Calcutta High Court (Appellete Side)
Dr. Kunal Saha vs West Bengal Medical on 29 June, 2022
In the High Court at Calcutta
Constitutional Writ Jurisdiction
Appellate Side
The Hon'ble Justice Sabyasachi Bhattacharyya
W.P.A. No. 8140 of 2022
Dr. Kunal Saha
Vs.
West Bengal Medical
Council (WBMC) and another
For the petitioner-in-person : Dr. Kunal Saha
For the Medical Council : Mr. Saibalendu Bhowmik,
Mr. Biplab Guha,
Mr. Rajsekhar Basu,
Mr. Subrata Bhattacharya
Hearing concluded on : 15.06.2022
Judgment on : 29.06.2022
Sabyasachi Bhattacharyya, J:-
1. The petitioner is a registered medical practitioner in West Bengal and is
an Overseas Indian Citizen. He has preferred the present challenge
primarily for dissolution of the present body acting at the helm of the
West Bengal Medical Council. Initially the matter was filed as WPO 382
of 2018, but later renumbered as WPA 8140 of 2022.
2. Although the petitioner had originally challenged the vires of
Section 11 (2) of the Bengal Medical Act, 1914, he does not press such
challenge at the final hearing.
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3. The petitioner, appearing in person with the leave of court, submits
that the five-year statutory term of the last elected Medical Council of
West Bengal expired on July 15, 2018. No election, as provided in law,
has been held since then and the last-elected body has been continuing
in office unlawfully.
4. Section 11 (1) of the Bengal Medical Act, 1914 (for short, "the 1914
Act") provides 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 such date as may be notified in this behalf by the
State Government in the Official Gazette.
5. Sub-section (2) of Section 11 says that, subject to the provisions of
Sections 9 and 10, the term of office of members shall be five years plus
such period as may elapse between the period of five years
aforementioned and the date notified in the notification under sub-
section (1) next following such period of five years.
6. The petitioner next places the provisions of the West Bengal Medical
Council (Temporary Supersession) Act, 1985 (in brief, "the 1985 Act").
7. As per Section 3 (1) of the said Act, with effect from the date of coming
into force of the said Act and for a period of two years thereafter, the
Medical Council shall stand superseded.
8. Sub-section (2) of Section 3, however, provides that the State
Government may, if it considers necessary so to do, by notification
published in the Official Gazette, extend from time to time the period of
supersession referred to in sub-section (1) by any period not exceeding
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six months at a time, so however, that the aggregate period of
supersession under the section shall not exceed three years.
9. The 1985 Act was followed by the West Bengal Medical Council
(Temporary Supersession) (Amendment) Ordinance, 2012, but the
Ordinance was never translated into an Act.
10. It is submitted that, after the last-elected body completed its term on
July 15, 2018, not only was no election held, no ad hoc committee was
appointed either. It is, thus, argued that the said body has been
continuing thereafter unlawfully and should immediately by dissolved.
The petitioner also prays for directions to hold a new election.
11. The respondents, at the outset, object to the locus standi of the
petitioner to maintain an application under Article 226 of the
Constitution of India, since he is not a citizen or resident of India. The
petitioner is a US citizen and cannot invoke fundamental rights under
the Constitution, nor can he vote or stand as a candidate in the West
Bengal Medical Council elections, it is argued.
12. As per the proviso to Section 4 (1) of the 1914 Act, no registered
practitioner shall be entitled to vote or stand as a candidate for election
at an election of members under the clause unless he-
(a) is a citizen of India ; and
(b) either resides or carries on his profession or is employed in West
Bengal.
13. Further, Section 6(d) of the 1914 Act provides that a person shall be
disqualified for being elected or nominated as a member of the Council
if he is not a citizen of India, either residing or carrying on his
profession or employed in West Bengal.
14. Thus, the respondents contend, the petitioner has practised fraud upon
the Election Commission and the Court by participating in the elections
and moving this court in writ jurisdiction.
15. The respondents next contend that the 2018 election was duly notified
on May 4, 2018 but could not proceed further due to an interlocutory
order passed in another writ petition, bearing WP No. 13684 (W) of
2018.
16. Moreover, vide letter dated October 12, 2018, the Department of Health
and Family Welfare, Government of West Bengal advised the Registrar,
West Bengal Medical Council that, in its considered opinion, the
Council may continue functioning till election of new Council.
