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2010 Supreme(Mad) 4394
High Court of Judicature at Madras
HONOURABLE MR. JUSTICE D. HARIPARANTHAMAN
Dr. George Paul
Versus
The Union of India & Others
W.P.NO.5102 OF 2010 & CONNECTED MISCELLANEOUS PETITIONS
Decided on : 04-10-2010
For the Petitioner:N.R. Chandran, Senior counsel for S. Yashwanth, Advocate.
For the Respondents:R1 - M. Ravindran, Additional Solicitor General for K. Ravichandra Baabu, Advocate, R2 - P.S. Raman, Advocate General for A.S. Vijayaraghavan, CGSC, R3 - Karthik Rajan, Advocate, R4 - R. Krishnamoorthy, Senior counsel for P. Chandrasekar, Advocate, R5 - Vijay Narayanan, Senior counsel for J. Ravindran, ASGI.
The second respondent, NCT of Delhi, is only a Union Territory and has no power under Section 3(e) of the Dentists Act 1948 to nominate a person as Member to DCI.
Headnote:
DENTISTS ACT, 1948 - SECTION 3(E) - NOMINATION OF MEMBER TO DENTAL COUNCIL OF INDIA (DCI) - POWER OF NATIONAL CAPITAL TERRITORY OF DELHI (NCT OF DELHI) - WHETHER NCT OF DELHI IS A "STATE" - EXPLANATION TO ARTICLE 54 OF THE CONSTITUTION OF INDIA - NOTIFICATION DATED 011. 2008 ISSUED BY THE UNION OF INDIA UNDER ARTICLE 239(1) OF THE CONSTITUTION - DUAL MEMBERSHIP IN DCI - WHETHER PROHIBITED - NOTIFICATION OF ELECTION/NOMINATION OF MEMBERS UNDER SECTION 3 OF THE ACT - WHETHER MANDATORY - ELECTION OF PRESIDENT OF DCI - VALIDITY - WRIT OF QUO-WARRANTO.
Fact of the Case:
Petitioner, a Medical Practitioner in Tamil Nadu, challenged the nomination of the fourth respondent as a Member and consequently the President, Dental Council of India (DCI), by the second respondent, the Government of National Capital Territory of Delhi (GNCT of Delhi), under Section 3(e) of the Dentists Act 1948, as the second respondent had no power to nominate a Member under Section 3(e) of the Act. The fourth respondent was already a nominated Member under Section 3(f) of the Act by the Union of India, from 210. 2004, for a period of five years. Being a Member under Section 3(f) of the Act, he was selected as the President of the DCI. While nominating the fourth respondent as a Member under Section 3(e) of the Act, the second respondent directed the petitioner to relinquish one membership, either from the quota of the second respondent or the first respondent, in the event of his being re-elected as President.
Finding of the Court:
1. The second respondent, NCT of Delhi, is only a Union Territory and has no power under Section 3(e) of the Act to nominate a person as Member to DCI. 2. The explanation to Article 54 of the Constitution, 69th amendment to the Constitution, and the notification dated 011. 2008 issued by the first respondent under Article 239 of the Constitution do not make the second respondent a "State" for the purpose of Section 3(e) of the Act. 3. There is no statutory prohibition for holding dual membership under the Act. 4. Notification of Membership is only a formality with regard to the constitution of DCI, barring notification in the case of Section 3(a) of the Act. Notification is not mandatory. 5. The election of the fourth respondent to the post of President on 18.07.2009 was valid, as he was elected as a Member to DCI on 08.04.2009 under Section 3(d) of the Act.
Issues: 1. Whether the second respondent is "State" under Section 3 of the Act having power to nominate the fourth respondent as a Member to DCI? 2. Whether dual membership is prohibited under the Act ? 3. Whether notification of election / nomination of members under Section 3 of the Act is mandatory for a member to become a member of DCI? 4. If the nomination of the fourth respondent under Section 3(e) of the Act is invalid, could it affect his election to the office of President on 18.07.2009?
