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2023 DIGILAW 747 (GUJ)

Viral Indravadan Patel v. State Of Gujarat

2023-05-11

J.C.DOSHI

body2023
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”). (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 the Gujarat Dental Council to initiate the process for appointing the President and Vice President of the Dental Council by calling the meeting of the members of the Dental Council as the terms of them are about to expire. This letter was written in view of section 25(1) of the Act r/w Rule 10(1) to(5) of the Dentist Rules (in short “Rules”). This letter was written in view of section 25(1) of the Act r/w Rule 10(1) to(5) of the Dentist Rules (in short “Rules”). 4.2 Pursuant to the said letter, the Registrar of the Dental Council called the meeting of the members of the Dental Council scheduled to be held on 12.5.2023 for appointment of President and Vice President of the Dental Council at Annexure B. 4.3 Since the petitioner who is sitting President of the Dental Council is aggrieved by such decision, has filed this petition seeking the relief stated supra. 5. Heard learned advocate Mr. Dipen Desai appearing for the petitioner, learned AGP Mr. Udhwani, learned advocate Mr. Pranav Trivedi for the Gujarat State Dental Council and learned Senior Counsel Mr. Shalin Mehta assisted by learned advocate Mr. Shaival Patel and learned advocate Mr. Tanmay Karia for rest of the respondents. 6. Learned advocate Mr. Dipen Desai, having taken this court through the orders of the constitution and composition of the Dental Council and further, taking this court trough the scheme of the Act, principally argued that the terms of all the members of the Dental Council which commenced from 25.10.2017 and then by addendum notification dated 14.5.2019, has already expired or is about to expire. Thus, in that circumstances, there is no rational of calling the meeting of the members of the Dental Council for appointing the President and Vice Prescient of the Dental Council. Referring section 27 and 25 of the Act, he would further submit that since the validity and membership of the members of the Dental Council is already expired or to be expired on one or two days, more particularly, of Dr. Bhavin Kothari, who has been appointed to substitute Dr. Anil J. Nayak appointed on 14.5.2018 whose term is going to be expired on 14.5.2023, there is no possibility of calling the meeting of the elected member to appoint the President and Vice President from amongst themselves. Referring section 27 together with section 25 of the Act, he would submit that ordinarily the term of office would be five years from the date of the election or nomination until successor has been duly elected or nominated whichever is longer. Referring section 27 together with section 25 of the Act, he would submit that ordinarily the term of office would be five years from the date of the election or nomination until successor has been duly elected or nominated whichever is longer. Considering this legal facet, he would submit that the present petitioner who is President of the Dental Council though may have completed the office of five years, until the next election of his successor comes and successor is elected or appointed, he could legitimately hold the office of the President. He would further submit that the election of the President would occurs only when the members of the Dental Council are elected or nominated as per the scheme stated in the Act. In nutshell, learned advocate Mr. Desai argued that since the time period of the elected member of the Dental Council, which is of 5 years from the date of the appointment i.e. 25.10.2017, is expired and the appointment of Dr. Bhavin Kothari which relates back to the appointment of Dr. Anil J. Nayak as he has been substituted was appointed on 14.5.2018, the term of Dr. Bhavin Kothari would come to expire on 14.5.2023. So, no practical or rational remains to issue letter at Annexure A and B for directing the Dental Council to hold the election of President and Vice President as there is no existing elected or nominated member of the Dental Council surviving. Thus, he would argue that election of members of the Dental Council would come first and from amongst the elected/nominated members of the Dental Council, the President or Vice President would be elected. He would further submit that though the present petitioner does not hold the perpetuity in holding the term as a President, his tenure as President could not be disturbed by way of issuing letter Annexure A and agenda at Annexure B as they are in teeth of the provisions of the Act. He would further submit that though the present petitioner does not hold the perpetuity in holding the term as a President, his tenure as President could not be disturbed by way of issuing letter Annexure A and agenda at Annexure B as they are in teeth of the provisions of the Act. He would further submit that until the members of the Dental Council are elected or nominated and President and Vice President are elected from amongst them, as a stopgap arrangement, present petitioner can continue on post of President as provisions of the law contemplate that until the successor arrives to hold the office, even if term of 5 years has expired, the person can continue with the post he is holding in the composition of the Dental Council. 