Jaipur Golden Charitable ... vs Union Of India & Ors
2011 Latest Caselaw 3138 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     LPA 366/2011

JAIPUR GOLDEN CHARITABLE CLINICAL LABORATORY TRUST
& ORS                                   ..... Appellant
                 Through  Mr. Jos Chiramel and Mr. Ramesh
                          Kumar, Advocates.

                   versus

UNION OF INDIA & ORS                                ..... Respondent
                   Through             Ms. Kimmi Brara Marwaha,
                                       Advocate for R-1 & 2.
                                       Mr. Ashish Kumar, Advocate for
                                       MCI.

      CORAM:
      HON'BLE THE CHIEF JUSTICE
      HON'BLE MR. JUSTICE SANJIV KHANNA

                                   ORDER

% 05.07.2011

The present intra-Court appeal is directed against the order dated

21st March, 2011 dismissing the application C.M.No.5356/2010 for

amendment of the writ petition. Learned single Judge has held that the

appellant cannot be permitted to challenge the order dated 20 th March,

2010 passed by the Medical Council of India (MCI) as at the initial stage

when notice was issued in the writ petition it was restricted to prayers 'a'

and 'b' and the Court had declined to issue notice on prayers 'c' and 'd'

which were for quashing of the decision of the Ethics Committee and damages/costs. In the order dated 7th January, 2010, learned single Judge

had refused to issue notice on prayers 'c' and 'd' on the ground that the

decision of the Ethics Committee of MCI should not be permitted to be

challenged in writ proceedings as disputed questions of facts were

involved. The appellant herein had impugned the said order in LPA

215/2010, but the same was withdrawn with liberty to approach the single

Judge in view of the subsequent development i.e. order dated 20 th March,

2010, which was passed by the MCI. By order dated 20th March, 2010,

MCI on the basis of the report submitted by the Ethics Committee had

conveyed the decision to remove names of appellants 2 to 4 from the

Indian Medical Council Register for a period of one month commencing

from 1st April, 2010.

2. Having heard learned counsel for the parties, we feel that the

application for amendment of the writ petition should have been allowed

and the appellant should be permitted to challenge the order dated 20 th

March, 2010 i.e. the decision of the Executive Committee of the MCI.

The decision of the Ethics Committee has merged into the said decision.

3. It is perceptible that prayers 'a' and 'b' in the writ petition pertain

to grant of registration under Section 14 of the Transplantation of Human

Organs Act, 1994 which are already pending consideration before the learned single Judge. One of the aspects, which has to be considered and

examined by the learned single Judge in the writ petition is the complaint

made by the respondent No.5 against the appellant Nos.2, 3 and 4 before

Delhi Medical Council which has resulted in passing of the order dated

20th March, 2010 by the Executive Committee of MCI. It cannot be said

that the said two issues are not inter connected or relevant. It may not be

proper to segregate the two issues at the initial stage itself without

reply/counter from the MCI and respondent No.5. If required and

necessary, the learned single Judge may examine the records maintained

by the MCI including the proceeding before the Ethics Committee and

Executive Committee. Of course, it is a different matter that the learned

single Judge may still come to the conclusion that it is not a fit case for

the writ Court to interfere for variety of reasons including disputed

questions of facts. The Court may also reject the prayer for damages etc.

on the ground that it will not be proper for writ Court to pass a money

decree etc.

4. Accordingly, we allow the present appeal and the impugned order

dated 21st March, 2011 dismissing the application C.M.No.5356/2010 is

set aside. The application for amendment will be treated as allowed. The

respondents are permitted to file response/counter affidavit within a period of three weeks. Rejoinder affidavit, if any, be filed within three

weeks therefrom. It is clarified that this Court has not expressed any

opinion on merits of the case and the pleas raised by the parties. No costs.

SANJIV KHANNA, J.

CHIEF JUSTICE

JULY 05, 2011 NA