IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 04/10/2010 CORAM THE HONOURABLE MR.JUSTICE D.HARIPARANTHAMAN W.P.NO.5102 OF 2010 AND CONNECTED MISCELLANEOUS PETITIONS Dr.George Paul ... Petitioner Versus 1.The Union of India Rep.by its Secretary Ministry of Health and Family Welfare Nirman Bhavan, New Delhi. 2.The Chief Secretary GNCT of Delhi, Delhi Secretariat New Delhi – 110 001. 3.The Tamil Nadu State Dental Council Arihant Majestic Towers 5-0-3, 216, J.N.Salai, Koyambedu, Chennai – 600 107. 4.Dr.Anil Kohli President Dental Council of India AIWAN – E – GALIB Marg, Kotla Road, New Delhi. 5.Dental Council of India Rep. by its Secretary AIWAN – E – GALIB Marg, Kotla Road, New Delhi. ... Respondents R5-impleaded as per the order of this Court dated 24.6.2010 made in MP 3/2010. PRAYER: Writ petition filed under Article 226 of the Constitution of India praying for the issuance of writ of Quo Warranto to show cause under what authority the fourth respondent is holding the office of the Member and consequently President, Dental Council of India, having office at AIWAN – E _ GALIB Marg, Kotla Road, New Delhi. https://hcservices.ecourts.gov.in/hcservices/ For Petitioner : Mr.N.R.Chandran Senior counsel for Mr.S.Yashwanth For Respondent-1 : Mr.M.Ravindran Additional Solicitor General for Mr.K.Ravichandra Baabu For Respondent–2 : Mr.P.S.Raman S.C. for Mr.A.S.Vijayaraghavan, CGSC For Respondent-3 : Mr.Karthik Rajan For Respondent-4 : Mr.R.Krishnamoorthy Senior counsel for Mr.P.Chandrasekar For Respondent-5 : Mr.Vijay Narayanan Senior counsel for Mr.J.Ravindran, ASGI O R D E R 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.The brief 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 31.10.2011. (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 21.10.2004, 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 https://hcservices.ecourts.gov.in/hcservices/ 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". https://hcservices.ecourts.gov.in/hcservices/ Further, the respondents pleaded that after 69th amendment to the Constitution, the NCT of Delhi is provided with Legislative Assembly and that therefore, the second respondent is a "State". The respondents also relied on the notification dated 07.11.2008 issued by the first respondent under Article 239(1) of the Constitution empowering the Lt. Governor of NCT of Delhi to discharge the functions of the State Government under the Act. The respondents also relied on the earlier nominations of one Dr.Sabharwal and Dr.Anil Kumar Chandna made by the second respondent under Section 3 (e) of the Act to the DCI. The respondents further pleaded that the fourth respondent was also elected by the University from the faculty of Dental Sciences to DCI under Section 3(d) of the Act. In view of the election of the fourth respondent on 08.04.2009 under Section 3 (d) of the Act as stated above and also the nomination of the fourth respondent under Section 3(e) of the Act by the second respondent, the writ petition deserves to be dismissed. It is also their pleadings that dual membership is not prohibited under the Act. The respondents 2, 4 and 5 also pleaded that this Court has no territorial jurisdiction to enquire into the matter. 5.It is stated that the fifth respondent received a letter dated 22.05.2009 from the University on 14.07.2009 informing them that the fourth respondent had been elected as a Member to the DCI under Section 3(d) of the Act, for a period of five years, in their meeting held on 08.04.2009. This letter was received after the notice, along with preliminary / main agenda including the list of electoral role of the Members of the DCI for General Body meeting, had already been despatched to all the Members of the DCI on 08.06.2009 and 02.07.2009. Hence in the electoral role of Members for the election on 18.07.2009, the vacancy against the University was shown as vacant. It is also pleaded that the said letter dated 22.05.2009 could not be discussed in the General Body Meeting held on 18 and 19/07/2009 for the reason that, there was no such agenda item of the meeting. It is also submitted that there was no restriction for dual membership from more than one constituencies under the provisions of the Act. 6.Since it was not clear as to whether such a dual member can cast his vote only from one constituency or from both the constituencies, the fifth respondent placed the matter before the General Body meeting held on 19 and 20/12/2009 and the General Body decided that dual membership is permitted, but the member shall cast only one vote for the election of any post of Councils office. 