6.1. In continuation of above arguments, learned advocate Mr. Desai referred to the Rules made under the Act, more particularly Rule 17 to argue that for calling the meeting of the Dental Council, the minimum quorum prescribed is of 8 members. In the case on hand, firstly, there are no 8 elected/nominated members remained and secondly, some of the members have already written a letter/email to the Registrar that they would not be available on 12th may, 2023 the day on which the meeting is called for electing/appointing President and Vice President. In that circumstances, there is no legitimate, rational and prudent reason to hold the meeting on 12th May, 2023 to elect/appoint the President and Vice President of the Dental Council. He would further submit that therefore, such approach of the Registrar of the Dental Council as well as of the State Government is bad in law and against the principles of natural justice as well as it is in teeth of the provisions of the Act and the rules made thereunder. 6.2 Upon such submission, learned advocate Mr. Desai would submit to allow this petition and to grant the relief prayed in the petition. Alternatively he prays that the Dental Council as well the State Government may be directed to hold the election /nomination of the members first in time and then to elect or appoint President from amongst them. 6.3 To support his submission, learned advocate Mr. Desai referred to and relied upon the judgment of the Hon’ble Apex Court in case of Dental Counsel of India Vs. 6.3 To support his submission, learned advocate Mr. Desai referred to and relied upon the judgment of the Hon’ble Apex Court in case of Dental Counsel of India Vs. HR Prem Sachdeva AIR 1999 SC 3853 more particularly, para 7 and 8, which reads as under:- “7. A conjoint reading of the various provisions of the Act and the Regulations referred to above, go to show that the term of office of the members of the council is five years from the date of the election or nomination, as the case may be. Section 6(I). however, also provides that a nominated or elected member, after the expiry of the term, may continue "until his successor has been duly elected or nominated, whichever is longer". The expression "whichever is longer" does suggest the continuation after the expiry of the term. Can it, however, be construed to mean that if the authorities fail to act as per clause (a) to (f) of Section 3, the member concerned can continue to remain in office till perpetuity? In our opinion that could not be the intention of the law makers. Regulation 23 (supra) does give an indication of what we have said above. 8. A reasonable interpretation of the provisions of the Act and the regulation would be that elections/nominations to the Council should normally be held/made once in five years. However, if for some valid reasons the elections cannot be held during the term of five years, the same should be held within a reasonable time thereafter and the continuance in office of the elected/nominated members should not go on for perpetuity. The continuance in office, after the expiry of the term, should only be a stop gap arrangement to avoid a vacuum. The obligation to nominate/hold elections is of various authorities obliged to elect/nominate members to the Council under Clauses (a) to (f). The Act and the Regulations are, silent about the period during which elections/nominations should be made/held as also about the consequences of not holding the elections or making nominations within the five year term or soon thereafter and this lacuna gives rise to unnecessary litigation. The Act and the Regulations are, silent about the period during which elections/nominations should be made/held as also about the consequences of not holding the elections or making nominations within the five year term or soon thereafter and this lacuna gives rise to unnecessary litigation. We hope that the authorities concerned shall take appropriate measures by amending the provisions of the Statute or the Regulations or frame appropriate rules so that the ambiguity regarding the maximum period, after the expiry of the five year term, during which election/nomination should be held/made is removed.” 7. The petition is strongly opposed by learned advocates for the respondents. Learned Senior counsel Mr. Shalin Mehta, who lead the arguments to counter the submission of learned advocate Mr. Desai for the petitioner would submit that the present petitioner is guilty of suppression of material fact and claiming the equitable relief and hence, the petition is not maintainable only on this count. Elaborating this submission, he would submit that present petitioner is illegally occupying the post of President since 2007 without holding any election of the Dental Council, the first term of the elected member of the Dental Council was expired in 2012 without any election of the President. Then, the second term which started from 2017 is also about to expire without holding a meeting to appoint the President. He would further submit that the present petitioner is a self-proclaimed President of the Dental Council. He would further submit that in the present petition, the petitioner has not mentioned that he is occupying the seat of the President of the Dental Council since 2007 and thereby, the present petitioner has suppressed the material fact before seeking equitable relief from this court and therefore, present petition is not maintainable under Article 226 of the Constitution of India. He would further submit that even the Dental Council which was constituted on 2017, no meeting was ever convened by the present petitioner. That shows how and in what manner he was acted when he was President of the Dental Council. 