Allowed

Medical Council of India v. the Registrar/Returning

Madras HC6 Dec 2013WA/2364/2013

Case brief

AI extract

What is this about?

The Division Bench allowed the writ appeal against an interim order that stayed the Medical Council of India's election of its Executive Committee. The court held that a delay in local university elections does not justify stalling the national council's election process. The court applied principles that once an election process commences, courts should not intervene to stall it unless absolutely

What did the court decide?

The interim order of the learned Single Judge staying the election to the Executive Committee of the Medical Council of India was set aside and the writ appeal was allowed.

Medical Council of India Vs the… — Pension and Retirement Benefits | Madras HC (2013)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 06.12.2013

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CORAM

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THE HONOURABLE MR. R.K.AGRAWAL, THE CHIEF JUSTICE AND

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THE HONOURABLE MR. JUSTICE K.RAVICHANDRABAABU

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W.A.No.2364 of 2013 and M.P.Nos.1, 2 and 3 of 2013

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Medical Council of India, presently under Board of Governors in Supersession of Medical Council of India, Through its Chairman, Pocket 14, Sector-8, Dwarka, Phase-1, New Delhi. .. Appellant ..vs..

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1.The Registrar/Returning Officer, Tamil Nadu Dr.M.G.R.Medical University, Rep. By its Registrar,

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No.69, Anna Salai, Guindy,

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Chennai 600 032.

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2.Tamil Nadu Dr.M.G.R.Medical University, Rep. By its Registrar, No.69, Anna Salai, Guindy, Chennai 600 032.

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3.Dr.L.P.Thangavelu

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4.The Secretary to Government of India,

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Ministry of Health and Welfare, Nirman Bhawan, New Delhi 110 115. ...Respondents

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Prayer:Writ Appeal filed under Clause 15 of the Letters Patent against the order passed by the learned Single Judge in M.P.No.7 of 2013 in W.P.No.23914 of 2013 dated 19.11.2013.

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M.P.NO.7/2013: to pass interim direction to direct the Medical Council of India that the Constitution of the Executive committee and the election to the president, Vice President and other office bearers are to be kept in obeyance till such time as election to the members to the Medical Council of India from this University under Sect. 3 (1) (b) of IMC ACT, 1956 pending disposal of the https://hcservices.ecourts.gov.in/hcservices/ W.P.No.23914 of 2013.

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W.P.No.23914 of 2013:

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Petition filed under Article 226 of the Constitution of India, praying to to issue a writ of Certiorarified Mandamus to call for the entire records in connection with the impugned notification of the 4th respondent in RC. No.EIII(4)/ 08403/ 2013 dated 23.8.2013 and quash the same and consequently direct the respondents 3 and 4 to conduct the election as per Rule 4 of the Indian Medical Council Rules.

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For Appellant : Mr.V.P.Raman For Respondents : Mr.A.L.Somayaji for RR1 and 2

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Advocate General

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Assisted by Mr.Sanjay Ramasamy R3-Notice stage Mr.C.Kanakaraj for R4 CGSC

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J U D G M E N T

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This writ appeal is filed challenging the interim order passed by the learned Single Judge in M.P.No.7 of 2013 in W.P.No.23914 of 2013 dated 19.11.2013. Through the said interim order, the learned Single Judge restrained the appellant herein, who is the second respondent in the above writ petition, from conducting the meeting of medical council on 10^th and 11^th December 2013 for the purpose of electing the Executive Committee and further directed the appellant to convene the meeting on any date after 17^th December 2013 so as to enable the members from the Tamil Nadu to participate to elect the Executive Committee. Thus, by passing such interim order, the learned Judge posted the writ petition on 18^th December 2013.

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2.The above writ petition was filed by the third respondent herein, challenging the notification issued by the Registrar/Returning Officer, Tamil Nadu Dr.M.G.R.Medical University and the Registrar/Returning Officer of the said University for conducting the election as per Rule 4 of the Indian Medical Council Rules.

