Telangana High Court
K. Hari Prasad vs The State Of Telangana And 3 Others on 28 May, 2025
Author: Nagesh Bheemapaka
Bench: Nagesh Bheemapaka
HON'BLE SRI JUSTICE NAGESH BHEEMAPAKA
WRIT PETITION No. 3047 OF 2023
O R D E R:
This Writ Petition was filed being aggrieved by the
proceedings dated 23.03.2022 of the 2nd respondent in
returning the Appeal dated 18-03-2021 filed by petitioner under
Regulation 8.8 of the Indian Medical Council (Professional
Conduct, Etiquette and Ethics) Regulations, 2002. The
petitioner contended that rejection of Appeal as 'not
maintainable' is illegal, arbitrary, and contrary to law.
2. Petitioner contends that the 4th respondent is
running a hospital by name Taraporewalla Nursing Home
located at East Maredpally, Secunderabad. He stated that his
deceased wife was under the medical care of the 4th respondent
from the second month of her pregnancy. Estimated date of
delivery, as given by the 4th respondent was 25.08.2013.
On 10-08-2013, petitioner's wife visited the 4th respondent
nursing home for a general check-up along with test reports as
advised earlier. After examining the reports, the 4th respondent
diagnosed the petitioner's wife with Cholestatic Jaundice and
directed her to get admitted to the nursing home, which she did
on 10-08-2013 at 8:00 PM.
Despite knowledge of the possibility of Post-Partum
Hemorrhage (PPH), a severe complication involving
uncontrollable bleeding post childbirth, the 4th respondent
conducted surgery, without taking precautions, due to the said
medical negligence, petitioner's wife died on 11-08-2013 at
11:45 AM, although the baby survived. Following the incident,
petitioner lodged a police complaint on 04-09-2013 at
Tukaramgate Police Station, which led to registration of FIR No.
117 of 2013 under Section 304-A IPC against the 4th
respondent. A charge sheet was filed and the case was
registered as C.C. No. 2407 of 2019 on the file of the Hon'ble
XXII Chief Metropolitan Magistrate at Secunderabad.
Subsequently, petitioner filed a complaint with the
Medical Council of India on 29-08-2013 requesting disciplinary
action against the 4th respondent which referred the complaint
to the 3rd respondent, i.e. the State Medical Council (Telangana
State Medical Council), which, in turn, forwarded the case to the
Ethics Committee. The Ethics Committee, after inquiry,
observed that the allegations of negligence and deficiency in
service made by the petitioner were not unreasonable and
recommended a warning to the 4th respondent to be more
cautious in observing medical procedures and protocols. Based
on the said findings, the 3rd respondent - State Medical Council
passed order dated 03-02-2021 approving the recommendations
through the Executive Committee, thereby issuing a warning to
the 4th respondent.
Petitioner, aggrieved by the said order dated
03-02-2021, preferred Appeal on 18-03-2021 to the 2nd
respondent - National Medical Commission which returned the
appeal via Proceedings dated 23-03-2022, citing that the Appeal
was not maintainable under Section 30(3) of the National
Medical Commission Act, 2019 (for short, 'the 2019 Act').
Despite this, petitioner re-submitted the Appeal on 16-08-2022,
requesting reconsideration. The Appeal was again returned
through Proceedings dated 03-10-2022, stating that
reconsideration could not be acceded to. According to petitioner,
the ground for rejection that a non-medical practitioner cannot
file an appeal under Section 30(3) is misconceived. He contends
that Section 30(3) says that 'A Medical practitioner or
professional who is aggrieved by any action taken by a State
Medical Council under sub-section (2) may prefer an appeal to
the Ethics and Medical Registration Board against such action'.
Petitioner argued that this provision does not bar Appeals by
non-medical persons and is, in fact, applicable only to medical
practitioners. Thus, applying Section 30(3) to his case is
erroneous.
It is stated, petitioner is entitled to file an Appeal
under Regulation 8.8 of the Indian Medical Council (Professional
Conduct, Etiquette and Ethics) Regulations, 2002. The said
Regulation states: 'Any person aggrieved by the decision of the
State Medical Council on any complaint against a delinquent
physician, shall have the right to file an Appeal to the MCI
within a period of 60 days from the date of receipt of the order
passed by the said medical council'. Though the Indian Medical
Council Act, 1956 was repealed by the National Medical
Commission Act, 2019 (Act 30 of 2019), all Regulations framed
under the former Act are saved under Section 60 of the new Act.