7.1 Reading section 25(2) of the Act, he would submit that the legislature has negatively couched the provisions of the law. So on no uncertain terms, the time period of the term of the President would expire on completion of 5 years. It cannot be extended for any other reason. 7.1 Reading section 25(2) of the Act, he would submit that the legislature has negatively couched the provisions of the law. So on no uncertain terms, the time period of the term of the President would expire on completion of 5 years. It cannot be extended for any other reason. He would further submit that section 27 of the Act is in the legislation for the elected or nominated members who shall ordinarily hold the terms of 5 years from the date of his election of nomination or until his successor has been duly elected or nominated, whichever is longer. Simplifying the provisions of the law, learned Senior Counsel would submit that terms of the President and Vice president would invariably expire at the end of five years from he being appointed/elected. However, term of the member elected or nominated can be extended beyond five years until his successor has been duly elected or nominated with the rider that whichever is longer. 7.2 In background of this provision of law, learned Senior Counsel Mr. Mehta would submit that it would be incorrect to say that a President or Vice President could hold office beyond five years until his successor assumes the office. He would submit that the said proposition is applicable only to the member either elected or nominated. Upon such submission, learned Senior Counsel Mr. Mehta contended that present petitioner who is acting as a President pursuant to the notification dated 25.10.2017 Annexure D cannot continue his term as a President beyond five years which is completed way back and precisely on 25.10.2022. Thus, learned Senior Counsel Mr. Mehta submits that present petition is totally misconceived and ill-motivated. He would further submit that conveniently, present petitioner has not averred in the petitioner that he is holding the post of President and by suppressing the factual aspect, he claims that he is elected member and can continue the office beyond five years. However, under such camouflage averments, the petitioner intends to continue the post of President which he holds since 2007. Therefore, the present petition having no merit at all may be dismissed summarily with costs. 7.3 Learned Senior Counsel Mr. However, under such camouflage averments, the petitioner intends to continue the post of President which he holds since 2007. Therefore, the present petition having no merit at all may be dismissed summarily with costs. 7.3 Learned Senior Counsel Mr. Mehta would further submit that in view of the letter issued by the Section Officer, Health and Family Welfare Department, Gandhinagar, Government of Gujarat, Annexure A and consequent thereto, the meeting called by the Registrar to appoint President/Vice President at Annexure B would tantamount to beginning of the election process. In that circumstances, he would submit that by settled proposition of law, the High court should be slow in interfering with the election process. He would further submit that often by frivolous reasons, the High Court’s jurisdiction is called to interfere with the election process, whereupon the Hon’ble Apex Court in case of Shaji K. Joseph Vs. V. Vishwanath and others, reported in JT 2001(8) 287 taken view that normally, court should not interfere with the process of election. Para 14 which has been referred to and relied upon by the learned Senior Counsel Mr. Mehta is reproduced herein under:- “14. In our opinion, the High Court was not right in interfering with the process of election especially when the process of election had started upon publication of the election program on 27th January, 2011 and more particularly when an alternative statutory remedy was available to Respondent no.1 by way of referring the dispute to the Central Government as per the provisions of Section 5 of the Act read with Regulation 20 of the Regulations. So far as the issue with regard to eligibility of Respondent no.1 for contesting the election is concerned, though prima facie it appears that Respondent no.1 could contest the election, we do not propose to go into the said issue because, in our opinion, as per the settled law, the High Court should not have interfered with the election after the process of election had commenced. The judgments referred to hereinabove clearly show the settled position of law to the effect that whenever the process of election starts, normally courts should not interfere with the process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without court’s order. The judgments referred to hereinabove clearly show the settled position of law to the effect that whenever the process of election starts, normally courts should not interfere with the process of election for the simple reason that if the process of election is interfered with by the courts, possibly no election would be completed without court’s order. Very often, for frivolous reasons candidates or others approach the courts and by virtue of interim orders passed by courts, the election is delayed or cancelled and in such a case the basic purpose of having election and getting an elected body to run the administration is frustrated. For the aforestated reasons, this Court has taken a view that all disputes with regard to election should be dealt with only after completion of the election.” 