Indian Dental Association vs Union of India and Others

Srinivasan, J.—Indian Denial Association has filed this writ petition for quashing the Gazette notification published in the Gazette of

Pondicherry dated 22.6.82 under S. 32(4) of the Dentists Act, 1948, hereinafter referred to as the Act, which contains the First register of dentists

prepared by the Registration Tribunal constituted in December 1978 by the Health Electricity and Works Department, Pondicherry. It is necessary

to refer to the relevant provisions of the Act, before referring to the facts. S. 2(b) of the Act defined dental hygienist'' as a person not being a

dentist or a medical practitioner, who scales, cleans or polishes tooth, or gives instruction in dental hygiene. S. 2(c) defines dental mechanic as a

person who makes or repairs denture and dental appliances S. 2 (d) defining the term ''dentistry'' reads as follows:

(d) ''dentistry'' include-

(i) the performance of any operation on, and the treatment on any disease, deficiency or lesion of, human teeth or jaws, and the performance of

radiographic work in connection with human teeth or jaws or the oral cavity:

(ii) the giving of any anesthetic in connection with any such operation or treatment;

(iii) the mechanical construction or the renewal of artificial dentures or restorative dental appliances;

(iv) the performance of any operation on or the giving of any treatment, advice or attendance to any person preparatory to, or for the purpose of,

or in connection with, the fitting, inserting, fixing, constructing, repairing or renewing of artificial dentures or restorative dental appliances, and the

performance of any such operation and the giving of any such treatment, advice or attendance, as is usually performed or given by dentists;

S. 2(a) defines ''dentist'' as a person who practises dentistry. Under S. 21, the State Council shall constitute Dental Council consisting of members

set out in the said section. Four of them should be elected from among the dentists registered in Part B of the State register; another four of them

should be elected from among the dentists registered in Part B of the State register. It is not necessary to refer to the other members. S. 31

provides for preparation and maintenance of register of dentists for the state. Under sub-S.(2) of S. 31, the State Council shall upon its constitution

assume the duty of maintaining the register in accordance with the provisions of the Act. Under sub-S.(3), the register of dentists shall be

maintained in two Parts A and B; Part A should refer to persons possessing recognised dental qualification and Part B should include persons not

possessing such qualifications. S. 32 prescribes the procedure for the first preparation of register. It reads thus:

32 (1) For the purpose of first preparing the register of dentists, the State Government shall, by notification in he Official Gazette, constitute a

Registration Tribunal consisting of three persons and shall also appoint a Registrar who shall (sic) as Secretary of the Tribunal.

(2) The State Government shall, by the same or a like notification, appoint a date on or before which application for registration, which shall be

accompanied by the prescribed fee, shall be made to the Registration Tribunal.

(3) The Registration Tribunal shall examine every application received on or before the appointed date, and if it is satisfied that the applicant is

qualified for registration under S. 33, shall direct the entry of the name of the applicant on the reg..

(4) The register so prepared shall thereafter be published in such manner as the State Government may direct, and any person aggrieved by a

decision of the Registration Tribunal expressed or implied in the register as so published may within thirty days from the date of such publication,

appeal to an authority appointed by the State Government in this behalf by notification in the Official Gazette.

(5) The Registrar shall amend the register in accordance with the decisions of the authority appointed under sub-S.(4) and shall thereupon issue to

every person whose name is entered on the register a certificate of registration in the prescribed form.

(6) Upon the constitution of the State Council, the register shall be given into its custody, and the State Government may direct that all or any

specified part of the application fees for registration in the first register shall be paid to the credit of the State Council.

Under S. 33, a person shall he entitled on payment of the prescribed fee to have his name entered on the register when it is first prepared if he

resides or carries on the profession of dentistry in the State and if he (a) holds a recognised dental qualification, or (b) does not hold such a

qualification, but, being a citizen of India has been engaged in practice as a dentist as his principal means of livelihood for a period of not less than

five years prior to the date appointed under sub-S.(2) of S. 32.

The Dentists Act was extended to Pondicherry on 1.10.1965. The notification was issued on 24.9.1963 fixing the date as 15.12.65 for the

application to be made for being registered in the register. The said notification also reconstituted the Registration Tribunal. On 22.2.71 another

notification was issued constituting a fresh tribunal on the ground that the earlier registration was not in compliance with the provisions of sub-Ss.(4)

and (5) of S. 32 and fixing 1.5.1971 as the appointed date. The said notification also appointed the Director of Health and Family Planning

Services, Pondicherry, as the appellate authority for the purpose of S. 32(4) of the Act. On 30.1.80 an amendment was issued to the earlier

notification and the appointed date, 1.5.1971, was altered to 15.2.1980 as the relevant date under S. 32(2).

