Oral Order
(1) By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for an appropriate writ of mandamus or any other appropriate writ, order or direction quashing and setting aside the cooption of respondent No.2 as co-opt member of the Dental Faculty of Bhavnagar University.
(2) Heard Mr. N.D. Nanavaty, learned Senior Counsel, with Mr. Rushabh Shah and Ms.Avani Pandya, learned counsel for the petitioner, Mr. A.R. Thacker, with Mr. Shivang A. Thacker, learned counsel for respondent No.1 “University, Mr. Shalin N. Mehta, learned Senior Counsel, with Mr. Hemang Shah, learned counsel for respondent No.2, and Mr. Anshin H. Desai, with Ms. Venu H. Nanavaty, learned counsel for respondent Nos.3 and 4.
(3) The main issue involved in this petition pertains to cooption of respondent No.2 as a member of the Dental Faculty of the respondent “University. It appears from the record of the petition that vide Notification dated 12.07.2011, the respondent University amended its statutes, whereby the Dental Faculty was amended and added. It may be noted that by very said amendment, the statutes were amended as item No.2 Faculty of Medicine, item No.6-Faculty of Dental and item No.7 Faculty of Homeopathy. It appears that as the dental college was affiliated to the respondent “University, the Dental Faculty came into existence in the statute of the respondent University.
(4) It further appears from the record that it is not in dispute that Dr. Heenaben Desai i.e. respondent No.3 herein and Dr. Sonali Kapur i.e. respondent No.4 herein are the members of the Dental Faculty along with one Dr. Yashraj Rathod, and respondent No.2 viz. Dr. Bhavin Kothari as co-opted member w.e.f. 01.04.2015. List at Annexure-P2 (page-16) enumerates the members of the Dental Faculty of the respondent-University. The facts indicate that a meeting of the Dental Faculty was held on 12.03.2015, wherein respondent No.2 and Dr. Yashraj Rathod were co-opted as member of the Dental Faculty. It is mainly contended by learned counsel for the petitioner that respondent No.2 herein does not possess basic qualification in dentistry. It was further contended that only a person, who is an expert in the subject of that faculty having and possessing academic excellence can become an expert in dentistry and only such a person can be co-opted as a member of the Dental Faculty. It was further contended that the provision of Section 3(d) of the Dentists Act, 1948, clearly provide that only in case if there is no Dental Faculty, member of two faculties can be elected as one member in the Dental Council of India. It was further contended that cooption of respondent No.2 is in complete violation of provisions of Section 22(2A) of the Maharaja Krishnakumarsinhji Bhavnagar University Act, 1978 (hereinafter referred to as the Act for short) and the same is contrary to the said provisions and is per se illegal and ultra vires the provisions of Section 22(2A). It was also contended that the action of co-option of respondent No.2 is ex facie ultra vires.
(5) Mr. N.D. Nanavaty, learned Senior Counsel for the petitioner, referring to the allegations made in Paragraph No.3.7 of the petition, contended that as such no procedure has been followed and cooption of respondent No.2 has been made by the faculty at the dictate of the Vice Chancellor. It was further contended that respondent No.2 does not possess any qualification in respect of the dentistry and would not qualify to be appointed as an expert in the subject comprised in the faculty and therefore, it was contended that cooption of respondent No.2 in the Dental Faculty of the respondent-University is illegal and deserves to be quashed and set aside.
(6) Learned counsel for the petitioner further submitted that the defence put forward by the respondent-University as well as respondent No.2 in particular, to the effect that as the petitioner has an alternative efficacious remedy as provided under Section 67 of the Act, this Court may not exercise its extraordinary jurisdiction under Article 226 of the Constitution of India, deserves to be negatived. It was further contended that this Court under Article 226 of the Constitution of India has plenary powers to interfere when the order impugned is per se illegal and when the order is ex facie ultra vires. It was contended that to relegate the petitioner to an alternative remedy depends on the facts of each case. In light of the fact that the order impugned, whereby respondent No.2 has been co-opted as a member of the Dental Faculty is per se illegal and arbitrary, this Court may not decline to exercise the jurisdiction and in such a fact situation, the jurisdiction of this Court cannot be curtailed by any statute. It was also contended that in a way to become a member of faculty is like holding public office and the same can be occupied only by qualified person. It was further contended that when, in the facts of the present case, co-opted member does not possess requisite qualification, the defence of availability of alternative remedy is too a lame defence. It was, therefore, contended that being a member of faculty, as per the provisions of the said Act is neither by election nor by appointment. To become a member of the faculty, the powers are neither with the Court or the University or the Vice Chancellor but it is with the faculty. It was contended that availability of an alternative remedy is never treated as a bar and the same therefore depends on the facts of each case. It was also contended that when the decision impugned if ex facie illegal would render itself arbitrary decision, however, every arbitrary decision may not be illegal. In fact of such case, therefore, it would be a fit case for exercising extraordinary jurisdiction under Article 226 of the Constitution of India. Learned counsel for the petitioner has relied upon the following judgments:-
(i) Pramod Kumar Vs. U.P. Secondary Education Services Commission and Ors., (2008) 7 SCC 153;
(ii) M.P. State Agro Industries Development Corporation Ltd. and Anr. Vs. Jahan Khan, (2007) 10 SCC 88;
(iii) State of Madhya Pradesh and Ors., Vs. Sanjay Nagayach and Ors., (2013) 7 SCC 25;
(iv) Godrej Sara Lee Limited Vs. Assistant Commissioner (AA) and Anr., (2009) 14 SCC 338; AND
(v) Whirlpool Corporation Vs. Registrar of Trade Mark, Mumbai and Ors. (1998) 8 SCC 1.
