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Dr. P.V. Prasannan, Dentist vs Dental Council Of India, New Delhi … on 30 March, 1995

Kerala High Court
Dr. P.V. Prasannan, Dentist vs Dental Council Of India, New Delhi … on 30 March, 1995
Equivalent citations: AIR 1995 Ker 380
Bench: B Patnaik


ORDER

1. Both the Original Petitions were heard together as common questions of law arise for consideration on similar facts. This judgment will govern both the cases.

2. The petitioners pray for issue of a direction to the second respondent — Kerala Dental Council, Thiruvananthapuram — to include their names as Dentists in Pan B of the Kerala State Dental Register in pursuance of Ext. P3 order of the Dental Council of India (1st respondent) by quashing Ext. P6 order of the second respondent by which their request for transfer of registration from Madhya Pradesh to Kerala was rejected.

3. The petitioners in both the cases are brothers. They are residents of Varkala, Thiruvananthapuram District. Both of them claim that they have had their education in the Stale of Madhya Pradesh. The petitioners have been registered as Dentists in Part B of the Madhya Pradesh State Dental Council under the provisions of the Dentists Act, 1948. Ext. P1 in each O.P. is the certificate of registration granted by the Madhya Pradesh State Dental Council. Ext. P1– certificate recites that it shall remain in force till 31-12-1980. The date of registration is 1-1-1980. Their qualification is stated as “Section 33(i)(b)” under the Dentists Act, 1948. The registration is said to have been renewed up to 1993. It is further stated by them that they started practice as Dentists in 1970 and got registered in 1980 after 10 years of practice. The registration so granted has been published in the Madhya Pradesh Government Gazette dated 13-4-1979 (Ext. P2). The petitioners submitted applications on 5-3-1993 to the first respondent for transfer of their registration from the Madhya Pradesh State Dentist Register to Kerala State Dentist Register under Section 46A of the Dentists Act, 1948 (for short, the Act). After conducting an enquiry the first respondent, by order dated 7-9-1993 (Ext.P3), directed “the second respondent that their names may be transferred to Part B of the Kerala State Dental Register under intimation to the Dental Council of India. Their names were therefore, deleted from the Madhya Pradesh State Dental Council Accordingly, both of them submitted separate petitions (Ext. P4) on 10-11-1993 to the second respondent to effect the transfer. Since no action was taken on their petitions by the second respondent, the petitioners filed O.?. Nos. 6293 and 6295 of 1994 in this Court to direct the second respondent to include their names as dentists in Part B of the Kerala State Dentist Register. This Court, by judgment dated 6-5-1994 (Ext. P5) directed the second respondent to consider their applications and pass appropriate orders within two months from the date of receipt of a copy of the judgment. The second respondent intimated the petitioners, by Ext. P6 order dated 27-7-1994, that the registration under Part B was stopped from 15-5-1976; thereafter, ho registration under Part B was issued from the Kerala Dental Council; if the registration under Part B of the Madhya Pradesh Dental Council is transferred to this State, new registration has to be sanctioned under Part B in effect; the Kerala Dental Council is not in favour of giving new registration under Part B. Hence the request for transfer under Part B was declined.

4. As per the provisions of the Dentists Act, every State Council is required to maintain a register in two parts, namely Part A and Part B. Part A shall contain the names of the Dentists who have obtained qualifications from the recognied institutions and Part B register shall contain the names of the Dentists who do not possess such qualifications. The petitioners in both the cases have got their names registered in Part B of the Madhya Pradesh Dental Council under Section 46A of the Act, Dental Council of India is the competent authority to order transfer of registration. It is contended that after due verification such an order was passed in favour of the petitioners, and since the provisions of Section 46A are mandatory, refusal of the second respondent to register their names in Part B of the register in Kerala is unjust and improper and Ext.P6 has been passed arbitrarily.

5. The second respondent has filed counter-affidavits in both the cases. It is stated inter alia that the registration obtained by the petitioners is not in accordance with law. The registration if at all has been done legally, the same is a temporary one and as such their names cannot be transferred permanently to Kerala Dental Council. Kerala State as a matter of policy, stopped registration of unqualified medical practitioners from 1976. The first respondent issued Ext.P3 without the knowledge of this fact. Moreover, the petitioners are not qualified to get themselves registered, in Part B of the Kerala State Dental Council. Hence the State council was bound to reject their applications.

