Allowed

M/s. Healthcare Reforms Doctors Association, v. The State of Telangana.

Telangana HC6 Dec 2022WP/1111/2019

Case brief

AI extract

What is this about?

Challenge to a Telangana adaptation order reducing elected members of the State Medical Council from thirteen to five, and to the continued functioning of an interim council for over six years without elections. The High Court held the reduction a substantive amendment beyond the adaptation power and struck it down, directing elections within three months.

What did the court decide?

Para 4(3)(i) of G.O.Ms.No.68 dated 03.08.2015 struck down; Interim Telangana State Medical Council allowed to continue three months; respondent No.1 to hold elections and complete nominations within t

M/s. Healthcare Reforms Doctors… — Constitutional and Fundamental Rights | Telangana HC (2022)

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HIGH COURT FOR THE STATE OF TELANGANA^- AT HYDERABAD (Special Original Jurisdiction)

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TUESDAY, THE SIXTH DAY OF DECEMBER TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE UJJAL BHUYAN AND

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THE HONOURABLE SRI JUSTICE C.V. BHASKAR REDDY

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WRIT PETITION NO: 1111 OF 2019 AND WRIT PETITION NO.1O24O OF 2021

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W.P.No.1111 of 2019

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Between:

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M/s. Healthcare Reforms Doctors Association, a Society registered under the Andhra Pradesh Societles Registration Act, 2001 bearing Registration No. 581 of 2017 and having its office at Plot No. 222, Road No.14, Brundavan Colony, Saroomagar, Hyderabad-35, rep its President /Authorised representative, Dr. K.Mahesh Kumar, S/o. Sri. K. Veeraiah, aged about 36 years, Rio. Plot No.222, H.No.10-6-229, Road No.14, Brindavan colony, Saroornagar, Hyderabad- 500 035.

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...PETITIONER

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AND

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TheStateof Telangana., Represented by its Special Chief Secretary, Health, Medical and Family Welfare Department, Secretariat buildings, Hyderabad.

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Telangana State Medical Council, Sultan Bazar, Hyderabad 500 095 represented by its Registrar.

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...RESPONDENTS

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Petition Under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus a. setting aside para 4 (3Xi) of the notification in G.O.Ms. No.68 dated 3.08.2015 issued by the 1St respondent as illegal and arbitrary, without^jurisdiction b. setting aside G.O.Ms. No. 15 dbted 6.01.2016 issued by the 1't respondent as illegal and arbitrary, without^jurisdiction and direct the 1st respondent to immediately conduct election to choose the members of the 2 respondent as per section 3(2) of the Andhra Pradesh Medical Practitioners Registration Act,^.1968 (Act No. 23 of 1968) Amended Act No.28 of

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1986 and Amended Act No. 10 of 20'13 and the Telangana State Medical Council Adaptation notification vide G.O.Ms. No.68 dated 3.08.2015 issued by the 1st respondent.

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Counsel for the Petitioner : SRI.SAMA SANDEEP REDDY

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counsel for the Respondefts : SRI.N.PRAVEEN KUMAR / GP FOR MEDICAL HEALTH AND rA^ILY WELFARE

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W.P.NO: 10240 OF 2021

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Between:

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Dr. Arundhathi Baki, D/o. Sri B. Balarai, Aged about 32 yrs., R/o. H. No. 4-54, Mankhal, lrrlaheshwaram, Ranga Reddy, Telangana-501358.

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Dr. Pavan Kumar Namala, S/o. Sri. N. Viswanatham, Aged about 38 yrs., Rio. H. No. 3-5-9912, Shiva Nagar colony, Hyderguda, Ranga Reddy, Telangana500 048.

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Dr. Gopireddy Anirudha, S/o Sri. G. Yugandhar, Aged about 30 yrs., Rio. P. No. 35/8, Road No. 8, High court Colony, Vanasthalipuram, Ranga Reddy, Telangana-500 070.

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...PErTrONER(S)

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AND

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The State of Telangana, Represented by its Special Chief Secretary, Health, ft/edical and Family Welfare Department, Secretariat buildings, Hyderabad.

