IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 2651 of 2009()
1. K.C.AJITH KUMAR, PRESIDENT,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. KERALA STATE PHARMACY COUNCIL,
3. THE DRUGS CONTROLLER,
For Petitioner :SRI.K.P.DANDAPANI (SR.)
For Respondent :SRI.P.B.SAHASRANAMAN
The Hon'ble the Acting Chief Justice MR.P.R.RAMAN
The Hon'ble MR. Justice C.N.RAMACHANDRAN NAIR
Dated :19/02/2010
O R D E R
C.R.
P.R.RAMAN, AG. C.J. &
C.N.RAMACHANDRAN NAIR, J.
....................................................................
Writ Appeal No.2651 of 2009
....................................................................
Dated this the 19th day of February, 2010.
JUDGMENT
Ramachandran Nair, J.
Writ Appeal is filed against judgment of the learned Single Judge
upholding Ext.P3 Notification issued by the Government cancelling the
nomination of the appellant to the Kerala State Pharmacy Council
under Section 19(b) of the Pharmacy Act, 1948 (hereinafter called “the
Act”). We have heard Senior counsel Sri.K.P.Dandapani appearing for
the appellant, Government Pleader appearing for the State Government,
Sri.P.B.Sahasranaman, counsel appearing for the State Pharmacy
Council, Adv. Sri.S.P. Aravindakshan Pillai appearing for respondents
4 to 6 and Adv. Sri.Suraj appearing for respondents 7 to 9.
2. The facts leading to the controversy are the following. The
appellant while working as a Pharmacist in the Government Hospital,
Thalassery was nominated by the Government as a member of the
Kerala State Pharmacy Council, second respondent herein, under
W.A. 2651/2009 2
Section 19(b) of the Act. His nomination was notified vide Ext.P1 on
22.6.2007. Later under Section 23 of the Act, the State Council
elected the appellant as it’s President on 27.7.2007 vide Ext.P2
resolution. On 24.1.2009 the Government proposed to appoint one
Mr.M.K.Unnikrishna Panicker as Registrar of the State Pharmacy
Council. However, the Council challenged the Government’s proposal
for appointment of the said Unnikrishna Panicker by filing W.P.(C)
No.2951/2009 before this Court and this Court vide judgment dated
18.11.2009 cancelled the Government’s proposal. During pendency of
the Writ Petition i.e. after the court granted stay against the
appointment of the said Mr.Unnikrishna Panicker as Registrar of the
Council, the State Government vide Ext.P3 dated 29.1.2009 recalled
the nomination of the appellant to the Council as Member and
simultaneously directed the Drugs Controller who is an Ex-officio
Member of the Council, to take over as President of the Council. The
appellant challenged Ext.P3 order of the Government before this court
by filing W.P.(C) No.5926/2009 which was dismissed by the learned
Single Judge upholding Ext.P3. It is against this judgment of the
W.A. 2651/2009 3
learned Single Judge the appellant has filed this appeal.
3. The main contention raised by the appellant’s counsel is that
once a nomination is made by the Government under Section 19(b) of
the Act, the member nominated is entitled to continue for a tenure of 5
years in terms of Section 25 of the Act. Therefore, according to the
appellant, his removal vide Ext.P3 is illegal and unauthorised by
statute. Even though Ext.P3 does not contain any reason for the
removal of the appellant from membership of the Pharmacy Council,
the State has sought to sustain it by supplementing reasons through a
counter affidavit filed in the W.P.(C). The learned Single Judge did
not consider the merits of the ground for removal of the appellant, but
took the view that the authority of the Government to nominate a
person under Section 19(b) takes in, the inherent authority to recall
such person at any time. The learned Single Judge has also relied on
same court decisions to uphold the stand of the State.
4. Before us, the State canvassed for sustenance of the judgment
and the appellant has challenged the findings of the learned Single
Judge with reference to various provisions of the Act, particularly
W.A. 2651/2009 4
Section 23. Besides challenging the recall of appellant’s nomination,
appellant has also contended that Ext.P3 order issued under Sections 26
and 46 is unauthorised and without jurisdiction. Before proceeding to
decide appellant’s challenge against his removal, we are constrained to
observe that Ext.P3 so far as it relates to Sections 26 and 46 of the Act
is unauthorised and untenable because while Section 26 talks about
staff remuneration and allowances, Section 46 gives powers to the State
to make Rules consistent with the provisions of the Act. The
Government Pleader clarified and supported Ext.P3 by stating that
failure of the appellant and the Council to appoint the Registrar
appointed by the Government is a clear violation of Section 26 of the
Act. We do not know how the Government can combine appellant’s
removal with appointment of the Registrar which is an issue to be
separately considered. We have already stated that the State’s proposal
for appointment of their nominee Mr.Unnikrishna Panicker as Registrar
stands quashed by judgment of this court in W.P.(C) No.2951/2009
which has become final. In our view, irrespective of whether there is
violation of Government Order or not by the Council in regard to
W.A. 2651/2009 5
appointment of the Registrar, the question whether appellant’s removal
was right or not has to be independently considered with reference to
the relevant provisions of the Act.