(7) Per contra, Mr.Avinash Thacker, learned counsel for the respondent-University has supported the cooption of respondent No.2. It was contended that the faculty is an authority of the University as provided under Section 14(4) of the Act and therefore as provided under Section 67(2) of the Act, the petitioner has an alternative remedy of making reference to the State Government. Mr.Thacker, has relied upon the judgment of Hon'ble Supreme Court reported in Gujarat University Vs. Shri N.U. Rajguru, AIR 1988 SCC 66 as well as the judgment of the Division Bench of this Court reported in Rajesh Mahendrabhai Joshi Vs. Bhavnagar University, 2004(4) GLR 3042 to buttress his arguments that the present petition should not be entertained and the petitioner should be relegated to the alternative remedy of making reference to the State Government. It was also contended that the question which arises in the petition also amounts to interpretation of any provision of this Act and therefore also, as provided under Section 67(1) of the Act, the petitioner has to file a reference before the State Government. It was pointed out that a meeting of the Dental Faculty was held on 12.03.2015 and as per the Rojkam, respondent Nos.3 and 4, who were preset at the meeting, co-opted respondent No.2 as co-opted member of the Dental Faculty. It was submitted that till 06.04.2015, respondent Nos.3 and 4, in their capacity of members of the Dental Faculty, never objected to cooption of respondent No.2 as co-opted member of the Dental Faculty. It was contended that as soon as respondent No.2 and other members were co-opted in the meeting of the Dental Faculty held on 12.03.2015, the same was notified and once respondent Nos.3 and 4 have co-opted two members, they cannot now object to it. It was further pointed out that the second meeting of the Dental Faculty was held on 22.04.2015, without any authority and as provided under Statute160, the Registrar being a Secretary of the University has not accepted the same. It was also contended that as such cooption of respondent No.2 is by way of election to the Dental Faculty. Mr.Thacker, has relied upon the following orders :-
(i) Order dated 03.02.2012 passed by the Division Bench of this Court in Special Civil Application No.18564 of 2011; AND
(ii) Order dated 06.02.2012 passed by this Court in Special Civil Application No.1562 of 2012.
(8) Mr.Shalin N. Mehta, learned Senior Counsel for respondent No.2 contended that the facts of this case are squarely covered by the provisions of Section 67(1) and (2) of the Act. It was contended that whether it is appointment simplicitor, cooption or nomination, provisions of Section 67 of the Act are attracted and therefore, the present case is open and shut case and this Court may not exercise its extraordinary jurisdiction under Article 226 of the Constitution of India. It was submitted that the provisions of Section 22(2A) of the Act is to be read harmoniously and as averred in the Affidavit-in-Reply filed by respondent No.2, syllabus of undergraduate dental studies i.e. B.D.S. has many subjects of medical discipline, including paper of general surgery. It was therefore contended that the words subjects comprised in faculty stand satisfied in case of respondent No.2 and he, being found to be an expert in the subjects comprised in the faculty, has rightly been co-opted as member of the Dental Faculty. It was therefore, submitted that even on interpretation of Section 22(2A) of the Act, the petitioner has not made out any case. Learned counsel for respondent No.2 has relied upon the judgment of the Division bench of this Court reported in the case of Rajesh Mahendrabhai Joshi Vs. Bhavnagar University (supra). It was contended that the petitioner has not been able to make out any exception, which would give jurisdiction to this Court even though the alternative efficacious remedy is available as provided under Section 67 of the Act. It was further contended that the case on hand does not fall within any of 3 contingencies which learned counsel for respondent No.2 mentioned as whirlpool windows ?. It was contended that in light of this fact situation, the petition deserves to be dismissed on the ground of availability of alternative remedy by making reference to the State Government under Section 67(1) and/or Section 67(2) of the Act.
