Dr.R.Gunaseelan v. Dental Council of India

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED :29.04.2009CORAMTHE HONOURABLE MR.JUSTICE S.NAGAMUTHUWrit Petition No.6431 of 2009 andM.P.Nos.1 and 2 of 2009Dr.R.Gunaseelan ... Petitionervs.Dental Council of IndiaRepresented by its Secretary,Aiwan-E-Galib Marg,Kotla Road,New Delhi – 110 002. ... RespondentWrit Petition filed under Article 226 of the Constitution ofIndia praying for the issuance of a writ of Declaration, declaringthe Dental Council of India (Term of office of Membership of DCI)Regulations 2008 published in Section 4 of Part III of Extraordinaryissue of the Gazette of India No.165 dated 17.10.2008 is ultra viresof Section 20(1) of the Dentists Act 1948 and therefore null and voidin so far as it relates to the petitioner herein.For Petitioner: Mr.R.Krishnamurthy, Senior Counsel for Mr.V.R.AppaswameeFor Respondents: Mr.M.Ravindran, A.S.G. For Mr.P.Chandrasekaran,S.C.G.CO R D E RThe petitioner challenges the Dental Council of India (Term ofOffice of Membership of DCI) Regulations 2008 as ultra vires of theprovisions of the Dentists Act, 1948.2. The petitioner is an elected member of Dental Council ofIndia from Tamil Nadu State Dental Council with effect from27.06.2003. The term of office is only for five years. Section 6(1)of the Dentist Act 1948 states, "that subject to the provisions ofthis section, an elected or nominated member shall hold office for aterm of five years from the date of his election or nomination oruntil his successor has been duly elected or nominated, whichever islonger". But there is no provision in the Act, which compels theauthorities to hold election to fill up the vacancies or expectedvacancies within a prescribed time. 3. This Court is informed that several such elected members tothe Dental Council of India see to that there is no election from therespective State Dental Councils and as a result they perpetuate theoffice forever. The above situation was brought to the notice of theHon'ble Supreme Court in Dental Council of India and another v. https://hcservices.ecourts.gov.in/hcservices/ Dr.H.R.Prem Sachdeva and others reported in (1999) 8 SCC 471.4. The Supreme Court after analysing various provisions of theAct as well as the Dental Council Election Regulations of 1952, inParagraph Nos. 7 and 8 held as follows:"7. A conjoint reading of the various provisions of theAct and the Regulations referred to above go to show thatthe term of office of the members of the Council is fiveyears from the date of the election or nomination, as thecase may be. Section 6(1), however, also provides that anominated or elected member, after the expiry of the term,may continue "until his successor has been duly elected ornominated, whichever is longer". The expression "whicheveris longer" does suggest the coninuation after the expiryof the term. Can it, however, be construed to mean thatif the authorities fail to act as per clauses (a) to (f)of Section 3, the member concerned can continue to remainin office till perpetuity? In our opinion that could notbe 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 theAct and the Regulations would be thatelections/nominations to the Council should normally beheld/made once in five years. However, if for some validreasons the elections cannot be held during the term offive years, the same should be held within a reasonabletime thereafter and the continuance in office of theelected/nominated members should not go on for perpetuity.The continuance in office, after the expiry of the term,should only be a stopgap arrangement to avoid a vacuum.The obligation to nominate/hold elections is of variousauthorities obliged to elect/nominate members to theCouncil under clauses (a) to (f). The Act and theRegulations are silent about the period during whichelections/nominations should be made/held as also aboutthe consequences of not holding the elections or makingnominations within the five-year term or soon thereafterand this lacuna gives rise to unnecessary litigation. Wehope that the authorities concerned shall take appropriatemeasures by amending the provisions of the statute or theRegulations or frame appropriate rules so that theambiguity regarding the maximum period, after the expiryof the five-year term during which election/nominationshould be held/made is removed". 5. Subsequently, going by the said observation made by theSupreme Court, the Dental Council of India introduced a newRegulation as Dental Council of India (Term of Office of Membershipof DCI) Regulations 2008, taking effect from the date ofnotification. The said Regulation reads as follows: https://hcservices.ecourts.gov.in/hcservices/ "1.Short title and commencement:(i) These Regulations shall be called the "DentalCouncil of India (Term of Office of Membership ofDCI) Regulations, 2008.