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2018 DIGILAW 304 (JHR)

Vivek Kumar v. State of Jharkhand

2018-02-05

RONGON MUKHOPADHYAY

body2018
JUDGMENT : RONGON MUKHOPADHYAY, J. 1. Heard Mr. Shailesh Kumar Singh, learned counsel appearing for the petitioner, Mr. H. K. Mehta, learned AAG for the respondents-State of Jharkhand and Mr. K.P. Deo, learned counsel appearing for the respondent No. 3. 2. In this application, the petitioner has prayed for a direction upon the respondent No. 2 to show-cause as to under what circumstances he had issued the Notification No. 10/Dental-06.01/2014-37/10 dated 05.02.2016 as contained in Annexure-4 by which the petitioner had been removed from post of member of the Dental Council of India representing the State of Jharkhand in exercise of power conferred under section 3(e) r/w 6(1) of the Dentists Act, 1948 without giving an opportunity of hearing to the petitioner. A further prayer has been made to quash the Notification No. 10/Dental-06.01/2014-37/10 dated 05.02.2016 and the petitioner be allowed to be continued as a member of the Dental Council of India till expiry of his statutory term pursuant to the notification dated 20.08.2014. Factual aspect of the case briefly stated is that the petitioner is a Dentist having a degree of B.D.S. (Hons.) from Budha Institute of Dental Sciences and Hospital, Patna (Bihar). The petitioner was appointed as member of Jharkhand Dentist Registration Tribunal vide Notification dated 14.08.2014. The petitioner was appointed/nominated as a member of Dental Council of India by the Govt. of Jharkhand vide Notification dated 20.08.2014 and pursuant to the same an identity card was issued to the petitioner wherein his appointment was shown to be valid to the post of member of Dental Council of India till 19.08.2019. A notification was served upon the petitioner dated 05.02.2016 in which it has been stated that the departmental letter dated 11.04.2014 by which the petitioner was nominated as a member of Dental Council of India was withdrawn and he was replaced by respondent No. 3. 3. Mr. Shailesh Kumar Singh, learned counsel for the petitioner has stated that the impugned order dated 05.02.2016 is violative of principles of natural justice is neither the petitioner was issued show-cause nor the petitioner was given an opportunity of hearing. Learned counsel submits that Section 3 and Section 6 of the Dentists Act, 1948 deals with the termination of nominated member and the manner in which a casual vacancy is to be filled up. Learned counsel submits that Section 3 and Section 6 of the Dentists Act, 1948 deals with the termination of nominated member and the manner in which a casual vacancy is to be filled up. It has been stated that the appointment/nomination to the post of member of a Dental Council of India is for a term of five years. Learned counsel further submits that a case of nomination can never be in violation of the principles of natural justice. In support of his contention, learned counsel has referred to the case of Anil Kohli v. Union of India, reported in AIR 1994 Delhi 279. 4. Mr. H. K. Mehta, learned AAG has stated that a written complaint was received by the respondent No. 2 from Dr. S. P. Mishra that on 01.11.2015, the Indian Dental Association (IDA) Jharkhand State Branch was conducting election for the formation of the New State Body and the petitioner who is a private practitioner and not registered under the Clinical Establishment Act entered along with the supporters in the election venue and interfered with the election process and abused and manhandled the Secretary, President as well as the voters. Learned counsel submits that the said act on the part of the petitioner led to postponement of the election process. He has further stated that the incident was flashed in the television. Learned counsel further submits that the credential of the petitioner itself being doubtful it was felt necessary that the respondent No. 3 who is the Professor and Head of Department of Dental Department, RIMS be nominated as a member of the Dental Council of India. Learned counsel stated that the credential of the respondent No. 3 would facilitate the dental education in the State and therefore the same led to the petitioner being replaced by the respondent No. 3. 5. Mr. K.P. Deo, learned counsel appearing for the respondent No. 3 has stated that Proviso to Section 3(e) of the Dentists Act, 1948 provides that pending the preparation of registers the State Government may nominate to the council members referred to in part (e) out of the persons who are eligible for registration. It has been stated that the proviso makes it abundantly clear that pending the preparation of the register, the Government may nominate the first council members. It has been stated that the proviso makes it abundantly clear that pending the preparation of the register, the Government may nominate the first council members. Learned counsel submits that same was one of the reasons for nominating the petitioner without specifying the period of his tenure. It has been stated that after constitution of the Jharkhand State Dental Registration Tribunal on 14.08.2014 and preparation of first register for the financial year 2014-2015, the same was audited and 38 dentists were found enrolled whereas the petitioner who was not a member, was rightly replaced by the respondent No. 3. Learned counsel submits that the petitioner is actually enrolled as a Dentist of Bihar State Dental Registration Tribunal and therefore he was eligible to be nominated from the State of Jharkhand Dental Registration Tribunal after its creation and preparation of first register. Learned counsel therefore submits that the writ petition deserves to be dismissed. 