IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HONOURABLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 21ST JULY 2010 / 30TH ASHADHA 1932 W.A.No.808 of 2010 --------------------------------------- AGAINST THE ORDER IN W.P.(C).6140 OF 2010 DATED 18.05.2010 .................... APPELLANT: PETITIONER IN WRIT PETITION:- -------------------------------------------------------------------------- DR.JOSEPH ISSAC, S/O.LATE K.E.THOMAS, AGED 53 YEARS, 6398 PANAMPILLY NAGAR, KOCHI-36. BY ADV. SRI.K.RADHAKRISHNAN (SENIOR ADVOCATE) SRI.ASOK M.CHERIAN SRI.S.KANNAN RESPONDENTS: RESPONDENTS IN WRIT PETITION:- -------------------------------------------------------------------------------------- 1. UNION OF INDIA, REP.BY THE SECRETARY TO GOVERNMNET, HEALTH AND FAMILY WELFARE DEPARTMENT, NIRMAN BHAVAN, NEW DELHI. 2. SECRETARY TO THE GOVERNMENT OF INDIA, MINISTRY OF HEALTH AND FAMILY WELFARE (DENTAL EDUCATION SECTION), NIRMAN BHAVAN, NEW DELHI. 3. DENTAL COUNCIL OF INDIA, NEW DELHI, REP.BY ITS SECRETARY. W.A.No.808/2010 - 2 - 4. DR.D.G.ADWANI, PROFESSOR (ORAL AND MAXILLOFACIAL SURGERY), VYWS DENTAL COLLEGE AND HOSPITAL, AMRAVATI, MAHARASHTRA. 5. DR.(MRS.) K.K.WADHWANI, PROFESSOR & HEAD OF THE DEPARTMENT CONSERVATIVE DENTISTRY AND ENDODONTICS CHATRAPATI SHAHUJI MAHARAJ MEDICAL UNIVERSITY LUCKNOW, UTTAR PRADESH. 6. DR.VIVEK SHARMA, READER (PROSTHODONTICS) DARSHAN DENTAL COLLEGE, UDAIPUR, RAJASTHAN. 7. DR.JANAK RAJ SABHARWAL PROFESSOR & HOD, DEPARTMENT OF ORAL SURGERY, HARSHARAN DAS DENTAL COLLEGE GHAZIABAD, UTTAR PRADESH. R1 & R2 BY ASST.SOLICITOR GENERAL OF INDIA SRI.T.P.M.IBRAHIM KHAN R3 BY STANDING COUNSEL SRI.SAJEEV KUMAR K.GOPAL. R5 BY ADV.SRI.K.P.SUDHEER. R6 BY ADV.SRI.H.B.SHENOY SRI.B.ASHOK SHENOY SMT.LAKSHMI B.SHENOY SRI.ABU MATHEW SRI.SOBHAN GEORGE SRI.K.V.GEORGE R7 BY ADV. SRI.T.R.RAVI. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 25/05/2010, ALONG WITH W.P.(C).NO. 6140 OF 2010-N, THE COURT ON 21/07/2010 DELIVERED THE FOLLOWING:- vku/- J.CHELAMESWAR,C.J. & P.N. RAVINDRAN, J. ------------------------------------------------------------------- W.A.No.808 of 2010 & W.P.(C).No.6140 of 2010-N ------------------------------------------------------------------- Dated, this the 21st day of July, 2010 JUDGMENT 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. (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. (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. (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”. WA.No.808/2010 & WP(C).No.6140/2010 - 2 - 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 WA.No.808/2010 & WP(C).No.6140/2010 - 3 - 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 WA.No.808/2010 & WP(C).No.6140/2010 - 4 - “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 the cause of action.” Lopes L.J. Said: “I agree with the definition given by the Master of Rolls of a cause of action, and that it includes every fact which it would be necessary to prove, if traversed, in order to enable a plaintiff to maintain his action.” This decision has been followed in India. The term has been considered also by the Board. In Mt.Chand Kour v. Partab Singh (1887-1888) 15 I.A. p.156 : (16 Cal. 98 P.C.) Lord Watson delivering the judgment of the Board observed as follows: “Now the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set out in the plaint as the cause of action; or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.” It can be seen from the above that a bundle of facts, the existence of each of which is required to be proved for obtaining the relief from a Court, go into WA.No.808/2010 & WP(C).No.6140/2010 - 5 - the making of the cause of action for a lis. Article 226 declares that jurisdiction of this Court extends to every case where the cause of action either wholly or in part arises within the territories over which this Court exercises jurisdiction. The existence of some nexus to any one of the facts in the bundle of facts constituting the cause of action, with the territory over which this Court exercises jurisdiction, is sufficient to enable this Court to exercise such jurisdiction. The various facts which go into the constitution of the cause of action can be classified as the facts the existence of which constitute (1) the legal rights of the person or (2) the legal obligations owed to the person seeking relief from a Court. 5. The impugned notification of the Union of India, published in the Gazette of India, evidences the nominations made by the Government of India to DCI (a statutory body corporate). DCI is the apex body created by the Act to regulate the profession of Dentistry in the entire country. It has the authority to recognise or derecognise any qualification in Dentistry. The prior permission of the Government of India contemplated under Section 10A for the establishment of an institution for imparting training for grant of recognised dental qualification is required to be given only in consultation with the DCI. Such investiture of authority necessarily affects the entire WA.No.808/2010 & WP(C).No.6140/2010 - 6 - society and all the people of India, either directly or indirectly. Therefore, to deny ourselves the jurisdiction on the basis of the