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3.Through the said impugned notification dated 23.08.2013, the election of members to the Medical Council of India among the members of Medical Faculty of the Tamil Nadu Dr.M.G.R.Medical University was notified by inviting the members of the Senate and Medical Faculty of the said University to attend a Special Meeting of the Senate to be held at 11 a.m. on 29.08.2013.

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4.The grievance of the writ petitioner is that fixing the date of election as 29.08.2013 was contrary to Rule 4(a) of the Indian Medical Council Rules, 1957 as 30 days notice was not given by the Registrar. It is his further grievance that the said notification selecting the members from various branches of https://hcservices.ecourts.gov.in/hcservices/ faculties only in 11 colleges leaving 21 other colleges is an act

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of discrimination. Apart from raising these grounds, the writ petitioner also raised other grounds and challenged the said election notification issued by the Tamil Nadu Dr.M.G.R.Medical University. Thus, in effect, the grievance of the writ petitioner and the relief sought for in the writ petition are only against the Tamil Nadu Dr.M.G.R.Medical University and the Registrar/Returning Officer of the said University in respect of conduct of the election of its members to Medical Council of India. Thus, the very averments made in the writ petition as well as the prayer sought for therein would show that the petitioner has no grievance against the Medical Council of India, though they have been arrayed as the second respondent therein.

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5.In the said writ petition, the Tamil Nadu Dr.M.G.R.Medical University and its Registrar/Returning Officer, who have been arrayed as respondents 3 and 4 therein, filed an interim application in M.P.No.7 of 2013 seeking for a direction to the appellant herein to keep the constitution of Executive Committee and the election to the President, Vice President and other office bearers in abeyance, till such time an election to the members of the Medical Council of India from the Tamil Nadu Dr.M.G.R.Medical University is conducted. The said interim application came to be filed by the Tamil Nadu Dr.M.G.R.Medical University on the ground that the above writ petition as well as another writ petition filed by one Association called the Tamilnadu Private Professional College Association, Chennai came to be filed against the University challenging its election notification, wherein an interim order of stay of the notification was issued by the writ court on 27.08.2013 and because of that, the University could not elect its members within the time before reconstitution of the Medical Council of India.

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6.It is further contended that if election to the Executive Committee to the Medical Council of India is conducted before the members of University are elected to Medical Council of India, their rights will be seriously prejudiced.

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7.The learned Judge, by observing that the State of Tamil Nadu would be put to great prejudice in case the election to Executive Committee of Medical Council of India is conducted even before the conclusion of the election process initiated by the Tamil Nadu Dr.M.G.R.Medical University, passed the interim order directing the postponement of election to the Executive Committee of Medical Council of India.

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7(a) As the present Appeal has been filed against an interim order passed by the learned Single Judge and the arguments advanced at the Bar on the application filed by the Respondent No.2 herein to vacate the exparte interim order passed by the Court in this Appeal are subject to dispose of the Appeal, we are proceeding to decide the appeal itself.

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8.Heard Mr.V.P.Raman, learned counsel appearing for the https://hcservices.ecourts.gov.in/hcservices/ appellant, Mr.A.L.Somayaji, learned Advocate General appearing for

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respondents 1 and 2 as well as Mr.C.Kanagaraj, learned Central Government Standing Counsel appearing for the fourth respondent.

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9.The learned counsel appearing for the Appellant submitted that merely because the Tamil Nadu Dr.M.G.R.Medical University is not in a position to conduct the election in view of the pendency of the above writ petition and the interim order passed therein, that cannot prevent the Medical Council of India to go ahead with election to the Executive Council in view of the fact that both elections are being conducted for two different bodies and merely because one member to the Medical Council of India is not elected, that will not preclude the MCI from convening the meeting for conducting the election to the Executive Committee.

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10.Learned Advocate General appearing for the Tamil Nadu Dr.M.G.R.Medical University submitted that the University sought for clarification from the Medical Council of India on 07.08.2013 with regard to the number of members to be elected and the MCI replied only on 03.09.2013 and clarified the said position. Thus, he contended that in view of the reply given by the University and subsequent Ordinance issued on 28.09.2013, the election could not be conducted by the University immediately and therefore, the election to the Executive Council of Medical Council of India has been rightly postponed by the learned Single Judge.