5. In our view, Section 25 is absolute in regard to tenure of
members, whether nominated or elected to the Council. For easy
reference we extract Section 25(1) which is as follows:
“S.25. Term of office and casual vacancies.–(1)
Subject to the provisions of this section, a nominated or
elected member, other than nominated President, shall hold
office for a term of five years from the date of his
nomination or election or until his successor has been duly
nominated or elected, whichever is longer.”
It is clear from the above that nominated and elected members other
than nominated President shall hold office for a term of five years
from the date of nomination or election. It is further clear that even
after expiry of the five years’ tenure, the nominated and elected
member will continue until his successor is duly nominated or elected.
The very purpose of this provision is to ensure that there is no vacancy
of elected and nominated members at any time in the Council. In other
words, the Council has to be a permanent body with elected and
nominated members. The remaining provisions of course leave
W.A. 2651/2009 6
freedom to the elected and nominated members to resign from the post.
However, there is no provision for withdrawal of a nominated member
under the Act. It is to be noted that the State is not given power under
Section 46 to prescribe even Rules for withdrawal of nominated
members. The position that emerges is that once a member is
nominated, he will, by virtue of Section 25, be entitled to hold office
for the tenure mentioned therein i.e. 5 years. Fresh nomination,
therefore, is possible only on expiry of the tenure of the member
already nominated. The only exception to this is the Ex-officio
members referred to in Section 21 of the Act, who by virtue of their
retirement, resignation, suspension or otherwise removal from office,
will cease to be members and the official holding the office as
successors will automatically become members of the Council by
virtue of their official position.
6. Even though we have held that five years’ tenure is guaranteed
to the member under Section 25, we are of the view that the
Government has authority to remove him and nominate another person
provided there is good and valid reason because a nominated member
W.A. 2651/2009 7
irrespective of his conduct has no vested right to continue for a tenure
of 5 years in terms of Section 25 of the Act. Even though Government
Pleader canvassed the position that the nominated member holds office
during the pleasure of the Government, we do not find any such
terminology used in Section 19(b) of the Act. Further, it is pertinent to
note that under Section 23, the first constitution of the Council after
commencement of the statute is with the President nominated by the
Government and he shall hold office during the pleasure of the
Government. Therefore, we are of the view that wherever the
Legislature has not incorporated the pleasure doctrine, it cannot be
brought into Section 19(b).
7. Even though we have found that the State Government cannot
recall the nominee and nominate another person at it’s pleasure, we are
of the view that the State for good and valid reasons can remove a
nominated member based on report of enquiry conducted as provided
under Section 45(5) of the Act which is as follows:
“S.45. Appointment of Commission of Enquiry.–(5)
Whenever it appears to the State Government that the State
Council is not complying with any of the provisions of this
Act, the State Government may likewise appoint a similarW.A. 2651/2009 8
Commission of Enquiry and pass such order or take such
action as specified in sub-sections (3) and (4).”
It is obvious from the above provision that removal of the Council or
any member thereof is possible only when they do not function in
accordance with the provisions of the Act or against the scheme of the
Act. The position is same so far as a nominated member is concerned
and if enquiry is called for any act or omission, it is open to the
Government to get an enquiry done as visualised under Section 45 and
remove the nominated member to be substituted by another person to
be nominated. We are constrained to observe that in this case the
reasons stated in the counter affidavit are no longer available to the
State to proceed against the appellant because a learned Single Judge
has cancelled the Government’s nomination of Mr.Unnikrishna
Panicker as Registrar, objection to which by Council is stated to be the
reason for recalling appellant’s nomination to the Council.
8. Ext.P3 calls for interference on another ground raised by the
appellant as well as the Council. The Government after recalling the
appellant as it’s nominee, has appointed the Drugs Controller as the
President. We notice that Government has no authority to appoint
W.A. 2651/2009 9
President of the Council because Section 23(1) authorises the Council
to select President and Vice President and the State has no authority of
selection of either of them. We, therefore, allow the Writ Appeal by
vacating the judgment of the learned Single Judge and by allowing the
Writ Petition by quashing Ext.P3 and declare appellant’s entitlement to
continue as member nominated by the State under Section 19(b) of the
Act and to continue as President so long as he enjoys the support of the
Council.
P.R.RAMAN
Acting Chief Justice
C.N.RAMACHANDRAN NAIR
Judge
pms