6. Chapter IV of the Dentists Act, 1948 lays down the provisions relating to the registration of dentists and transfer of registration. The relevant provisions are Sections 31,32,33, 34 and 46A. They read as follows :

“31. Preparation and maintenance of register– (1) The State Government shall as
soon as my be cause to be prepared in the
manner hereinafter provided a register of
dentists for the State.

(2) The State Council shall upon its constitution assume the duty of maintaining the register in accordance with the provisions of this Act.

(3) The register of dentists shall be maintained in two Parts A and B persons possessing recognised dental qualifications being registered in Part A and persons not possessing such qualifications being registered in Part B.

(4) The register shall include the following particulars, namely–

(a) the full name, nationality and residential address of the registered person;

(b) the date of his first admission to the register;

(c) his qualification for registration, and the date on which he obtained his degree or diploma in dentistry, if any, and the authority which conferred it;

(d) his professional address; and

(e) such further particulars as may be prescribed.

32. First preparation of register– (1) For the purpose of first preparing the register of dentists, the State Government shall, by notification in the Official Gazette, constitute a Registration Tribunal consisting of three persons and shall also appoint a Registrar who shall ‘act 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 Section 33, shall direct the entry of the name of the applicant on the register.

(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 the 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-section (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.

33. Qualifications for entry on first preparation of register– (1) A person shall be 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-section (2) of Section 32:

XX XX XX XX

(2) A person domiciled in a State shall be entitled on payment of the prescribed fee to temporary registration as a dentist for a period of five years, if he has been engaged in practice as a dentist as his principal means of livelihood for a period of not less than two years during the five years prior to the date appointed under Sub-section (2) of Section 32, and a person so registered shall be entitled to permanent registration if for a period of five years from the date of his temporary registration he has been engaged in practice as a dentist.

34. Qualification for subsequent registration– (1) After the date appointed under Sub-section (2) of Section 32 a person shall, on payment of the prescribed fee, be entitled to have his name entered on the register of dentists, if he resides or carried on the profession of dentistry in the State and if he–

(i) holds a recognised dental qualification, or

(ii) 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 two years before the date appointed under Sub-section (2) of Section 32 and has passed, within a period of ten years after the said date, an examination recognised for this purpose of the Central Government:

Provided that no person other than a citizen of India shall be entitled to registration by virtue of a qualification:

(a) specified in part I of the Schedule unless by the law and practice of the State or country to which such person belongs persons of Indian origin holding dental qualifications registrable in that State or country are permitted to enter and practise the profession of dentistry in such State or country, or

(b) recognised in pursuance of a scheme of reciprocity, under Sub-section (5) of Section 10:

Provided further that a person registered in Part B of the register shall be entitled to he registered in Part A thereof, if within a period of ten years after the date of his registration in Part B he passes an examination recognised for the purpose by the Central Government.

46A. Transfer of registration. – Where a dentist registered in one State is practising dentistry in another State, he may, on payment of the prescribed fee which shall not exceed the renewal fee for registration in such other State, make an application in the prescribed form to the Council for the transfer of his name, from the register of the State where he is registered, to the register of the State in which he is practising dentistry, and on receipt of any such application, the Council shall, notwithstanding anything contained elsewhere in this Act, direct that the name of such person be removed from the first mentioned register and entered in the register of the second mentioned State and the State Councils concerned shall comply with such directions:

Provided that such a person shall be required to produce a certificate to the effect all dues in respect of his registration in the former State have been paid;

Provided further that where any such application for transfer is made by a dentist against whom any disciplinary proceeding is pending or where for any other reason it appears to the Council that the application for transfer has not been made bona fide and the transfer should not be made the Council may, after giving the dentist a reasonable opportunity of making a representation in this behalf, reject the application ”

7. Learned counsel for the petitioners contends that the State Dental Council is bound to register the name of the Dentists, if the Dental Council of India gives such a direction. There is no scope for the State Council to make any further enquiry once a dentist has been registered in a State and the Dental Council of India being satisfied about it makes a request to the State Council to register his name. This is because of the mandatory provisions contained in Section 46A of the Act. But, in my opinion, Section 46A has to be read along with the relevant provisions of Sections 31, 32, 33 and 34 of the Act. Section 32 contemplates that for the purpose of first preparing the register of dentists 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 Section 33, shall direct the entry of the name of the applicant on the register. Section 31(3) lays down that the register of dentists shall be maintained in two parts A and B, persons possessing recognised dental qualifications being registered in Part A and persons not possessing such qualifications being registered in Part B. Section 33 inter alia lays down the qualifications required for entry on first preparation of the register. It states that a person shall be entitled on payment of the prescribed fee to have his name entered on the register when it is first prepared, if he resides and carried on the profession of dentistry in the State and holds a recognised dental qualification; if he 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-section (2) of Section 32.

