IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 19TH NOVEMBER 2009 / 28TH KARTHIKA 1931 WP(C).No. 5926 of 2009(I) ------------------------- PETITIONER(S): --------------- K.C.AJITH KUMAR, PRESIDENT, KERALA STATE PHARMACY COUNCIL, PHARMACY BHAVAN, RED CROSS ROAD, THIRUVANANTHAPURAM - 35. BY ADV. SRI.S.GOPAKUMARAN NAIR, SENIOR ADVOCATE SRI.M.CHANDRA BOSE DR.ABRAHAM P.MEACHINKARA SRI.A.RAJASIMHAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA STATE PHARMACY COUNCIL, REPRESENTED BY ITS REGISTRAR, PHARMACY BHAVAN, RED CROSS ROAD, THIRUVANANTHAPURAM - 35. 3. THE DRUGS CONTROLLER, GOVERNMENT OF KERALA, RED CROSS ROAD, THIRUVANANTHAPURAM. R2 BY ADVS.MR.P.B.SAHASRANAMAN, MR.K.JAGADEESH , MR.T.S.HARIKUMAR. R1 & R3 BY GOVERNMENT PLEADER SMT.ANU SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.5926/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE NOMINATION ORDER . P2:- COPY OF THE MINUTES OF ELECTION. P3:- COPY OF THE G.O.(RT) NO.484/09/H&FWD DTD. 20.2.09. P4:- COPY OF THE ORDER NO.OO5/F1/09/H&FWD DTD. 24.1.09. P5:- COPY OF THE INTERIM ORDER IN WPC. 2951/2009 . P6:- COPY OF THE LETTER NO.4388/09/H&FWD DTD. 20.2.09. P7:- COPY OF THE COMPLAINT BY THE PRESIDENT APTI. P8:- COPY OF THE GOVT. LETTER DT. 28.11.08. P9:- COPY OF THE GO(RT) 1795/05 /H&FWD DTD. 22.6.05. P10:- COPY OF THE APOINTMENT ORDER DT. 31.7.05. P11:- COPY OF THE GO(P) NO.178/08/H&FWD DTD. 31.5.08. P12:- COPY OF THE GOVT. LETTER. P13:- COPY OF THE MINUTES OF THE COUNCIL MEETING DTD. 26.2.09. R1(a):- COPY OF THE LETTER DTD. 9.12.08. TRUE COPY P.S. TO JUDGE tss ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.5926 OF 2009 (I) -------------------------------------------------- Dated this the 19th day of November, 2009 J U D G M E N T The prayer sought for in this writ petition is to quash Ext.P3 order passed by the first respondent and to declare that the first respondent has no power to oust the petitioner, elected by the members of the State Pharmacy Council, as its President. 2. Facts of the case are that the 2nd respondent is a State Pharmacy Council as defined in Section 2(f) of the Pharmacy Act 1948 AND constituted under Section 19 of the said Act. Section 19 (b) of the Act provides that five members of the Pharmacy Council, of whom, at least 3 shall be persons possessing a prescribed degree or diploma in pharmacy or pharmaceutical chemistry or registered pharmacists, shall be nominated by the State Government. 3. In accordance with the provisions of Section 19(b), by Ext.P1 order dated 22.6.2007, the first respondent nominated the petitioner to the 2nd respondent council. In terms of Section 25, such nominees shall hold office for a term of 5 years from the date of nomination. Subsequent to the nomination of the petitioner, in WPC.No.5926 /09 :2 : terms of Section 23 of the Act, election to the post of President of the State Pharmacy Council was held on 27.7.2007 and the petitioner was elected as the President of the Council. Section 23(2) provides that the President shall hold office as such for a term not exceeding 5 years and not extending beyond the expiry of his term as a member of the said council. 4. While the petitioner was thus continuing as the President of the State Council, Ext.P3 order was issued by the first respondent on 20th February, 2009, withdrawing the nomination of the petitioner as member of the 2nd respondent. Proceeding further it was stated that on withdrawal of his nomination, his continuance as President of the Council is not tenable in view of Section 23(2) of the Act. By this order the additional charge of the President was given to Drugs Controller, Government of Kerala till a new President was elected. It is challenging Ext.P3 order that the writ petition is filed. 5. The first contention raised by the Senior Counsel for the petitioner is that the Act does not confer any power on the Government to withdraw a nomination, once made in terms of Section 19(b) of the Act. The other contention raised is that Ext.P3 is WPC.No.5926 /09 :3 : vitiated for mala fides. 