7.4 Lastly, learned Senior Counsel Mr. Mehta argued that in view of section 26 of the Act, if the petitioner has any grievance against election process, he has to make the representation with the State Government and in view of the said provision, since alternative and efficacious remedy is available with the petitioner, this court should refrain or rather should remain circumspect in exercising the jurisdiction under Article 226 of the Constitution of India. 8. Having argued so, learned Senior Counsel Mr. Mehta submits to dismiss this petition with exemplary costs. 9. Learned AGP Mr. Udhwani firstly has adopted the arguments canvassed by learned Senior Counsel Mr. Mehta. He further submitted that on perusing the entire petition, the petitioner has not stated that for what purpose and why, he is aggrieved by the letter and Agenda at Annexure A and B. How, he has suffered injury when Registrar of the Dental Council, upon letter of the Section Officer, Health and Family Welfare Department, Gandhinagar, Government of Gujarat, simply call the meeting for appointing/electing the President/Vice President from amongst the members. He would further submit that since the petitioner is silent on this aspect, it is obvious that the present petition is filed to derail the election process and thus, has to be dismissed. He would further submit that even if there is a slightest prejudice caused to the present petitioner by the letters and agenda at Anenxure A and B, the remedy is available to him to file representation under section 26 of the Act to the State Government. He would further submit that even if there is a slightest prejudice caused to the present petitioner by the letters and agenda at Anenxure A and B, the remedy is available to him to file representation under section 26 of the Act to the State Government. Thus, in presence of clear and efficacious remedy available to the petitioner, he cannot approach this court directly invoking extraordinary jurisdiction under Article 226 of the Constitution of India. 9.1 Learned AGP Mr. Udhwani would further submit that in view of Rule 4 and 7, it was a duty casted upon the President of the Dental Council to call the meeting for initiating the election process since the present petitioner failed to follow said Rules and call the meeting to initiate the election process. Such inaction has compelled the Health and Family Welfare Department, Gandhinagar, Government of Gujarat, to wrote a letter to the Registrar of the Dental Council to start the procedure for electing the President and or Vice President, so that the election of members can be commenced, which is factually and legally correct procedure adopted by the respondent and it does not call for interference. 9.2 Upon above submission he would submit that the present petition is not maintainable and is required to be dismissed. 10. Learned advocate Mr. Pranav Trivedi appearing for the respondent Dental council having adopted the arguments canvassed by learned predecessor advocates, would add argument that since multiple communications are made to the petitioner to hold the election, failed to get the answer has compelled the Health and Family Welfare Department, Gandhinagar, Government of Gujarat, to initiate the process for electing the President and/or Vice President so as to initiate the process for electing/nominating the members of the Dental Council. Upon such submission, learned advocate Mr. Trivedi submits that the petitioner failed to make out any case of interference and hence, submits to dismiss the petition. 11. In reply as far as contention of availability of the alternative remedy under section 26 of the Act is concerned, learned advocate Mr. Desai for the petitioner would argue that in the present case, the Health and Family Welfare Department, Gandhinagar, Government of Gujarat, itself has directed the Registrar of the Dental Council to hold the election, therefore, there would not be any fruitful result to raise the dispute before the State Government. Desai for the petitioner would argue that in the present case, the Health and Family Welfare Department, Gandhinagar, Government of Gujarat, itself has directed the Registrar of the Dental Council to hold the election, therefore, there would not be any fruitful result to raise the dispute before the State Government. Thus, the petitioner has no effective and efficacious alternative remedy except filing this petition under Article 226 of the Constitution of India, therefore, this petition is maintainable. 12. This Court has heard learned advocates for both sides in extenso. 