location of the office of the DCI or on the belief that seat of office of the Government of India is located in Delhi would be a pedantic understanding of the jurisdiction of this Court and unjust to the people of this country. We are of the opinion that the Union of India, which has the statutory authority to make nominations under Section 3 of the Act, owes a legal and constitutional obligation to every person, who is subject to the laws of this country, to act rationally and in accordance with the requirements of Article 14. Such a Constitutional obligation, in our view, flows from the fact that the Government of India is charged with the obligation under the Dentists Act to enforce the provisions of the Act by appropriate executive action including the constitution of the DCI. We regret our inability to accept the preliminary objection. 6. Before we examine the submissions made by the learned Senior Counsel for the petitioner Shri.K.Radhakrishnan on the merits of the case, we deem it appropriate to examine the scheme of the Act in so far as it is relevant for us. The Act initially applied only to British India, but was later extended to the whole of India. Section 3 of the Act contemplates the WA.No.808/2010 & WP(C).No.6140/2010 - 7 - establishment of a Council and prescribes the composition of the said Council. Section 3 reads as follows:- “3. Constitution and composition of Council.- The Central Government shall, as soon as may be, constitute a Council consisting of the following members, namely:- (a) one registered dentist possessing a recognized dental qualification elected by the dentists registered in Part A of each State register; (b) one member elected from amongst themselves by the members of the Medical Council of India; (c) not more than four members elected from among themselves, by - (a) Principals, Deans, Directors and Vice-Principals of dental colleges in the States training students for recognised dental qualifications: Provided that not more than one member shall be elected from the same dental college; (b) Heads of dental wings of medical colleges in the States training students for recognised dental qualifications; WA.No.808/2010 & WP(C).No.6140/2010 - 8 - (d) one member from each University established by law in the States which grants a recognized dental qualification, to be elected by the members of the Senate of the University, or in case the University has no Senate, by the members of the court, from amongst the members of the Dental Faculty of the University or in case the University has no Dental Faculty, from amongst the members of the Medical Faculty thereof; (e) one member to represent each State, nominated by the Government of each such State from among persons registered either in a medical register or a dental register of the State; Explanation.- In this clause, “State” does not include a Union territory; (f) six members nominated by the Central Government, of whom at least one shall be a registered dentist possessing a recognized dental qualification and practising or holding an appointment in an institution for the training of dentists in a Union territory, and at least two shall be dentists registered in Part B of a State register; WA.No.808/2010 & WP(C).No.6140/2010 - 9 - (g) the Director-General of Health Services, ex officio: Provided that pending the preparation of registers the State Governments may nominate to the first Council members referred to in parts (a) and (e) and the Central Government members referred to in part (f) out of persons who are eligible for registration in the respective registered and such persons shall hold office for such period as the State or Central Government may, by notification in the Official Gazette, specify”. 7. Section 18 of the Act requires the DCI to maintain a register of dentists, to be known as “the Indian Dentists Register”, which is nothing but compilation of all the entries contained in all the “State registers” of dentists prepared under Section 31 of the Act. Section 31 obligates each of the States to cause the preparation of a register for the dentists of the State in the manner prescribed under the Act (Chapter IV). The Register prepared by the State shall be two parts, known as “Parts A & B”. The further details of such registers may not be relevant for the purpose of this case. WA.No.808/2010 & WP(C).No.6140/2010 - 10 - 8. Under Section 3 of the Act, the composition of the DCI is as follows.