6. Counter affidavit has been filed by the respondents. In the counter affidavit filed, they have denied the allegation of mala fide. It is stated that due to the attitude of the President, the whole functioning of the Pharmacy Council has come to a stand still. According to them, Pharmacy Council has been constituted by the Government in over all public interest and not to promote vested interest of individuals. It is stated that in the circumstances prevailing, the Government was satisfied that the continuance of the petitioner nominated to the Council was against public interest and therefore Ext.P3 order was issued withdrawing the nomination of the petitioner. They denied the allegation that Ext.P3 was a vindictive order. 7. The first question that arises for consideration is whether the Government could have withdrawn the order nominating the petitioner as a member of the State Pharmacy Council. Among the members, five are to be nominated in terms of Section 19(b) of the Act. The Act does not confer any power to withdraw the nomination and it is therefore that the petitioner contends that the WPC.No.5926 /09 :4 : Government does not have the power to withdraw the nomination of a person made under Section 19(b) of the Act. However, learned Government Pleader seeks to justify Ext.P3 on the ground that the power to nominate a member to the State Council confers the implied power to withdraw the nomination also. She relied on the Apex Court judgment in Lekhraj Sathramdas Lalvani V. N.M. ShahAIR (1966 SC 334). 8. As I have already noticed there is no express provision conferred in the Statute enabling the Government to withdraw the nomination made under Section 19(b) of the Act. However, I am inclined to think that if the Government have power to nominate a person to the State Pharmacy Council, the Government should also have the power to withdraw the nomination. As otherwise, if a situation arises where continuance of the nominee in the State Council is proved to be against public interest, Government will be rendered helpless to remedy the situation. Apparently, it is in order to remedy such contingencies that Section 16 of the General Clauses Act provides that power to appoint to include power to suspend or dismiss also. This position has been reiterated in the WPC.No.5926 /09 :5 : Apex Court judgment in Lekhraj Sathramdas Lalvani V. N.M. ShahAIR (AIR 1966 SC 334), relied on by the learned Government Pleader. Similarly it has also be held that the power to frame rules contains the power to amend the rules as well and that the authority competent to lay down the qualifications is also competent to change the qualifications. It has been so held in T.R. Kapur & Ors. V. State of Hariyana & Ors. AIR 1987 SC 415). 9. Applying the same reasoning as reflected in the Apex Court judgments and the provisions of the Act, I am inclined to accept the contention of the Government Pleader that if the Government is satisfied that the situation warrants withdrawal of the nomination, the Government is competent to do so. In that view of the matter I do not find any merit in he contention raised by the Senior Counsel for the petitioner that the Government had no power to issue Ext.P3 order withdrawing the nomination of the petitioner. 10. Now what remains is the other contention of the learned Counsel for the petitioner that Ext.P3 order is vitiated for mala fides. The allegation of mala fides is raised on the ground that, according to the petitioner, Ext.P3 has been issued for the reason that he had WPC.No.5926 /09 :6 : filed WP(c). No.2951/09 challenging Ext.P4 order of the Government appointing a person as Registrar in the State Pharmacy Council and obtained Ext.P5 interim order from this court. However, this allegation has been denied by the respondents in paragraph 6 to 8 of the counter affidavit filed by them. Apart from making allegation as above, the petitioner has not identified and impleaded the person against whom such allegation has been made nor has the petitioner has been disclosed as to who among the respondents had acted with mala fide motives against the petitioner. In the light of the fact that the allegations in the writ petition are vague and unsubstantiated and in view of the averments in the counter affidavit denying those allegations I am not in a position to accept the plea of mala fides raised in the writ petition. Writ petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/ WPC.No.5926 /09 :7 :