Telangana High Court
Sri. Bodige Sridhar vs The State Of Telangana on 24 March, 2023
Bench: Surepalli Nanda
IN THE HIGH COURT OF TELANGANA AT HYDERABAD
W.P. No. 42721 of 2022
Between:
Sri Bodige Sridhar and another
... Petitioners
And
The State of Telangana and others
... Respondents
JUDGMENT PRONOUNCED ON: 24.03.2023
THE HON'BLE MRS JUSTICE SUREPALLI NANDA
1. Whether Reporters of Local newspapers : yes
may be allowed to see the Judgment?
2. Whether the copies of judgment may be
marked to Law Reporters/Journals? : yes
3. Whether Their Lordships wish to
see the fair copy of the Judgment? : yes
_______________
SUREPALLI NANDA, J
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THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 42721 of 2022
% 24.03.2023
Between:
# Sri Bodige Sridhar and another
..... Petitioner
And
$ The State of Telangana and others
.....Respondents
< Gist:
> Head Note:
! Counsel for the Petitioners : Mr. A.Ravindranath Reddy
^ Counsel for the Respondent No.1: G.P. for Medical & Health
^ Counsel for the Respondent Nos. 2 to 5: Mr
M.V.R.Suresh
? Cases Referred:
1. (1876) Ch.D 426
2. 1993 SCC (3) 161
3. 1975 (1) SCC 559
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THE HON'BLE MRS JUSTICE SUREPALLI NANDA
W.P. No. 42721 of 2022
ORDER:
Heard Sri A.Ravindranath Reddy, learned senior counsel
for the Petitioners and learned Government Pleader for Medical
and Health appearing for respondent No.1 and Sri
M.V.R.Suresh, learned counsel appearing for respondents 2 to
5.
2. The main prayer sought for by the Petitioners is as
follows :
"to issue a Writ of Mandamus, declaring the Memo No.
6129/C2/2022 dated 15.07.2022 of the 1st respondent
and the election dated 29.07.2022 to the post of the
President and Vice President of the 2nd respondent as
arbitrary, illegal and contrary to Pharmacy Act, 1948 and
Telangana Pharmacy Council Rules, 1955, set aside the
Memo No. 6129/C2/2022 dated 15.07.2022 of the 1st
respondent and the election dated 29.07.2022 to the post
of the President and Vice President of the 2nd respondent,
direct Respondents 1 to 3 to conduct the elections for
electing the said 6 members as required under clause (a)
of Section 19 of Pharmacy Act, 1948 and consequently,
conduct the elections to the posts of President and Vice
President of the 2nd respondent.
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3. The case of the petitioners, in brief, is as follows:
a) Vide G.O.Ms.No 30 Health, Medical and Family
Welfare (C2) Department, dated 06.04.2015, the
Telangana State Pharmacy Registration Tribunal has
been formed, in accordance to Section 30(1) of
Pharmacy Act, 1948.
b) Vide G.O.Rt.No.753, dated 21.11.2015, Director,
Drugs Control Administration, Telangana State,
Hyderabad was places as FAC of the post of Registrar
of Telangana State Pharmacy Council and vide
G.O.Ms.No.13, dated 13.03.2016, 3 (Three) persons
were nominated to Telangana State Pharmacy
Registration Tribunal.
c) Section 19 of Pharmacy Act, 1948, provides for
constitution and composition of State Councils and as
inferred from Section 19 of Pharmacy Act, 1948
Telangana State Pharmacy Council (TSPC) shall be a
Body Corporate with 15 members.
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d) The 1st respondent vide G.O.Ms.No.1, Health,
Medical and Family Welfare (C2) Department, dated
07.01.2019 had nominated 5 (Five) members to
Telangana State Pharmacy Council (TSPC) by
exercising the powers under Clause (b) of Section 19
of Pharmacy Act, 1948 for a period of 5 years.
e) Except for the 6 (Six) members, who were to be
elected by the registered pharmacists as mandated
under Section 19 (a) of the Pharmacy Act, 1948, all
the members had been registered in Telangana State
Pharmacy Council (TSPC).
f) Without completing the composition of the State
Council, the Registrar (3rd respondent herein) had
forwarded the proposal dated 23.06.2022 to conduct
elections to the posts of President and Vice President
under Section 23 of The Pharmacy Act, 1948 by duly
following Rule 17 of Telangana Pharmacy Council
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Rules 1955 with only 9 (Nine) council members and
the said proposal had been accepted by the 1st
respondent vide Memo No.6129/C2/2022, dated
15.07.2022 and the same is without jurisdiction,
illegal and contrary to the scheme of the Pharmacy
Act, 1948 and Rules.
g) The said appointment of President and Vice
President is not only in violation of the Pharmacy Act,
1948, and the said memo issued vide Memo
No.6129/C2/2022 is not issued as per procedure
prescribed under Rule 17 of Telangana Pharmacy
Council Rules, 1955.
h) A council meeting was convened by the 2nd
respondent on 29.07.2020 for conducting elections to
the posts of President and Vice-President of the
council. One Mr. R.Srinivas and Mr. A.Sanjay Reddy
were nominated for the post of President.