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11.From the facts and circumstances narrated above, it is clear that the interim relief sought for by the Tamil Nadu Dr.M.G.R.Medical University against the Medical Council of India is not only an inter se dispute between the respondents in the above said writ petition and also an interim relief sought outside the scope of the main relief sought in the writ petition.

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12.Admittedly, the writ petitioner did not seek any relief of postponement of election to the Executive Committee of Medical Council of India. Equally, the Tamil Nadu Dr.M.G.R.Medical University has also not challenged the conducting of election by the Medical Council of India to its Executive Council by any separate proceedings. When that being the factual position, we wonder as to how such an interim application is maintainable, that too, at the instance of another respondent against the appellant herein. Needless to say that an interim relief sought for during the pendency of the main petition should be within the ambit and scope of the main relief itself and cannot travel beyond the scope of the main relief. If the interim relief sought is having an effect of an independent right sought to be established against any of the parties to the proceedings, then it is to be held that such interim application is not maintainable and that the applicant who prayed such interim relief has to work out his remedy only through a separate proceedings as the relief sought in the interim application arises out of an independent cause of action.

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13.At this juncture, it is useful to refer to the decision of the Division Bench of this Court reported in AIR 1958 MADRAS 287 https://hcservices.ecourts.gov.in/hcservices/ (V 45 C 89),K.P.M.Aboobucker v. K.Kunhamoo and others, wherein at

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paragraph 13, it has been held as follows:

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"An interim relief granted during the pendency of a suit should not be of greater scope than what could be granted in the suit itself, after the party has established his right in the suit to that relief."

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14.No doubt, through the proceedings dated 14^th June 2013, the Government of India, Ministry of Health and Family Welfare Department, New Delhi, requested all the Registrar of University/Health University, as per the list enclosed therein, to conduct election for electing a member under section 3(1)(b) of the Indian Medical Council Act from their respective University/Health University and to send the name of the elected candidate/candidates to the said Ministry latest by 31.08.2013. However, the said deadline fixed was further extended to 20.09.2013 by another communication dated 03.09.2013 of the said Ministry which fact is also not in dispute.

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15.We find force in the argument advanced by the learned counsel appearing for the appellant, for the simple reason that the election to the Executive Committee of Medical Council of India is conducted among the members of Medical Council of India representing various parts of the country. Merely because there is a vacancy in respect of a member of one University or Health University, certainly that will not prevent or prohibit the Medical Council of India from conducting election to the Executive Committee. It is not as though the members who are to be elected from the University are totally prevented from taking part in the election to the Executive Committee once for all. Certainly, they are entitled to take part if they get elected within the timeframe fixed for election to the Executive Committee of Medical Council of India. For some reasons, if the election of the member of the Medical University is stalled or postponed, that should not have an impact on the election to the executive council of Medical Council of India as a whole.

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16.For instance, election to the President of India is being conducted among the members of electoral college consisting all elected members of both houses and the elected Members of Legislative Assembly of the States as contemplated under Article 54 of the Constitution of India. For some reason, if there is a vacancy in respect of a Member of Parliament or Member of Legislative Assembly of any State, or any State Legislative Assembly has been dissolved the election to the President is not postponed till such vacancy is filled up or the State Legislative Assembly is constituted after the election of its members. Likewise, even in respect of election to the Vice President of India, he shall be elected by the Members of electoral College consisting of both the houses of Parliament. Here again, such election to the Vice President is not postponed merely because there is a vacancy in respect of a Member of Parliament of any of the houses. The same analogy has to be applied in this case also.

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https://hcservices.ecourts.gov.in/hcservices/ 17.As we have pointed out earlier, the University herein

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cannot stall the election process of Medical Council of India to elect members to its council on the above said reasons. In this case, we have already noted that the original deadline fixed as 31.08.2013 was subsequently extended upto 20.09.2013 and within which time if the election is conducted, then the members so elected are entitled to take part in the election to the Executive Council. If no election is conducted in the meantime, it is the lookout of the University and such delay or impediment in conducting the election by the University cannot stall the main election to be conducted by the Medical Council of India to the Executive Council.