The first respondent published the first register under S. 32 in the Gazette dated 21.5.1982. The petitioner presented this writ petition on

6.8.1984 challenging the validity of the said first register. The substance of the case put forward by the petitioner in the affidavit filed in support of

the writ petition is that the register in so far as Part B is concerned, has included the names of persons who are not qualified to be entered in the

said part. It is generally alleged that persons who are not residents of the Union Territory of Pondicherry and who have given false addresses have

been registered. Then it is alleged that the persons who have not practised as dentists for a period of more than 5 years prior to the appointed

date, 16 Chinese nationals who never lived in the Union Territory of Pondicherry and persons who are having other avocations in life and who

have not practised dentistry have been included in the list. It is not in dispute that the said list B sets out names of 218 persons.

There is no specific allegation in the affidavit that any particular person figuring in the list is not a qualified person and no details with regard to

such person are mentioned. Reliance is placed on ground No. 3 in the affidavit, which to the extent relevant, reads as follows:

The names of 218 persons have been included in the Part B list and the entire list consisting of 218 persons registered as Dental Medical

Practitioners in the Part B list is invalid for the following reasons.

Again in paragraph 22, it is stated that out of 218 persons included in the Part B list of the register, 210 persons are practising in Tamil Nadu,

outside the Union Territory of Pondicherry, and they cannot practise in Tamil Nadu as their names are not found in the Tamil Nadu register. It is

also alleged that the registration in Pondicherry State is void. In paragraph 26 it is stated that the list contains the names of 218 persons which is

unwieldy. The next sentence reads thus;

This petitioner has impleaded only 6 persons out of 218 persons in this writ petition as representatives of the body of persons as required in Rule

2A of the Appellate Side Rules.

It may be mentioned at this stage that the procedure prescribed in Rule 2-A of the Rules framed by this Court relating to writ petitions has not

been followed in this case. No application was filed for issue of notice under Rule 2-A and no notice has been issued as required by the said Rule.

Rule 2-A reads as follows:

2-A Where there are numerous persons who may be affected in the event of the petitioner succeeding in a writ petition or whose addressee for

effective service of Notice in the writ petition is not known to the writ petitioner, or where the Court considers that having regard to the need for a

quick decision and avoidance of delay, it is necessary to grant such permission, the writ petitioner may, with the permission of court, file a single

petition against one or more of such persons who may be affected, designating and describing him or them, as representing all such persons;

Provided that while graining permission to the petitioner to implead a respondent or respondents in a representative capacity, the court may direct

publication of a notice in the prescribed form so that every person likely to be affected will have an opportunity of coming on record if he so

chooses.

Respondents 4 to 10 are the persons, who are said to have been impleaded as representatives of the persons who are found in Part B of the

register. The affidavit has not made any allegation against any one of the respondents. The petitioner has failed to state that respondents 4 to 10 are

not qualified to be entered in Part B register. From the affidavit filed by the petitioner, the court has to make an inference that it is the basis on

which the writ petition has been filed in, Naturally, respondents who have been impleaded individually have not been able to deny in the counter

affidavits any allegation with regard to their qualification, as there is no specific allegation in the affidavit as against them. But they in their counter

affidavits have stated as to how they are qualified to be entered in Part B of the register.

The petitioner has filed a petition, W.M.P. No. 5374 of 1991 for amending the prayer in the writ petition. By the amendment, the petitioner

prays for the relief of a direction directing the first respondent, viz. Union of India, to constitute a fresh Registration Tribunal, as contemplated

under S. 32(1) of the Act for the purpose of preparing a fresh Register under that Section sought. The amendment sought for is based on the

allegation that in the counter affidavit filed by respondents 1 and 2, it was stated that the Registration Tribunal had become functus officio, after the

register was published in the Gazette and had no longer survived. Hence the petitioner sought for the constitution of a fresh Tribunal so that he

could get a fresh register prepared in accordance with law.

The prayer for amendment is opposed by the respondents. I am of the view that it is not necessary to consider the validity of the opposition. In

view of the fact that the Tribunal does not continue to function, the petitioner wants a direction to constitute a fresh Tribunal. Such a relief would

arise only if the contention of the petitioner is that the first register prepared already is not in accordance with law, is accepted. If such a situation

arises there may be a necessity to give a direction to constitute a fresh tribunal and in that view I grant the amendment. The question therefore will

be whether the petitioner is entitled to get any relief on the basis of the amended prayer.

There are two other petitions, W.M.P. Nos. 6419 of 1991 and 14660 of 1991, for impleading the petitioners therein as parties to the main writ

petition. W.M.P. No. 6419 of 1991 is filed by an individual, one Dr. Devaraj. He prays for being impleaded as a respondent in the writ petition.

