Dentists; Shaji K. Joseph Vs. Viswanath [Kerala High Court, 18-07-2011]

Whether a registered Dentist, whose name is entered in the Part A State Register, maintained under the provisions of Chapter IV of the Dentists Act, 1948 but is not included in the Electoral Roll published by the Returning Officer in terms of the provisions contained in the Dental Council (Election) Regulations 1952 is entitled to be a candidate in an election held in terms of Section 3(a) of the Act to the Dental Council of India.


IN THE HIGH COURT OF KERALA

J. CHELAMESWAR AND ANTONY DOMINIC JJ.

Dated this the 18th day of July, 2011

W.A. No. 806 of 2011 & W.A. No. 883 of 2011

For Petitioner: K. Radhakrishnan (SR. Advocate), K.K. Dheerendra Krishnan, N. Raghuraj; For Respondents: George Thomas Mevada (Sr. Advocate), Manu George Kuruvila, Alexander Thamos, Raynold Fernandez, Susheel Joseph Cyriac, Rinu Jose, K. Meera, Government Pleader.

J U D G M E N T

Antony Dominic, J.

The issue that arises for consideration is whether a registered Dentist, whose name is entered in the Part A State Register, maintained under the provisions of

Chapter IV of the Dentists Act, 1948

but is not included in the Electoral Roll published by the Returning Officer in terms of the provisions contained in the

Dental Council (Election) Regulations 1952

(hereinafter referred to as ‘Regulation’ for short) is entitled to be a candidate in an election held in terms of Section 3(a) of the Act to the Dental Council of India.

2. The first respondent, is a Dentist who is registered in the Part A State Register, and this factual position is not disputed by the appellants. On 8.6.2009, a Returning Officer was appointed by the State Government for conducting the election, of one registered Dentist possessing recognized dental qualification, to the Dental Council of India. On appointment, notice of election was published by the Returning Officer on 22.11.2009 which interalia stated that those who have not renewed their registration before 31st December, 2009 will not have voting rights. Thereafter, on 1.6.2010 Ext.R2(c) preliminary electoral roll was published by the Returning Officer in terms of Regulation 3 of the Regulations. The preliminary electoral roll published in the Gazette did not include the name of the first respondent. The notification provided that claims and objections, if any, relating to the entries or omissions in the preliminary electoral roll shall be preferred on or before 5 p.m. on 30th July, 2010. Subsequently Ext.R2(d) gazette notification was published extending the time limit for filing objections upto 31st August, 2010. This was also notified in the newspaper, a copy of which is Ext.R2(e). It is the admitted fact that despite the publication of the preliminary electoral roll and the extension of time that was allowed, the first respondent did not file any objection.

3. Subsequently, after passing orders on the objections filed, in terms of Regulation 3(4) of the Regulations, on 10.1.2011, the Returning Officer published Ext.R2(f) final electoral roll. Thereafter on 27.1.2011 Ext.P2 election notification was published which also contained the schedule of elections, the details of which are unnecessary for disposing of these appeals. After publication of the election notification, on 5.2.2011, the 1st respondent submitted Ext.P3 representation to the Returning Officer complaining of the omission of his name from the electoral roll and requesting him to include his name and thereby facilitating him to vote in the forthcoming election. Orders were not passed on Ext.P3. Despite his non-inclusion in the final electoral roll, on 7.2.2011, Ext.P4 nomination was submitted, where the 1st respondent offered himself as a candidate in the election.

4. Immediately thereafter, alleging that the Returning Officer is labouring under a misconception that only a person whose name is included in the electoral roll can contest the election and that therefore his nomination is likely to be rejected when the scrutiny takes place on 9.2.2011, the 1st respondent filed the writ petition, seeking interalia to declare that a person whose name is included in Part A register of the Dental Council of the respective State is entitled to contest the election to the Dental Council of India in terms of S.3(a) of the Dentists Act and to direct the Returning Officer to act in terms of S.3 of the Act. During the pendency of the writ petition, as scheduled in the election notification, the nominations received were scrutinized by the Returning Officer on 9.2.2011. On scrutiny, the Returning Officer rejected the nomination of the 1st respondent and this was communicated to him by Ext.P6 order and the reason stated is that his name does not appear in the final electoral roll. Ext.P6 order dated 9.2.2011 reads as under:

“Nomination submitted by Dr.Viswanath V BDS, (Registration Number. 1350 PART ‘A’). Flat 206, Kalpatheru Apartments, 13th Cross Malleswaram, Bangalore 3 with permanent address(Dental Clinic, Chemmad, Thirurangadi 676306 with present address) has been rejected under Regulation 9 (2) of the DCI (Election) Regulation, 1952 as the name of Dr.Viswanath does not appear in the final electoral roll published, under Regulation 3(4) of the Dental Council(Election) Regulation 1952, in the extra ordinary Gazette number 35 dated 10.1.011.”

5. Thereupon the writ petition was amended incorporating an additional prayer to quash Ext.P6 order. The writ petition was heard and the learned Single Judge by his judgment dated 23rd May, 2011 allowed the writ petition. The learned Single Judge rejected the plea of the appellants that the writ petition was not maintainable on account of the availability of an alternate remedy by way of a petition before the Central Government as provided under S.5 of the Act. Proceeding further the learned Judge held that non-inclusion of a person in the electoral roll is not a bar for contesting an election to the Dental Council of India. It is aggrieved by the said judgment these appeals have been filed by the additional 10th respondent and respondents 1 and 2 in the writ petition.

6. We heard counsel for the parties. Before we proceed to deal with the respective contentions we shall make reference to some of the provisions of Dentists Act, 1948 and the Dental Council (Election) Regulations 1952. Chapter II of Dentists Act 1948 provides for constitution and composition of Dental Council of India. This Section provides that the Central Government shall constitute the Dental Council of India, which shall consist of the members mentioned therein. S.3(a), being relevant for this case, reads as under:

“The Central Government shall, as soon as may be, constitute a Council consisting of the following members namely (a) one registered dentists possessing a recognized dental qualification elected by dentists registered in Part A of each State Register”

S.5 of the Act provides that the election under Chapter II shall be conducted in the prescribed manner and that where any dispute arises regarding any such election, it shall be referred to the Central Government, whose decision shall be final. Chapter IV of the Act provides for registration of qualified dentists. S.31, provides for preparation and maintenance of Part A and B registers.