Nitin Sood vs Union Of India And Others
2022 Latest Caselaw 7755 P&H

CM No.9716-CWP of 2022 and
CM No.9718-CWP of 2022 in/and
CWP No.12374 of 2022(O&M)                            1


     IN THE HIGH COURT OF PUNJAB AND HARYANA
                   AT CHANDIGARH


                               CM No.9716-CWP of 2022 and
                               CM No.9718-CWP of 2022 in/and
                               CWP No.12374 of 2022(O&M)

                               Reserved on 21.07.2022
                               Date of Decision:26.07.2022


Nitin Sood                                           ..... Petitioner

        Vs.

Union of India and others                            ... Respondents


CORAM: HON'BLE MR. JUSTICE RAJ MOHAN SINGH

Present:Mr. Akshay Bhan, Sr. Advocate with
        Mr. Amandeep Singh Talwar, Advocate and
        Mr. Abhijeet Singh Rawaley, Advocate
        for the non-applicant/petitioner.

        Mr. Anil Chawla, Advocate
        for respondent No.1.

        Mr. Amrit Paul, Advocate
        for respondent No.2.

        Mr. Gourav Sharma, Advocate for
        Mr. M.S. Longia, Advocate
        for respondent No.3.

        Mr. Ajit Kumar Sinha, Sr. Advocate with
        Mr. Srijan Sinha, Advocate,
        Mr. Naveen Soni, Advocate,
        Mr. Parul Dhurvey, Advocate and
        Mr. Vishavjeet Beniwal, Advocate
        for the applicant(s)/respondent No.4.




                                1 of 9
             ::: Downloaded on - 28-07-2022 06:28:31 :::
 CM No.9716-CWP of 2022 and
CM No.9718-CWP of 2022 in/and
CWP No.12374 of 2022(O&M)                          2


           ****

RAJ MOHAN SINGH, J.

[1]. CM No.9716-CWP of 2022 has been filed by the

applicant Mrs. Anjali Khera mother of Ms. Anandita Khera

(deceased) for her impleadment as one of the respondents in

the present writ petition, claiming herself to be necessary and

proper party.

[2]. Perusal of the record would show that the complaint

was filed by the husband of Mrs. Anjali Khera i.e. Mr. Ashish

Khera who has been impleaded as respondent No.4 in the

present writ petition. The applicant claims to be impleaded as

co-complainant along with her husband.

[3]. CM No.9718-CWP of 2022 has been preferred by

respondent No.4 for vacation of order dated 31.05.2022 on the

premise that the Appellate Authority/Ethics and Medical

Registration Board of the National Medical Commission of India

has all the powers to decide the application for interim relief

during pendency of the appeal.

[4]. Order dated 31.05.2022 is reproduced hereasunder:-

"Learned counsel for the petitioner contends that against the impugned order dated 11.05.2022, an appeal is pending with the National Medical

2 of 9

CM No.9716-CWP of 2022 and CM No.9718-CWP of 2022 in/and

Commission (NMC), which is also known as The Ethics and Medical Registration Board of the National Medical Commission of India. The aforesaid Board has no power to grant interim relief during pendency of the appeal. Learned Senior Counsel relies upon Tejesvi Kamra Vs. National Medical Commission of India and other, 2021 SCC OnLine Del 1256 for pressing the interim relief in the present writ petition.

Learned Senior Counsel further contends that additional qualifications possessed by the petitioner were duly recognized by the Ministry of Health and Family Welfare vide notification dated 07.03.2008. The allegation against the petitioner is that though he is registered with Haryana Medical Council vide registration No.HN-6785 dated 16.07.2012, but the qualification of CCT Hematology issued by GMC, UK is not recognized with HMC. Learned Senior Counsel further submits that the aforesaid allegation is per se wrong in the light of notification dated 07.03.2008. The Impugned order is totally non-speaking and has been passed without giving any reasonable opportunity of hearing to the petitioner by the President of Haryana Medical Council.

Notice of motion for 23.08.2022.

At this stage, Mr. Anil Chawla, Advocate appears on behalf of respondent No.1 and Mr. M.S. Longia, Advocate appears on behalf of respondent No.3.

Till the next date of hearing, impugned order

3 of 9

CM No.9716-CWP of 2022 and CM No.9718-CWP of 2022 in/and

be kept in abeyance.

[5]. Notice in both the aforesaid applications was issued on

13.07.2022.

[6]. Reply to the aforesaid applications has been filed by

the non-applicant/petitioner and the same is taken on record.

[7]. With the concurrence of the parties, I have heard the

applications as well as the main case.

[8]. At the time of issuance of notice of motion and granting

interim relief on 31.05.2022, learned Senior Counsel for the

petitioner placed reliance upon Tejesvi Kamra Vs. National

Medical Commission of India and others, 2021 SCC OnLine

Del 1256 to contend that the Ethics and Medical Registration

Board has no power to grant interim relief. Para No.7 of the

aforesaid judgment is reproduced hereasunder:-

"7. It is not disputed that the Ethics and Medical Registration Board has no power to grant interim relief and the appeal may take some time to be decided. Considering the educational qualifications of the Petitioner, as also the fact that in the first round of litigation, the Petitioner was exonerated and the appeal is now pending before the Ethics and Medical Registration Board, during the pendency of the said appeal, the directions given in the impugned order dated 19th February, 2021 shall not be implemented.

