The petitioner challenges the Dental Council of India (Term of Office of Membership of DCI) Regulations 2008 as ultra vires of the provisions of the Dentists Act, 1948.
2. The petitioner is an elected member of Dental Council of India from Tamil Nadu State Dental Council with effect from 27.06.2003. The term of office is only for five years. Section 6(1) of the Dentist Act 1948 states, "that subject to the provisions of this section, an elected or nominated member shall hold office for a term of five years from the date of his election or nomination or until his successor has been duly elected or nominated, whichever is longer". But there is no provision in the Act, which compels the authorities to hold election to fill up the vacancies or expected vacancies within a prescribed time.
3. This Court is informed that several such elected members to the Dental Council of India see to that there is no election from the respective State Dental Councils and as a result they perpetuate the office forever. The above situation was brought to the notice of the Hon'ble Supreme Court in Dental Council of India and another v. Dr.H.R.Prem Sachdeva and others reported in (1999) 8 SCC 471.
4. The Supreme Court after analysing various provisions of the Act as well as the Dental Council Election Regulations of 1952, in Paragraph Nos. 7 and 8 held as follows:
"7. A conjoint reading of the various provisions of the Act and the Regulations referred to above go to show that the term of office of the members of the Council is five years from the date of the election or nomination, as the case may be.
Section 6(1), however, also provides that a nominated or elected member, after the expiry of the term, may continue "until his successor has been duly elected or nominated, whichever is longer". The expression "whichever is longer" does suggest the coninuation after the expiry of the term. Can it, however, be construed to mean that if the authorities fail to act as per clauses (a) to (f) of
Section 3, the member concerned can continue to remain in office till perpetuity? In our opinion that could not be 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 the Act and the Regulations would be that elections/nominations to the Council should normally be held/made once in five years. However, if for some valid reasons the elections cannot be held during the term of five years, the same should be held within a reasonable time thereafter and the continuance in office of the elected/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 various authorities obliged to elect/nominate members to the Council under clauses (a) to (f). The Act and the Regulations are silent about the period during which elections/nominations should be made/held as also about the consequences of not holding the elections or making nominations within the five-year term or soon thereafter and this lacuna gives rise to unnecessary litigation. We hope that the authorities concerned shall take appropriate measures by amending the provisions of the statute or the Regulations or frame appropriate rules so that the ambiguity regarding the maximum period, after the expiry of the five-year term during which election/nomination should be held/made is removed".
5. Subsequently, going by the said observation made by the Supreme Court, the Dental Council of India introduced a new Regulation as Dental Council of India (Term of Office of Membership of DCI) Regulations 2008, taking effect from the date of notification. The said Regulation reads as follows:
"1.Short title and commencement:
(i) These Regulations shall be called the "Dental Council of India (Term of Office of Membership of DCI) Regulations, 2008.
(ii)They shall come into force from the date of its publication in the Official Gazette.
2. Term of Office of Membership of DCI:
Subject to the provisions of this section an elected or nominated member shall hold office for a term of five years from the date of his election/nomination or until his successor has been duly elected/nominated but not beyond six months from the expiry of his five-year term when he shall cease to be a member of the DCI.
(Provided that a member nominated under clause (e) or clause (f) of
section 3 shall hold office during the pleasure of the authority nominating him)."
6. According to the petitioner, the above regulation to the extent that it provides that an elected or nominated member of DCI shall 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 contrary to
Section 20 as well as
Section 6(1) of the Dentists Act. It is submitted that in so far as
Section 6(1) of the Act is concerned, it makes it abundantly clear that an elected or nominated member will continue to hold office even after the expiry of the period of five years till a new member is duly elected. Whereas, the impugned Regulation is contrary to the same to say that an elected or nominated or nominated member shall not hold office beyond six months from the date of expiry of his term. This according to the petitioner 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 is stated that the Regulation was introduced in tune with the observations made by the Hon'ble Supreme Court in the case of Dental Council of India and another v. Dr.H.R.Prem Sachdeva and others reported in (1999) 8 SCC 471, in order to see that the office of the membership in the Dental Council of India is not perpetuated by any one even after the expiry of the term of office. It is further submitted that there is no inconsistency between the impugned Regulation and any of the provisions of the Dentists Act. It is also stated that a Division Bench of Kerala High Court in Indian Dental Association, Central Kerala Branch v. Union of India in O.P.No.1808 of 2003 (S) by an order dated 21.03.2003 held that the provision in
Section 6 cannot entitle a member to continue perpetually, merely because the State or the University or any other concerned authority does not hold the election. The impugned Regulation is in tune with the said view taken by the Division Bench of Kerala High Court, it is contended.
8. I have heard Mr.R.Krishnamoorthy, learned Senior Counsel appearing for the petitioner and Mr.M.Ravindran, learned Additional Solicitor General appearing for the respondent and also perused the records.