17. The petitioner cites the judgment of Lakshmi Charan Sen & Ors. Vs.
A.K.M. Hassan Uzzaman & Ors., reported at AIR 1985 SC 1233, wherein
it was held that no High Court in the exercise of its powers under
Article 226 of the Constitution should pass any order, interim or
otherwise, which has the tendency or effect of postponing an election,
which is reasonably imminent and in relation to which its writ
jurisdiction is invoked.
18. To counter the above, the respondents cite Jaya Sen v. Sujit Kr. Sarkar,
reported at AIR 1998 Cal 288, for the proposition that a decision is an
authority for what it decides and not what can logically be deduced
therefrom. Even a slight distinction in fact or an additional fact may
make a lot of difference in the decision-making process.
19. The petitioner further contends that the interim order passed in WP No.
13684 (W) of 2018 has long expired and is no longer subsisting. Hence,
in any event, there is no deterrent order to restrain elections of the
Medical Council since long.
20. The petitioner also relies on several previous judgments delivered in
connection with other writ petitions filed by the present petitioner to
highlight that the said Benches had upheld the locus standi of the
petitioner to maintain a writ petition under Article 226 of the
Constitution of India, including Dr. Kunal Saha v. The State of West
Bengal & Anr. [2016 SCC OnLine Cal 72], a co-ordinate Bench judgment
of this court, and another Division Bench judgment with the same
name, reported at AIR 2015 Cal 370.
21. As a counter argument to the above, the respondents rely on
Chandrashekar & Ors. Vs. Addl. Special Land Acquisition Officer [AIR
2009 SC 3009]. In paragraph no. 11 thereof, the Supreme Court
observed that the directions of the Magistrate are subject to provisions
of an Act, Regulation and Code and in case of conflict, the statute itself
prevails.
22. It is argued that the above proposition holds true in lending primacy to
Section 11 (2) of the 2014 Act over the judgments of this Court wherein
it was held that the petitioner has locus standi to file a writ petition and
participate in the Medical Council elections.
23. The respondents also cite AIR 1962 Cal 338 [The State Vs. Keshab
Chandra Naskar] for the proposition that only an aggrieved party can
challenge an action and not a volunteer.
24. Learned counsel for the respondents next relies on The Rajasthan State
Industrial Development & Investment Corpn. V. Subhash Sindhi
Cooperative Society Jaipur &Ors., reported at AIR 2013 SC 1226, in
order to elaborate the scope of Article 226 of the Constitution, wherein
it was held that writ cannot be granted unless it is established that
there is an existing legal right of the applicant, or an existing duty of
the respondent. A writ does not lie to create or establish a legal right
but to enforce one that stood already established.
25. On the issue of applicability of Article 14 only to citizens of India, the
respondents cite State of Arunachal Pradesh Vs. Khudiram Chakma,
reported at 1994 (Supple) (1) SCC 615.
26. Lastly, by placing reliance on Section 3 of the 1914 Act, the
respondents argue that the West Bengal Medical Council has perpetual
succession, since it cannot exist in a vacuum. Hence, learned counsel
submits, the present body has the authority to continue till the next
elections are held/notified.
27. Upon hearing the rival contentions of parties, there remains no doubt
that the last-elected Medical Council of West Bengal had already spent
five years of its tenure on or about July 15, 2018.
28. The sole order on record is an order dated August 16, 2018 passed by a
co-ordinate Bench in WP No. 13684 (W) of 2018, whereby the
respondent nos. 2, 3 and 4 therein (apparently including the Medical
Council) were restrained from proceeding any further with the West
Bengal Medical Council election, 2018 pertaining to the categories of
Section 4 (1) (g) and 4 (1) (h) of the Act of 1914 till the end of November,
2018 or until further orders, whichever was earlier.
29. However, nothing has been produced by the respondents to show that
the said order was subsequently extended, even in the teeth of the
denial by the petitioner. Although the respondents hint that they have
filed a vacating application, no copy thereof has been produced in
court. The respondents have failed to show any endeavour on their part
to expedite the hearing of the matter, although the same is pending for
the last four years. Hence, in the absence of any subsisting stay order
having been produced, such initial grant of a limited ad interim stay
cannot be projected as justification for the respondents to hold their
hands for so long with regard to holding the elections of the Medical
Council.
30. Moreover, the said limited injunction order was passed keeping in view
the alleged irregularities perpetrated in the build-up to the then
electoral process. Such impediment could be obviated if the previous
steps taken for election were given a go-bye in their entirety and the
process was resumed afresh, under appropriate checks and/or
supervision, if need be.
31. The primary consideration in the matter is the proper ambit of Section
11 (2) of the 1914 Act.
