Delhi High Court
Dr. V. Murali vs Union Of India & Ors on 18 January, 2018
$~3
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6503/2016 & CM No.26624/2016
% Date of Decision: 18th January, 2018
DR. V. MURALI ..... Petitioner
Through: Mr. Animesh Kumar, Adv.
versus
UNION OF INDIA & ORS ..... Respondent
Through: Mr. Manish Mohan, CGSC
with Ms. Manisha Saroha,
Adv. for R-1.
Mr. Vikas Singh, Sr. Adv.
with Mr. Gaurav Sharma,
Adv. for R-2.
CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT (ORAL)
GITA MITTAL, ACTING CHIEF JUSTICE
1. This writ petition, claiming to have been filed in public
interest, challenges the appointment of the respondent no.4 as the
Secretary of the Dental Council of India (respondent no.2) effected
by way of Notification no.AE-151(I)-2016/3258 dated 29th June,
2016 on the ground that it has effected the appointment of the
respondent no.4 without seeking prior permission of the Central
Government in accordance with statutory provisions.
2. The respondent nos. 1 and 2 were represented on
advance notice and by the order dated 27th July, 2016, the
W.P.(C) No.6503/2016 Pg 1 of 8
respondent no.2 was called upon to file a counter affidavit
explaining the steps taken before effecting the appointment of the
respondent no.4.
3. The respondent no.1 as well as respondent no.2 have filed
their counter affidavits. The record relating to the selection
process, which was adopted before effecting the appointment of the
respondent no.4 has also been produced before us.
4. Ld. counsel for the petitioner complains that the respondent
no.2 has taken recourse to effect appointment of the respondent
no.4 without making any attempt to fill up the post of Secretary to
the respondent no.4 on deputation.
5. Mr. Vikas Singh, ld. Senior Counsel appearing for the
respondent No.2 has drawn our attention to the statutory scheme.
For expediency, we extract the relevant provisions of the Dentists
Act, 1948 (hereinafter referred to as "the Act") regarding the
appointment of staff as well as the remuneration and allowances
which they would be entitled to upon such appointment. Section 8
of this enactment reads thus:
" Section 8 - Staff remuneration and allowances.--
(1) The Council shall--
(a) appoint a Secretary who may also, if so
decided by the Council, act as Treasurer;
(b) appoint such other officers and servants as the
Council deems necessary to enable it to carry out
its functions under this Act;
W.P.(C) No.6503/2016 Pg 2 of 8
(c) require and take from the Secretary or from
any other officer or servant such security for the
due performance of his duties as the Council
considers necessary; and
(d) with the previous sanction of the Central
Government, fix the fees and allowances of the
President, Vice-President and other members of
the Council, and the pay and allowances and other
conditions of service of officers and servants of the
Council.
(2) Notwithstanding anything contained in clause (a) of
sub-section (1), for the first four years from the first
constitution of the Council, the Secretary of the Council
shall be a person appointed by the Central Government,
who shall hold office during the pleasure of the Central
Government."
6. A bare reading of the statutory provision would show that
the legislature has empowered the Dental Council of India to effect
appointments to the post of Secretary of the Council, the provision
with which we are concerned in the present petition. So far as the
requirement of "previous sanction of Central Government" is
concerned, in terms of clause (d) of sub-section (1) of Section 8 of
the Act, the same is restricted to fixation of pay and allowances of
the members of the Dental Council of India and other conditions of
service of officers and servants of the Council.
7. It appears that in exercise of powers conferred under Section
20(1) of the Act, the Dental Counsel of India has notified "Dental
Council of India (Secretary) Recruitment Rules, 2010".
8. Mr. Vikas Singh, ld. Senior Counsel appearing for the
respondent no.2 has pointed out that inasmuch these Rules
W.P.(C) No.6503/2016 Pg 3 of 8
prescribed the pay band with the corresponding grade pay which
could be admissible to the Secretary of the respondent no.2, a
reference was made to the Central Government in accordance with
Section 8(1)(d) of the Act. It is emphasized by Mr. Singh that
there is no statutory requirement of seeking prior sanction of the
Central Government for any other purpose.
9. Ld. counsel for the petitioner is unable to point out any
statutory provisions of law which requires the respondent no.2 to
seek previous sanction for effecting the appointment to the post of
Secretary to the Dental Council of India.
10. It has to be noted that so far as the previous sanction of the
Central Government is concerned, the same is confined to making
of the Rules for pay and allowances as well as prescription of the
other conditions of the service of the officers and servants of the
Dental Council of India.
Thus, the statutory provision cannot be read that any
previous sanction of the Central Government is required to effect
appointment of the officers and servants of the Council.
11. So far as making appointment to the post of Secretary of the
Dental Council of India is concerned, the respondent no.2 in its
counter affidavit disclosed as under:
"22. It is relevant to submit that vide circular dated
02.11.2010, copy whereof is annexed as Annexure
R2/1, address to the various authorities, the
answering respondent in accordance with the
provisions of the Rules invited applications for filling
up the post of Secretary in Dental Council of India
W.P.(C) No.6503/2016 Pg 4 of 8
on deputation basis including short term contract
basis. It is further submitted that the said circular
was forwarded by the answering respondent to the
Central Government/Universities/Public Sector
Undertakings/ Autonomous Organizations, Under
Secretary and Coordinator Section of Ministry of
Health and DAVP.