Therefore, Regulation 8.8 of the 2002 Regulations continues to
be valid and enforceable. It is stated that the 2nd respondent
erroneously returned his Appeal by wrongly invoking Section
30(3) of the NMC Act, 2019, despite the appeal being
maintainable under Regulation 8.8 of the 2002 Regulations.
3. The Deputy Secretary, National Medical
Commission (NMC) stated in the counter that under the 2019
Act, the Ethics and Medical Registration Board (EMRB) of the
NMC is empowered to decide Appeals filed only by registered
medical practitioners. Section 27(1)(d) read with Sections 30(3)
and 30(4) provides for such Appeals exclusively by registered
medical professionals. Hence, private parties or complainants,
such as the petitioner, do not have the statutory right to file
appeals before the NMC against decisions of State Medical
Councils.
The question of whether the EMRB can entertain
Appeals filed by non-medical practitioners has been conclusively
settled by various judgments. The Delhi High Court has
consistently held in cases including Ritu Verma v. National
Medical Commission (WP(C) No. 13163/2021), Amit Kumar
Agarwal & Ors. v. Union of India (WP(C) No. 7566/2022),
Surender Kumar Dabas & Anr. v. NMC (WP(C) No. 13757/2022),
Amit Kumar Agarwal & Ors. v. Union of India (LPA No.
687/2022), and Sunil Dhull v. NMC (WP(C) No. 4067/2023), that
only registered medical practitioners may appeal before the
EMRB. These judgments reiterate the NMC's position that it
lacks jurisdiction to entertain Appeals by private complainants.
While Regulation 8.8 of the Indian Medical Council
(Professional Conduct, Etiquette and Ethics) Regulations, 2002
earlier allowed both private complainants and medical
professionals to file Appeals, this provision has been eclipsed by
the provisions of the NMC Act, 2019. The NMC Act, being a
parliamentary statute, supersedes the earlier regulations made
under the Indian Medical Council Act, 1956. Therefore, after the
enforcement of the NMC Act on 25.09.2020, only registered
medical professionals are statutorily allowed to file such
appeals, and Regulation 8.8 is rendered inoperative. It is
pertinent to state that by virtue of Section 61 ofi theNMC Act,
t2002 Regulations are still invogue tillfresh regulations are
notified by the NMC.
Section 61(2) clarifies that, despite the repeal of the
Indian Medical Council Act, 1956, the standards, requirements,
and other provisions of that Act, and the Rules and Regulations
made thereunder, shall continue to remain in force until
replaced or superseded under the National Medical Commission
Act, 2019. The proviso to Section 61(2) provides that any actions
taken under the repealed enactment shall be deemed to have
been taken under the corresponding provisions of the new Act
and shall remain in force unless and until specifically replaced.
The respondent submits that the National Medical
Commission promotes medical ethics and maintains a National
Register for licensed medical practitioners as well as a separate
National Register for Community Health Providers. Section 10 of
the 2019 Act outlines the powers and functions of the
Commission. Additionally, Section 27 provides powers and
functions of the Ethics and Medical Registration Board. Section
30 pertains to State Medical Councils. The proviso to Section
30(2) clarifies that until a State Medical Council is established
in a particular State, the Ethics and Medical Registration Board
is authorized to receive complaints regarding professional or
ethical misconduct against registered medical practitioners in
that State. Section 30(3) states that a medical practitioner
aggrieved by an order of a State Medical Council may file an
appeal before the Ethics and Medical Registration Board.
Further, Section 30(4) provides that a second appeal against a
decision of the Ethics and Medical Registration Board may be
made to the Commission within 60 days. Section 31 provides for
maintaining the National and State Registers, while Section 33
outlines the rights and obligations of those licensed to practice
and registered on these registers. Section 34 lays down the
restrictions on practicing medicine. Section 57 allows the
Commission to make regulations, following prior publication, to
carry out the provisions of the Act.
