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2010 Supreme(Ker) 438
High Court of Kerala
THE HONOURABLE CHIEF JUSTICE MR. J. CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N. RAVINDRAN
Dr. Joseph issac
Versus
Union Of India & Others
WA. No. 808 of 2010
Decided on : 21-07-2010
Headnote:
Constitution of India, Article 226 - Dentists Act, 1948 - S.3 - Government of India issued a notification by which respondents 4 to 7 in the Writ Petition were nominated to the DCI constituted under S.3 of the Act. S.3 of the Act specifies the composition of the DCI. An examination of the Section would indicate that some of the members are required to be nominated and some of the members are to be elected to the DCI - Respondents 4 to 7 were nominated under clause (f) of S.3 of the Act. It is this notification and more particularly the nomination of respondents 5 and 7 - Challenged - Held, Government of India does not disclose the factors which exactly weighed with the Government of India while nominating the 7th respondent to the DCI, i.e., whether the teaching experience of the 7th respondent or the practical experience as a practising Dentist in a Union Territory. On the other hand, the counter only speaks about the residence of 7th respondent inDelhi. On the other hand, the successive nominations of the 7th respondent to the DCI by the Government of India under some clause or the other of S.3 of the Dentists Act and the manner in which the instant nomination proceedings are issued, in our view, clearly demonstrates the utter arbitrariness of the process of nomination. We hasten to add that we are not expressing any opinion regarding the suitability of the 7th respondent, either on the basis of his teaching experience or practical experience, we are only on the arbitrary nature of the whole process adopted by the Government of India - Writ Petition is partly allowed.
Certainly. Based on the provided legal document, here are the key points summarized with appropriate references:
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The case involves a challenge to the nomination process of certain members to the Dental Council of India (DCI) under the Dentists Act, 1948, specifically focusing on the nominations of respondents 5 and 7 (!) .
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The petitioner, a dental professional and member of the Indian Dental Association, contends that the nominations of respondents 5 and 7 are arbitrary and illegal due to lack of transparency and failure to disclose the criteria used for their selection, particularly whether their qualifications are linked to a Union Territory (!) (!) .
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The nomination of respondents 5 and 7 was made under specific clauses of Section 3 of the Dentists Act, which prescribes the composition and nomination process for the DCI, including nominations by the Central Government and the respective State or Union Territory authorities (!) (!) (!) .
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The nomination of respondent 7 was previously made in 2001, based on his association with an institution in Delhi, and was supported by a notification indicating his residence and practice in Delhi, which was subsequently amended by a corrigendum to reflect his address in Delhi (!) (!) (!) (!) .
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The petitioner challenges the legality of the 2010 nomination of respondent 7, arguing that he was not properly linked to a Union Territory as required by the statutory provisions, and that the process was influenced by mala fide motives to accommodate the respondent despite questionable qualifications and conduct history (!) (!) (!) .
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The document discusses the legal interpretation of the term "State" versus "Union Territory" within the context of the Dentists Act, emphasizing that the Act explicitly excludes Union Territories from certain provisions, and that the constitutional and statutory definitions support the view that Delhi is a Union Territory, not a State (!) (!) (!) (!) (!) .
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The Court examines the procedural aspects of nominations, including the importance of transparency and rationality in the process, and finds that the process adopted by the Government of India in the case of respondents 5 and 7 was arbitrary and lacked proper disclosure of the factors considered (!) .
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The Court notes that the nominations must have a nexus with the Union Territory, either through practice or association, and that mere residence or previous nominations do not suffice without clear justification and transparency (!) (!) .
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The Court concludes that the notifications nominating respondents 5 and 7 are unsustainable and quashes them accordingly, emphasizing the need for a transparent and rational nomination process in accordance with the statutory requirements (!) .
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Overall, the judgment underscores the importance of adherence to legal standards, transparency, and non-arbitrariness in statutory nominations to statutory bodies, ensuring they reflect proper qualifications and connections as mandated by law (!) (!) .
Would you like a further detailed analysis or specific legal advice based on these points?
J. Chelameswar, C.J.
W.P.(C).No.6140 of 2010 is filed for the following reliefs:
(i) Issue a writ of certiorari or any other appropriate writs, directions or orders quashing Ext.P1.
(ii) Issue a writ of mandamus or any other appropriate writs, directions or orders directing respondents 1 and 2 to frame guidelines for nomination under Section 3(f) of the Dentists Act, 1948 and to publish the same and to keep in abeyance all further nominations till such regulations are prepared and published.
(ia) Issue a writ of certiorari or any other appropriate writs, directions or orders calling for the records relating to Ext.P3 and quash the same.
(iii) Issue a writ of mandamus or any other appropriate writs, directions or orders directing respondents 1 and 2 to nominate the petitioner as a member of Dental Council of India under Section 3(f) of the Dentists Act, 1948.
(iv) Render such other orders as are deemed fit and proper in the circumstances of the case".
During the pendency of the writ petition, the petitioner sought an interim order, staying all further proceedings pursuant to Exhibit P1. Such an interim order was declined by the learned Single Judge by order dated 18th May, 2010. Aggrieved by the same, the petitioner carried the matter in appeal in W.A.No.808 of 2010. In view of the importance of the matter, we thought it fit to hear the writ petition itself and, accordingly, the writ petition was also posted along with the Writ Appeal and the matter was heard.
2. Petitioner in the writ petition is a Dental Surgeon, Professor in Orthodontics, a member of Indian Dental Association and an elector to the Dental Council of India (for short 'DCI'), constituted by The Dentists Act, 1948, hereinafter referred to as "the Act". The Government of India issued a notification (Exhibit P1) dated 15.02.2010, by which respondents 4 to 7 in the writ petition were nominated to the DCI constituted under Section 3 of the Act. Section 3 of the Act specifies the composition of the DCI. An examination of the Section would indicate that some of the members are required to be nominated and some of the members are to be elected to the DCI, the details of which would be examined later. From the notification dated 15.02.2010, it appears that respondents 4 to 7 were nominated under clause (f) of Section 3 of the Act. It is this notification and more particularly the nomination of respondents 5 and 7 which is challenged in the writ petition.
3. The learned counsel appearing for the respondents 5 to 7 raised a preliminary objection that this Court does not have the territorial jurisdiction to entertain the writ petition as no part of the cause of action arose within the territory or limits of this Court to exercise its jurisdiction under Article 226 of the Constitution. According to the learned counsel, since the impugned notification is issued by the Government of India and the nominations are made by the Government of India, New Delhi, the cause of action or the grievance of the petitioner arose exclusively within the jurisdiction of the Delhi High Court and not of this Court.
4. In Md.Khalil Khan v. Mahbub Ali Mian [A.I.R. (36) 1949 P.C. 78] the Privy Council had an occasion to examine the phrase "cause of action". At para 46, it held:
"The phrase "cause of action" has not been defined in any enactment, but the meaning of it has been judicially considered in various decisions. In Read v. Brown, (1989) 22 Q.B.D. 128 : (58 L.J.Q.B. 120) Lord Esher, M.R., accepted the definition given in Cook v. Gill (1873) L.R.8 C.P.107: (42 L.J.C.P.98) that it meant "every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved."
Fry L.J. agreed and said, "Everything which, if not proved, gives the defendant an immediate right to judgment, must be part of t
