In W.P.A. No. 8140 of 2022 – CAL HC – Calcutta HC dissolves West Bengal Medical Council, directs for fresh elections after overseas Indian doctor pleads it has been continuing unlawfully Justice Sabyasachi Bhattacharyya [29-06-2022]

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Read Order: DR. KUNAL SAHA V. WEST BENGAL MEDICAL COUNCIL (WBMC) AND ANOTHER

Mansimran Kaur

The Calcutta High Court has allowed a petition seeking dissolution of the present West Bengal Medical Council, holding that it is continuing unlawfully in complete contravention of Article 14 and Article 19 of the Indian Constitution and the safety and well-being of the citizens at large, since the illegality affects the functioning of the entire medical community.

The petitioner in the case, a medical practitioner and an Overseas Indian Citizen, had submitted that the five-year statutory term of the last elected Medical Council of West Bengal expired on July 15, 2018, and that no election, as provided in law, has been held since then and the last-elected body has been continuing in office unlawfully.

A Single bench of Justice Sabyasachi Bhattacharyya observed that the 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 Bengal Medical Act, 1914.

The Single Judge bench was of the opinion that “the present Council members took no steps worthy of exhibiting their bona fides for taking steps to organise elections after the year 1988 but chose to hibernate in the stupor of protracted perpetuation of their power”. 

The respondents, on the contrary objected to the locus standi of the petitioner to maintain an application under Article 226 of the Indian Constitution, since he was not the citizen or resident of India.  It was further contended that the petitioner practiced fraud upon the Election Commission and the Court by participating in the elections and moving this court in writ jurisdiction.

After giving anxious consideration to the submissions of the parties, the Court observed that it was an undisputed fact that the last elected Medical Council of West Bengal had already completed its tenure of five years on or about July 15, 2018. 

It was further noted by the High Court that the prime question of law for determination before this Court was to ascertain the proper ambit of Section 11 (2) of the 1914 Act.  In view of the same the Court observed that a bare reading of sub-section (2) of Section 11, as a standalone provision, seemed to confer on an once-elected/nominated Council the charter to continue till the next notification which, as per subsection (1), is published by the State Government in the Official Gazette, signifying the commencement of the term of office of the next elected Council.

Further, the Court took into consideration Section 11 A (4) which stipulates 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, the Court noted. 

Thus, keeping in view the construction of both the provisions, the Court stated that the principle of Ejusdem Generis needs to be followed. In furtherance of the same, the Court noted that 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.

Additionally, the Court opined that the 1914 Act“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 a procedure, which lends primacy to the electoral process over nomination, ensures the underlying democratic spirit in the constitution of such council”. 

The petitioner’s right as the aggrieved party as inferred from a proper reading of the 1914 Act was undoubtedly contravened and thus the same justified the invocation of the writ jurisdiction, the Court opined. 

The contravention alleged is not merely of Article 14, but also of Article 19 of the Constitutionof 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 wellbeing of the entire community, the Court submitted. 

Thus in light of the foretasted observations, this Court condemned the palpable inaction on the part of the West Bengal Medical Council in not conducting the elections timely and/ or constituting a new Council since 1988. 

Hence, the present petition was 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.

The High Court issued further directions for formation of an ad-hoc council that shall ensure fair play and transparency in the entire process of elections, nominations, and other formalities for constitution of the new Council.

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