It is stated, as per Section 27(1)(d) read with Section
30(3) the Ethics and Medical Registration Board adjudicates
only those appeals that are filed by medical practitioners who
are aggrieved by decisions of State Medical Councils. Section
30(4) provides for a second appeal to the Commission if the
practitioner is dissatisfied with the decision of the Ethics and
Medical Registration Board. The relevant provision of Section 30
is reproduced to clarify that only medical practitioners or
professionals can appeal, and that the Ethics and Medical
Registration Board or State Medical Council must provide a
hearing before any action is taken, including the imposition of a
monetary penalty.
It is stated that petitioner has alleged that his wife
passed away due to the alleged medical negligence of the 4th
respondent. In support of this allegation, the petitioner states
that he submitted a complaint dated 29.08.2013 to the
erstwhile Medical Council of India. This complaint was
subsequently forwarded to the Telangana State Medical Council,
which is respondent no. 3 in this case. The Telangana State
Medical Council issued an order dated 03.02.2021 whereby it
issued a warning to Dr. Shirin N. Taraporewalla, advising her to
be more careful in observing procedures and protocols in the
future. Aggrieved by the order dated 03.02.2021 petitioner filed
Appeal dated 18.03.2021 before the Ethics and Medical
Registration Board of the National Medical Commission. In view
of the legal position under Section 27(d) read with Section 30(3)
of the National Medical Commission Act, 2019, and based on
the decision taken by the Board in its meeting held on
06.10.2021, the Appeal was returned as the Board is not
empowered to entertain appeals by private parties or
complainants. The decision was communicated to petitioner by
way of letter dated 23.03.2022. Petitioner once again requested
respondent to consider his Appeal as a special case, through his
letter dated 16.08.2022. The respondent, via reply dated
03.10.2022 reiterated that it was unable to entertain the Appeal
due to the constraints imposed by the provisions of the 2019
Act. It is submitted that the Ethics and Medical Registration
Board (EMRB) of the National Medical Commission (NMC),
under the provisions of the 2019 Act is empowered only to
entertain and decide Appeals filed by registered medical
practitioners. Section 27(1)(d) read with Section 30(3) and 30(4)
of the NMC Act, 2019, provides a right of appeal against the
decision of the concerned State Medical Council before the
EMRB and a further appeal to the National Medical
Commission; however, such a right is expressly available only to
registered medical professionals.
It is further stated that the issue raised in the
present petition--whether the EMRB is empowered to hear
Appeals preferred by private parties or complainants (non-
medical practitioners such as petitioner) against orders passed
by State Medical Councils--stands conclusively settled. It has
been held that the answering respondent is not competent to
adjudicate Appeals preferred by private parties or complainants
and can only entertain those filed by registered medical
practitioners. Accoerding to this respondent, the present Writ
Petition is squarely covered by the judgment dated 29.03.2023
passed by the Hon'ble Delhi High Court in Sunil Dhull vs.
National Medical Commission, wherein it was again held that an
appeal under Section 30(3) of the NMC Act, 2019, is not
maintainable by a private party/complainant.
It is further stated that petitioner's reliance on
Regulation 8.8 of the 2022 Regulations is misconceived. While
Regulation 8.8 did provide for a right of appeal to both
complainants and registered practitioners under the erstwhile
IMC regime, the enactment of the NMC Act, 2019, has
superseded this position. Section 27(1)(d) read with Section
30(3) and 30(4) now restricts appellate jurisdiction to registered
practitioners alone. In the hierarchy of laws, the provisions of a
central statute override subordinate legislation such as
regulations. Therefore, after the enforcement of the NMC Act on
25.09.2020, Regulation 8.8 stands eclipsed and is inoperative to
the extent it contradicts the parent Act.
4. Respondent No. 4 filed counter stating that
Petitioner has not made out any valid, legal or factual ground to
invoke the extraordinary jurisdiction of this Court. It is clarified
that based on Section 33-C of the Act, since Petitioner does not
fall within the category of a "medical practitioner or
professional," the Appeal was not maintainable in law and was
thus rightly returned by Respondent No. 2. He is deliberately
refraining from responding to the various allegations raised in
paragraphs 3 and 4 of the Affidavit filed by Petitioner, as those
issues are subjudice and are pending adjudication in CC No.
2407 of 2019 on the file of the XXII Chief Metropolitan
Magistrate at Secunderabad and in C.C. No. 248 of 2013 on the
file of the State Consumer Redressal Commission at Hyderabad,
instituted under the provisions of the Consumer Protection Act.