13. Certain undisputed facts emerging from the records are required to be noted first before the rival contentions are examined. 13.1 The constitution and composition of the Gujarat State Dental Council has to be made as per section 21 of the Act. Chapter III of Section 21 laid down the procedure for constitution and composition of the state councils. On 25.10.2017 (Annexure D), the State Government in exercise of powers conferred by Section 21 of the Act notified the reconstitution of the Gujarat State Dental Council. Present petitioner was member elected under clause (e) of Section 21, means member nominated by the State Government. Then by notification dated 14.5.2018 i.e. Annexure E, entry Nos.5, 6 and 7 i.e. entry for Dr. V.I. Patel, petitioner herein, Dr. K.P. Bagda and Dr. BB Shah has been substituted with details and particulars. Dr. Anil Nayak was elected under clause (d) of section 21 of the Act and therefore, he came to be appointed as a Member of the Dental Council. Means, he was elected from members of Medical council or the Council Of Medical Registration of the State. Later on, Dr. Anil J. Nayak has been substituted by the notification dated 29.4.2023 and Dr. Bhavin S. Kothari has been appointed in his place. Either of the notifications stated herein before were never called to challenge before any Court by any of the members, but are acted upon. Vide Annexure A, the Health and Family Welfare Department, Gandhinagar, Government of Gujarat, has wrote a letter to the Registrar of the Dental Council to hold the meeting for appointing the President and the Vice President of the Dental Council in view of section 25(1) of the Act r/w Rule 10 and 10(1) to (5) as no new President and Vice President were elected or appointed. Pursuant to that, Registrar of the Dental Council has issued agenda at Annexure B. 13.2 In background of the above admitted facts, if we examine the rival contentions of learned advocates for both the parties, learned advocate for the petitioner relied upon the interpretation of sections 25 and 27 of the Act to argue that even if the terms of the President is expired to hold the post, he can go with his post till his successor is appointed and secondly, it is argued that the terms of the members of the Dental Council would be expired on expiry of five years, which is expired for all the members except Dr. Bhavin Kothari, whose terms will expire on 14.5.2023. In that event, until the members of the Dental Council are elected/ nominated, no election of President or Vice President is permitted. On the other hand, taking resort of same provisions, it was argued that the terms of the President would expire at the end of five years of his appointment, no extension clause exists in provisions of law to ensure extension of the term of President. The extension clause which is available in provisions of the law is for the member of the Dental Council and until the successor members are elected or nominated, they can continue in their office. 13.3 In view of these rival submissions, let refer section 25 of the Act, which reads as under:- “Section 25 - President and Vice-President of State Council.— (1) The President and Vice-President of the [State] Council shall be elected by the members from among themselves: Provided that for five years from the first constitution of the [State] Council, the President shall, if the [State] Government so decides, be a person nominated by the [State] Government who shall hold office during the pleasure of the [State] Government, and where he is not already a member, shall be a member of the [State] Council in addition to the members referred to in section 21 or 23, as the case may be. (2) The President or Vice-President shall hold office as such for a term not exceeding five years and not extending beyond the expiry of his term as a member of the [State] Council, but subject to his being a member of the [State] Council, he shall be eligible for re-election.” 13.4 Let also refer section 27(1) of the Act, which reads as under:- “Section 27 - Term of office and casual vacancies.— (1) Subject to the provisions of this section, an elected or nominated member shall hold office for a term of five years from the date of his election or nomination or until his successor has been duly elected or nominated whichever is longer: [Provided that a member nominated under clause (e) of section 21 or clause (e) of section 23, shall hold office during the pleasure of the authority nominating him.]” 14. Bare perusal of section 25(2), which is regarding the terms of the office of the President or Vice President of the State council clearly indicates that the President or Vice President of the State Council can hold office for a term not exceeding five years and not exceeding beyond the expiry of his term as a member of the State council, but shall remain as a member of the State Council provided that he is eligible for re-election. The provision is very unambiguous and clear. President can hold the office only upto five years and not beyond it. For post/term of President and Vice President, relaxation to hold exceeding five years is not available in statute. The President has to demit the office on completion of five years. He cannot say that until his successor comes, he would continue