- (1) one qualified registered dentist elected by the dentists registered in Part A of each State register; (2) one member elected by the members of the Medical Council of India; (3) not more than four members elected by various persons specified in Section 3(c); (4) one member from each University established by law in the State which grants a recognised dental qualification and such member is to be elected in the manner prescribed under Section 3(d); (5) under Section 3(e), one member nominated by the Government of each State shall become the member of the Council, but the choice of the State to nominate under Section 3(e) is limited only to the persons registered either in a medical register or a dental register of the State; (6) under clause 3(f), six members are required to be nominated by the Central Government. Of the six members, at least one shall be a “registered dentist”, an expression defined in Section 2(l)* of the Act. Further, such a registered dentist is required to possess a “recognised dental ----------------------------------------------------------------------------------------------------- S.2(l) - “registered dentist”, “registered dental hygienist” and “registered dental mechanic” shall mean, respectively, a person whose name is for the time being registered in a register of dentists, a register of dental hygienists and a register of dental mechanics. WA.No.808/2010 & WP(C).No.6140/2010 - 11 - qualification” defined under Section 2(j)* and either practising or holding an appointment in an institution for the training of dentists in a Union territory. The further requirement in clause (f) of Section 3 is that of the six members to be nominated by the Central Government under the above mentioned provision, at least two members shall be dentists registered in Part B of a State Register. 9. Coming to the merits of the case, as already noticed earlier, it is the nomination of respondents 5 and 7 in the writ petition which is under challenge. The learned counsel for the writ petitioner Shri.K.Radhakrishnan argued that in so far as the 5th respondent is concerned, his nomination to the DCI constituted under Section 3 of the Act is illegal on the ground that the Allahabad High Court passed strictures against the 5th respondent who, in his capacity as Professor and Head of Department of Operative Dentistry, Faculty of Dental Sciences, King George's Medical University, Lucknow, was found to have tampered with the answer scripts of a particular student. -------------------------------------------------------------------------------------------------- ** S.2(j) - “recognised dental qualification” means any of the qualifications included in the Schedule”. WA.No.808/2010 & WP(C).No.6140/2010 - 12 - The relevant allegation in this regard in the writ petition is as follows:- “ It is submitted that against the 5th respondent strictures have been passed by the Lucknow Bench of the Allahabad High Court in the decision reported in 2005 (23)LCD 509 and a fine of Rs.25000 was awarded against her. The said fine was imposed on the ground that she had fabricated and manipulated the answer sheet of Ortho Dontists theory paper as well as practical by down gradation of the marks. She was directed to pay the fine within one month from the date of the judgment and in case there is failure to deposit the cost within the stipulated period, the Vice Chancellor was directed to recover the amount from the head of the department's salary and sent the money to the court within one month thereafter. Out of this cost Rs.15000 was directed to be paid to the petitioner in the writ petition and the remaining Rs.10000 was directed to be deposited in the legal aid cell of the High Court. Now such a person who was found responsible for fabrication and manipulation of the answer sheet was nominated by the Central Government for being considered to be a member of the Dental Council of India”. A copy of the judgment in Special Appeal No.314 of 2004 on the file of the Allahabad High Court, wherein the 5th respondent figured as the appellant, is also placed before us in support of the pleading. We may also state that the WA.No.808/2010 & WP(C).No.6140/2010 - 13 - learned counsel appearing for the 5th respondent did not dispute the allegation that the 5th respondent was found guilty of some inappropriate conduct as alleged by the petitioner. The learned counsel for the 5th respondent also fairly admitted the fact that the order of the Allahabad High Court was unsuccessfully challenged before the Supreme Court. In the background of such undisputed facts, the question is whether the Government of India was justified in law in nominating the 5th respondent to the DCI. 10. The learned counsel for the writ petitioner Shri.K.Radhakrishnan argued that “the nomination of such a person would certainly reduce the dignity of the institution” and inconsistent with the legal obligation of the Government of India to act rationally. The learned counsel placed reliance on the judgment reported in N.Kannadasan v. Ajoy Khose [(2009) 7 SCC 1] in this regard. The question before the Court in that case was whether a person, who was earlier an Additional Judge of the Madras High Court, but who eventually was not appointed as permanent Judge of the Madras High Court on the ground of certain adverse reports against him, was entitled to be appointed for another public office, i.e. the President of the State Consumer Disputes Redressal Commission. The Supreme Court WA.No.808/2010 & WP(C).No.6140/2010 - 14 - opined that the appellant before it could not have been appointed and at para 148 held as follows:- “We have found hereinbefore that the appellant was not eligible for appointment to a public office (emphasis ours) and in any event the processual machinery relating to consultation was not fully complied with”. In coming to such a conclusion, the Supreme Court placed reliance on Union of India