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Telangana State Medical Council, Sultan Bazar, Hyderabad - 500 095 Represented by its Registrar

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...RESPONDENTS

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Petition under Article 226 of the Constitution of lndia praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased to issue an appropriate Writ, Order or Direction, more particularly one in the nature of Writ of Mandamus. setting aside para (3)(i) of the notification in G.O.Ms. No. 68 dated 3lOBl2O15 issued by the 1st respondent as illegal and arbitrary, without^ju risdiction.

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t.A.NU:1^gts ZU t'l

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Petition under Section 151 CPC; praying that in the circumstances stated rn the affidavit filed i'r support of the petition, the High Court may be pleased to direct respondents to conduct election to 13 posts of elected members of the 2nd respondent as per section 3(2) of the Telangana Medical Practitioners Reglstratlon Act, 1964 Amcnded Act l.lo. 1O of 2013_

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Counsel for the Petitioner : SRI.SAMT\ SANDEEP REODY

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Counsel for the Respondenls : SRI.N.PRAVEEN KUMAp / Gp FOR MEOTCAL HEALTti AND FAiflLy WELFARE

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The Court made the following COMMON ORDER

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THE HON'BLE THE CHIEF JUSTICE UJJAL BHUYAN AND THE HON'BLE SRI JUSTICE C.V.BHASKAR REDDY

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WRIT PETITION No.1 1l l OF 2019 AND WRIT PETITION No.lO24O OF 2O2l

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COMMON ORDERi^(Per Llrc HotL'bl. tha Clti,[,h1stu'e t]io) BLuluen)

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This order will dispose of writ petition Nos. 11 11 of 2Ol9 and IO24O of 2021.

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We have heard Mr. Sama Sandeep Reddy, learned Counsel for the petitioners and Mr. N. Praveen Kumar, learned Government Pleader for Health, Medical & Family Welfare Department, Government of Telangana representing the respondents.

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Writ petition No. 1 1 I I of 2Ol9 has been filed by M/s.Healthcare Reforms Doctors Association, a society registered under the then Andhra Pradesh Societies Registration Act, 20O1 (now Telangana Societies Registration Act, 2001) and is represented by its President Dr K.Mahesh Kumar, who is a resident of Saroornagar in the city of Hyderabad. Prayer made in the writ^petition is as foilows:

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a setting aside para 4(3)(i) of the notification in G.O.Ms.No.68 dated 03.08.2015 issued by the I

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respondent as illegal and arbitrary,^{</sup> 'ithout jurisdiction;}

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lr setting aside G.O.Ms.No.15 dated 06.01.2016 issued by thc 1"' respondent as illegal and arbitrary, without juriscLiction and direct the l"t respondent to immediately conduct election to choose the members of the 2*r responclent as per section 3(2) of the .Andhra PraCesh Medical Practitioners Registration Act, i968 (Act No.23 of 1968) Amended Act No.28 of 1986 and Amended Act No.10 of 2013 and the Telangana State l,4eriical Council Adaptation notification vide G.O.Ms.No.68 dated 03.08.2015 issued by the I "' respondent:

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C pass such other order or orders as are deemed fit and proper in the circumstances of the case.

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Likewise, writ petition No.1024O of 2O2L has been filed by three doctors of Ranga Reddy District in the State of Teiangana being Dr. Arundhathi Baki, Dr. Pavan Kumar Namala and Dr. Gopireddy Anirudha. In this writ petition also, petitioners seek quashing of para a(3)(i) of the notilication in G.O.Ms.No.6B dated 03.08.2015 issued by the first respondent.

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Issue raised in both the writ petitions is to the constitution of Telangana State Medical Council, a disciplinary and controlling body established under the then Andhra

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Pradesh Medical Practitioners Registration Act, 1968 (now Telangana Medical Practitioners Registration Act, 1968), as amended, by having the elected members representing the practising doctors who are members of the Telangana State Medical Council, a majority say in its functioning as well as holding of election to the Medical Council by setting aside the Interim Medical Council.