(9) Mr.Anshin H. Desai, learned counsel for respondent Nos.3 and 4, has as such adopted the arguments made by Mr.N.D.Nanavaty, learned Senior Counsel for the petitioner. Mr.Desai, relying upon the Affidavit-in-Reply filed by respondent No.3, further pointed out that one Dr.Girish Patel remained present in the meeting of the Dental Faculty, which was convened by the Registrar on 12.03.2015. It was further contended that Dr.Girish Patel informed the deponent that the Vice Chancellor has given the name of respondent No.2 as co-opt member of the Faculty under Section 22(2A) of the Act. Learned counsel for respondent Nos.3 and 4 relied upon the contention taken in the Affidavit-in-Reply filed by respondent No.3 and pointed out that as provided under Statute-101 of the respondent-University, the Dean of the Faculty has authority to convene the meeting of the Dental Faculty and accordingly, as respondent No.2 does not possess any graduate or postgraduate in dentistry, earlier decision was revoked and one Dr.Sharath Chandran is co-opted as an expert member of the Dental Faculty in the meeting held on 22.04.2015.
(10) In order to appreciate the contentions raised by learned counsel for the respective parties, it requires to be noted that it is an admitted position that respondent No.2 came to be co-opted as member of the Dental Faculty of the respondent-University in his meeting held on 15.03.2015. Section 22(2A) of the Act clearly provides that as soon as the Faculty is constituted under subsection (2), it may co-opt as its additional members two persons who are experts in the 'subject comprised in the Faculty'. The said provision further provides that whether they are connected with the University as its members, teachers or otherwise or not, such an expert can also be co-opted as member of the Faculty. It is therefore, quite clear that the action of cooption of respondent No.2 as a member of Dental Faculty of the respondent-University is not a matter of election. The Dental Faculty is a separate faculty constituted under the provisions of the Act by the respondent-University. Though, it has been canvassed by learned counsel for respondent No.2 that syllabus of undergraduate dental studies, as provided by the Dental Council of India, also includes the subjects of medical discipline including general surgery, in prima facie opinion of this Court Faculty of Dental and Faculty of Medicine cannot be treated as equal. Only because there are common or overlapping subjects in the syllabus in undergraduate dental studies, the fact remains that a person who is admittedly Master of Surgery like respondent No.2 herein in prima facie opinion of this Court cannot be said to be an expert in the subjects comprised in the faculty.
(11) Learned counsel for the respective parties, more particularly respondent Nos.1 and 2 have categorically stated that respondent No.2 is not a visiting faculty in any dental college, either in the respondent-University or any other Universities.
(12) At this juncture, it may be noted that syllabus of dental courses is jurisdiction of Dental Council of India constituted under Section 3 of the Dentists Act, 1948. The Statement of Objects and Reasons of the Dentists Act, 1948, item No.3 reads as under
3. As the Indian Dental Council will have the responsibility of laying down standards of education and training, only dentists who have undergone such training and possess recognised qualifications will be entitled to be elected to the Council ?
(13) Though this Court is not at all concerned with the election of the Dental Council of India, in prima facie opinion of this Court, dentistry is not akin to being an expert in the medicine and therefore, action of cooption of respondent No.2 is de hors the provisions of the Act rendering it to be illegal. In the facts of this case, cooption of respondent No.2 being illegal and de hors the provisions of the Act, more particularly Section-22(2-A) of the Act prima facie this Court is of the opinion that respondent No.2 cannot be said to be an expert in the subjects of dentistry. It further needs to be noted that in the respondent-University, there is a separate Faculty of Dental and therefore, a person who is an expert in the concerned subject of dentistry would stand qualified to be considered for cooption in the Dental Faculty.
(14) In light of the factual background, the contentions raised by respondent Nos.1 and 2 to the effect that this Court may not exercise its extraordinary jurisdiction under Article 226 of the Constitution of India as the petitioner has an alternative remedy as provided under Section 67 of the Act needs to be examined.