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Subsequently after casting the votes by the council
members, the nominated persons secured 4 votes
each and all the council members in the meeting had
decided to elect the president by way of toss of coin
and accordingly, Mr. A.Sanjay Reddy had been elected
as the President of Telangana State Pharmacy Council
(TSPC).
i) As per Rule 17 of Telangana Pharmacy Council
Rules, 1955, when votes were cast equally, the
council ought to have gone for another ballot and
thereafter, for drawl of lots instead the President was
elected by toss of coin, which is contrary to the Rule
17 of Telangana Pharmacy Council Rules, 1955.
j) Mr.R.Srinivas Reddy upon securing 50% of the
votes, was elected as the Vice-President of Telangana
State Pharmacy Council (TSPC).
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k) Conduction of the election with only 9 (Nine)
members is without jurisdiction and is in violation of
the Section 19 (a) of the Pharmacy Act, 1948 and
hence, the Memo No.6129/C2/2022 and the
consequent election dated 29.07.2022 are liable to be
set aside. Hence, the Writ Petition.
4. The counter affidavit filed by respondent
Nos. 2 to 4, in brief, is as follows:
a) Petitioners are not being the members of
Telangana State Pharmacy Council, have no locus
standi to file the present Writ Petition questioning the
election of President and Vice President.
b) The Petitioners have no right in challenging the
Memo No.6129/C2/2022 dated15.07.2022, as the
decision of the Returning Officer or the Chairman shall
be final, as has been contemplated under Section 24
of The Pharmacy Act, 1948.
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c) Aggrieved by the result of the election, the
dispute has to be risen within 7 (Seven) days from the
date of publication of the results as mandated under
Section 16 of the Telangana State Pharmacy Council
Rules, 1955. But, the petitioner in spite of rising the
dispute with the Returning Officer within 7 days had
filed this Writ Petition after lapse of 3 (Three) Months.
d) Registrar has forwarded the proposal to conduct
elections basing on the memo issued by the
Government. The said memo has been issued by the
Secretary to the Government, Health Medical and
Family Welfare, Government of Telangana which
cannot be challenged.
e) As per Rule 17 (2) of Telangana State Pharmacy
Council Rules, 1955, the President has taken the chair
to elect the Vice-President and hence, it is within the
jurisdiction of Telangana State Pharmacy Council
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Rules, 1955 and hence the election of President and
Vice President is done as per the procedure laid down
in Telangana State Pharmacy Council Rules, 1955.
f) Due to equality of votes among the contestants,
the members have decided to go for toss of a coin and
the Chairman, as per the collective decision of all
members had finalized the election of the president
and the same is not contrary.
g) Any grievance with regard to the election
procedure has to be raised before the Returning
Officer within 7 (Seven) days from the date of
publication of the results as per Rule 16(1) of TSPC
Rules, 1955, and contrary to the said rule, the
petitioners have approached the Court without
approaching the Government as required under
Section 24 of the Pharmacy Act, 1948.
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h) The Pharmacy Council of India vide circular dated
21.06.2022 had stated that the President of the
Council shall be a registered Pharmacist and not any
other professional and due to this there maybe
occurrence of 'Administrative Paralysis' in case of
absence of President to the Telangana State Pharmacy
Council.
i) The election of President and Vice-President was
conducted as per instruction of the Government vide a
memo. Hence this Writ Petition is filed without any
merits and is liable to be dismissed.
5. PERUSED THE RECORD :
A. The order dated 12.12.2022 passed in
I.A.No.1/2022 in W.P.No.42721/2022 reads as under :
Heard Sri M. Ravindranath Reddy, learned Senior
Counsel for the petitioners, learned Assistant Government
Pleader for Medical and Health and Sri M.V.R. Suresh,
learned counsel for respondent No.2 to 4.
Though notice is served on respondent No.5 as
early as on 30.11.2022, no appearance is entered on his
behalf as on date.
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ln terms of Section 19 of the Pharmacy Act, 1948
(for short, 'the Act, 1948'), the constitution and
composition of the State Pharmacy Council is
required to be constituted. ln terms of Section 19 (a), six
members elected from amongst themselves by registered
pharmacists of the State Council shall form part of the
State Council and from amongst the members described
under Section 19 (a) to (e) of the Act, 1948, the resident
and the Secretary of the State Pharmacy Council and
required to be elected. But in the instant case, the
President and the Secretary of the State Pharmacy
council are elected without there being the members as
contemplated under Section 19 (a) of the Act, 1948.
ln the absence of six members being elected under
Section 19 (a) of the Act, 1948, any election of President
and Secretary of State Pharmacy Council is contrary to
Section 19 of the Act, 1948.
ln the circumstances, prima facie, the impugned
Memo dated 15.07.2022 appears to be contrary to
Section 19 of the Act, 1948.