23. It is relevant to submit that the answering
respondent had thereafter also published
advertisement in the Employment Newspaper in the
month of December, 2010, inviting applications for
filling up the post of Secretary on deputation
including short term contract basis.
24. It is respectfully submitted that the answering
respondent had received ten applications in response
to advertisements published by the Council in various
newspapers. It is submitted that the Executive
Committee of the answering respondent in its
meeting held on 10.03.2011 decided to process the
said applications and it was decided by the Executive
Committee to constitute a Sub Committee to
scrutinize the applications which had been received.
25. It is submitted that after scrutinizing the
applications received by the Council the Sub
Committee of the answering respondent found that
none of the candidates fulfilled the qualifications
and eligibility criteria required for the appointment
to the Secretary, as provided under the Act and the
Rules. Accordingly, the Sub-Committee forwarded its
recommendations to the Executive Committee of the
answering respondent that none of the candidates
fulfil the requisite qualifying criteria for appointment
to the post of Secretary. The Executive Committee of
the answering respondent in its meeting held on
27.06.2011, after due discussion and deliberation
decided to accept the recommendation of the Sub-
W.P.(C) No.6503/2016 Pg 5 of 8
Committee.
26. It is submitted that the answering respondent
vide circular dated 12.08.2015, copy whereof is
annexed as Annexure R2/2, the answering respondent
in accordance with the provisions of the Rules once
again invited applications for filling up the post of
Secretary in Dental Council of India on deputation
basis including short term contract basis. It is
further submitted that the said circular was
forwarded by the answering respondent to the
Central Government/ Universities/Public Sector
Undertakings/Autonomous Organizations, Under
Secretary and Coordinator Section of Ministry of
Health and DAVP.
27. It is relevant to submit that the answering
respondent in the month of Oct/Nov.2015 had also
published several advertisements in various
newspapers inviting applications for filling up the
post of Secretary on deputation including short term
contract basis. Copies of the advertisement, as per
the requirement of the rule/guideline published by the
answering respondent in Employment News on dated
31.10.2015 is annexed as Annexure-R2/3.
28. It is respectfully submitted that the answering
respondent in response to the abovementioned
advertisement received two applications, which were
placed before the Executive Committee of the
answering respondent for their consideration in its
meeting held on 15.01.2016. It is relevant to submit
that after scrutinizing the two applications it was
found by the Executive Committee of the Council that
the candidates did not fulfil the requisite
qualifications and eligibility criteria required for the
appointment to the post of Secretary, as prescribed
under the Act and the Rules.
W.P.(C) No.6503/2016 Pg 6 of 8
29. It is submitted that it was under these
circumstances that the Executive Committee in its
meeting held on 15.01.2016, after due discussion
and deliberation, decided to publish an
advertisement afresh for appointment to the post of
Secretary by Direct Recruitment method since the
Council had been unable to find a suitable candidate
for appointment to the post of Secretary on deputation
or short term contract. It is relevant to submit that
the answering respondent on various occasions had
made attempts to fill the post of Secretary on
deputation including short term contract basis,
however, the answering respondent on such occasions
had been unable to find any suitable candidate
fulfilling the requisite qualifications prescribed
under the Act and the Rules."
(Emphasis Supplied)
12. Pursuant to the above decision, the respondents had
published advertisements in the Employment Newspapers in the
month of April, 2016
13. In response thereto, eight applications were received by the
respondent no.2. These applications were considered by a
Selection Committee appointed by the respondent no.2. On 25th
May, 2016, the Selection Committee interviewed and conducted a
Personality Test of the applications. Only six out of eight
applicants had appeared, who, based on the evaluation, were given
marks by the Selection Committee. After undertaking an
appropriate selection process, the Selection Committee
recommended the name of the respondent no.4 who had secured
the highest marks in the selection process. In its meeting held on
W.P.(C) No.6503/2016 Pg 7 of 8
1st June, 2016, the Executive Committee of the respondent no.2
accepted the recommendations of the Selection Committee to
appoint the respondent no.4 to the post of Secretary of the Dental
Council of India.
This decision of the Executive Committee was accepted in
the General Body meeting held on 11th/12th June, 2016 of the
respondent no.2. On 11th June, 2016, based thereon, the respondent
no.2 issued the offer of appointment to the respondent no.4, who
has since then been working in this position.
14. The above narration of facts would show that the respondent
no.2 has made every effort to find the suitable candidate on
deputation. Having failed in this effort, the respondent no.2 has
taken recourse to inviting applications for appointment for the post
of Secretary to the respondent no.2 by direct recruitment.
In view of the above discussion, the challenge made by the
petitioner is wholly misconceived and baseless.
We find no merit in this writ petition and the same is
accordingly dismissed.
In view of the order passed in the writ petition, pending
application is hereby dismissed.
ACTING CHIEF JUSTICE
C.HARI SHANKAR, J
JANUARY 18, 2018/pmc
W.P.(C) No.6503/2016 Pg 8 of 8