7.In these circumstances, the membership against the University under Section 3(d) of the Act was shown as vacant in the list of members of the DCI as on 13.11.2009 also, while furnishing https://hcservices.ecourts.gov.in/hcservices/ answer to the writ petitioner under Right to Information Act 2005. 8.According to the fifth respondent, as soon as the fourth respondent was elected under Section 3(d) of the Act, he became the member of the DCI immediately in terms of Section 6(1) of the Act and issuance of Gazette Notification is not necessary. The fifth respondent relied on the decision of the Delhi High Court in DR.H.R.PREM SACHDEVA AND OTHERS VS. UNION OF INDIA AND OTHERS in W.P.No.3021 of 1995 (decided on 31.08.1995) in this regard. Therefore, when the fourth respondent was elected by the Members of the General Body, in its meeting held on 18.07.2009, by virtue of being a valid member, both from under Section 3(d) and (e) of the Act concurrently, the writ petition deserves to be rejected. 9.Heard the submissions made on either side and perused the materials available on record. 10.The learned senior counsel for the petitioner vehemently contended that the second respondent has no power under Section 3(e) of the Act to nominate a Member to the DCI. Since the fourth respondent was shown in the electoral role as a Member representing the second respondent, under Section 3(e) of the Act alone, he could not be a Member of the DCI and consequently he could not be elected as President. According to the learned senior counsel, the second respondent is only a Union Territory as per Article 1(3)(b) read with the first schedule of the Constitution. The 69th Amendment to the Constitution does not make any change in the status of the second respondent as Union Territory, though Legislative Assembly was provided under the 69th Amendment to the Constitution. He relied on the statement and objects for the Amendment of the Constitution in this regard. 11.According to the learned senior counsel for the petitioner, the second respondent is a "State" only for the purpose of election of President as provided under Articles 54 and 55 of the Constitution and not for any other purpose. This is made clear by way of explanation to Article 54 of the Constitution. He has brought to the notice of this Court the Constitution Bench judgment of the Honourable Apex Court reported in NEW DELHI MUNICIPAL COUNCIL VS. STATE OF PUNJAB reported in 1997 (7) SCC 339 holding that the second respondent continues to be Union Territory repelling the argument that as per Section 3(58) of the General Clauses Act "State" includes Union Territory. 12.The learned senior counsel for the petitioner contended that the notification dated 07.11.2008 of the Union of India under Article 239(1) of the Constitution, notifying that the Lt. Governor of the GNCT of Delhi shall exercise the power and discharge the functions of a State under the Act was for the purpose of various https://hcservices.ecourts.gov.in/hcservices/ roles assigned under the Act, such as withdrawal of recognition and appointment of Commission for enquiry and to supervise the maintenance of registers etc., and that could not grant power to the second respondent to act under Section 3(e) of the Act for nominating a member to the DCI. Otherwise, the notification would amount to amending Section 3(e) of the Act which specifically excludes the Union Territory from exercising its power under Section 3(e) of the Act. 13.The learned senior counsel for the petitioner also contended that the Scheme of the Act contemplates membership from various categories and if dual / multiple membership is permitted that could defeat the very purpose of the Act. 14.The learned senior counsel for the petitioner further contended that as per the records of the DCI itself, the membership relating to University was shown as vacant as on 18.07.2009, as per the electoral role and also, it was shown as vacant as per the list of members of the DCI as on 13.11.2009 as furnished by the DCI in their letter dated 22.12.2009 under the Right to Information Act and that therefore, the fourth respondent could not claim that he was a member of the DCI under Section 3(d) of the Act when the election took place on 18.07.2009. 15.In this regard, the learned senior counsel for the petitioner relied on the minutes of the Executive Committee meeting held on 15.05.2010. According to him, as per the minutes, even as on 15.05.2010, the DCI did not receive the Gazette Notification from the first respondent, about the election of the fourth respondent as a Member under Section 3(d) of the Act. 16.The learned senior counsel for the petitioner heavily relied on Section 7 of the Act and submitted that once the fourth respondent was not a member under Section 3(e) of the Act as on 18.07.2009, he has no authority to hold the post of President, even if he was elected as a Member of DCI under Section 3(d) of the Act, since he should become President only by re-election. 