(ii)They shall come into force from the date of itspublication in the Official Gazette.2. Term of Office of Membership of DCI:Subject to the provisions of this section an electedor nominated member shall hold office for a term offive years from the date of his election/nominationor until his successor has been dulyelected/nominated but not beyond six months from theexpiry of his five-year term when he shall cease tobe a member of the DCI.(Provided that a member nominated under clause (e) orclause (f) of section 3 shall hold office during thepleasure of the authority nominating him)."6. According to the petitioner, the above regulation to theextent that it provides that an elected or nominated member of DCIshall not hold office beyond six months from the expiry of his five-year term when he shall cease to be a member of the DCI is contraryto Section 20 as well as Section 6(1) of the Dentists Act. It issubmitted that in so far as Section 6(1) of the Act is concerned, itmakes it abundantly clear that an elected or nominated member willcontinue to hold office even after the expiry of the period of fiveyears till a new member is duly elected. Whereas, the impugnedRegulation is contrary to the same to say that an elected ornominated or nominated member shall not hold office beyond six monthsfrom the date of expiry of his term. This according to thepetitioner is inconsistent with the provisions of the Act and thus,it is null and void.7. In the counter affidavit filed by the respondent, it isstated that the Regulation was introduced in tune with theobservations made by the Hon'ble Supreme Court in the case of DentalCouncil of India and another v. Dr.H.R.Prem Sachdeva and othersreported in (1999) 8 SCC 471, in order to see that the office of themembership in the Dental Council of India is not perpetuated by anyone even after the expiry of the term of office. It is furthersubmitted that there is no inconsistency between the impugnedRegulation and any of the provisions of the Dentists Act. It is alsostated that a Division Bench of Kerala High Court in Indian DentalAssociation, Central Kerala Branch v. Union of India in O.P.No.1808of 2003 (S) by an order dated 21.03.2003 held that the provision inSection 6 cannot entitle a member to continue perpetually, merelybecause the State or the University or any other concerned authoritydoes not hold the election. The impugned Regulation is in tune withthe said view taken by the Division Bench of Kerala High Court, it iscontended.8. I have heard Mr.R.Krishnamoorthy, learned Senior Counselappearing for the petitioner and Mr.M.Ravindran, learned Additional https://hcservices.ecourts.gov.in/hcservices/ Solicitor General appearing for the respondent and also perused therecords.9. A perusal of the Judgment of the Supreme Court as extractedabove would show that the Supreme Court has expressed its anguishthat the Act and the Regulations are silent about the period duringwhich elections or nominations should be made or held as also aboutthe consequences of not holding the elections or making nominationswithin the five-year term or soon thereafter and this lacuna givesrise to unnecessary litigation. After expressing the said anguish,the Supreme Court has further observed that it is for the authoritiesconcerned to take appropriate measures by amending the provisions ofthe statute or the Regulations or to frame appropriate Rules. If theentire judgment of the Supreme Court is analysed, there can be nodifficulty to understand that the Supreme Court has only said thatthe Parliament authorities should amend the Act or the Regulation soas to ensure that elections are held within a prescribed time eitherwithin the five-year term or soon thereafter. The Hon'ble SupremeCourt has not said that the authorities may issue a Regulation so asto limit the continuation of an elected member after the expiry ofthe term of his office. But obviously, the Judgment of the SupremeCourt has not been properly understood by the Dental Council and theDental Council has misdirected itself to issue the impugnedRegulation only to say that an elected member shall not remain inoffice beyond six months from the date of expiry of his five-yearterm when he shall cease to be a member of the DCI. No effort hasbeen taken to amend the Dental Council (Election) Regulations, 1952so as to prescribe a time limit for holding the election eitherwithin the five-year term or soon thereafter as observed by theSupreme Court. 10. Mr.R.Krishnamoorthy, learned Senior counsel for thepetitioner has relied on the following decisions of the SupremeCourt, in support of his arguments that the impugned Regulation isvoid as the same is inconsistent with Section 6(1) of the Act. (i)State of M.P. and another v. Bhola Alias Bhairaon PrasadRaghuvanshi reported in (2003) 3 SCC 1.(ii)ITW Signode India Ltd., v. Collector of Central Excisereported in (2004) 3 SCC 48.(iii) Novva Ads v. Secretary, Department of MunicipalAdministration and Water Supply and another reported in (2008) 8 SCC42.11. A comparison of Section 6(1) and the impugned Regulationwould go to show that Section 6(1) does not prescribe that an electedmember shall not remain in office beyond six months from the date ofexpiry of his five-year term and instead it says that he shall holdoffice until his successor has been duly elected or nominated,whichever is longer. But the impugned Regulation prescribes that heshall not remain in office beyond six months from the expiry of hisfive-year term. Thus the inconsistency is so apparent. https://hcservices.ecourts.gov.in/hcservices/

