IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.11455 of 2009 BINOD KUMAR s/o late Lokeshwar Prasad, resident of village- Dhamouli, P.O. Wena, P.S.Wena, District- Nalanda at present President, Bihar State Pharmacy Council, B.M.Das Road, P.S. Pirbahore, Town and District- Patna. Versus 1. THE STATE OF BIHAR 2. Commissioner-cum-Secretary, Department of Health, Govt. of Bihar, Patna. 3. The Joint Secretary, Department of Health, Govt. of Bihar, Patna. 4. Deputy Secretary to Government, Department of Health, Bihar, Patna. 5. Bihar State Pharmacy Council through its Registrar having its office at B.M.Das Road, P.S. Pirbahore, Town & District- Patna. ----------- For the Petitioner :Mr. J.N.Maitin,Sr.Adv and Mr. Sudhir Kumar. For the State : Mr.Dr. Kumar Amitsh Chandra. For the Council :Mr.D.K.Sinha,Sr.Adv and Mr. U.C.Prasad For Intervenor in I.A.No. 5720/09 : Mr. Suraj Narain Yadav For Intervenor in I.A.No.1130/2010: Mr.Sharad Kr. Singh. 4 9.4.2010 It appears that previous order dated 5.3.2010 has been wrongly numbered as order no.3 . It should be order no.3. Petitioner claims to be the President of Bihar State Pharmacy Council. He has come to this Court challenging the notification dated 24.7.2009 (Annexure 21 to the writ petition) whereby the State Government has been pleased to hold that any election of Bihar State Pharmacy Council held on 6.7.2007 is to be null and void. There are interveners, who have intervened to oppose this writ petition. Pharmacy Council, on notice, has appeared. State has filed its counter affidavit. As pleadings are complete with the consent of the parties, this writ application is being deposed of at this stage itself. - 2 - At the very outset , I may notice that all is not well at Bihar State Pharmacy Council. It needs medicine to recoup and recover. It appears that one Nawin Kumar was made the Registrar of the Bihar State Pharmacy Council on expiry of earlier term. When the President of the Pharmacy Council, it appears, sent his name for approval to the State Government in the year 2007, the State Government refused to grant approval rather directed his removal. The said Nawain Kumar challenged the same by C.W.J.C.No. 5663 of 2007 before this Court in which interim order was passed whereby the order of the State Government relieving him from the post of Registrar being order dated 18.4.2007 was stayed. As a consequence of order of the State Government, removing him, State Government had issued order that he should not conduct any election as well. Consequent to the interim stay granted by this Court ,allegedly, on 6.7.2007, elections were held. It is this election, which is the bone of contention. I may also note that this writ petition (CWJC No. 5663 of 2007) was subsequently allowed by this Court on 8.10.2007 and the notification removing the said Nawin Kumar as Registrar by the State Government was quashed. It now appears that some eight members of the Pharmacy Council protested to the State Government about the elections, which were to be held on 6.7.2007. In the meantime, it appears that by the Chairman, who presided meeting on the day of election certified the election of petitioner as President. The said Chairman is Nabin Kumar. Here I may clarify that there are two different persons Nawin Kumar and Nabin Kumar and both of them are alternative as Registrar. - 3 - By the impugned notification, the State Government in purported exercise of power under Rule 25 of the Rules for Election of Members including President and the Vice president of the Pharmacy Council and of members of the Executive Committee of the said Council read with Section 24 of the Pharmacy Act has declared the said elections to be null and void. On behalf of the petitioner it is submitted that the notification is bad for two reasons. Firstly, for the reasons, as given in the notification, it cannot be justified and secondly the notification has the effect of canceling the election without hearing the parties to the election. In my view, both grounds must succeed. A reference to the notification would show that primal ground for declaring the election bad is that the State Government has not approved the appointment of Mr. Nawin Kumar as Registrar of the Pharmacy Council and rather had relieved him though in the notification it is noted that this Court by interim order has stayed, still the State Government expected the said Registrar should not be gone ahead with such election and holding such election was thus against the direction of the State Government and thus the elections were in violation of Government direction, cannot be allowed to continue. This is the ground that has no leg to stand for the simple reason that once removal of the Registrar is stayed by this Court, then it is not open to the State Government to say that any action taken by a person whom they had removed and his removal has been stayed by the High Court is not a legal action. More so, when ultimately the writ petition was - 4 - allowed and the notification was set aside. Once this Court had stayed the notification, the Registrar was fully functional to hold the election. Thus the ground given in the notification for declaring the elections to be bad is not sustainable. The second ground for attacking the notification is equally well taken. It is submitted that the result of this notification is to un-teeth the petitioner. That could not have been done without hearing the petitioner and the parties in this regard. It is well settled proposition that even where suo motu power is being exercised to a determent of a person, he has to be heard before an order is passed. For the reasons, aforesaid, I have no option but to set aside the notification, as impugned but as the question remains in dispute, it would be better for the State government to settle the dispute once for all and examine the matter afresh after hearing the parties and decide it afresh, if they are so advised. With this liberty, the writ petition is allowed and the impugned notification, as contained in Annexure 21 is quashed. singh (Navaniti Prasad Singh,J)