Though counter affidavit is filed by respondent
Nos,2 to 4, there is no proper justification made for
electing the President and the Secretary of the
Pharmacy Council without conducting elections for six
members, as contemplated under Section 19 (a) of the
Act, 1948.
ln the circumstances, there shall be interim
direction, as prayed for, for a period of eight weeks.
B. Memo No.6129/C2/2022, dated 15.07.2022 of the
1st Respondent reads as under :
In the Circumstances reported by the Registrar,
Telangana State Pharmacy Council, Hyderabad,
Government hereby accorded permission to the Registrar,
TSPC, Hyderabad to conduct election for the posts of
President and Vice President of TSPC and Section 23 of
the Pharmacy Act, 1948 duly following Rule 17 of the
Pharmacy Council Rules, 1955 to conduct the elections.
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2. The Registrar, Telangana State Pharmacy
Council, Hyderabad shall take necessary action
accordingly and furnish compliance report to the
Government.
C. Paras 5, 6 and 7 of the Counter Affidavit filed by the
1st Respondent reads as under:
""5. It is respectfully submitted that consequent
to interim direction of the Hon'ble High Court
dated: 12.12.2023, State Pharmacy Council has
decided to conduct elections to six (6) members
to the Council from the registered pharmacists of
the state in terms of Section 19 (a) of Pharmacy
Act 1948.
6. It is respectfully submitted that conducting of
election under Section 19(a) of the Pharmacy Act,
1948 the register shall be brought up-to-data
three (3) months before ordinary election to the
State Council are held and the copies of this
register shall be printed under Section 40(3)(a)
of the Act.
7. It is respectfully submitted that to complete
the updating of register and to conduct the
election to six (6) members u/s 19(a) of the Act,
state/ Pharmacy Council requires about six (6)
months of time."
D. Counter filed by the 3rd Respondent, in particular,
paras 3, 4, 9, 12, 25 and 26 reads as under:
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"3. In reply to para 2 of the affidavit, it is
respectfully submitted that the petitioners are
questioning the Memo No 6129/C2/2022 dt 15/07/2022
issued by the Secretary Health Medical and Family
Welfare Department, Govt of Telangana. The Election
process cannot be questioned as the Returning Officer or
Chairman's decision is final, as per section 24 of The
Pharmacy Act 1948," Elections under this Chapter shall
be conducted in the prescribed manner, and where any
dispute arises regarding any such election, it shall be
referred to the State Government whose decision shall be
final" as such the present writ petition is not
maintainable.
4. I submit that the petitioners have to raise any
dispute of election process within Seven days from the
date of publication of results under Rule 15(1) to the
Returning officer of election process which is Contrary to
Rule 16(1) of T.S. Pharmacy Council Rules 1955.
Rule 15(1) of TSPC Rules 1955 states as under: -
"The Returning officer shall publish the results of the
election in the Andhra Pradesh Gazette in the case of 1st
election to the council and also send a report to the
Government about the election"
Rule 16(1) of TSPC Rules 1955 states as under: -
"An election petition calling in question any election
shall be presented to the Returning Officer by any
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candidate or elector at such election within seven
days from the date of publication of the results
under rule 15"
In view of the above said observation of the rules it is
clear that any aggrieved, member pertaining to the
election process has to raise any objections with in a
statutory period of 7 days. Now the petitioners have
approached this Honble court after a lapse of three
months which is not maintainable.
9. I further submit that as per Rule 17(2) of
T.S.Pharmacy Council Rules, 1955 the President has
taken the chair to elect the Vice- President as per the
Procedure laid down in Sub Rule (1) which was duly
followed during the election of Vice-President, hence it is
within the jurisdiction as per the Telangana State
Pharmacy council Rules, 1955.
12. In reply to para 9 of the affidavit I submit that
the contestants secured equal votes of 4 each as in case
of equality of votes the members have decided to go for
toss of a coin. Hence the same was taken up by the
chairman as per the collective decision of all the
members and the election of President was finalized
which is not contrary as alleged by the petitioners.
25. Meanwhile, Pharmacy Council of India
issued a Circular dated 21.06.2022 stating that,
President of the Council shall be a Registered Pharmacist
and not any other professional. Due to this there may be
an occurrence of threat of "Administrative Paralysis" in
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case of an absence of President to the Telangana State
Pharmacy Council.
