High Court Kerala High Court

K.C.Ajith Kumar vs State Of Kerala on 19 February, 2010

Kerala High Court
K.C.Ajith Kumar vs State Of Kerala on 19 February, 2010
       

  

  

 
 
  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 similar

W.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

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