9. A perusal of the Judgment of the Supreme Court as extracted above would show that the Supreme Court has expressed its anguish that the Act and the Regulations are silent about the period during which elections or nominations should be made or held as also about the consequences of not holding the elections or making nominations within the five-year term or soon thereafter and this lacuna gives rise to unnecessary litigation. After expressing the said anguish, the Supreme Court has further observed that it is for the authorities concerned to take appropriate measures by amending the provisions of the statute or the Regulations or to frame appropriate Rules. If the entire judgment of the Supreme Court is analysed, there can be no difficulty to understand that the Supreme Court has only said that the Parliament authorities should amend the Act or the Regulation so as to ensure that elections are held within a prescribed time either within the five-year term or soon thereafter. The Hon'ble Supreme Court has not said that the authorities may issue a Regulation so as to limit the continuation of an elected member after the expiry of the term of his office. But obviously, the Judgment of the Supreme Court has not been properly understood by the Dental Council and the Dental Council has misdirected itself to issue the impugned Regulation only to say that an elected member shall not remain in office beyond six months from the date of expiry of his five-year term when he shall cease to be a member of the DCI. No effort has been taken to amend the Dental Council (Election) Regulations, 1952 so as to prescribe a time limit for holding the election either within the five-year term or soon thereafter as observed by the Supreme Court.
10. Mr.R.Krishnamoorthy, learned Senior counsel for the petitioner has relied on the following decisions of the Supreme Court, in support of his arguments that the impugned Regulation is void as the same is inconsistent with
Section 6(1) of the Act.
(i)State of M.P. and another v. Bhola Alias Bhairaon Prasad Raghuvanshi reported in (2003) 3 SCC 1.
(ii)ITW Signode India Ltd., v. Collector of Central Excise reported in (2004) 3 SCC 48.
(iii) Novva Ads v. Secretary, Department of Municipal Administration and Water Supply and another reported in (2008) 8 SCC 42.
11. A comparison of
Section 6(1) and the impugned Regulation would go to show that
Section 6(1) does not prescribe that an elected member shall not remain in office beyond six months from the date of expiry of his five-year term and instead it says that he shall hold office until his successor has been duly elected or nominated, whichever is longer. But the impugned Regulation prescribes that he shall not remain in office beyond six months from the expiry of his five-year term. Thus the inconsistency is so apparent.
12. In State of M.P. and another v. Bhola Alias Bhairaon Prasad Raghuvanshi reported in (2003) 3 SCC 1, the Supreme Court in Paragraph 20 has held as follows:
"20. A delegated legislation can be declared invalid by the court mainly on two grounds: firstly, that it violates any provision of the Constitution and secondly, it is violative of the enabling Act. If the delegate which has been given a rule-making authority exceeds its authority and makes any provision inconsistent with the Act and thus overrides it, it can be held to be a case of violating the provisions of the enabling Act but where the enabling Act itself permits ancillary and subsidiary functions of the legislature to be performed by the executive as its delegate, the delegated legislation cannot be held to be in violation of the enabling Act"
12.1 In ITW Signode India Ltd., v. Collector of Central Excise reported in (2004) 3 SCC 48, in Paragraph No.56, the Supreme Court has held as follows:
"56. ... It is a well-settled principle of law that in case of a conflict between a substantive Act and delegated legislation, the former shall prevail inasmuch as delegated legislation must be read in the context of the primary/legislative Act and not vice versa."
12.2 In Novva Ads v. Secretary, Department of Municipal Administration and Water Supply and another reported in (2008) 8 SCC 42, the Supreme Court in Paragraph No.40 has held as follows:
"40. It is well settled that a delegated legislation would have to be read in the context of the primary statute under which it is made and, in case of any conflict, it is primary legislation that will prevail."
13. A close reading of all the above judgments of the Supreme Court would show that the Supreme Court has time and again held that a delegated legislation should be read in the context of the primary statute and it should not be in any manner inconsistent with the statute.
14. As I have already held, in the case on hand, the Regulation to the extent that it prescribes that an elected member shall not remain in office beyond six months from the expiry of his five-year term when he shall cease to be a member of the DCI is inconsistent with the Act and therefore to that extent, I have to hold that it is void.
15. The learned Additional Solicitor General would submit that because of the interim stay granted by this Court in this case, there has been no election held by the State Dental Council. He would further state that somehow or the other, the elected members from the State Councils see to that there is no fresh election held in time and as a result they perpetuate their office. He would also submit that therefore, there may be a direction issued to the Tamil Nadu State Dental Council to hold the election to fill up the existing vacancies within a time frame.
16. Though the Tamil Nadu State Dental Council is not a party before this Court, I do not think that by issuing a direction to the State Council to discharge their statutory function to hold election, would be in any manner prejudicial because they are not heard in this writ petition. Therefore, I deem it appropriate and also necessary to issue such a direction.
17. I would also like to mention that though the Hon'ble Supreme Court as early as in 1999 in the case of Dental Council of India and another (cited supra) emphasised the need for appropriate measures by amending the provisions of the statute or to issue appropriate Regulation, it is unfortunate that no such amendment has been brought in the Act or no Regulation has been issued in respect of the election so as to make it mandatory for the authorities to hold election well in time. I am hopeful that atleast now such provisions would be made without any further delay.
18. In the result, the writ petition is allowed; the Dental Council Of India (Term of Office of Membership of DCI) Regulations 2008, to the extent that it provides that an elected or nominated member shall 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 declared null and void and the same is struck down. The Tamil Nadu State Dental Council is directed to hold election to fill up the existing vacancies on or before 30.06.2009. No costs. Consequently, connected miscellaneous petitions are closed.
svki To The Secretary, Dental Council of India Aiwan-E-Galib Marg, Kotla Road, New Delhi 110 002