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IN THE HIGH COURT OF DELHI AT NEW DELHI
PRATEEK JALAN, J.
DR. DIBYENDU MAZUMDAR – Appellant
Versus
UNION OF INDIA & ORS. - Respondent
W.P.(C) 9053 of 2020 & CM APPLs. 29197-29198 of 2020, 30451-30452 of 2020, 30818 of 2020, 32098-32099 of 2020, 15301 of 2021
Decided on: 05-07-2021
Constitution of India, 1950 - Article 226 - Dentists Act, 1948 - Section 2(e), 3(e) and 5 – DCI (Election) Regulations, 1952 - Regulation 20 - Election for post of President of Respondent No. 2-Dental Council of India – Challenged - Whether Regulation applies to an election under Section 3(d) of Act - Whether Election for Post of President, DCI was conducted in prescribed manner - Whether concurrence of Central Government is required in finalization of list of members of DCI – Petitioner is a dentist within meaning of Section 2(e) of Act, 1948 he was nominated as a member of DCI by State of West Bengal, under Section 3(e) of Act, in year 2010 - He was thereafter elected to post of President, DCI - After petitioner’s term as a member of DCI under Section 3(e), he was elected as a member of DCI under Section 3(d) of Act from Teerthanker Mahaveer University.
Finding of the court: process of examination appears to have been aborted midway due to an indication of the concerned Minister that the Report be submitted without delay. Although examination of Secretary, DCI was inconclusive and was adjourned to a later date, it was not, in fact, completed. UOI has rendered additional findings against him, these have been made without giving him any further opportunity to make his case, and are inadequately reasoned in the impugned order - Impugned order [except clause (c) thereof] is liable to be set aside and matter be remanded to UOI for a fresh decision. As UOI is ultimate decision-making authority in the matter, and Report has already been submitted to it, court view that an opportunity of hearing before UOI, rather than before Committee, would be appropriate in facts of this case. It would also aid in the expeditious disposal of matter - It is not necessary to adjudicate submissions made on merits of dispute. All such questions are left open for decision in accordance with law - These irregularities in procedure adopted cannot be overlooked in the peculiar facts of this case, when oral hearings had evidently commenced, but did not include all disputants, including person whose election itself was subject matter of proceedings. It is clarified that court do not intend to decide whether, as a matter of law, grant of a personal hearing is necessary in every case under Section 5 of Act – Court satisfied that the petitioner has been put to disadvantage and prejudice as a result of the aforesaid breaches of natural justice.
Result: Writ petition is allowed in part.
JUDGMENT
1. By way of this petition under Article 226 of the Constitution of India, the petitioner challenges an order of the Union of India [“UOI”] dated 09.11.2020, by which his election to the post of the President of Respondent No. 2-Dental Council of India [“DCI”] was declared illegal and invalid, and the Vice-President was given charge as the President, DCI.
I. Facts
2. The petitioner is a dentist within the meaning of Section 2(e) of the Dentists Act, 1948 [“the Act”]. He was nominated as a member of the DCI by the State of West Bengal, under Section 3(e) of the Act, in the year 2010. He was thereafter elected to the post of President, DCI. On 21.05.2015, after the petitioner’s term as a member of the DCI under Section 3(e), he was elected as a member of the DCI under Section 3(d) of the Act from Teerthanker Mahaveer University, Moradabad, Uttar Pradesh.
3. However, by a communication dated 11.09.2019, the UOI restrained him from acting as President, DCI on the ground that he had attained the age of 65 years. On 07.10.2019, the UOI declined the DCI’s request to reconsider the direction contained in the letter dated 11.09.2019 and clarified that the Secretary, DCI was responsible for ensuring that members whose terms have ended do not continue in the DCI. Against the aforesaid communications dated 11.09.2019 and 07.10.2019, the petitioner has filed a writ petition before the Calcutta High Court[W.P. No. 21456(W) of 2019], which remains pending. In view of the position taken by the UOI, although without accepting its validity, the petitioner resigned from the post of President, DCI on 14.10.2019.
4. In the meanwhile, the petitioner claims to have been elected as a member of the DCI on 03.10.2019, representing the Respondent No. 3-Mahatma Gandhi University of Medical Sciences and Technology, Jaipur, Rajasthan [“MGU”]. According to the petitioner, he was co-opted as a member of the Dental Faculty of MGU on 16.08.2019. MGU thereafter constituted a Committee of Court to elect a member of the DCI under Section 3(d) of the Act. The petitioner was duly elected on 03.10.2019, and the DCI was informed of his election by MGU on 04.10.2019. This was forwarded by the DCI to the UOI on 07.10.2019.
5. Pursuant to the petitioner’s resignation as President, DCI, the Secretary, DCI circulated a preliminary agenda dated 29.10.2019, for a General Body Meeting dated 15/16.12.2019. The agenda included inter alia election to the post of President, DCI from amongst the members of the DCI, and induction of new members to the DCI. A list of members, as on that date, was also circulated. This included the name of the petitioner as a member under Section 3(d) of the Act from MGU. A final agenda was issued on 28.11.2019, including the agenda items mentioned above. Enclosed therewith was an updated list of members, consisting of 87 names. The petitioner’s name continued to be shown as a member under Section 3(d) of the Act from MGU.
6. By a notification dated 29.11.2019, the petitioner was also nominated as a member of the DCI by the Respondent No. 4-State of Chhattisgarh under Section 3(e) of the Act. The notification of the State of Chhattisgarh was forwarded by the DCI to the UOI on 09.12.2019, pursuant to a meeting of its Executive Committee held on 05.12.2019.
7. The General Body Meeting was held on 15.12.2019. 87 members, including the petitioner and two special invitees, were present. The second item of the agenda related to the introduction of new members who had joined after the last meeting of the DCI. 16 members were introduced. The petitioner’s name finds place twice in that list, as his election by MGU under Section 3(d), and nomination by the State of Chhattisgarh under Section 3(e), had both taken place during the interregnum between the two meetings.
8. The sixth item on the agenda was the election to the post of President, DCI. The petitioner and one other candidate [Dr. Jaykara S.M.] were nominated for the post of President, DCI. 84 member
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