26. To Cope with this situation, the
Government of Telangana conducted the election as per
the Rule 17 of Andhra Pharmacy Council Rules 1955
(Adopted by Telangana State Pharmacy Council) as there
is an availability of 4 Registered Pharmacists in the shape
of Nominated Members U/S 19(b). Accordingly,
Mr.A.Sanjay Reddy was elected as President and R.
Srinivas as Vice-President.
In view of the above, it is prayed that as the
election of President and Vice-President was conducted
as per instructions of the Government (through a
memo), the petition is filed without jurisdiction and
liable to be dismissed."
6. RELEVANT PROVISIONS OF LAW :
a. Section 19 of the Pharmacy Act, 1948 read as
under:
Constitution and composition of State
Councils.--Except where a Joint State Council is
constituted in accordance with an agreement made
under section 20, the State Government shall
constitute a State Council consisting of the
following members, namely:--
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(a) six members, elected from amongst themselves
by registered pharmacists of the State;
(b) five members, of whom at least 2[three] shall be
persons possessing a prescribed degree or diploma in
pharmacy or pharmaceutical chemistry or 3[registered
pharmacists], nominated by the State Government;
(c) one member elected from amongst themselves by the
members of each Medical Council or the
Council of Medical Registration of the State, as the case
may be;
(d) the chief administrative medical officer of the State
ex-officio or if he is unable to attend any
meeting, a person authorised by him in writing to do so;
4[(dd) the officer-in-charge of drugs control organisation
of the State under the 5[Drugs and Cosmetics Act, 1940
(23 of 1940)], ex officio or if he is unable to attend any
meeting, a person authorised by him in writing to do so;]
(e) the Government Analyst under the 5[Drugs and
Cosmetics Act, 1940 (23 of 1940)], ex officio,
or where there is more than one, such one as the State
Government may appoint in this behalf:
Provided that where an agreement is made under clause
(b) of sub-section (1) of section 20, the agreement may
provide that the State Council to serve the needs of the
other participating States also shall be augmented by not
more than two members, of whom at least one shall at all
times be a person possessing a prescribed degree or
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diploma in pharmacy or pharmaceutical chemistry or a
6[registered pharmacist], nominated by the Government
of each of the said other participating States, and where
the agreement so provides, the composition of the State
Council shall be deemed to be augmented accordingly.
b) 17 (1) of the Telangana Pharmacy Council Rules,
1955 reads as under:
The President and the Vice-President of the Council
shall be elected at a meeting of the Council. When about
to elect the President, the members present shall elect a
temporary Chairman by a ballot if necessary, which ballot
shall be taken by the Registrar. The meeting shall then
proceed to the election of the President which shall be by
ballot. It shall be competent for any member to nominate
by ballot a member for the office of the President and the
temporary Chairman shall announce the names of the
members so nominated and arrange for a ballot. Every
vote which shall be given at such a ballot for a person
who has not been nominated shall be wholly void and
ineffective. Should only two persons be nominated, the
voting on the first ballot shall be final except in the case
of equality of votes. If more than two persons are
nominated, the candidate obtaining the lowest
number of votes at the first ballot shall be
eliminated until only two remain when the ballot
shall be final except in the case of equality of votes,
provided that if one of the candidates secures more
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than 50 per cent of the votes cast, he shall be
elected In the case of an equality of votes, a
further ballot shall be taken and if that be
indecisive, the selection shall be decided by the
drawing of lots.
(2) The President having been elected will take the chair and
the members will proceed to elect a Vice-President, the
procedure laid down in sub-rule (1) being followed except for in
the case of equality of votes, the President shall have a casting
vote."
c) Section 23 of the Pharmacy Act, 1948, reads as
under:
23. President and Vice-President of State Council.--(1)
The President and Vice-President of the
State Council shall be elected by the members from
amongst themselves:
Provided that for five years from the first constitution of
the State Council the President shall be a person
nominated by the State Government who shall hold office
at the pleasure of the State Government and where he is
not already a member, shall be a member of the State
Council in addition to the members referred to in section
19 or section 21, as the case may be.
(2) 1[The President] or Vice-President shall hold office as
such for a term not exceeding five years and not
extending beyond the expiry of his term as a member of
the State Council, but subject to his being a member of
the State Council, he shall be eligible for re-election:
2[Provided that if his term of office as a member of
the State Council expires before the expiry of the
full term for which he is elected as President or Vice-
President, he shall, if he is re-elected or
re-nominated as a member of the State Council, continue
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to hold office for the full term for which he is
elected as President or Vice- President.]
d. Rule 17 of the Telangana State Pharmacy Rules,
1955, read as under:
17. Information to be furnished.--(1) The Central Council
shall furnish copies of its minutes and of
the minutes of the Executive Committee and an annual
report of its activities 4*** to the Central
Government.
(2) The Central Government may publish in such manner
as it may think fit any report, 1[or copy],
furnished to it under this section or under section 16.