17.The learned senior counsel for the petitioner relied on a Division Bench judgment of 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) wherein it is held that the second respondent is not a State under Section 3(e) of the Act to nominate a member to the DCI. 18.The learned Additional Solicitor General representing the first respondent and the learned Advocate General representing https://hcservices.ecourts.gov.in/hcservices/ the second respondent submitted that the second respondent is a "State" in view of the explanation to Article 54 of the Constitution as well as Section 3(58) of the General Clauses Act. The learned senior counsels also heavily relied on the notification dated 07.11.2008 issued by the first respondent under Article 239(1) of the Constitution, empowering the second respondent to discharge its functions as State Government for the purposes of the Act. According to him, after 69th Amendment to the Constitution creating Legislative Assembly for GNCT of Delhi and providing powers to legislate, the second respondent has power to nominate persons for the DCI under Section 3(e) of the Act. 19.Though the second respondent questioned the jurisdiction of this Court, no argument was advanced by the learned Advocate General on the question of jurisdiction at the time of hearing. 20.The learned senior counsel for the fourth respondent advanced his arguments in addition to the elaborate arguments made by the learned senior counsel for the fifth respondent. The learned senior counsel submitted that dual membership is not prohibited under the Act, while the Medical Council of India Act prohibits dual membership specifically under Section 5 of the said Act. Hence, there was no statutory prohibition to hold dual membership under Section 3 (d) and (e) of the Act. According to him, as on 18.07.2009, he was a member of the Dental Council of India as (i) a nominee of the first respondent under Section 3(f) of the Act (ii) a nominee of the second respondent under Section 3(e) of the Act and as (ii) a elected member of the University under Section 3(d) of the Act. There is no prohibition for being a member representing various constituencies under the Act. That is, multiple membership is not prohibited. Even assuming that the second respondent has no power under Section 3(e) of the Act to nominate the fourth respondent as a member of the DCI, that could not invalidate the election to the office of the President of the DCI on 18.07.2009, since he was elected as a member of the DCI on 08.04.2009 from the faculty of University, under Section 3(d) of the Act. The election held on 08.04.2009 to DCI under Section 3(d) of the Act would validate the selection as President as on 18.07.2009, even if this Court comes to the conclusion that the second respondent has no power to nominate a member under Section 3 (e) of the Act. In these circumstances, issuing Quo-Warranto against the fourth respondent is futile as per the following decisions: 1) DR.S.BALASUNDARAM AND ANOTHER VS. DR.S.MAHADEVAN reported in 1991 (1) MLJ 451 2) GUNANIDHI MOHAPATRA VS. THE CHAIRMAN, N.A.C., BHUBANESWAR reported in AIR 1976 ORISSA 181 3) P.L.LAKHANPAL VS. A.N.RAY reported in AIR1975 DELHI 66 https://hcservices.ecourts.gov.in/hcservices/ 21.In the counter affidavit filed by the fourth respondent, though it was pleaded that this Court has no jurisdiction to entertain the writ petition, the learned counsel for the fourth respondent did not make submissions on the maintainability of the writ petition. 22.The learned senior counsel for the fifth respondent submitted that Delhi is a "State" as per Section 3(58) of the General Clauses Act and explanation to Article 54 of the Constitution. The learned senior counsel also relied on the notification dated 07.11.2008 of the first respondent issued under Article 239(1) of the Constitution delegating power to Lt. Governor of the GNCT of Delhi to exercise the powers of the State Government under the Act. 23.The learned senior counsel for the fifth respondent submitted that the second respondent has power to nominate its representative under Section 3(e) of the Act. He also relied on the earlier two nominations made by the second respondent in this regard. It was submitted that even if the nomination under Section 3(e) of the Act was bad due to want of power, this Court could not issue writ of Writ of