Current Telangana State Medical Council is legally untenable, hold fresh elections for new council: HC
Telangana High Court
Hyderabad: The Telangana High Court recently declared the Interim Telangana State Medical Council (TSMC) to be "legally untenable" as it struck down the Government Order by which the State had reduced the number of elected members in the Council from thirteen to five.
With this , the HC bench comprising of Chief Justice Ujjal Bhuyan and Justice C.V.Bhaskar Reddy restored the previous ratio of having more elected members and less nominated members and directed the State for completing the fresh election process of the council within a period of three months.
However, considering the fact that the dissolution of Interim TSMC would leave the State in absence of a regulatory body for the purpose of registration, disciplinary action etc., the bench allowed the interim council to function for three more months "by which time elections and nominations to the Telangana State Medical Council shall be completed."
The Court issued the following directions:
(i) Para 4(3)(i) of the Andhra Pradesh Medical Practitioners Registration Act, 1968 (Telangana Adaptation) Order, 2014 as contained in G.O.Ms.No.68 dated 03.08.2015 is struck down as illegal as being beyond the scope and ambit of an adaptation order;
(ii) The Interim Telangana State Medical Council constituted vide G.O.Rt.No.15 dated 06.01.2016 is legally untenable. However, for ensuring that there is no vacuum, the said Interim Telangana State Medical Council shall continue for a further period of three months by which time elections and nominations to the Telangana State Medical Council shall be completed;
(iii) Respondent No.1 shall take requisite steps including holding of elections and nomination of members in terms of sub-section (2) of Section 3 of the Telangana Medical Practitioners Registration Act, 1968 and complete the exercise within a period of three months from the date of receipt of a copy of this order;
(iv) Once a new body takes charge, the Interim Telangana State Medical Council would stand disbanded.
The High Court was considering pleas filed by Healthcare Reforms Doctors Association (HRDA), which had raised the issue of not conducting Telangana State Medical Council (TSMC) elections since 2007. Apart from this, the association had also pointed out the illegal continuation of nominated members for more than a decade as interim adhoc body and reduction of elected members from 13 to 5.
Medical Dialogues had earlier reported that while considering the pleas challenging the Government Order on conducting elections for Telangana Medical Council (TSMC) after lowering the number of elected representatives, the High Court of Telangana had directed the State Government and the counsel for the petitioner to submit a compilation of previous Supreme Court and various High Court judgments.
It was argued by Mr. Sama Sandeep Reddy, the counsel for HRDA that the last time elections were held to the Medical Council was in the year 2007, after which no elections have been held. He submitted that now the Interim Medical Council, which is a purely adhoc body, is holding the office for more than six years since the year 2016. He argued that an Adhoc body cannot continue for an indefinite period. He submitted that G.O.Rt.No.15 dated 06.01.2016, by which the Interim Telangana State Medical Council comprising of four registered medical practitioners had been constituted cannot be sustained.
Further referring to the fact that the number of elected members in the Medical Council has been reduced from thirteen to five, he argued that while the State may be justified in reducing the number of elected members proportionately with the number of medical practitioners, it is not open to the State at the same time not to proportionately reduce the nominated or the ex officio members.
Therefore, in an indirect manner, the government is running the show and thus undermining the autonomy of the Medical Council, argued the counsel for the association.
Apart from this, it was argued that in the Medical Practitioners Registration Act, the number of elected members was mentioned as thirteen. Therefore, even though under Section 101 of the Reorganization Act, 2014, the provisions of the Medical Practitioners Registration Act has been adapted and made applicable to the State of Telangana, any substantive amendment to the Medical Practitioners Registration Act would require legislative sanction.
No such amendment can be made by an executive order and therefore, G.O.Ms.No.68 dated 03.08.2015 cannot be sustained, argued the counsel. By the concerned G.O, the Section 3(2) of the Medical Practitioners Registration Act was amended and the number of elected members of the Medical Council was reduced from seven to five members.
On the other hand, the State counsel supported the G.Os and argued that the number of elected representatives has been scaled down from thirteen to five keeping in mind the reduction in the number of registered medical practitioners following bifurcation of the composite State.
It was further submitted on the behalf of the State Government that the elections for the Medical Council shall be held when the order deferring holding of elections is lifted.
After considering the submissions of both the parties, the HC bench perused the Andhra Pradesh Medical Practitioners Registration Act, 1968, as it stood at the time of bifurcation of the State and noted, "We may mention that there is no provision in the Medical Practitioners Registration Act for an interim council. All that the proviso to sub-section (1) of Section 5 says is that for a period of two years from the date of first constitution of the Medical Council, one of the ex officio members nominated by the government shall be the Chairman. Thus, under the Act, such an ex officio member can be the Chairman for a limited period of two years from the date of first constitution of the Medical Council."
Taking note of the submission of the petitioner association that the State has been running the Council with only nominated members and without conducting the elections, the bench disapproved the method and observed, "From a dominant position, the elected members have now been made a minority block having lesser members than the members nominated by the government. The said exercise, in our view, could not have been carried out by way of an adaptation order."
"It is a legislative act for which legislation is necessary by way of an amendment by the State Legislature of Telangana. The same could not have been carried out by way of an executive order though in the form of an adaptation order," the court further noted.
Therefore, the bench ordered, "In view of the above discussion, Para 4(3)(i) appearing in Andhra Pradesh Medical Practitioners Registration Act, 1968 (Telangana Adaptation) Order, 2014 as contained in G.O.Ms.No.68 dated 03.08.2015 cannot be sustained."
Referring to G.O.Rt.No.15 dated 06.01.2016, by which an Interim Telangana State Medical Council was constituted as a stop gap arrangement, the bench observed, "We have already noticed that there is no provision in the Medical Practitioners Registration Act constituting Interim Medical Council. The only provision that can have a remote relevance is the proviso to sub-section (1) of Section 5 which says that for a period of two years from the date of the first constitution of the Medical Council, one of the ex officio members nominated by the government shall be the Chairman of the Medical Council. But this provision also cannot be stretched to justify constitution of Interim Medical Council."
"Even the Andhra Pradesh Medical Practitioners Registration Act, 1968 (Telangana Adaptation) Order, 2014 does not provide for such Interim Medical Council. Even assuming that for the sake of administrative necessity, constitution of such Interim Medical Council became imperative, continuance thereof for more than six years cannot at all be justified," it further noted.
Therefore, setting aside the concerned G.O., the bench further mentioned in the order, "Secondly, even assuming such constitution to be a necessity, the same cannot continue for an indeterminate period. By its very nature and what has been mentioned in G.O.Rt.No.15 dated 06.01.2016, the Interim Medical Council is only a temporary measure; a stop gap arrangement till the Medical Council is duly constituted in terms of Section 3(2) of the Telangana Medical Practitioners Registration Act, 1968. Therefore, continuation of G.O.Rt.No.15 dated 06.01.2016 has now become legally untenable."
To view the order, click on the link below:
https://medicaldialogues.in/pdf_upload/telangana-hc-196304.pdf
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