2[17A. Accounts and audit.--(1) The Central Council shall
maintain proper accounts and other
relevant records and prepare an annual statement of
accounts, in accordance with such general directions
as may be issued and in such form as may be specified
by the Central Government in consultation with
the Comptroller and Auditor-General of India.
(2) The accounts of the Central Council shall be audited
annually by the Comptroller and Auditor-
General of India or any person authorised by him in this
behalf and any expenditure incurred by him or
any person so authorised in connection with such audit
shall be payable by the Central Council to the
Comptroller and Auditor-General of India.
(3) The Comptroller and Auditor-General of India and any
person authorised by him in connection
with the audit of the accounts of the Central Council shall
have the same rights and privileges and
authority in connection with such audit as the Comptroller
and Auditor-General of India has in connection
with the audit of Government accounts, and in particular,
shall have the right to demand the production of
books of accounts, connected vouchers and other
documents and papers.
(4) The accounts of the Central Council as certified by the
Comptroller and Auditor-General of India
or any person authorised by him in this behalf together
with the audit report thereon shall be forwarded
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annually to the Central Council which shall forward the
same with its comments to the Central
Government.]
7. FACTS NOT IN DISPUTE :
A. The 1st Respondent vide G.O.Ms.No.1, Health,
Medical & Family Welfare (C2) Department, dt.
07.01.2019, has nominated 5 members to the Telangana
State Pharmacy Council by exercising the powers under
clause (b) of Sec.19 of the Pharmacy Act, 1948, for a
period of 5 years.
B. 6 members as mentioned in clause (a) of Sec.19 of
the Pharmacy Act, 1948, were not elected since
inception of TSPC and the 6 members were to be elected
by the Registered Pharmacies as provided under clause
(a) of Sec.19.
C. The Registrar the 3rd Respondent herein forwarded
the proposal dt. 23.06.2022 to conduct the elections to
the posts of the President and the Vice-President u/s.23
of the Pharmacy Act, 1948, by duly following Rule 17 of
the Telangana Pharmacy Council Rules, 1955 with the
available 9 council members.
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D. Accepting the said proposal the 1st Respondent
issued a Memo No.6129/C2/2022, dt. 15.07.2022.
E. Pursuant to the Memo of the 1st Respondent dt.
15.07.2022, the 2nd Respondent convened the council
meeting with the available 9 council members on
29.07.2022 for the purpose of conducting elections to
the posts of President and Vice President of the council
and in the said meeting one Mr. R.Srinivas and Mr.
A.Sanjay Reddy were nominated by council members for
the posts of the President.
F. Subsequently, the council members casted their
votes and in the said elections each of the said two
contestants Mr. Srinivas and Mr. A. Sanjay Reddy
secured equal votes of 4 each as one member out of the
said 9 members was granted leave.
G. Upon both the contestants securing 4 votes,
contrary to Rule 17 of the Rules 1955, all the council
members in the meeting decided that the election to the
post of President be decided by way of toss of the coin
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and accordingly after toss of the coin the 4th Respondent
herein i.e., Mr. Sanjay Reddy was declared to have been
elected as President of TSPC and he occupied the Chair
of the President.
H. Mr. R. Srinivas and Mr. T.Chandra Shekhar Azad
were nominated by the members of the council for the
post of Vice-President, and after the elections, Mr.
R.Srinivas, secured 5 votes whereas Mr. T.Chandra
Shekar Azad secured 2 votes, therefore the 5th
Respondent Mr. R.Srinivas was elected as the Vice-
President as he secured more votes.
DISCUSSION AND CONCLUSION :
8) This Court opines that the Petitioner is entitled for
the relief prayed for herein for the following reasons :
i) In terms of Sec.19 of the Pharmacy Act, 1948
(extracted above) the constitution and composition of
the State Pharmacy Council is required to be constituted.
Sec.19(a) clearly indicates that the State Government
should constitute a State Council consisting of 6
members, elected from amongst themselves by
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Registered Pharmacists of the State. Admittedly in the
present case as borne on record the President and
Secretary of the State Pharmacy Council are elected in
the absence of 6 members being elected U/s.19(a) of the
Act, 1948 contrary to Sec.19 of the Act, 1948. This Court
therefore opines that the Memo of the 1st Respondent dt.
