Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Guj) 1036

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.C. DOSHI, J.
Viral Indravadan Patel – Petitioner
Versus
State Of Gujarat – Respondent
R/Special Civil Application No. 8652 Of 2023
Decided On : 11-05-2023

Advocates Appeared:
For the Petitioner: Mr. Dipen Desai.
For the Respondents: Mr. Sanjay Udhwani, Mr. Pranav S. Trivedi, Mr. Shalin Mehta, Sr. Counsel with Mr. Shaival M. Patel, Mr. TANMAY B. Karia.

The President and Vice President of the State Council can hold office for a term not exceeding five years and not extending beyond the expiry of his term as a member of the State Council. The court also noted that the petitioner, who is the President of the State Council, has been holding the post since 2007 without holding any election of the Dental Council, and failed to follow the procedure laid down in the rules for election of the Members of the State Council.

Headnote:
Dentist Act - Constitution of Gujarat State Dental Council - Section 21 of the Dentist Act, 1949 - The court dismissed the petition filed under Article 226 of the Constitution of India seeking relief to quash and set aside the impugned communication and agenda notice issued by the State of Gujarat and the Gujarat State Dentist Council. The court held that the President and Vice President of the State Council can hold office for a term not exceeding five years and not extending beyond the expiry of his term as a member of the State Council. The court also noted that the petitioner, who is the President of the State Council, has been holding the post since 2007 without holding any election of the Dental Council, and failed to follow the procedure laid down in the rules for election of the Members of the State Council. The court found that the petition was filed with oblique and stale motive to evade and stall the election process and to allow the petitioner to continue to hold the post as President of the Dental Council. The court dismissed the petition with exemplary costs of Rs. 5000 to be paid to the Gujarat State Legal Services Authority.
Fact of the Case:

The petitioner, Mr. Viral Indravadan Patel, sought relief to quash and set aside the impugned communication and agenda notice issued by the State of Gujarat and the Gujarat State Dentist Council. The petitioner, an elected member of the Gujarat State Dental Council, argued that there was no rational basis for calling the meeting of the members of the Dental Council for appointing the President and Vice President, as the terms of the members were either expired or about to expire. The petitioner contended that the election of the President and Vice President could only occur when the members of the Dental Council were elected or nominated as per the scheme stated in the Dentist Act, 1949.
Finding of the Court:

The court found that the President and Vice President of the State Council can hold office for a term not exceeding five years and not extending beyond the expiry of his term as a member of the State Council. The court also noted that the petitioner, who is the President of the State Council, has been holding the post since 2007 without holding any election of the Dental Council, and failed to follow the procedure laid down in the rules for election of the Members of the State Council. The court found that the petition was filed with oblique and stale motive to evade and stall the election process and to allow the petitioner to continue to hold the post as President of the Dental Council.
Issues: The issues revolved around the rationality of calling the meeting of the members of the Dental Council for appointing the President and Vice President, the interpretation of sections 25 and 27 of the Dentist Act, 1949, and the petitioner's eligibility to continue holding the post of President of the Dental Council.
Ratio Decidendi: The court held that the President and Vice President of the State Council can hold office for a term not exceeding five years and not extending beyond the expiry of his term as a member of the State Council. The court also noted that the petitioner, who is the President of the State Council, has been holding the post since 2007 without holding any election of the Dental Council, and failed to follow the procedure laid down in the rules for election of the Members of the State Council. The court found that the petition was filed with oblique and stale motive to evade and stall the election process and to allow the petitioner to continue to hold the post as President of the Dental Council.
Final Decision: The court dismissed the petition with exemplary costs of Rs. 5000 to be paid to the Gujarat State Legal Services Authority.

JUDGMENT :

1. Rule returnable forthwith. Learned AGP Mr. Udhwani appearing for the respondent No.1 State of Gujarat, learned advocate Mr. Pranav Trivedi for respondent No.2 and learned advocate Mr. Shaival Patel and learned advocate Mr. Tanmay Karia appearing for the respondent Nos.3 to 7 waive service of notice of rule.

2. With consent of learned advocates for both the sides, this petition is taken up for final disposal.

3. By way of this petition filed under Article 226 of the Constitution of India, the petitioner herein Mr. Viral Indravadan Patel seeks following relief:-

“(A) This Hon’ble Court be pleased to issue a writ of certiorari or writ in the nature of certiorari or any other appropriate writ, order or direction, quashing and setting aside the impugned communication dated 29.04.2023 issued by the respondent no.1 – State of Gujarat, annexed at Annexure A to the petition and consequently be pleased to quash and set aside agenda notice dated 01.05.2023 issued by the respondent no.2 – Gujarat State Dentist Council, annexed at Annexure B to the petition.

(B) This Hon’ble Court be pleased to issue a writ of mandamus or writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondents to hold the elections of members of the State Council for the purpose of reconstitution of the Gujarat State Dentist Council under section 21 of the Dentist Act, 1949 within such time as may be directed by this Hon’ble Court.

(C) Pending admission, hearing and final disposal of the petition, this Hon’ble Court be pleased to stay the execution, operation and implementation of the impugned agenda notice dated 01.05.2023 issued by the respondent no.2 – Gujarat State Dentist Council annexed at Annexure B collectively to the petition.

(D) Pending admission, hearing and final disposal of the petition, this Hon’ble Court be pleased to restrain the respondents from holding election of the President and Vice President of the Gujarat State Dentist Council.

(E) This Hon’ble Court may be pleased to grant such other and further relief/s as deemed just and proper by this Hon’ble Court in the interest of justice.”

4. Briefly stated facts of the case of the petitioner are that he is an elected member of the Gujarat State Dental Council (in short “Dental Council”). Section 21 of the Dentist Act, 1948 (in short “the Act”) devised for the constitution and composition of the Dental Council. In view of section 21 of the Act, the Dental Council shall consist of the members (4) elected from themselves by dentist registered in Part A of the State Register and 4 members shall be selected from amongest who are registered in Part B of the State Register, one will be ex-officio member, who is the head of the Dental Colleges in the State, which trains students for any recognized dental qualification included in Part 1 of the Schedule and one member elected from amongst themselves by the members of the Medical Council or the Council of the Medial Registration of the State and three members were nominated by the State Government and one ex officio Chief Medical Officer of the State. In exercise of such power, Health and Family Welfare Department, Gandhinagar, Government of Gujarat, vide notification dated 25.10.2017 appointed as many as 9 members and later on, by addendum notification dated 14.5.2018, substituted the entry Nos.5,6 and 7 with the particulars and also add one more member namely Dr. Anil J. Nayak as a member elected under clause (d) of section 21 of the Act. Later on 29.4.2023, vide notification, the Deputy Secretary of the Government of Gujarat replaced the entry No.10 in the original notification and addendum thereof replacing Dr. Anil J. Nayak and substituted Dr. Bhavin S. Kothari as member elected under clause (d) of section 21 of the Act.

4.1 On 29.4.2023, the Section Officer of the Health and Family Welfare Department, Gandhinagar, Government of Gujarat, vide outward No.DTN/1007/2020J wrote a letter to the Registrar of th