According to him, he is a practising dentist in Pondicherry and himself and other registered dental practitioners will be greatly prejudiced and

affected if the impugned register is not set aside. An objection is taken that he will be only a rival claimant if at all and he cannot be said to be a

person interested in the writ petition. In any event, according to the respondent, the individual doctor cannot become a party to the writ petition. In

view of the fact that the main writ petition itself is a public interest litigation, there is no harm in impleading the individual as a party thereto, so that

the court may also hear his grievance, if any. Hence this petition is ordered.

The other petition, W.M.P. No. 14660 of 1991, is by the Dental Council of India represented by its Secretary. It is stated in the affidavit that

the Dental Council of India is very much interested in seeing that only persons who are qualified are registered in Part A and Part B registers. The

affidavit has been filed by one Dr. Bhat, who claims to be a representative of the petitioner, viz. Dental Council of India. It is not stated in the

affidavit how he makes a claim that the is the representative of the Dental Council of India. When the petitioner''s counsel was confronted with this,

he stated that he will produce the authorisation of the Dental Council of India, authorising the deponent of the affidavit to file the affidavit. I find that

the vakalat has been signed by the Secretary to the Dental Council of India. Hence there is proper vakalat before the court and it is not necessary

for this Court to throw out the petitioner on the technical ground that the affidavit has been filed by a person who is not authorised by the Dental

Council of India. Suffice (sic) say whether the Dental Council of India is a necessary party in this case, having regard to the statutory status of

Dental Council of India, there is no harm in impleading the said person as a party to the writ petition. In the affidavit filed on behalf of the Dental

Council of India, it is not disclosed whether it supports the writ petitioner or the respondents. In fact, the counsel appearing for the Dental Council

of India has been frank enough to say that he is not in a position to say whether his client is supporting the writ petitioner or the respondents.

Whatever it may be, as a person who is interested in having a register of qualified persons, the Dental Council of India is also impleaded as a party

to the writ petition.

As stated already, the petitioner has not chosen to make any specific allegation as against the persons who are impleaded individually as parties

to the writ petition. But in the typed set of papers certain papers are filed and reliance is placed on them to show that some of the respondents are

not qualified to be entered in the register. A copy of the certificate issued by the Kerala Dental Council with reference to one K.S. Krishnan Unni

has been filed in the typed set. It is alleged in the course of arguments that the said certificate relates to the 5th respondent. Learned Counsel for

the 5th respondent denies the same. In the absence of any allegation in the affidavit as regards the 5th respondent, no reliance can be placed on the

said certificate. Apart from that, Learned Counsel for the 5th respondent points out that his client was born in 1943 and not on 8.6.1951 as found

in the certificate. According to him, the certificate relates to somebody else and not the 5th respondent.

Several documents on which reliance is placed by Learned Counsel for the petitioner do not make out that at the time when the respondents

made applications to the Registration Tribunal for entering them in the register, they were not qualified, nor do they make out that subsequently they

have become disqualified. Learned Counsel refers to the judgments in W.P. No. 4141 of 1984 and other cases. In W.P. No. 4141 of 1984, the

10th respondent herein was the petitioner. In W.M.P. No. 5113 of 1984, the 8th respondent herein was the petitioner and in W.P. No. 5556 of

1984, the 6th respondent herein was the petitioner. Those writ petitions arose on notices being issued to the petitioners therein to show cause why

the registration in the State of Tamil Nadu should not be cancelled. this Court dismissed those writ petitions holding that it was only at the stage of

show-case notice and they can well give their replies and it is for the authorities concerned to pass appropriate orders. In the course of the

judgment, an observation is made as follows:

The fact that every one of the petitioners has registered as Dentist in Pondicherry impliedly indicated that he ceased to reside or carry on

profession of Dental Hygienist in this State of Tamil Nadu. This is purely a question of fact which had to be determined by the first respondent

Council.

According to Learned Counsel, this observation will show that the persons whose names are entered in the register have got their names so

entered by fraudulent means and they are not entitled to be registered as such. I do not agree. The observation far from helping the petitioner is

only helping the respondents. It shows that they were carrying on the profession in Pondicherry and their registration in Pondicherry cannot be

challenged on the footing of such observation of this Court.

The question as to whether the respondents and other persons, whose names are entered in Part B of the register, are qualified or not, it is a

pure question of fact and has to depend upon the documents produced by them before the Registration Tribunal. It is for the Tribunal to consider

those documents and decide whether they were qualified or not. In the counter affidavit filed by respondents 1 and 2 the details of the applications

and the way in which they were considered has been set out clearly. In paragraph 10 it is stated that 57 applications were received for being

considered for registration and the Tribunal considered all the applications, keeping in view the guidelines given in S. 33 of the Act. It is stated that

the Tribunal obtained sworn affidavits from the applicants, the house owners in whose houses the applicants were residing or running the profession

of dentistry, the affidavits of the registered dentists under whom the applicants were practising, the ration card of the applicants, the profession tax

and such other evidence to show that the applicants were the residents of the Union Territory of Pondicherry and were practising dentistry for a

period of not less than five years prior to date appointed under sub-S.(2) of S. 32. Thereafter it is stated that the Tribunal selected 218 persons for

registration in Part B of the Register and six persons for Part A.