(15) Learned counsel for respondent Nos.1 and 2 have rightly relied upon the judgment of the Apex Court in the case of Gujarat University Vs. Shri N.U. Rajguru (supra) as well as the judgment of the Division Bench of this Court reported in Rajesh Mahendrabhai Joshi Vs. Bhavnagar University (supra) as well as judgments of the Division Bench of this Court in Special Civil Application No.18564 of 2011 and Special Civil Application No.1562 of 2012. Firstly, in all the cases relied upon by respondent Nos.1 and 2, the matters relate to the election.
(16) Considering the aforesaid facts, this Court prima facie is of the opinion that the petitioner has been able to establish from the material on record and even respondent No.2 has candidly stated that he is a Master of Surgery and he is a General Surgeon, and also considering the provisions of Section-22(2-A) of the Act, warrants by passing statutory mechanism. Even the Division Bench of this Court in Special Civil Application No.18564 of 2011 considering the facts of the case on hand, has held in Paragraph No.6 in particular as under:-
6. However, it is observed that, at this stage, the above decision may not be interpreted to mean that in light of Section 59, this Court shall have no jurisdiction to entertain a petition under Article 26 of the Constitution of India and only say that in facts of the present case, this Court does not exercise its jurisdiction under Article 226 of the Constitution of India leaving it open to the petitioner to explore the alternative remedy. Disposed of accordingly. Notice discharges. No costs. ?
(17) The Apex Court in the case reported in the case of Pramod Kumar (supra) has held that when the order impugned is illegal, the same amounts to nullity. The facts of the case on hand prima facie establish that the eligibility conditions for being an expert in the subjects of dentistry is lacking with respondent No.2 with respect and in the facts of this case, hence reference under Section 67 of the Act would neither be efficacious nor an effective remedy. It may be noted that the Division Bench of this Court even in the case of election has exercised its extraordinary jurisdiction under Article 226 of the Constitution of India being Special Civil Application No.2463 of 2015, more particularly as observed in Paragraph No.10 thereof. Similar view has also been taken by the Division Bench of this Court in Special Civil Application No.3577 of 2015 and by learned Single Judge of this Court in Special Civil Application No.16391 of 2014. Therefore, in the facts of this case, this Court is prima facie of the opinion that it cannot be said that by virtue of Section 67 of the Act, this Court will have no jurisdiction to entertain the petition under Article 226 of the Constitution of India.
(18) The Apex Court in the case of Whirlpool Corporation Vs. Registrar of Trade Mark, Mumbai and Ors. [(1998) 8 SCC 1] has observed thus:-
14. The power to issue prerogative writ under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for any other purpose ?.
15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law in this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field. ?
(19) The arguments put forward by Mr.Shalin Mehta, learned Senior counsel for respondent No.2, to the effect that the Hon'ble Supreme Court has only provided 3 contingencies, which are mentioned in Paragraph No.14 of the Whirlpool Corporation (supra), when this Court may exercise its extraordinary jurisdiction under Article 226 of the Constitution of India is with respect not the correct reading of the same. In opinion of this Court, the Apex Court has only by way of illustration provided for those 3 contingencies or windows. However, it does not mean that even if the action is de hors the provisions of the Act rendering it to be exfacie illegal in every case, the petitioner is required to be relegated to the availability of alternative remedy of making reference under Section 67 of the Act.
(20) It is not the case of respondent No.2 that he is an expert in dentistry, however, his case is that he is an expert as undergraduate course of dentistry i.e B.D.S some subjects of medicine including General Surgery are provided and therefore, he possesses expertise of subjects prescribed in the dental courses also. In prima facie opinion of this Court also, such meaning cannot be attributed to the words subjects comprised in the Faculty as provided under Section-22(2-A) of the Act. It requires to be noted that availability of an alternative remedy is not an absolute bar upon exercising of jurisdiction under Article 226 of the Constitution of India and in the facts of this case, this Court is of the opinion that the matter requires consideration.
(21) In light of the aforesaid reasons, as respondent No.2 prima facie cannot be said to be an expert in subject comprised in the faculty and in opinion of this Court an expert in surgery cannot be equated as expert in dentistry and thus, cooption of respondent No.2 is de hors the provisions of Section-22(2-A) of the Act.
(22) Having considered the arguments made by learned counsel for the respective parties, having considered the judgments cited at the bar as well as in the aforesaid facts and circumstances, this Court is of the opinion that this is a fit case for exercising extraordinary jurisdiction under Article 226 of the Constitution of India. For the aforesaid reasons, the matter requires consideration and the petitioner is also entitled to the interim relief as prayed for.
(23) Hence, Rule. Interim relief in terms of Paragraph No.7B till final disposal of this petition. Direct service is permitted.