12. In State of M.P. and another v. Bhola Alias Bhairaon PrasadRaghuvanshi reported in (2003) 3 SCC 1, the Supreme Court inParagraph 20 has held as follows:"20. A delegated legislation can be declared invalid bythe court mainly on two grounds: firstly, that itviolates any provision of the Constitution and secondly,it is violative of the enabling Act. If the delegatewhich has been given a rule-making authority exceeds itsauthority and makes any provision inconsistent with theAct and thus overrides it, it can be held to be a case ofviolating the provisions of the enabling Act but wherethe enabling Act itself permits ancillary and subsidiaryfunctions of the legislature to be performed by theexecutive as its delegate, the delegated legislationcannot be held to be in violation of the enabling Act"12.1 In ITW Signode India Ltd., v. Collector of Central Excisereported in (2004) 3 SCC 48, in Paragraph No.56, the Supreme Courthas held as follows:"56. ... It is a well-settled principle of law that incase of a conflict between a substantive Act anddelegated legislation, the former shall prevail inasmuchas delegated legislation must be read in the context ofthe primary/legislative Act and not vice versa."12.2 In Novva Ads v. Secretary, Department of MunicipalAdministration and Water Supply and another reported in (2008) 8 SCC42, the Supreme Court in Paragraph No.40 has held as follows:"40. It is well settled that a delegated legislationwould have to be read in the context of the primarystatute under which it is made and, in case of anyconflict, it is primary legislation that will prevail."13. A close reading of all the above judgments of the SupremeCourt would show that the Supreme Court has time and again held thata delegated legislation should be read in the context of the primarystatute and it should not be in any manner inconsistent with thestatute. 14. As I have already held, in the case on hand, the Regulationto the extent that it prescribes that an elected member shall notremain in office beyond six months from the expiry of his five-yearterm when he shall cease to be a member of the DCI is inconsistentwith the Act and therefore to that extent, I have to hold that it isvoid. 15. The learned Additional Solicitor General would submit thatbecause of the interim stay granted by this Court in this case, therehas been no election held by the State Dental Council. He wouldfurther state that somehow or the other, the elected members from theState Councils see to that there is no fresh election held in timeand as a result they perpetuate their office. He would also submit https://hcservices.ecourts.gov.in/hcservices/ that therefore, there may be a direction issued to the Tamil NaduState Dental Council to hold the election to fill up the existingvacancies within a time frame.16. Though the Tamil Nadu State Dental Council is not a partybefore this Court, I do not think that by issuing a direction to theState Council to discharge their statutory function to hold election,would be in any manner prejudicial because they are not heard in thiswrit petition. Therefore, I deem it appropriate and also necessaryto issue such a direction. 17. I would also like to mention that though the Hon'ble SupremeCourt as early as in 1999 in the case of Dental Council of India andanother (cited supra) emphasised the need for appropriate measures byamending the provisions of the statute or to issue appropriateRegulation, it is unfortunate that no such amendment has been broughtin the Act or no Regulation has been issued in respect of theelection so as to make it mandatory for the authorities to holdelection well in time. I am hopeful that atleast now such provisionswould be made without any further delay.18. In the result, the writ petition is allowed; the DentalCouncil Of India (Term of Office of Membership of DCI) Regulations2008, to the extent that it provides that an elected or nominatedmember shall not hold office beyond six months from the expiry of hisfive-year term when he shall cease to be a member of the DCI, isdeclared null and void and the same is struck down. The Tamil NaduState Dental Council is directed to hold election to fill up theexisting vacancies on or before 30.06.2009. No costs. Consequently,connected miscellaneous petitions are closed. Sd/-Asst. Registrar./true copy/Sub Asst. Registrar.svkiToThe Secretary,Dental Council of IndiaAiwan-E-Galib Marg,Kotla Road,New Delhi – 110 002. + 2 CC to Mr.P.Chandrasekaran,Advocate,SR.19195+ 1 CC to Mr.V.R.Appaswamee,Advocate,SR.19219W.P.No.6431 of 2009GV(CO)EM/30.4