6. Countering the argument advanced on behalf of respondents, Mr. Shailesh Kumar Singh apart from repeating the fact that natural justice has been violated has stated that the respondent No. 3 as on date is not a member of the Jharkhand Dental Registration Tribunal as he has not been released from the register of Bihar State Dental Council and without having a no objection from the parent body it is surprising as to how he had secured registration. 7. On consideration of the arguments advanced by the learned counsel for the parties and on going through the records it appears that the petitioner and the respondent No. 3 both claim themselves to be eligible to be nominated as a member in the Dental Council of India representing the State of Jharkhand. Claims and counter claims have been made with respect to the eligibility of the petitioner and the petitioner No. 3. However from the impugned order dated 05.02.2016 it appears that no reason have been given by the respondents No. 2 while recalling nomination of the petitioner as a member of the Dental Council of India and replacing him with respondent No. 3. It would be apt in this context to refer to the case of Anil Kohli v. Union of India, reported in AIR 1994 Delhi 279 (supra) wherein it was held as follows:- "4. It would be apt in this context to refer to the case of Anil Kohli v. Union of India, reported in AIR 1994 Delhi 279 (supra) wherein it was held as follows:- "4. As we have seen above, the petitioner was nominated by the Central Government under clause (f) of Section 3 of the Act to be a member of the Council by notification dated 24 October, 1989. Then his membership stands terminated by the impugned notification dated 9 January, 1990. Respondents say that the membership of the petitioner has been terminated in pursuance of power conferred upon the Central Government under proviso to sub-section (1) of section 6 of the Act. In the counter affidavit filed by the respondent-Union of India no reasons have been given as to why the Central Government thought it fit to remove the petitioner from the membership of the Council before the expiry of the period of five years as is prescribed, and the only plea raised is the doctrine of pleasure which empowers the Central government to remove the member so appointed by it as the member holds his office during the pleasure of the Central Government, the authority which nominated him. This provision itself is challenged as conferring arbitrary powers on the authority concerned. We do not, however, think that this provision is unconstitutional as in the present controversy the authority concerned is the Central Government and discretion has been vested in the authority as high as Central Government. But then we must read into the proviso the rules of natural justice. When a member is nominated to the Council he gets a status and is even entitled to be elected as President and Vice President of the Council. Suppose in a given case a member, so nominated by the authority, is removed by authority without any rhyme and reason and the member, at the relevant time, is holding the office of the President, he may as well lose the office of the President of the Council. Removal of a nominated member before the expiry of his term is also fraught with civil consequences for him and he may become a subject of ridicule from his fellow professionals. Exercise of power, even though administratively, if it is not based on reasons, fairness or justness, is invalid and has to be struck down. Removal of a nominated member before the expiry of his term is also fraught with civil consequences for him and he may become a subject of ridicule from his fellow professionals. Exercise of power, even though administratively, if it is not based on reasons, fairness or justness, is invalid and has to be struck down. It is unnecessary for us to quote chain of authorities of the Supreme Court laying this law in support of this proposition. It is too basic to call for any argument. Professional qualifications of the petitioner as a dentist and his eligibility to be nominated on the Council have not been disputed. By an order dated 17 October, 1991 issued by the Government of India in the Ministry of Health and Family Welfare, the petitioner was appointed Honorary Dental Adviser in the Ministry." 8. Apart from being violative of the principles of natural justice the impugned order appears to be fraught with arbitrariness inasmuch as no reasons have been assigned while replacing the petitioner with respondent No. 3 as nominated member in the Dental Council of India. The State authorities cannot be permitted to exercise their powers at their pleasure and at there whims in an unfettered and unbridled fashion as such action has to have a justifiability and must indicate fairness otherwise such decision would not succeed the test on judicial review. 9. As a consequence to the discussions made hereinabove, the impugned order dated 05.02.2016 passed by the respondent No. 2 therefore being unsustainable in the eyes of law is hereby quashed and set aside the matter is remitted back to the respondent No. 2 to pass a fresh reasoned order in accordance with law. Respondent No. 2 while considering the issue shall give an opportunity of hearing to the respective parties. 10. The exercise indicated above should be concluded within a period of six weeks from the date of receipt/production of a copy of this order. 11. This writ application stands allowed and disposed of.