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Madhya Pradesh High Court · body

2012 DIGILAW 296 (MP)

Deshraj Jain v. State of M. P.

2012-03-14

PRAKASH SHRIVASTAVA

body2012
JUDGMENT : 1.This writ petition has been filed by the petitioner challenging the order dated 7-5-2010 , by which theDental Council of India has communicated that the petitioner has ceased to be amember of the Dental Council. 2.The case of the petitioner is that he was elected as member to represent therespondent No. 5-Devi Ahilya Vishwavidyalaya (hereinafter referred as 'University') in the respondent No. 4-Dental Councilof India in the special meeting dated 29-3-2007. On 28-10-2009 the dentalfaculty of the University was reconstituted and the petitioner was excludedfrom the membership of the dental faculty of the University, therefore, theimpugned communication dated 7-5-2010 was issued intimating that the petitionerhas ceased to be the member of the Dental Council without properly appreciatingthat the petitioner had not completed his term, as prescribed in the statute. 3.Learned Counsel appearing for the petitioner submits that under Section 6 (1)of the Dentist Act, 1948 (for short "the Act"), the term of a memberof Dental Council is 5 years or till his successor is duly elected ornominated, whichever is longer and since the petitioner has not completed 5years, therefore, he cannot be ceased to be a member of the Dental Council. Hefurther submits that the petitioner has not ceased to be a member of the dentalfaculty of the University as is clear from Annexure R-5/3 as amended byAnnexure P-8. 4.Learned Counsel appearing for the respondents opposing the writ petition havesubmitted that in terms of the provisions of the Act, the petitioner has ceasedto be a member of the Dental Council. 5.I have heard the learned Counsel for the parties and perused the record. 6.The Section 3 of the Act deals with the constitution and composition of theCouncil and clause (d) of Section 3, which is relevant for the present controversy , provides as under :- "3. Constitution and composition of Council. 5.I have heard the learned Counsel for the parties and perused the record. 6.The Section 3 of the Act deals with the constitution and composition of theCouncil and clause (d) of Section 3, which is relevant for the present controversy , provides as under :- "3. Constitution and composition of Council. - (a)*** (b)*** (c)*** (d)one member from each University established by law in the States which grants a recognised dental qualification, to be elected by themembers of the Senate of the University, or in case the University has noSenate, by the members of the Court, from amongst the members of the DentalFaculty of the University or in case the University has no Dental Faculty, fromamongst the members of the Medical Faculty thereof." 7.The election of the petitioner was by the members of the Court since he was oneof the member of the dental faculty of the University on 16-3-2007 , i.e., at the time of his election. 8.The term of office of the member of the Dental Council is prescribed underSection 6 of the Act, which reads as under : - "6.Term of office and casual vacancies.- (1)Subject to the provisions of this section an elected or nominated member shallhold office for a term of five years from the date of his election ornomination or until his successor has been duly elected or nominated, whicheveris longer. (2)*** *** (3)An elected or nominated member shall be deemed to have vacated his seat if heis absent without excuse, sufficient in the opinion of the Council, from threeconsecutive ordinary meetings of the Council or, in the case of a member whosename is required to be included in a State register, if his name is removedfrom such register, or if he has been elected under clause (c) of Section 3, ifhe ceases to hold his appointment as the Principal, Dean, Director or VicePrincipal of a Dental College, or as the Head of the dental wing of a MedicalCollege, or if he has been elected under clause (b) or (d) of Section 3, if heceases to be a member of the Medical Council of India or the Dental or MedicalFaculty of the University, as the case may be. (4)*** *** *** (5)*** *** *** (6)*** *** *** 9.In terms of sub-section (3) of Section 6, a member elected under Section 3(d)is deemed to have vacated his seat if he ceases to be a member of the DentalFaculty of the University. 10.The contention of the petitioner that even if a member of the Dental Councilelected under Section 3(d) has ceased to be a member of the Dental Faculty ofthe University, he would continue to be the member of the Dental Faculty for aperiod of five years or till his successor is duly nominated or-elected,whichever is longer. Such a contention cannot be accepted since sub-section (1)of Section 6 is subject to the other provisions of the Section, therefore, onoccurrence of one of the contingencies provided in sub-section (3) a nominatedor elected member of the Dental Council by way of deeming fiction will vacatehis seat in the Dental Council and will seize to be a member of dental faculty. 11.In the present case, on 16-3-2007 when the petitioner was elected to represent the University in the DentalCouncil of India, at that time the petitioner was a member of the DentalFaculty of the University. The Dental Faculty of the University wasreconstituted on 28-10- 2009 , vide AnnexureP-5/3. The petitioner's name was not included in the re-constituted DentalFaculty of the University, therefore, on 28-10-2009 on the reconstitution ofthe Dental Faculty of the University the petitioner had ceased to be a memberof the Pental Faculty of the University and he hadconsequently vacated the seat as an elected member of the Dental Council ofIndia by virtue of the deeming fiction contained in sub-section (3) of Section6 of the Act. 12.It is also worth noting that the Dental Faculty in the respondent/ Universityis constituted for a period of 3 years in terms of the provisions contained inSection 27 (2) read with Statute No. 9 of the Vishwavidyalaya Adhiniyam , 1973. After three years if a member of theDental Faculty of the University on expiry of his term ceases to be the member,the deeming fiction contained in Section 6 (3) of the Act comes into operation. After three years if a member of theDental Faculty of the University on expiry of his term ceases to be the member,the deeming fiction contained in Section 6 (3) of the Act comes into operation. 13.Another issue raised by the petitioner during the course of argument is that on21-9-2011 a corrigendum has been issued by the University amending the orderdated 28-10-2009 and including the petitioner in the Dental Faculty, therefore,by virtue of this amendment the petitioner has become the member of the DentalFaculty of the University with effect from 28-10-2009, therefore, he had notceased to be a member of the Dental Faculty of the University and is entitledto continue as member of the Dental Council. Such an argument also has notmerit since the order dated 21-9-2011 clearly states that the petitioner has been included as member in the DentalFaculty for the remaining period. Thus, he has not been made the member of theDental Faculty w.e.f . 28-10-2009 . He was not a member of the Dental Facultyfrom 28-10-2009 to 21-9-2011 . 14.Keeping in view the aforesaid, I do not find any merit in the writ petition,which is accordingly dismissed.