K C AJITH KUMAR Vs. STATE OF KERALA

JUDGEMENT

(1.) 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. 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 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 Urmikrishna 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 learned Single Judge the appellant has filed this appeal.

(2.) 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.

(3.) 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 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 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.