to hold his office and further, cannot restrain the members of the State Council from electing the new President and Vice President from amongst them. Section 27(1) of the Act indicates that an elected or nominated member shall hold office for terms of five years from the date of his election or nomination or until his successor has been elected or nominated whichever is longer. A reasonable interpretation would indicate that a member can hold office for a terms of five years from the date of his election or nomination. Secondly, he can even continue his office beyond five years until his successor is duly elected or nominated. A reasonable interpretation would indicate that a member can hold office for a terms of five years from the date of his election or nomination. Secondly, he can even continue his office beyond five years until his successor is duly elected or nominated. These two conditions are covered up by the expression whichever is longer. The expression whichever is longer does stipulate continuation of holding terms as members beyond five years. 15. A conjoint and harmonious reading of section 25 and 27 of the act, makes the entire picture clear that the elected member can hold the office as a member beyond five years until his successor has been duly elected or nominated, but not the President or Vice President. It is undisputed that the members of the Dental Council are appointed vide Annexure D dated 25.10.2017 having addendum on 14.5.2018 by further inclusion of Dr. Anil J. Nayak as a member who was substituted by Dr. Bhavin S. Kothari vide Annexure G. Present petitioner who is undisputedly President of the State Council was appointed/ notified on 25.10.2017, his term to hold the office of the President, therefore, is expired either on 25.10.2022 as 5 years completed or it may be little longer, as no specific date of appointment as a President is mentioned in the petition. But, in any condition, it is not the case of the petitioner that he has not completed the term of five years as a President. In this event, the conjoint reading of section 25 with section 27 of the Act does not authorize the present petitioner to hold the office of the President exceeding the five years from the date he has been appointed as a President. 15.1 In para 4 of the CA 1 of 2022, the newly added respondents have made following categorical averments:- “4. It is submitted that as per the analogy of te petitioner in above caption SCA, His first term as President expired long back in the year 2012 after expiry of five years. Still he is continued to occupy the post of President till the new election / nomination of members of the Council in the year 2017. It is further submitted that the petitioner again elected as member in the year 2017 as a member of the Council. Still he is continued to occupy the post of President till the new election / nomination of members of the Council in the year 2017. It is further submitted that the petitioner again elected as member in the year 2017 as a member of the Council. As a member of fact he ought to have directed the Registrar to call for fresh meeting of all the elected / nominated members of the Council for the election of the new President, however, instead of calling the fresh meeting of all the elected / nominated members of the council, petitioner is occupying the post of President of the Gujarat State Dental Council since the year 2007.” 15.2 This averments has not been controverted by the petitioner by filing the affidavit. Learned advocate Mr. Desai for the petitioner has failed to point out that the petitioner is not holding the post of President as stated in para 4. Even, he failed to meet with the contention that the present petitioner in capacity of the President has never called the meeting of the Dental Council of elected/nominated members. 15.3 Learned AGP Mr. Udhwani has referred to Rule 4 and 7 being the rules for election of the Members of the State Council. Perusal of it indicates that duty is casted upon the President of the Dental Council to call upon the meetings for holding election or for calling the fresh nomination, so that the successor may be elected or nominated within the due time. The time limit specified there in Rule 4 is 60 days before the term of office of any member of the Dental Council is expiring. Rule 7 mandates that if members are to be elected under clause (a) or clause (b) of section 21 of the Act i.e. four members elected from amongst themselves by the dentist registered in Part A of the State Register or four members elected from amonsgt themselves by Dentist registered in Part B of the State Register, the President or any person authorized by him, by writing shall call the returning officer for the election. The time period specified is 42 days, but not more than 60 days before the day on which the term of the office of any such member expires. The petition filed by the present petitioner is silent on this issue. The time period specified is 42 days, but not more than 60 days before the day on which the term of the office of any such member expires. The petition filed by the present petitioner is silent on this issue. 