15.07.2022 for conduct of elections to the posts of
President and Vice-President, itself, is contrary to the
scheme of the Pharmacy Act, 1948 and the Rules made
thereunder.
ii) The procedure prescribed under Rule 17 of the
Telangana State Pharmacy Rules, 1955clearly provides
that in the case of an equality of votes, a further ballot
shall be taken and if that be indecisive, the selection
shall be decided by the drawing of lots, but in the
present case even as per the counter affidavit filed by
the Respondent No.3 on behalf of Respondents No.2 and
4, it is clearly admitted at para 12 that the procedure
adopted was toss of a coin upon the contestants having
secured equal votes of 4 each instead of proceeding for
another ballot and thereafter, for drawal of lots, instead
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the President was elected by toss of coin. Therefore this
Court opines that the very election of the 4th Respondent
herein is contrary to the procedure prescribed under
Rule 17 of the Telangana State Pharmacy Rules, 1955.
iii) The filling up of the vacancy of the member of the
council is as per the procedure stipulated under Rule 47
of the Rules, 1955, as and when vacancy in the members
of the council arises and the same has to be filled up in a
time bound manner. Rule 47 of the Rules 1955 reads as
follows :
Rule 47 (1) : Within a week of the occurrence of a
vacancy, otherwise than by the expiry of the term of
office, the Registrar shall give intimation thereof to
the President and also :-
(a) In the case of a vacancy to be filed by election
19(a), to the Government,
(b) In the case of vacancy to be filled by
nomination under section 19(b) to the
government and
(c) In the case of a vacancy to be filled by
election under section 19(c) to Telangana
Medical Council (b) in the case of a vacancy to
be filled by 19(b), to the Government, and
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(2) In the case of vacancy, occurring by the expiry
of a term of office of a member, intimation thereof
to the authorities referred to in sub-rule(1) shall be
given by the Registrar not less than two months
before the date on which the vacancy will occur.
(3) Ninety days before the expiration of the term
of office of any member, the Registrar shall draw
the attention of the President to the impending
vacancy so as to enable him to take necessary
action. This Court opines that therefore when the
filling up of the vacancy of the member of the
council is provided to be filled up as explained
above, the action of the 1st Respondent in
conducting elections to the posts of President and
Vice-President without initiating the required steps
to fill up the said 6 vacancies as required under
Clause (a) of Sec.19 of the Act, is without
jurisdiction.
iv) Learned Senior Counsel Sri Ravindranath Reddy,
appearing on behalf of the Petitioner relied upon the
Division Bench Judgment dt. 06.12.2022 passed in
W.P.No.1111 of 2019 and W.P.No.10240 of 2021 of M/s.
Healthcare Reforms Doctors Association an others v. The
State of Telangana, rep. by its Special Chief Secretary,
Health, Medical and Family Welfare Department, and
Wp_42721_2022
27 SN,J
submits that the view taken by the Court in the said
judgment squarely applies to the facts of the present
case. A bare perusal of the said judgment clearly
indicates that the provision Sec.3(2)(b) of the Telangana
Medical Practitioners Registration Act, 1968 is para
materia to Sec.19(a) of the Pharmacy Act, 1948 and
further that in an identical issue as in the present case,
under the said Act it is observed by the Division Bench of
our High Court in its judgment dt. 06.12.2022 at paras
16, 17, 27, 29, 35, 53, 54, para 55 (ii)(iii) and (iv) as
under and further the relief sought for in the said
W.P.No.1111 of 2019 is also extracted hereunder :
"16. Petitioner has expressed two grievances. The
first grievance is that since the year 2007 there has been
no election to the Medical Council. Right now only an
Interim Medical Council constituted vide G.O.Rt.No.15
dated 06.01.2016 is in place. Even the said G.O.Rt.No.15
had constituted the Interim Telangana State Medical
Council only as a stop gap arrangement. This situation
cannot continue for an indefinite period. Elections are
required to be held for constituting a regular Medical
Council.
17. On 10.02.2021, this Court had noted that
respondents had not filed counter affidavit. Court wanted
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28 SN,J
to know the reason for not holding elections to the
Medical Council and instead being managed by an adhoc
committee. Learned Government Pleader who
represented the State was directed to obtain instructions
as to the date on which steps would be
taken to notify the elections for constituting the Medical
Council.
27. Mr. Sama Sandeep Reddy, learned counsel for
the writ petitioners made three-fold submissions. Firstly,
he submits that last time elections were held to the
Medical Council was in the year 2007. Thereafter, no
elections have been held. Now the Interim Medical
Council is holding office. It is purely an adhoc body.
Already it is in office for more than six years since
the year 2016. An adhoc body cannot continue for an
indefinite period. Therefore, holding of elections to the
Medical Council has become imperative. As such,
G.O.Rt.No.15 dated 06.01.2016 cannot be sustained.
29. Submissions made by learned counsel for the
parties have received the due consideration of the
Court.
35. We may mention that there is no provision in the
Medical Practitioners Registration Act for an interim
council. All that the proviso to sub-section (1) of Section
5 says is that for a period of two years from the date of
first constitution of the Medical Council, one of the ex
officio members nominated by the government shall be
the Chairman. Thus, under the Act,
Wp_42721_2022
29 SN,J
such an ex officio member can be the Chairman for a
limited period of two years from the date of first
constitution of the Medical Council.