32. A plain reading of sub-section (2) of Section 11, as a standalone
provision, seems to confer on an once-elected/nominated Council the
charter to continue till the next notification which, as per sub-
section (1), is published by the State Government in the Official
Gazette, signifying the commencement of the term of office of the next-
elected Council.
33. Although Section 3 of the 1914 Act (as amended till date) stipulates
that the West Bengal Medical Council shall be a body corporate and
have perpetual succession and a common seal, and shall by the said
name sue and be sued, the said provision refers to the juristic
personality of the Council and, obviously, not the individuals
comprising it at any particular point of time.
34. Strangely, however, although the constitution of the Council, as
provided in Section 4 of the 1914 Act, contemplates a majority of the
members to be elected by several different bodies of people, while a few
are nominated, the expiry of the tenure of the committee has been kept
rather open-ended in terms of its outer time-limit.
35. Section 11 (2), although mentioning the tenure first to be of five years,
rushes on immediately thereafter to qualify the same with the rider, "...
plus such period as may elapse between the period of five years
aforementioned and the date notified in the notification under sub-section
(1) next following such period of five years."
36. It is well-settled that superfluity cannot be imputed to the Legislature;
however, the period of "five years" in the preceding portion of sub-
section (2) of Section 11 is rendered rather redundant and superfluous
if the next portion is to be read literally.
37. Again, Section 11A (4) first provides that the President of the Council
shall hold Office for a period of five years, but immediately goes on to
qualify the said period with the phrase "... or until his successor is
nominated, whichever is longer." which, again, renders the five year
period of tenure academic and toothless.
38. Thus, on a purposive construction of both provisions, that is, Sections
11 (2) and 11A (4), the principle of Ejusdem Generis has to be followed.
The succeeding parts of both sub-sections, in consonance with the five-
year tenure stipulated immediately prior thereto, cannot but be
construed to be of reasonable temporal proximity within five years from
commencement.
39. At a more fundamental level, the 1914 Act (even as amended) envisages
a Medical Council to be constituted in such a manner that a majority of
its members are elected from a wide spectrum of the medical, academic
and administrative cadres. Only a minority of the members are to be
nominated by the State Government. In essence, such procedure,
which lends primacy to the electoral process over nomination, ensures
the underlying democratic spirit in constitution of such council.
40. From another perspective, such an approach is an essential check and
balance to the wide powers given to the Medical Council, which has the
potential not only to affect the entire medical fraternity but the society
at large, in view of the important role played by the medical
practitioners and intelligentsia, academics, scholars and those
associated with them at all levels.
41. The quality and direction of administration of medicine and its off-
shoots in the state are under the direct supervision and authority of the
West Bengal Medical Council, which is an autonomous council, not
subject to direct control by the State.
42. Hence, transparency and the democratic principle are of utmost
importance in formation of such Council.
43. It is an admitted position that the last elected body spent its five-year
tenure long back, in the year 1988. In the last 34 years, which is
almost seven times five, neither has any ad hoc body been appointed,
nor any election held.
44. The expression "five years" in Section 11 (2) has yielded to the "plus"-
period appearing thereafter, so much so as to lose its relevance. Such a
prolonged tenure, as enjoyed by the present Medical Council, could not
have been intended by the legislature when the concept of election was
introduced in the 1914 Act, which survived all its subsequent
amendments as well. Such provision has been rendered a meaningless
formality, if not farce, by the conduct of the Council as well as the State
in letting its stale composition to perpetuate indefinitely.
45. There is no explanation for the inordinate delay of three decades in
stalling elections even prior to 2018, when WP No. 13684 (W) of 2018
was moved and a stay order passed therein. In fact, precious nothing is
produced on behalf the respondents, despite repeated queries of court,
to show that the interim order passed in the said writ petition was at all
extended beyond November, 2018.
46. Even if the said interim order had been extended, no urgency has been
exhibited on the part of the respondents in moving their purported
vacating application or to have the said writ petition heard out finally.
In fact, the interim order could not be a bar for the present Council,
which is living on an inordinately prolonged lease of life, to seek leave of
the Court to initiate a fresh electoral procedure, relinquishing the
previous electoral process impugned in WP No. 13684 (W) of 2018.
47. However, for obvious reasons, the present Council members took no
steps worthy of exhibiting their bona fides for taking steps to organize
elections after the year 1988 but chose to hibernate in the stupor of
protracted perpetuation of their power.
48. In such factual context, the citation relied on by the petitioner, that is,
Lakshmi Charan Sen & Ors. (supra) does not have direct bearing, since
the court is called upon in the present case not to pass any order to
interdict or disrupt any imminent election, but to ensure facilitation of
election.