v. Kali Dass Batish [(2006) 1 SCC 779]. In Kali Dass Batish' case (supra), at page 787, para 13, it was held by the Supreme Court as follows: “13. .... It must be remembered that a member of an Administrative Tribunal like CAT exercises vast judicial powers, and such member must be ensured absolute judicial independence, free from influences of any kind likely to interfere with independent judicial functioning or militate thereagainst. It is for this reason, that a policy decision had been taken by the Government of India that while considering members of the Bar for appointment to such a post, their antecedents have to be verified by IB. The antecedents would include various facts, like association with anti-social elements, unlawful organisations, political affiliations, integrity of WA.No.808/2010 & WP(C).No.6140/2010 - 15 - conduct and moral uprightness. All these facts have necessarily to be verified before a decision is taken by the appointing authority to appoint a candidate to a sensitive post like member of CAT. In Delhi Admn. v. Sushil Kumar [(1996) 11 SCC 605] this Court emphasised that even for the appointment of a constable in police services, verification of character and antecedents is one of the important criteria to test whether the selected candidate is suitable for a post under the State. Even if such candidate was found physically fit, had passed the written test and interview and was provisionally selected, if on account of his antecedent record, the appointing authority found it not desirable to appoint a person of such record as a constable, the view taken by the appointing authority could not be said to be unwarranted, nor could it be interdicted in judicial review. These are observations made in the case of a constable, they would apply with greater vigour in the case of appointment of a judicial member of CAT. It is for this precise reason that sub-section (7) of Section 6 of the Act requires that the appointment of a member of CAT cannot be made 'except after consultation with the Chief Justice of India'.” As rightly pointed out by the learned counsel for the writ petitioner, the apex Court always emphasized on the need for clean antecedents while making appointments to public offices, high or low. WA.No.808/2010 & WP(C).No.6140/2010 - 16 - 11. In the instant case, the 5th respondent is appointed as a member of the DCI, which has sweeping powers in the area of regulating the professional standards of Dentists and also establishment and maintenance of educational institutions imparting training in Dentistry. The submission of the learned counsel, in our opinion, is unanswerable and, therefore, necessarily the writ petition, in so far as it seeks a declaration that the nomination of the 5th respondent to the DCI illegal, is required to be allowed. 12. The 7th respondent - Dr.Janak Raj Sabharwal - was earlier nominated to the DCI in the year 2001. From the notification of the Government of India, Ministry of Health and Family Welfare dated 16/11/2001, published in the Gazette of India, which is marked as Exhibit P4 herein, it appears that the 7th respondent was nominated in the purported exercise of power under Section 3(e) of the Act by the Government of National Capital Territory of Delhi to be member of the DCI. The relevant portion of the notification reads as follows:- “Nirman Bhawan, New Delhi, Dated the 16th November, 2001 NOTIFICATION S.O. ....Whereas in pursuance of clause (e) of section 3 of the Dentists Act, 1948 (16 of 1948), Dr.J.R.Sabharwal has been WA.No.808/2010 & WP(C).No.6140/2010 - 17 - nominated by the Government of National Capital Territory of Delhi to be members of the Dental Council of India. Now, therefore in pursuance of clause (e) of section 3 read with sub-section (1) of section 6 of the said Act, the Central Government hereby makes the following amendments in the notification of the Government of India in the Ministry of of Health and Family Welfare, (Department of Health), No.S.O.430, dated 24th January, 84, namely, After serial number 19 and the entry relating thereto, the following serial number and entry shall be added, namely:- “20. Dr.J.R.Sabharwal Nominated Government of 16.11.2001 C-214, Vikaspuri, National Capital NewDelhi - 110 018 Territory of Delhi. (S.K.Rao) Director (ME)” It appears from the record that the nomination of the 7th respondent in the year 2001 was preceded by a request from the 7th respondent dated 27.04.2001, a copy of which is filed as Exhibit P2, wherein he claimed that he had acquired a great experience of twenty years in the field of Dentistry, in the following words:- “Sir, I am a Post Graduate in Dentistry (Specialist in Oral and Maxillofacial surgery) and registered Dentist in PART-A, practising WA.No.808/2010 & WP(C).No.6140/2010 - 18 - in Delhi. I have acquired about 20 years of experience in the field of Dentistry. I have worked in the most prestigious hospitals of Delhi, viz. Dr.Ram Manohar Lohia Hospital, Safdarjung Hospital, Sir Ganga Ram Hospital, Jaipur Golden Hospital and Mata Chanan Devi Hospital, New Delhi. I had also been a 'Scientist' Pool Officer under Council of Scientific & Industrial Research (CSIR). Presently