Ratio Decidendi: 1. The explanation to Section 3(e) of the Act makes it very clear that "State" does not include a "Union Territory". Thus, it has to be seen whether the second respondent is a "State" or "Union Territory". 2. Article 1 of the Constitution is clear that India is a Union of States and the territory of India comprises the territories of the States and the Union territories specified in the First Schedule. The second respondent is not shown in the list of States under the First Schedule, but is shown at Serial No.1 in the list of Union Territories. 3. Section 3(58) of the General Clauses Act could be applied, if there is nothing repugnant to the definition under Section 3(58) is provided in a particular enactment. But, as stated above, Section 3(e) of the Act contains a repugnant provision to Section 3(58) of the General Clauses Act. The explanation to Section 3(e) of the Act makes it very clear that the State does not include a Union Territory. 4. The Kerala High Court in DR.JOSEPH ISSAC VS. UNION OF INDIA AND OTHERS in W.A.NO.808 OF 2010 (decided on 21.07.2010) categorically held that the second respondent is a Union Territory and not a State. 5. The first respondent should take it with all seriousness for bringing an amendment to the Dentists Act, 1948 also, in line with Section 5(2) of the Indian Medical Council Act, 1956, so that dual membership is prohibited. 6. Section 6 of the Act makes it very clear that as soon as the person is elected or nominated, he is entitled to participate in the proceedings of the DCI, without any requirement of notification. 7. The election of the fourth respondent to the post of President on 18.07.2009 was valid, as he was elected as a Member to DCI on 08.04.2009 under Section 3(d) of the Act.
Final Decision: The writ petition was dismissed, as the nomination of the fourth respondent as a Member and consequently the President, DCI, by the second respondent, was valid.
1. This writ petition has been filed seeking for the issuance of Quo-Warranto against the fourth respondent to show cause under what authority he is holding the office of the Member and consequently the President, Dental Council of India.
2. Thebrief facts leading to the filing of the writ petition are as follows:
a) The petitioner is a Medical Practitioner in Tamil Nadu. It is stated that he is the Executive Trustee of HMT Trust, a Non-Governmental Organisation established with the object of promoting Medical and Dental education and protecting the professional interest of Dental practitioners.
b) The fourth respondent was nominated by the second respondent, the Government of National Capital Territory of Delhi (shortly "GNCT of Delhi"), by the proceedings dated 09.06.2009, under Section 3(e) of the Dentists Act 1948, as a Member of the Dental Council of India (shortly "the DCI"), the fifth respondent herein, up to 310. 2011.
(c) He was already a nominated Member under Section 3(f) of the Dentists Act, 1948 (shortly "the Act") by the Union of India, the first respondent herein, from 210. 2004, for a period of five years. Being a Member under Section 3(f) of the Act, he was selected as the President of the DCI.
d) While nominating the fourth respondent as a Member under Section 3(e) of the Act, the second respondent directed the petitioner to relinquish one membership, either from the quota of the second respondent or the first respondent, in the event of his being re-elected as President.
e) The election for the DCI took place on 18.07.2009. The petitioner contested the election as a Member under Section 3(e) of the Act, being nominated by the second respondent. He was successful in the election and got elected. He also submitted his resignation as a Member of the DCI under Section 3(f) of the Act.
f) According to the petitioner, the second respondent has no power to nominate a Member to the DCI under Section 3(e) of the Act. Hence, the fourth respondent has no authority to continue as a Member and consequently as President.
g) It is also stated that though the fourth respondent managed to get elected as a Member of the DCI in the election that took place on 08.04.2009, from the faculty of Dental Sciences of the Baba Farid University of Health Sciences, Faridkot (shortly "the University") under Section 3(d) of the Act, that could not help the fourth respondent to continue as President. The reason is that in spite of his election as a Member to the DCI under Section 3(d) of the Act, as stated above, the same was not approved and notified by the DCI.
h) According to the petitioner, there could not be dual membership and dual membership is not permitted under the Act.
i) Further, the fourth respondent contested the election only as a nominated Member by the second respondent, under Section 3(e) of the Act. Since the second respondent has no power to nominate a Member under Section 3(e) of the Act, the fourth respondent has no authority to continue as a Member/President. Unless he was elected in the re-election as contemplated under Section 7(2) of the Act, he could not be the President of the DCI. In this regard, Section 7(2) of the Act was relied on by the petitioner. Hence the present writ petition.
3. Notice was ordered on 12.03.2010. All the respondents filed counter affidavit, barring the third respondent.
4. All the respondents barring the third respondent filed counter affidavits refuting the allegations made by the petitioner. The respondents pleaded that NCT of Delhi is a "State" and therefore, the nomination of the fourth respondent to the DCI under Section 3(e) of the Act, by the second respondent, is valid and legal. The respondents relied on Article 12 and explanation to Article 54 of the Constitution of India and Section 3(58) of the General Clauses Act in support of their contention that the second respondent is a "State". Further, the respondents pleaded that after 69th amendment to the Cons