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18.It is well settled that once the election process commenced, then the same cannot be stayed by the Courts. At this juncture, it is useful to refer to the following decisions of the Apex Court on this aspect:

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(a) In 2011 (13) SCC 774, Supreme Court Bar Association and Others v. B.D.Kaushik, at paragraphs 43 and 61, the Apex Court has held as follows:

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"43.It hardly needs to be emphasised that in any body governed by democratic principles, no member has a right to claim an injunction so as to stall the formation of the governing body of the Association. No such right exists in election matters since exercise of a right conferred by a rule is always subject to the qualifications prescribed and limitations imposed thereunder.

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61.This Court has no doubt at all that the injunction granted by the learned Judge has propensity to intervene and interfere with the election process which had already started. Apart from the prayers claimed in the applications filed under Order 39 Rules 1 and 2 read with Section 151 CPC the Court could not have ignored the effect of granting an injunction. If the injunction granted by the learned Judge had not been stayed by this Court, the office-bearers of SCBA would have been required to prepare a new voters' list as if unamended Rule 18 was in operation and the exercise undertaken by them for preparing voters' list in the light of the amended Rule 18 would have been of no consequence. Thus the injunction claimed by the respondent-plaintiffs which had very wide repercussions on the elections, which were to be held in the year 2003, should not have been granted by the learned Judge."

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(b) In another decision reported in 2001(8) Supreme Court Cases 509, Shri Sant Sadguru Janardan Swami (Moingiri Maharaj) Sahakari Dugdha Utpadak Sanstha and Another v. State of Maharashtra, the Apex Court has held at paragraph 12 as follows:

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"12.In view of the finding that preparation of

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the electoral roll being an intermediate stage in the process of election of the Managing Committee of a https://hcservices.ecourts.gov.in/hcservices/ specified society and the election process having been

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set in motion, the High Court should not stay the continuation of the election process even though there may be some alleged illegality or breach of rules while preparing the electoral roll."

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(c) In another decision reported in 2000 (8) Supreme Court Cases 216, Election Commission of India v. Ashok Kumar, the Hon'ble Supreme Court considered the jurisdiction of the High Court to entertain the petitions under Article 226 of the Constitution of India to issue interim direction after commencement of electoral process. At paragraph 32 of the said decision, it has been observed as follows:

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"32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:

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(1) If an election, (the term election being widely interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.

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(2) Any decision sought and rendered will not amount to "calling in question an election" if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.

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(3) Subject to the above, the action taken or orders issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.

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(4) Without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court.

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(5) The court must be very circumspect and act with caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The https://hcservices.ecourts.gov.in/hcservices/ court must guard against any attempt at retarding,

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interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the court's indulgence by filing a petition outwardly innocuous but essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material."

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19.Considering all these facts and circumstances, we hold that the interim order granted by the learned Judge in M.P.No.7 of 2013 in W.P.No.23914 of 2013 is unsustainable. Accordingly, we allow the writ appeal and consequently, set aside the order made in

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the said miscellaneous petition. No costs. The connected miscellaneous petitions are closed.

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Sd/Assistant Registrar //True Copy// Sub Assistant Registrar To 1.The Registrar, The Registrar/Returning Officer, Tamil Nadu Dr.M.G.R.Medical University, No.69, Anna Salai, Guindy, Chennai 600 032. 2.The Registrar, Tamil Nadu Dr.M.G.R.Medical University, No.69, Anna Salai, Guindy, Chennai 600 032.

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3.The Secretary to Government of India, Ministry of Health and Welfare, Nirman Bhawan, New Delhi 110 115. 1 CC to Mr.V.P.Raman Advocate, SR.No.63720 1 CC to Mr.Sanjay Ramasamy Advocate, SR.No.63643 JUDGMENT IN W.A.No.2364 OF 2013 VD(CO) JJM (06.12.2013)

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https://hcservices.ecourts.gov.in/hcservices/

Medical Council of India v. the Registrar/Returning

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Medical Council of India v. the Registrar/Returning

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