Calcutta High Court Dismisses Plea Challenging WB Medical Council Appointments, Says No Gross Illegality In Nomination Process

The Calcutta High Court has recently dismissed a plea which challenged appointments to the West Bengal Medical Council (“WBMC”), and sought for dissolution of the entire Council.

A single-bench of Justice Sabyasachi Bhattacharya noted that while the plea pertained to dissolution of the entire council, arguments and pleadings had only been advanced against the election of the President and VP of the Council.

In dismissing the plea, the Bench observed:

The newly-elected Council has already functioned and has taken several decisions in the interregnum. Thus, a subsequent challenge at this juncture on a purely technical ground, if sustained, would set the clock back and might undo several decisions of the Council. The petitioner has not made out any strong case. In view of the above observations, I do not find any gross illegality in the process of recommending and nominating the President and electing the Vice President or the election process of the new West Bengal Medical Council sufficient to upset the apple cart at this belated stage.

Petitioners had argued that Sections 7 & 11 of the Bengal Medical Act 1914 (“1914 Act”) laid down the various modalities pertaining to the nomination, election and notification of appointment of the President and VP of the Council.

It was argued that in the present case, notification under Section 7 and 11(1) was published in the Official Gazette on November 3, 2022, but the meeting of the Council had already been held on 1^st November, before the publication of the notification making it violative of Sections 11A and 11B of the 1914 Act, which stipulated that the first meeting be held “after the notification.”

It was argued that it would have been physically impossible to gather all members of the Medical Council within the 1^st of November, at such short notice, since the membership of the Council was spread out all over West Bengal.

It was submitted that henchmen having political leanings towards the State Government were hand-picked in hot haste by flouting the provisions of law.

Counsel for the WBMC took exception to the locus standi of the petitioner and submitted that he was an overseas citizen of India (“OCI”) and was hence debarred from participating in any electoral process in the Country.

Counsel submitted that although the petitioner was a registered medical practitioner in West Bengal, he was neither a citizen of India, nor resides in India and hence did not possess any legal right which had been infringed.

It was further submitted that the petitioner was not a member of the body which elected the president or VP of the WBMC and hence did not have any actionable legal right, also due to the fact that the present plea was not a public interest litigation.

On merits it was submitted that the notification regarding composition of the Council was published on November 1, 2023, but only the official gazette publication happened on November 3. As such it was argued that there was no illegality which had occurred in the present case.

In dealing with the issue of locus standi, the Court noted that even in an earlier judgement pertaining to the WBMC, where the petitioner was a litigant, the a co-ordinate bench of the Court had noted that the petitioner had locus standi to raise issues similar to the present case.

Any citizen of India can very well bring to the notice of the Court a patent illegality in the functioning of a Medical Council of a State. The petitioner, [is] a registered medical practitioner. Illegalities in the election process of the very Medical Council which governs such practice definitely infringe the rights of the petitioner, both on a legal footing and on a Constitutional perspective, it observed.

On the issue concerning the expression “after the notification” under Section 11A(1) of the 1914 Act, it was observed that the said section did not make it mandatory for the first meeting to be held after the publication of the notification.

It was held that the said section instead stressed on the fact that valid members of the Council would have to submit three names in their first meeting, out of which one may be nominated as president of the council by the State government.

Court noted that a notification had already been made on 1^st November, which was published on 3^rd November, meaning that the members of the Council had already been selected on the 1^st, and hence were eligible to recommend names for position of president in their first meeting.

In any event, Section 11A (1) does not couch the requirement of the first meeting being after the notification in mandatory language. The said provision is not in negative form, saying that the first meeting cannot be held in any circumstance before the date of publication of the notification in the Official Gazette or, if so conducted, the meeting would be rendered null, Court observed.

In conclusion, the Court held that at such a belated stage, in absence of any substantial illegalities, the election of the Medical Council and its president and VP could not be negated on the grounds of an alleged technical error.

Accordingly, the plea was dismissed on merits.

Citation: 2023 LiveLaw (Cal) 331

Case: Dr. Kunal Saha Vs. Registrar, West Bengal Medical Council (WBMC) & Another

Case No: WPA 14447 of 2023

Click Here To Read/Download Order