The said directions would be subject to the final

4 of 9

CM No.9716-CWP of 2022 and CM No.9718-CWP of 2022 in/and

decision to be taken by the Ethics and Medical Registration Board in the appeal filed by the Petitioner. All the rights and contentions of the parties, including the Complainant, are left open."

[9]. Per contra, learned Senior Counsel for the

applicant/respondent No.4 submitted that the Court/Appellate

Authority having power and jurisdiction to grant final relief

implies within its power to grant interim relief, unless it is

specifically prohibited by law. In the instant case, there is no

such prohibition by any law against the Ethics and Medical

Registration Board of the National Medical Commission of

India/Appellate Authority for passing any interim relief during

pendency of the appeal. Learned Senior Counsel relies upon

Medical Council of India Vs. JSS Medical College and

another, (2012) 5 Supreme Court Cases 628 in the aforesaid

context.

[11]. Learned Senior Counsel further places reliance upon

W.P. (C) No.10212 of 2022 titled Dr. Sandeep Bhagat Vs.

Delhi Medical Council and another decided on 07.07.2022 by

the Delhi High Court, W.P. No.589 of 2021 titled Dr. Ashok Vs.

National Medical Commission decided by the Bombay High

Court and LPA No.400/2022 titled Dr. Neeraj Agarwal Vs.

Delhi Medical Council decided on 20.06.2022 by the Delhi

5 of 9

CM No.9716-CWP of 2022 and CM No.9718-CWP of 2022 in/and

High Court to contend that the Ethics and Medical Registration

Board of National Medical Commission of India while hearing

the pending appeal under Section 30(3) of the National Medical

Commission Act, 2019, possesses incidental powers and those

powers would include grant or refusal of interim order in

accordance with law against an order passed by the State

Medical Council under Section 30(2) of the Act of 2019. The

Appellate Authority has to devise mode and manner, in which

such incidental powers are to be exercised and the terms and

conditions to be imposed while exercising such powers in

accordance with law. Exercise of such powers would be a

matter of discretion of the Ethics and Medical Registration

Board.

[12]. Appeal along with an application for interim relief filed

by the petitioner is pending consideration before the Appellate

Authority, in which pleadings are complete, which is apparent

from communication dated 07.07.2022 issued to respondent

No.4 by the National Medical Commission, Ethics and Medical

Registration Board in respect of appeal dated 27.05.2022 filed

by the petitioner against the order dated 11.05.2022 of Haryana

Medical Council. Appeal has already been registered at serial

No.59/2022. Appeal dated 27.05.2022 filed by the petitioner has

6 of 9

CM No.9716-CWP of 2022 and CM No.9718-CWP of 2022 in/and

been accepted by the Ethics and Medical Registration Board in

the internal meeting on 22.06.2022. Vide the aforesaid

communication, respondent No.4 was requested to provide his

written submissions by way of affidavit with documentary proof

to the Ethics and Registration Board so that the appeal can be

processed.

[13]. During arguments, learned counsel for the

applicant/respondent No.4 submitted that respondent No.4 has

already filed his written submissions before the Appellate

Authority.

[14]. At this stage, I am of the considered opinion that during

pendency of the statutory appeal before the Ethics and Medical

Registration Board of National Medical Commission of India,

any observation made by this Court, may prejudice the case of

either sides.

[15] In view of facts and attending circumstances of the

case, I leave it open to the Appellate Authority to decide its

jurisdiction in respect of inbuilt mechanism under Section 30(3)

of the Act of 2019 to decide the application for interim relief.

Consequently, the present petition is disposed of with an

observation that the applicant in CM No.9716-CWP of 2022 may

press for her impleadment before the Appellate Authority in

7 of 9

CM No.9716-CWP of 2022 and CM No.9718-CWP of 2022 in/and

pending appeal in accordance with law. CM No.9718-CWP of

2022 is also disposed of along with main petition as there is no

need to vacate the interim order as the main writ petition is

being disposed of with a request to the Ethics and Medical

Registration Board of National Medical Commission of

India/Appellate Authority to take up the application for interim

relief and consider the same on merits in accordance with law

as expeditiously as possible, preferably within a period of three

weeks from the date of receipt of certified copy of this order.

Petitioner shall be under legal obligation to take necessary

steps to remove any defect, which may be pointed out by the

Registry of the Appellate Authority in the form and nomenclature

of the appeal (if any). This writ petition is disposed of with a

request to the Appellate Authority in the aforesaid manner. After

decision of the pending application for interim relief, the

Appellate Authority shall proceed to decide the appeal on merits

without being influenced by any observations made in this order.

The Appellate Authority is requested to dispose of the pending

application for interim relief on or before 23.08.2022. In case,

the application for interim relief is not disposed of by

23.08.2022, the petitioner would be at liberty to make necessary

prayer before the Appellate Authority for extension of interim

8 of 9

CM No.9716-CWP of 2022 and CM No.9718-CWP of 2022 in/and

relief dated 31.05.2022. It is made clear that the interim relief

shall remain in operation only upto 23.08.2022.

[16]. The present writ petition along with the applications is

accordingly disposed of.

                                         (RAJ MOHAN SINGH)
26.07.2022                                     JUDGE
Prince


Whether speaking/reasoned               Yes/No

Whether reportable                      Yes/No




                              9 of 9