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For the sake of convenience, we may refer to the facts narrated in the lirst writ petition, namely, writ petition No. 1l11of2Ol9.

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Legislature of the composite State of Andhra Pradesh enacted the Andhra Pradesh Medical Practitioners Registration Act, 1968. It is an act to consolidate and amend the law relating to registration of medical practitioners of modern scientif,rc medicine in the then composite State of Andhra Pradesh. In terms of Section 3(1) of the Andhra Pradesh Medical Practitioners Registration Act, 1968 (briefly, 'the Medical Practitioners Registration Act', hereinafter), the State Government by notification shall establish a Council called Andhra Pradesh Medical Council which is a body corporate

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having perpetr:al successiott and a common seal which can sue or be sr.rr d in its nanre. Primary responsibility of the Medical Courrcil is to register the eligible medical graduates of modern scientilic medicinr', maintain professional standards and to discharge other func t ions as provided in the Medical Practitioners R,rgistration Act as well as those provided in the Indian Medical Council Aci. 1!t56. It is basically a watchdog body on thc prolessional at'tivities of medical practitioners. As per Section 3(21, Andhra Pradesh Medical Council (briefly, the Meciical Council' hereinafter') shall consist of the following members:

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(a) Two members to be elected in the prescribed manner bv the members of the Executive Council of the University of Health Sciences from amongst the persons in the State holding any degree in modem medicine;

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(b) Thirteen members to be elected in the prescribed manner by the registered medical practitioners from amongst themselves:

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(c) Six members to be nominated by the State Government out of whom two shall be from amongst teaching stalf of the medical colleges in the State; and (d) Director of Medical Education and Director of Health and Family Welfare.

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7.1. As pcr thc Amendmenl Act No.2B of 1986 r.r,ith effect from 01.O4. 1!t!,9, go--issiorrcr of Andhra Praclesh Vaidva

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Vidhana Parishad was added as a member of the Medical Council under category (d) above.

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B. Section 4 provides that an elected or nominated member of the Medical Council shall hold office for a period of five years from the date of his/her election or nomination.

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8.1. Sub-section (1) of Section 5 provides that the Medical Council shall elect from amongst its members a Chairman who shall ordinarily hold office for a period of two years from the date of his election as Chairman and shall be eligible for re-election. As per the proviso, for a period of two years from the date of the hrst constitution of the Medical Council, one of the ex officio members referred to in clause (d) of sub-section (2) of Section 3 nominated by the government shall be the Chairman of the Medical Council.

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The then Government of Andhra Pradesh had issued a notifi cation vide G. O. Ms. N o.662 dated 1 9. 12. 199 | constituting the governing body of the Medical Council whereafter the first meeting of the Medical Council was held on 2l .O3.1992.

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Elcctions u.ere held t,r t}'r,: Medical Council in the later part ol the .ear 2006. Follor,i inil which the elected body of the Medical Council took charg<'on 03.01.2007.

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10.1. On 13.11 2011. Chairrr:rrr of the Medical Council wrote to the then Government of Andhra Pradesh stating that term of the elected bociy r.t,as going to expire on O2.O1.2012- It was mentioned that as per requircm,:nt of the Medical Practitioners Registration Acr, the electoral rolls would have to be prepared, updated and n,rtified for condtrcting elections to the Medical Council. Because of administrative problems, the electoral rolls could not be revised and notified. Chairman mentioned that the said exercise rvould be r:orrirleted by 31 .12.2011. In those circumstances, he requestcrl tl-re government to extend the term of the afort:said elected body by a period of one year.

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i1. The then Government of Andhra Pradesh issued G.O.Rt.No.8 dated 02.O1.2012 notilying an interim council as a stop gap arrangement with six doctors as its members for a period of one .vear or till tlre Medica.l Cor-rncil wa-s freshllr constituted, u,hichever u,as carlier. Again, acting on a letter dated O5.7O.2O12 of the Chairman, the State Government

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issued G.O.Rt.No. 1839 dated 28. l2.2ol2 extending the term of the interim council constituted vide G.O.Rt.No.B dated O2.O1.2012 for a further period of one year or until completion of elections to the Medical Council, whichever was later.

