HC Dismisses Plea Challenging Appointments of WB Medical Council Members

Kolkata: The Calcutta High Court recently dismissed a plea challenging the appointments to the West Bengal Medical Council (WBMC) and sought dissolution of the entire Council.

Dismissing the plea, the HC Singh-bench of Justice Sabyasachi Bhattacharya observed that while the plea concerned the dissolution of the entire council, the arguments of the petitioner doctor had been mainly against the election of the President and Vice President of the Council.

"...the petitioner has not made out any strong case to the effect that the Rules framed under Section 33 of the 1914 Act and/or any of the other provisions of the 1914 Act was violated in the election process itself. The plinth of the attack in the present writ petition is the nomination of the President and election of Vice President, which has been discussed at length above," observed the bench.

Further, the bench noted that it did not find any gross illegality in the process of recommending and nominating the President and electing the Vice President or the election process of the new West Bengal Medical Council to intervene in the issue at such a later stage.

The petitioner doctor challenged the election of WBMC which culminated on November 1, 2022. Even though the reliefs sought the plea pertained to dissolving the entire Council, the arguments by the petitioner and the pleadings contained in the petition primarily assailed the election of the President and Vice President of the Council.

It was argued by the petitioner that Section 11(1) of the Bengal Medical Act, 1914 stipulates that the term of office of a member of the Council nominated or elected under Section 4 or nominated under Section 5 shall commence on the date as may be notified in this behalf by the State Government in the Official Gazette.

As per Section 11A(1) the members of the Council shall convene their first meeting after the notification referred to in Section 11(1) and recommend the names of three persons for being nominated as President, upon which the State Government shall nominate one of such persons to be the President of the Council. Similarly, under Section 11B(1), the members shall at their first meeting as referred to the above elect among themselves a Vice President. 

However, the petitioner pointed out that in the present case, the notification under Section 7 and under Section 11(1) of the 1914 Act was published in the Official Gazette only on November 3, 2022, but the newly formed Council held the meeting as envisaged under Sections 11A and 11B on November 1, 2022, itself, the date on which the Council was formed. Refering to this, the plea contended that the said meeting or the nomination of President and Vice President before the date of publication of the Notification was violative of Sections 11A and 11B and therefore they ought to be set aside.

The petitioner further submitted that it was physically impossible to inform and gather all the members of the newly elected Council on the date of the formation of the Council itself, that is, November 1, 2022, since the member are spread over different parts of West Bengal and could not be possibly assemble on such short notice.

Therefore, it was argued that the henchmen having political leanings towards the State Government were hand-picked in hot haste by flouting the provisions of the law.

On the other hand, the counsel for the Medical Council objected to the plea and argued that the petitioner is an Oversees Citizen of India. Referring to the relevant sections of the Citizenship Act, 1955, the counsel argued that the petitioner being an OCI cannot prefer a challenge to an election to which he could not be a party.

Further it was argued that even though the petitioner was a registered medical practitioner in West Bengal, he was neither a citizen of India nor he resided in India. Therefore, he was ineligible to vote or stand as a candidate for the election which he was chellenging. Referring to this, the counsel for the Medical Council also highlighted that the petitioner was not a member of the body of members which elects a President of Vice President of teh Council and therefore, he cannot challenge the election/nomination of the President or Vice President.

On merits, it was further submitted that the notification regarding the composition of the Council was published on November 1, 2023, but only the official gazette publication happened on November 3. Referring to this, it was contended that there was no illegality which had occurred in the present case.

The court, while considering the question of locus standi, noted that in a previous judgment regarding the WBMC, where the petitioner was a party, the Division bench of the Court had noted that the petitioner had locus standi to raise similar issues.

"Any citizen of India can very well bring to the notice of the Court a patent illegality in the functioning of a Medical Council of a State. The petitioner, being a registered medical practitioner having the right to practice in West Bengal, definitely has a right to so practice in an unfettered and proper manner. Illegalities in the election process of the very Medical Council which governs such practice definitely infringe the rights of the petitioner, both on a legal footing and on a Constitutional perspective," observed the HC bench.

Regarding the other issue claiming that the petitioner was not a member of the body which elects a President, the court noted that the argument does not find support in the 1914 Act itself as the Section 11 A(1) merely stipulates that the members of the Council shall at their first meeting recommend three names out of which the President will be nominated.

"The present writ petition seeks to challenge the modality in which the said provision was allegedly flouted. Thus, the argument as to the petitioner not being a part of the Council is rather irrelevant does not fetter the present challenge in any manner," observed the bench.

After confirming the locus standi of the petitioner, the Court took note of the objection raised in the plea based on the expression "after the notification" in Section 11A(1) of the 1914 Act. The bench noted that the said Section refers back to Section 11(1) which provides that the term of the office of a member of the Council shall commence on such date as may be notified in this behalf by the State Government in the Official Gazette. Therefore, it indicates that the notification contemplated therein has to be in the Official Gazette and not otherwise.

At this outset, the bench further observed, "Sub-section (1) of Section 11A does not make it mandatory that the first meeting of the members of the Council has to be held after the date of publication of the notification. The stress of the said subsection is not that the first meeting has to be held after the publication of the notification but that valid members of the Council shall recommend three names in their first meeting, out of which one person shall be nominated as President by the State Government."

The bench noted that a notification had already been made on 1st November, which was published on 3rd November. Therefore, it meant that the members of the Council had already been selected on the 1st, and therefore, they were eligible to recommend names for position of president in their first meeting.

"In any event, Section 11A (1) does not couch the requirement of the first meeting being after the notification in mandatory language. The said provision is not in negative form, saying that the first meeting cannot be held in any circumstance before the date of publication of the notification in the Official Gazette or, if so conducted, the meeting would be rendered null," observed the bench.

"The principle of factum valet also comes into play, since there was no substantial illegality in the first meeting of the members of the newly elected Council being held on the same date as the date of notification although prior to publication of the same in the Official Gazette. The newly-elected Council has already functioned with its President and Vice President for just over a year and has taken several decisions in the interregnum. Thus, a subsequent challenge at this juncture on a purely technical ground, if sustained, would set the clock back and might undo several decisions of the Council taken in the meantime, affecting numerous persons and activities. As held above, at the worst, a minor technical irregularity took place as the first meeting of the members was held not after the date of publication of the notification, although after the date of the notification as mentioned in the Official Gazette publication itself," further noted the bench.

With this observation, the HC bench dismissed the plea and noted, "In view of the above observations, I do not find any gross illegality in the process of recommending and nominating the President and electing the Vice President or the election process of the new West Bengal Medical Council sufficient to upset the apple cart at this belated stage."

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/calcutta-hc-order-226108.pdf

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