15.4 It should be recollected that according to uncontroverted para 4 of the CA, present petitioner is holding the post of the President since 2007. it is undisputed that present petitioner has not carried out the procedure laid down in Rule 4 and 7 which has constrained the Section Officer, Health and Family Welfare Department, Gandhinagar, Government of Gujarat, to write a letter to the Registrar for initiation of election process as the term of the office of the member is about to expire. Since the election process has to be initiated by the President, it has been necessitated to nominate President and Vice President from amongst the members. The Registrar therefore, has called the meeting to appoint President or Vice President on 12.5.2023. At the cost of repetition, it is to be recollected that one of the members of the State council would have term upto 14.5.2023 and other members, by operation of sub section (1) of section 27 of the Act can hold the office until his successor has been duly elected even in case their terms of five years is expired. So, when the meeting which is scheduled to be held on 12.5.2023 for electing the President and Vice President of the Dental Council, the elected/nominated members are very much in the office in capacity of members. 15.5 Insofar as contention of non-availability of requisite members to form quorum for convening meeting is concerned, sub rule (1) of Rule 17 spells that if requisite member which constitute quorum are not available, meeting shall be held after 30 minute without bar of quorum. Thus, this contention is merit less. 15.6 It is settled law that once the election process is commenced, the Court normally should refrain from interfering with the election process. This view is fortified by the judgment of the Hon’ble Apex Court in case of Shaji A. Joseph (supra). Thus, in the present case, even on that count, the petition has no merit. 15.6 It is settled law that once the election process is commenced, the Court normally should refrain from interfering with the election process. This view is fortified by the judgment of the Hon’ble Apex Court in case of Shaji A. Joseph (supra). Thus, in the present case, even on that count, the petition has no merit. 15.7 Section 26 of the Act reads as under:- “Section 26 - Mode of elections.— Elections under this Chapter shall be conducted in the prescribed manner, and where any dispute arises regarding any such election, it shall be referred to the [State] Government whose decision shall be final.” 15.8 The above provisions clearly stipulate that where any dispute arise regarding any such election, the aggrieved Party has to refer the same to the Government. In the present case, it was the argument of Mr. Desai, learned advocate for the petitioner that since the Section Officer, Health and Family Welfare Department, Gandhinagar, Government of Gujarat, has directed to hold the election of the President, there is no purpose to go to the Government for agitating the said grievance and therefore, the petitioner has no alternative and efficacious remedy. I am not satisfied with such submission, more Particularly, in view of the Rule 4 and 7 that the election process has to be started somewhere before 42 days but not later than 60 days before the day on which the term of the member of the office expires, which has not been followed in the present case and thus, the Section Officer was constrained to write a letter to the Registrar of the Dental Council to initiate election process and to convene meeting for appointing President and Vice President. By no means, this letter can be termed as an order of the Government which does not allow the petitioner to exercise the mode of representation or raising the dispute as stated in section 26 of the Act. A clear, effective and efficacious remedy was available to the petitioner to approach the State Government if he has any dispute against the election. 15.9 Recently, in case of South Indian Bank Limited and others Vs. Naveen Mathew Philip reported in 2023 Livelaw (SC) 320, the Hon’ble Apex Court after revising earlier decision in case of Radha Krishnan Industries Vs. State of HP (2021) 6 SCC 771 as well as in case of Whirlpool Corporation Vs. 15.9 Recently, in case of South Indian Bank Limited and others Vs. Naveen Mathew Philip reported in 2023 Livelaw (SC) 320, the Hon’ble Apex Court after revising earlier decision in case of Radha Krishnan Industries Vs. State of HP (2021) 6 SCC 771 as well as in case of Whirlpool Corporation Vs. Registrar of Trademark (1998) 8 SCC 1 , held that when alternative remedy is available, the writ Court should remain circumspect. The relevant observation reads as under:- “...When a statute prescribes a Particular mode, an attempt of circumvent shall not be encouraged by a writ Court. The litigant cannot avoid the non-compliance of approaching the criminal which requires the prescription of fees and use the constitutional remedy as an alternative...” 15.10 With profit, I may also refer to the judgment of the United Bank of India Vs. Satyawati Tondon, 2010(8) SCC 110 , whereupon the Hon’ble Apex Court held as under:- “Unfortunately, the High Court overlooked the settled law that the High Court will ordinary not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person...” 15.11 Even on above facet, the present petition is not maintainable as the petitioner has effective remedy available to agitate his grievance before the State government. 