In so far as Part A is concerned, there is no complaint whatever and only with reference to Part B the petitioner has challenged in this writ

petition. There is nothing whatever to reject the statements found in the counter affidavit filed by respondents 1 and 2. this Court cannot assume

that the Tribunal has not done its duty properly or that it has over-looked or ignored the guidelines contained in the sections of the Act. Unless

some specific evidence is produced before court to snow that the Tribunal has not acted properly, it is not for this Court to interfere with the

factual conclusion of the Tribunal that the persons whose names are entered in the Register are duly qualified to be so entered. This is not a matter

which can be considered under Article 226 of the Constitution.

One substantial objection has been raised by the respondents under S. 32(4) of the Act. Under S. 32(4), any person aggrieved by a decision

of the Registration Tribunal, expressed or implied, in the register as so published may, within thirty days from the date of such publication, appeal

to an authority appointed by the State Government in this behalf by notification in the Official Gazette. I have already referred to the fact that the

notification dated 22.2.1971 appointed the Director of Health and Family Planning Services as the appellate authority. If the petitioner was

aggrieved by the registration, it ought to have approached the appellate authority within the time prescribed by the Act. Having not done so, it is

not open to the petitioner to come to this Court nearly after two years of publication of the register.

At this stage, it is necessary to make a specific reference to the case of the 10th respondent. He has stated in the counter affidavit that he was

practising as Dental Hygienist and Dental Mechanic in Coimbatore from 1961 onwards. On 16.12.1963 he opened a dental clinic in Pondicherry

also at 20, Big Brahmin Street, Pondicherry. He had at that time entrusted the practice in Coimbatore to a registered dentist, Dr. M.P. Tharyon.

He was therefore carrying on practice in Pondicherry as well as in Tamil Nadu till early 1974 when he shifted his practice completely back to

Coimbatore. It is argued by the petitioner that when, according to the counter affidavit filed by the 10th respondent, he had shifted from

Pondicherry to Coimbatore in 1974, the registration of his name in Part B of the register proves that the Tribunal has not acted in accordance with

law. According to the petitioner''s counsel, it is proved that the preparation of the first register is ribbed with irregularities and illegalities. I do not

agree.

In the same counter affidavit, the 10th respondent has stated other relevant facts which should also be taken into account. When a notification

was made in 1965, he filed an application for being registered. The first register was published in March 1974, but the name of the 10th

respondent was not included. His application had been rejected on the ground that the dentist from whom he obtained an experience certificate

had issued similar certificates in excess of two. Aggrieved on such rejection, the 10th respondent filed an appeal to the appellate authority under S.

32(4). The appellate authority accepted the contention of the 10th respondent and allowed the appeal by Memorandum No. FDA/DET/12-10-

74-9 dated 20.8.1974. Pursuant to the order of the appellate authority, the 10th respondent was granted a certificate of registration and he was

allotted a registration number, B-9, on 10.9.1974. There was no necessity for him to apply again when the date was amended into 15.2.1980 from

1.5.1971, as he had already been granted a certificate. His name was entered in the first register which was published in 1982.

The contention that the 10th respondent ceased to be qualified as he had shifted his practice from Pondicherry to Coimbatore in 1974 is not

acceptable. The only question before me is whether the Registration Tribunal had committed any illegality or irregularity in the preparation of the

first register. If that question is answered in the negative, no other question will arise. Hence the petitioner cannot place any reliance on the

statement of the 10th respondent that he had shifted his practice to Coimbatore in 1974.

What is stated above is sufficient to show that the writ petition of the petitioner is not sustainable in law and he is not entitled to get any relief.

Learned Counsel for the respondents have pointed out various circumstances to show-that the writ petition is filed out of mala fides and the

convenor of the petitioner-association is a person who is now trying to work out a personal vendetta by filing the writ petition. It is not necessary

for me to consider that submission, as I have taken the view that the petitioner is not entitled to any relief on the basis of what I have already stated.

In the result, the writ petition is dismissed W.M.P. Nos. 5374, 6410 and 14660 of 1991 are ordered as stated in the order. Counsel''s fee four

sets (Respondents 1 and 2; 5 and 6, 7 and 9; and 10) Rs. 500/- each. There will be no order to costs.