Dr. Harsangi Veerabhadrappa vs The State Of Karnataka And Anr
2021 Latest Caselaw 3741 Kant

                         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referred to as the "the Act of 2017") was withdrawn.

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

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

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

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

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

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

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

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

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

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

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

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

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.

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.

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

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

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

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.

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;

(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

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;

(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

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:

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

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

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.

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

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

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

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

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

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

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

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

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

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

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.

Question (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

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

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.

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;

(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