16. Before I Parting with the order, I may examine the highlighted argument of learned AGP Mr. Udhwani that how present petitioner can be considered as aggrieved person against the Annexure A and B and what injury he has suffered by Annexure A and B. The answer to these questions either are not found in the petition or in petitioner’s arguments. Under which circumstances, the petitioner can insist that he can continue the term of office as a President. This question also has no answer. Thus, it appears that the present petition is 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 a President of the Dental Council. This petition is devised and designed to achieve crooked objective by using process of the Court. Such irresponsible petition has to be handled stunchly. The blatant misuse of the process of the Court has to be saddled with the cost. This petition is devised and designed to achieve crooked objective by using process of the Court. Such irresponsible petition has to be handled stunchly. The blatant misuse of the process of the Court has to be saddled with the cost. The Hon’ble Apex Court while dealing with such kind of the frivolous litigation, which has attempted to abuse of process of Court came out heavily in case of Dyandeo Sabaji Naik Vs. Pradnya Prakash Khedekar, 2017 (5) SCC 496 . The relevant observation of the Hon’ble Apex Court is in para 13 and 14, which reads as under:- “13. This Court must view with disfavour any attempt by a litigant to abuse the process. The sanctity of the judicial process will be seriously eroded if such attempts are not dealt with firmly. A litigant who takes liberties with the truth or with the procedures of the Court should be left in no doubt about the consequences to follow. Others should not venture along the same path in the hope or on a misplaced expectation of judicial leniency. Exemplary costs are inevitable, and even necessary, in order to ensure that in litigation, as in the law which is practised in our country, there is no premium on the truth. 14. Courts across the legal system - this Court not being an exception - are choked with litigation. Frivolous and groundless filings constitute a serious menace to the administration of justice. They consume time and clog the infrastructure. Productive resources which should be deployed in the handling of genuine causes are dissipated in attending to cases filed only to benefit from delay, by prolonging dead issues and pursuing worthless causes. No litigant can have a vested interest in delay. Unfortunately, as the present case exemplifies, the process of dispensing justice is misused by the unscrupulous to the detriment of the legitimate. The present case is an illustration of how a simple issue has occupied the time of the courts and of how successive applications have been filed to prolong the inevitable. The person in whose favour the balance of justice lies has in the process been left in the lurch by repeated attempts to revive a stale issue. This tendency can be curbed only if courts across the system adopt an institutional approach which penalizes such behavior. Liberal access to justice does not mean access to chaos and indiscipline. The person in whose favour the balance of justice lies has in the process been left in the lurch by repeated attempts to revive a stale issue. This tendency can be curbed only if courts across the system adopt an institutional approach which penalizes such behavior. Liberal access to justice does not mean access to chaos and indiscipline. A strong message must be conveyed that courts of justice will not be allowed to be disrupted by litigative strategies designed to profit from the delays of the law. Unless remedial action is taken by all courts here and now our society will breed a legal culture based on evasion instead of abidance. It is the duty of every court to firmly deal with such situations. The imposition of exemplary costs is a necessary instrument which has to be deployed to weed out, as well as to prevent the filing of frivolous cases. It is only then that the courts can set apart time to resolve genuine causes and answer the concerns of those who are in need of justice. Imposition of real time costs is also necessary to ensure that access to courts is available to citizens with genuine grievances. Otherwise, the doors would be shut to legitimate causes simply by the weight of undeserving cases which flood the system. Such a situation cannot be allowed to come to pass. Hence it is not merely a matter of discretion but a duty and obligation cast upon all courts to ensure that the legal system is not exploited by those who use the forms of the law to defeat or delay justice. We commend all courts to deal with frivolous filings in the same manner.” 16.1 The judgments relied upon by learned advocate Mr. Desai for the petitioner helps case of the respondents rather than the case of the petitioner. 17. For the foregoing reasons and in view of the reasons stated herein above, this petition sans merit and is accordingly, dismissed with cost quantified at Rs.5000/- to be paid to the Gujarat State Legal Services Authority within seven days from today. Rule is discharged. 18. Since main petition is dismissed, CA, if any, would not survive and it stands disposed of accordingly.