49. Insofar as Keshab Chandra Naskar (supra) is concerned, the petitioner,
being a qualified registered doctor whose name is appearing in the rolls
of West Bengal and who is an Overseas Indian Citizen, and also a
prospective candidate in the election, is very much an aggrieved party
and not merely a "volunteer". In fact, the petitioner's right, in such
capacity and as conferred on a proper reading of the 1914 Act, has
undoubtedly been contravened, justifying the invocation of the writ
jurisdiction by this Court.
50. The contravention alleged is not merely of Article 14, but also of Article
19 of the Constitution of India and the safety and well-being of the
citizens at large, since the illegality affects the functioning of the entire
medical community, which ultimately concerns the health and well-
being of the entire community.
51. The opinion of the Department of Health and Family Welfare, as
expressed in the communication to the Registrar of the West Bengal
Medical Council dated October 12, 2018, is neither a legal opinion nor
has any binding effect and, hence, has no relevance in the present
context.
52. In the absence of any actual ad hoc appointment being made after July,
1988, the West Bengal Medical Council (Temporary Supersession) Act,
1985 acquires no significance whatsoever.
53. The 2012 Amendment Ordinance never ripened into a statute. Hence, it
does not deserve consideration on an equal footing with the 1914 and
the 1985 Acts.
54. Thus, this court expresses its reservations as to the palpable inaction
on the part of the West Medical Council in not holding any elections
and/or constituting a new Council since 1988.
55. Hence, WPA 8140 of 2022 is disposed of by directing that the present
West Bengal Medical Council, which is continuing unlawfully and in
contravention of the letter and spirit of law, shall stand dissolved with
effect from July 31, 2022.
56. Respondent no. 2, that is, the State of West Bengal, shall appoint an ad
hoc council, adhering to the relevant provisions of the Bengal Medical
Act, 1914 (as amended till date) in that regard, for the limited purpose
of conducting the next elections of the Council and carrying out the
essential functions of the Council, within July 31, 2022. The said ad
hoc body will start functioning on and from August 1, 2022.
57. Till July 31, 2022, the present council shall exercise only the essential
day-to-day financial and other activities of the West Bengal Medical
Council, but shall not dispose of, transfer and/or encumber any asset
of the council and/or assets over which it has powers of disposal
statutorily. There will be no new registration and /or cancellation of
registration of any registered medical practitioner by the present
council till it stands dissolved. The present council shall not, till
dissolution, take major or policy decisions in any matter vested in law
with the council.
58. The elections of the West Bengal Medical Council, as contemplated in
Section 4 the Bengal Medical Act, 1914 (as amended till date), shall
thereafter be conducted in accordance with law by the ad hoc Council,
under the aegis of the Respondent No. 2-State, as expeditiously as
possible. Keeping in view the volume of work involved, the outer limit
for concluding such election process, including declaration of results, is
fixed at October 31, 2022.
59. Respondent no. 2 shall complete the process of nomination of members
as envisaged in Section 4 of the 1914 Act and ensure that appropriate
steps in terms of the 1914 Act are taken so that the formalization and
all necessary paraphernalia regarding the constitution of the new, duly-
elected Medical Council are completed latest by October 31, 2022.
60. Due notifications will be made and steps taken for adherence to the
above time-frame, so that the newly-elected council can start
functioning effectively on and from November 1, 2022.
61. This court does not intend to go so far as to intrude into the statutorily
delineated domain of the Executive for the time being, but it is expected
that the Respondent No. 2 and the ad hoc Council constituted by it
shall ensure fair play and transparency in the entire process of
elections, nominations, and other formalities for constitution of the new
Council, as directed above and, prior to that, in appointing the ad hoc
Council.
62. It will, however, be open to all aggrieved parties/stakeholders to
challenge any illegality and/or irregularity in the ensuing appointment
of ad hoc Council and/or conduct of the West Bengal Medical Council
elections before the appropriate forum.
63. There will be no order as to costs.
64. Urgent certified copies of this order shall be supplied to the parties
applying for the same, upon due compliance of all requisite formalities.
( Sabyasachi Bhattacharyya, J. )
Later:
After the above judgment/order is passed, learned counsel for the
respondent authorities prays for a stay of operation of the said order.
However, in view of the discussions made in the judgment as regards
the present condition of affairs of the Medical Council and since sufficient
time has been given for the conduct of the elections, such prayer is refused.
( Sabyasachi Bhattacharyya, J. )