53. We have already noticed that there is no
provision in the Medical Practitioners Registration
Act constituting Interim Medical Council. The only
provision that can have a remote relevance is the proviso
to sub-section (1) of Section 5 which says that for a
period of two years from the date of the first constitution
of the Medical Council, one of the ex officio members
nominated by the government shall be the Chairman of
the Medical Council. But this provision also cannot be
stretched to justify constitution of Interim Medical
Council.
Even the Andhra Pradesh Medical Practitioners
Registration Act, 1968 (Telangana Adaptation) Order,
2014 does not provide for such Interim Medical Council.
Even assuming that for the sake of administrative
necessity, constitution of such Interim Medical Council
became imperative, continuance thereof for
more than six years cannot at all be justified. First of all,
constitution of Interim Medical Council itself cannot be
traced to any valid source of power. Secondly, even
assuming such constitution to be a necessity, the same
cannot continue for an indeterminate period. By its very
nature and what has been mentioned in G.O.Rt.No.15
dated 06.01.2016, the Interim Medical Council is only a
temporary measure; a stop gap arrangement till the
Wp_42721_2022
30 SN,J
Medical Council is duly constituted in
terms of Section 3(2) of the Telangana Medical
Practitioners Registration Act, 1968. Therefore,
continuation of G.O.Rt.No.15 dated 06.01.2016 has now
become legally untenable.
54. We are aware of the immediate effect due to
setting aside of G.O.Rt.No.15 dated 06.01.2016. The
consequence would be that till the Medical Council is
constituted in terms of Section 3(2) of the Medical
Practitioners Registration Act, there would
be no Medical Council in the interregnum. In other words,
there would be a vacuum. For this duration, there will be
no regulatory body of doctors in the State of Telangana
for the purpose of registration, disciplinary action etc. In
a situation such as this, the doctrine of necessity may
have to be applied. In Lalit Kumar Modi v. Board of
Control for Cricket in India 3, Supreme Court has held
that the doctrine of necessity is a common law doctrine
and is applied to tide over situations where there are
difficulties as law does not contemplate a vacuum. The
doctrine of necessity is often invoked in cases of
bias where there is no other authority or judge to decide
the issue. However, as the law has evolved, the
doctrine of necessity applies not only to judicial
matters but also to quasi- judicial and
administrative matters. Therefore, applying the
aforesaid doctrine, the Interim Telangana State
Medical Council may have to be allowed to function
Wp_42721_2022
31 SN,J
till the time the new Medical Council is constituted
in terms of Section 3(2) of the Telangana Medical
Practitioners Registration Act, 1968 and takes
charge.
55. In the light of the above discussions, we,
therefore, pass the following orders:
(i) Para 4(3)(i) of the Andhra Pradesh Medical
Practitioners Registration Act, 1968 (Telangana
Adaptation) Order, 2014 as contained in
G.O.Ms.No.68 dated 03.08.2015 is struck down as
illegal as being beyond the scope and ambit of an
adaptation order;
(ii) The Interim Telangana State Medical Council
constituted vide G.O.Rt.No.15 dated 06.01.2016 is legally
untenable. However, for ensuring that there is no
vacuum, the said Interim Telangana State Medical
Council shall continue for a further period of three
months by which time elections and nominations to the
Telangana State Medical Council shall be
completed;
(iii) Respondent No.1 shall take requisite steps including
holding of elections and nomination of members in
terms of sub-section (2) of Section 3 of the Telangana
Medical Practitioners Registration Act, 1968 and
complete the exercise within a period of three months
from the date of receipt of a copy of this order;
(iv) Once a new body takes charge, the Interim
Telangana State Medical Council would stand disbanded.
Wp_42721_2022
32 SN,J
This Court opines that a bare perusal of all the
above referred paragraphs of the said judgment dated
06.12.2022 clearly indicates that the Petitioner herein is
also entitled in principle for the relief prayed for in the
present writ petition.
The relief sought for in WP No.1111/2019 is as
follows :
"setting aside G.O.Ms.No.15 dated 06.01.2016 issued
by the 1st respondent as illegal and arbitrary, without
jurisdiction and direct the 1st respondent to
immediately conduct election to choose the members
of the 2nd respondent as per section 3(2) of the
Andhra Pradesh Medical Practitioners Registration
Act, 1968.
v) This Court opines that when a statute describes or
requires a thing to be done in a particular manner, it
should be done in that manner or not at all. The popular
principle of law is settled in very old case of Taylor v
Taylor reported in (1876) Ch.D.426, which is cited with
approval by the Hon'ble Supreme Court of India in Shiv
Kumar Chandha v Municipal Corporation of Delhi
reported in 1993 SCC (3) 161 and also in Ram Chandra
Wp_42721_2022
33 SN,J
Keshav Adke v Govind Joyti reported in 1975 (1) SCC
page 559. In view of the fact that there is a clear go-bye
to Section 19(a) of the Act, 1948, Rule 17 of the RuleS,
1955 and also Rule 47(1) of the Rules, 1955, this Court
opines that it is a normal rule of construction that when
a statute vests certain power in an authority to be
exercised in a particular manner, then the said authority
has to exercise it only in the manner provided in the
statute itself since the power under a statute has to be
exercised in accordance with the provisions of the
statute and in no other manner and therefore, the
petitioner is entitled for the relief prayed for in the
present writ petition.