8. The Madhya Pradesh Dental Council in the certificate (Ext.P1) has indicated that the petitioners hold a qualification under Section 33(i)(b) of the Act which means that they do not hold a recognised qualification but were engaged in practice as dentists for a period of five years prior to the date appointed under Sub-section (2) of Section 32. The certificates also show that they are temporary ones renewable every year. This also means that neither of the petitioners has been permanently registered at any time subsequent to the issue of the certificate. Section 34 inter alia’ deals with subsequent registration and lays down that after the date appointed under Section (2) of Section payment of the prescribed fee, be entitled to have his name entered on the register of dentists, if he resides or carries on the profession of dentistry in the State and if he (1) holds a recognised dental qualification or (2) does not hold such a qualification 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 two years before the date appointed under Sub-section (2) of Section 32 and has passed, within a period often years after the said date, an examination recognised for this purpose by the Central Government. The petitioners do not hold any recognised qualification in dentistry. Column 10 of Ext.P4 application requires to mention the name of the institution were studied. In that column, both the petitioners have stated as “private study”. It is not mentioned as to whether or not they have passed an examination recognised for this purpose by the Central Government within a period of 10 years after the issue of the notification of the constitution of a Registration Tribunal in the State of Madhya Pradesh. It is on account of want of a recognised qualification as contemplated in Section 34(l)(ii) of the Act, that no permanent registration subsequent to the temporary registration of the names of the petitioners have been made on the register of Madhya Pradesh Dental Council. Section 35 of the Act evisages registration of the dentists after the first registration. It lays down that after the date appointed for the receipt of the applications for registration in the first register of dentists all applications for registration shall be addressed to the Registrar of the State Council and shall be accompanied by the prescribed fee. If upon such application the Registrar is of opinion that the applicant is entitled to have his name entered on the register, he shall enter thereon the name of the applicant. The petitioners having not been registered permanently subsequent to the first registration under Section 33(I)(b) for want of qualification under Section 34(l)(ii) of the Act, the entire process of permanent registration in the State of Madhya Pradesh so far as the petitioners are concerned, has not been completed. Copies of the Gazette Notification of the State of Madhya Pradesh only show that they were made entitled to have their names entered in Part B register of that State in terms of Section 33(l)(b) of the Act and nothing else. Since it is a temporary regisration renewable every year only by the State Council of Madhya Pradesh, Kerala Dental Council (2nd respondent) cannot renew the temporary registration granted by the other State.

9. Section 46A of the Act contemplates the transfer of such dentists who have got permanent registration and not otherwise. This is because of the fact that there is no provision in the Act for renewal of temporary registration by a State other than the State which granted such temporary certificate of registration. The qualification under Section 33(l)(b) being not enough for subsequent registration in view of the requirement of a qualification under Section 34(l)(ii) of the Act, transfer of registration cannot be made as the petitioners admittedly do not possess a recognised qualification in dentistry. This being the position of law, the direction given by the Dental council of India under Section 46A of the Act in this case is not binding on the State Council of Kerala.

10. It has been stated that as a matter of policy the State Council of Kerala has stopped registration of unqualified dentists in Part B of the register from 15-5-1976 and as such any entry in the register by way of transfer cannot be allowed. This policy seems to have been followed to eliminate the unqualified or under qualified persons as well as quacks from practising in this State. It is apparent from the applications of the petitioners that they do not possess the requisite qualification to practice as dentists as required under Section 34(l)(ii) of the Act. There is nothing on record to show that the policy adopted by the State Council of Kerala is either unreasonable or illegal. There is no provision in the Act prohibiting a State Council to adopt such a policy and take appropriate measures to prevent unqualified or quacks from practising such a profession. The second respondent is, therefore, justified in refusing to enter the names of the petitioners in Part B of the register.

11. For the reasons stated above, I find
that the writ petitions are devoid of any merit.

Accordingly, both the writ petitions are
dismissed. No costs.

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