Quo-Warranto, since the fourth respondent was elected as a member to the DCI under Section 3(d) of the Act on 08.04.2009. The learned senior counsel strenuously contended that while considering the writ petition in the nature of quo-warranto, the Court should not interfere, even if the person was not eligible to hold the office under Section 3(e) of the Act if he was otherwise eligible to hold the office under Section 3(d) of the Act. He heavily relied on the Constitution Bench judgment of the Delhi High Court in DR.H.R.PREM SACHDEVA AND OTHERS VS. UNION OF INDIA AND OTHERS in W.P.No.3021 of 1995 (decided on 31.08.1995) in this regard and contended that issuing Writ of Quo-Warranto ousting the fourth respondent from the office of the President of DCI is an exercise in futility in view of his election to DCI on 08.04.2009 under Section 3(d) of the Act. The learned senior counsel relied on the meeting of the General Body of the Dental Council of India held on 19 and 20/12/2009 permitting dual membership and that therefore, as on 18.07.2009, if the membership of the fourth respondent under Section 3(e) of the Act was bad, his membership under Section 3(d) of the Act could save him. 24.The learned senior counsel for the fifth respondent relied on Section 6(1) of the Act and contended that as soon as the fourth respondent was elected on 08.04.2009, he became the member of the DCI and Section 6 of the Act does not contemplate the issuance of notification. The learned senior counsel relied on the judgment of the Delhi High Court in DR.H.R.PREM SACHDEVA AND OTHERS VS. UNION OF INDIA AND OTHERS in W.P.No.3021 of 1995 (decided on 31.08.1995) in this regard. https://hcservices.ecourts.gov.in/hcservices/ 25.I have considered the submissions made on either side. 26.According to the petitioner, the fourth respondent has no legal authority to hold the public office of Member of DCI and consequently as President of DCI. 27.The crux of the arguments advanced by the learned senior counsel for the petitioner is that since the second respondent has no power to make nomination to DCI under Section 3(e) of the Act, the nomination of fourth respondent by the second respondent, by the order dated 09.06.2009, is invalid and illegal. As the fourth respondent contested the election that took place for the post of President on 18.07.2009, representing his Membership under Section 3 (e) of the Act, his election to the post of President also invalid. Further, according to the petitioner, since the election of the fourth respondent under Section 3(d) of the Act from the University was not notified as on 18.07.2009, his election under Section 3(d) could not save the election of the fourth respondent as President. It is also the case of the petitioner that the Act prohibits dual membership. Hence, the following issues arise for consideration: 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? ISSUE NO. 1 28.It is not in dispute that as per the minutes of the meeting of the 118th Session of the DCI held on 18 and 19/07/2009 states that the fourth respondent would exercise his one vote for the election of President as a Member under Section 3(e) of the Act. The relevant passage found in the minutes is extracted hereunder: "As stated above, Dr.Anil Kohli, President of the Council offered his resignation from the post of President to the Secretary. He, accordingly rendered his resignation from the office of the https://hcservices.ecourts.gov.in/hcservices/ President of the Council to contest the election for the office of the President of the Council as a new member of the Council under Section 3(e) of the Dentists Act, 1948 and he will also exercise his one vote as a member under Section 3(e) of the Dentists Act, 1948." 29.According to the petitioner, the second respondent has no power to nominate the fourth respondent to DCI under Section 3(e) of the Act, whereas the case of the respondents is that the second respondent has power to nominate. Hence, it has to be resolved as to whether the second respondent is a "State" so as to exercise its power under Section 3(e) of the Act to nominate its member to DCI. In this regard, it is relevant to extract Section 3 of the Act whereunder the DCI has been constituted. "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 recognised 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; ] (d) one member from each University established by law in the States which grants a recognised 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 https://hcservices.ecourts.gov.in/hcservices/ 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 recognised 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