Council
consisting of the following members, namely:-
(a) one registered dentist possessing a recognised dental
qualification elected by the dentists registered in Part A of
each State register;
(b) one member elected from amongst themselves by the
members of the Medical Council of India;
(c) not more than four members elected from among
themselves, by--
(a) Principals, Deans, Directors and Vice-Principals of dental
colleges in the States training students for recognised dental
qualifications:
Provided that not more than one member shall be elected from
the same dental college;
(b) Heads of dental wings of medical colleges in the States
training students for recognised dental qualifications;
(d) one member from each University established by law in the
States which grants a recognised dental qualification, to be
elected by the members of the Senate of the University, or in
case the University has no Senate, by the members of the
court, from amongst the members of the Dental Faculty of the
University or in case the University has no Dental Faculty,
from amongst the members of the Medical Faculty thereof;
(e) one member to represent each State nominated by the
Government of each such State from among persons registered
either in a medical register or a dental register of the State.
Explanation: - In this clause, ―State‖ does not include a Union
territory.
(f) six members nominated by the Central Government, of
whom at least one shall be a registered dentist possessing a
recognised dental qualification and practising or holding an
appointment in an institution for the training of dentists in a
Union territory and at least two shall be dentists registered in
Part B of a State register;
(g) the Director-General of Health Services, ex Officio:
Provided that pending the preparation of registers the State
Governments may nominate to the first Council members
referred to in parts (a) and (e) and the Central Government
members referred to in part (f) out of persons who are eligible
for registration in the respective registers and such persons
shall hold office for such period as the State or Central
Government may, by notification in the Official Gazette,
specify.
xxxx xxxx xxxx
6. Term of office and casual vacancies: -
(1) Subject to the provisions of this section an elected or
nominated member shall hold office for a term of five years
from the date of his election or nomination or until his
successor has been duly elected or nominated, whichever is
longer:
[Provided that a member nominated under clause (e) or clause
(f) of section 3, shall hold office during the pleasure of the
authority nominating him.]‖
9. A plain reading of Section 6(1) of the Act indicates that the member
which is nominated under Clause (e) of Section 3 of the Act - that is the
member nominated by the State Government - would hold office during the
pleasure of the authority nominating him (which in this case would be the
State of Jharkhand). The issue whether a notification by the Government
was required for the nomination to take effect was considered by the
Division Bench of this Court in Dr H. R. Prem Sachdeva (supra) and the
Court had held as under:-
―...... We, therefore, hold that no Gazette notification is
necessary under the Regulations for a person
nominated/elected under the provisions of clauses (b), (c), (d)
and (d) of section 3 and that they could act as members
immediately on their nomination/election. In the light of the
aforesaid view that we have taken the members who have been
nominated under clauses (c), (d) and (e) of section 3 of the Act
would continue to be members of the Council even if in their
case no notification is issued by the Central Government and
published in the Gazette. In our view, in such cases a
notification by the council shall be sufficient.‖
10. The aforesaid decision was carried in appeal before the Supreme
Court. However, the aforesaid decision was not interfered with.
11. The learned counsel for the petitioner submitted that in terms of the
order dated 19.05.2015 passed by respondent no.1, it is now mandatory for
the Central Government to notify the name of the member nominated by the
State Government on DCI for the same to take effect. The aforesaid
contention is unmerited as the plain language of Section 6(1) of the Act
indicates that a person nominated by the State Government under Section
3(e) of the Act would hold his office during the pleasure of the said
authority. Thus, the moment a State Government takes a decision to remove
the person nominated by it and communicates the same, the nominated
person would cease to be a member of the DCI. This is also the view
unequivocally expressed by the Division Bench of this Court in Dr H. R.
Prem Sachdeva (supra).
12. At this stage, it is also relevant to refer to the order dated 19.05.2015
and the same is set out below:-
‗‗In pursuance of the provisions contained in the Section 3 of
the Dentists Act, 1948, the Central Government has decided
to notify in the Official Gazette election/nomination of all
members of Dental Council of India (DCI) as provided in
various provisions under Section 3 of the Act. The Dental
Council of India is, therefore, directed to take necessary steps
in respect of notification by the Central Government of all
existing members whose nomination/election has not been
notified in the Official Gazette as well as for all future
vacancies in the Council accordingly.
This issues with the approval of competent authority.''
A plain reading of the above order indicates that the Central Government
has decided to notify the election/nomination of members of DCI; however,
this does not mean that the nomination of members under Section 3(e)
and/or 3(f) of the Act would take place only on the same being notified in
the Official Gazette. The said order cannot be read in a manner so as to
conflict with the provisions of the Act.
13. As far as the import of the order dated 19.03.2016 passed by the
Jharkhand High Court is concerned, this Court is refraining from expressing
any opinion on the same as it would be apposite for the parties to approach
the Jharkhand High Court to seek the necessary clarifications.
14. The petition and all the pending applications are disposed of with the
aforesaid observations.
VIBHU BAKHRU, J
NOVEMBER 13, 2017
MK