Respondent No. 4 further stated that the legislative
intent behind Section 30(3) of the NMC Act, 2019 is to permit
only medical practitioners or professionals to file Appeals before
the Ethics and Medical Registration Board. He contends that
the law does not permit third parties, such as Petitioner, who is
not a medical practitioner, to invoke the appellate jurisdiction
under the said provision. Consequently, it is argued that a writ
of mandamus directing the Respondent No. 2 to entertain the
said Appeal cannot be issued in law and any such direction
would be in violation of the express provision of the statute.
5. Heard Ms. Bonthu Rajani, counsel appearing on
behalf of Sri Ch.B.R.P. Sekhar, learned counsel for petitioner,
Ms. Swapna Madhuri, Assistant Government Pleader, Ms.
Gorantla Sri Ranga Pujitha, Standing Counsel for the 2nd
respdnent and Sri Setty Ravi Teja, learned Counsel on behalf of
the 4th respondent.
6. The principal issue is whether a non-medical
person can invoke the appellate jurisdiction of the Ethics and
Medical Registration Board under Section 30(3) of the National
Medical Commission Act, 2019. The statute is clear in its terms.
It limits the appellate remedy to "a medical practitioner or
professional" aggrieved by an action of the State Medical
Council. The petitioner is not a person registered as a medical
practitioner, nor is he covered under the scope of a "medical
professional" as defined under the Act. The appeal dated
18-03-2021 filed by petitioner under Regulation 8.8 of the
Regulations, 2002, is not maintainable in view of the statutory
embargo under Section 30(3) of the NMC Act, 2019.
7. The Delhi High Court in Amit Kumar Agarwal's
case (supra), held in categorical terms that 'if the argument of
the learned Senior Counsel for the Appellant is accepted and is
held that any person aggrieved by an order of the Ethics and
Medical Registration Board can file an appeal to the Medical
Council then Section 30(4) of the Act becomes otiose. It is a
well-settled principle of law that each section is enacted /
legislated for a specific purpose and the Courts cannot interpret
a provision to make it nugatory. It is further settled law that
effort should be made to ensure that each provision has its play
and is harmoniously construed to iron out any repugnancy or
inconsistency that exists between two provisions in the same
enactment. In view of the above, Section 30 of the Act is a
special provision dealing only with disciplinary actions taken
against a medical practitioner or professional for ethical and
professional misconduct and restricts the right to appeal from
an order of the Ethics and Medical Registration Board only to
medical practitioners or professional. Section 22(3) of the Act
would not apply in case of professional misconduct.'
8. In the light of the above, the action of Respondent
No. 2 in returning the Appeal was, therefore, not arbitrary or
illegal but strictly in accordance with law. The judgments
rendered by the Delhi High Court, cited supra by the
respondent No.2 also support the said version. Petitioner has
no legal right under the said statutory provision to file the
Appeal and consequently, no mandamus can be issued. As held
in Union of India v. S.B. Vohra 1, mandamus can be issued
only when a public duty is owed to petitioner by the respondent
and petitioner has a legal right. Neither condition is satisfied in
the present case.
9. Further, petitioner is seeking to raise the same
allegations that are already being adjudicated in C.C. No. 2407
of 2019 on the file of the XXII Chief Metropolitan Magistrate,
Secunderabad and in C.C. No. 248 of 2013 on the file of the
State Consumer Disputes Redressal Commission at Hyderabad.
The attempt to simultaneously invoke writ jurisdiction in a
matter pending before competent judicial and quasi-judicial
forums is a clear abuse of process and cannot be entertained.
Moreover, allowing such writ petitions would amount to
judicially-enlarging the scope of a statutory right, which this
(2004) 2 SCC 150
Court is not inclined to do, especially in the presence of clear
legislative intent that restricts appellate remedies to members of
the medical fraternity alone. There is no infringement of any
fundamental right nor breach of any statutory duty by
Respondent No. 2. Therefore, this Court finds no merit in the
contentions raised by the petitioner and holds that Writ Petition
is liable to be dismissed.
10. The Writ Petition is accordingly, dismissed. No
costs.
11. Consequently, Miscellaneous Applications, if any
shall stand closed.
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NAGESH BHEEMAPAKA, J
28th May 2025
ksld