vi) The learned Counsel appearing on behalf of
Respondent No.3, clearly in the counter affidavit filed
admits that the election of the President and Vice-
President was conducted as per the instructions of the
Government through a Memo to overcome the threat of
administrative paralysis in case of an absence of
President to the Telangana State Pharmacy Council., and
further contends that the Writ Petition is not
Wp_42721_2022
34 SN,J
maintainable and the Petitioner has to raise dispute in
election process within the statutory period of 7 days
from the date of publication of the results. This court
opines that the said plea is not tenable in view of the
simple fact that the doctrine of necessity cannot be
applied contrary to the Rules 1955, in clear violation of
Sec.19(a) of the Pharmacy Act, 1948 and further
contrary to the procedure prescribed under Rule 17 of
Rules 1955 and also contrary to Section 47(1) of the
Rules, 1955. The present writ petition is maintainable
because the Memo No.6129/C2/2022, dated 15.07.2022
of the 1st respondent and the consequential election
dated 29.07.2022 held to the posts of President and Vice
President is without jurisdiction.
vii) A bare perusal of the counter affidavit filed by
Respondent No.1, paras 5, 6 and 7 (extracted above)
clearly indicates that consequent to the interim direction
of the Hon'ble Court dt. 12.12.2022, State Pharmacy
Council has decided to conduct elections to 6 members
to the council from the Registered Pharmacists of the
State in terms of Sec.19(a) of the Pharmacy Act, 1948
Wp_42721_2022
35 SN,J
and further it is stated that the State Pharmacy Council
requires about 6 months of time. In view of the fact that
the said counter affidavit has been filed on 28.02.2023,
the required time as per the said counter filed would be
28.08.2023.
viii) In view of the fact that admittedly as the full 15
members of the council were not available the entire
meeting conducted on 29.07.2022 for electing the
President and Vice-President is contrary to the Rules,
1955 and therefore this Court opines that the said
election of the 4th and 5th Respondents as President an
Vice-President respectively needs to be set aside.
ix) Taking into consideration the above referred facts
and circumstances of the case and the interim orders of
the case dated 12.12.2022 passed in I.A.No.1 of 2022 in
WP No.42721 of 2022 which are in force as on date, and
the principle of law laid down by the Apex Court in
Taylor v Taylor (1876) Ch.D 426 and reiterated in Shiv
Kumar Chanda v Municipal Corporation of Delhi reported
in 1993 SCC (3) 161 and also Rama Chandra Keshav
Wp_42721_2022
36 SN,J
Adke v Govid Joyti reported in 1975 (1) SCC 559 and also
the Division Bench Judgement of this Court dated
06.12.2022 passed in W.P.No.1111 of 2019 and
W.P.No.10240 of 2021 of M/s. Healthcare Reforms
Doctors Association and others v. The State of
Telangana, rep. by its Special Chief Secretary, Health,
Medical and Family Welfare Department (relevant paras
extracted above), the Writ Petition is allowed as prayed
and the Memo No.6129/C2/2022, dt. 15.07.2022 of the
1st Respondent is set aside and also the election dt.
29.07.2022 held to the Posts of President and Vice-
President as per the Minutes of the Pharmacy Council
Meeting held on 29.07.2022 in accordance with the
orders of the State Government vide Memo
No.6129/C2/2022, dt. 15.07.2022 is set aside. The
Respondents No.1 to 3 are directed to conduct elections
for electing said 6 members as required under Clause (a)
of Sec.19 of the Pharmacy Act, 1948 within a period of 6
months from the date of receipt of the copy of the order.
It is further clearly observed that applying the doctrine
of necessity, in the meantime till the above exercise is
Wp_42721_2022
37 SN,J
completed the day to day functioning of the Telangana
State Pharmacy Council shall vest with the Director of
Medical Education, Hyderabad who had been appointed
by the Government as President of the Telangana State
Pharmacy Council on full additional charge until further
orders vide G.O.Rt.No.5, HM&FW (C2) Department on
02.01.2023 pursuant to the interim directions of this
Court dt. 12.12.2022 passed in I.A.No.1 of 2022 in WP
No.42721 of 2022.
Miscellaneous petitions if any, pending shall stand closed.
__________________________
MRS JUSTICE SUREPALLI NANDA
Dated : 24.03.2023
Note: L.R. copy to be marked
b/o
kvrm