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Thereafter, by way of Amendment Act No. 10 of 2013, certain amendments were carried out to the Medical Practitioners Registration Act. Most notable and relevant for the present case is that the number of elected members as provided under Section 3(2)(b) was reduced from thirteen to seven members. Again, the number of nominated members as per Section 3(2)(c) was reduced to four. That apart, Vice Chancellor of Dr NTR University of Health Sciences was also made a member of the Medical Council under Section 3(2)(d)

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The composite State of Andhra Pradesh was trifurcated into tu''o states, the State of Telangana and the State of Andhra Pradesh by virtue of the Andhra Pradesh Reorganization Act, 2O14, with effect from 02.06.2014. As on O1.O6.2074, the Medical Council to be constituted under Section 3(2) consisted of the following:

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{a) Two members to be elected in the prescribed manner by the members of the Executive Council of the

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University of Health Scienccs in the State from amongst the persons in the State holding any degree in modern medicine;

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(b) Seven members to be elected in the prescribed manner by the registr:red medical practitioners from amongst tl)emselves;

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(c) Four members to be nominated by the Governmer'It of whom two shall be from amongst such members ,rf the teaching staff of the medical colleges in the State.rs are registered practitioners; and (d) Director of Mcdical Education, Director of Health arrd Pamily Wclfare, Commissioner, Andhra Pradesh Viaidya Vidhana Parishad and Vice-Chancellor, Dr. NTR University of Health Sciences, A.P.

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After biftrrcation of tlrc conrpt-rsite SLate of Andhra Pradesh and lormation of the State of Telangana, first respondent isstLed G.O.Ms.No.6B dated 03.08.2015 in order to adapt the Medical Practitioners Registration Act, as amended as on 02.06.20 I4, for the purpose of facilitating its application to the new State o[ Telangana.^'ihe above exercise was carrieci out under Section 101 of the Andhra Pradesh Reorganization Act, 2014. In the notification which was issued vide G.O.Ms.No.68 dated 03.08.2015, Section 3(2) of the Medical Practitioners Rr'gistration Act ^ as amended; instead of seven elected members, the same r.vas reduced to five members. Further, in place of 'Dr. NTR University of Health Sciences,

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A.P' in Section 3(2)(d), 'Kaloji Narayana Rao University of Health Sciences, Telangana' was substituted

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Thereafter, first respondent again issued G.O.Rt.No. i5 dated O6.O1.2016 constituting an Interim Telangana State Medical Council comprising of four registered medical practitioners as its members. However, G.O.Rt.No. 15 dated 06.0l .2016 is silent as to the term of the Interim Telangana State Medical Council though the same was intended to be only a stop gap arrangement to discharge day to day activities.

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Petitioner has expressed two grievances. The first grievance is that since the year 2OO7 there has been no election to the Medical Council. Right now only an Interim Medical Council constituted vide G.O.Rt.No.15 dated 06.Ol .2016 is in place. Even the said G.O.Rt.No. 15 had constituted the Interim Telangana State Medical Council only as a stop gap arrangement. This situation cannot continue for an indefinite period. Elections are required to be held for constituting a regular Medical Council.

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1. Second grievance pertains to reduction of elected members 1n the Medical Council bv G.O.Ms.No.68 dated

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03.08.2015. Initially number of elected members vi,ere thirteen which was later on reducecl to seven and finally to hve. But there is no proportionate reduction of nominated members. As a result, the elected members are not having an effective say which is contrary to the int ent and object of the Medicai Practitioners Registration Act and also to the autonomy of the Medical Council. It is in the atrove context that writ petition No. I 11 1 of 2019 came to be fi]ed.

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17 . Or 1O.O2.2O21 , this Court had noted that respondents had not filed counter alliclavit. Court wanted to know the reason for not holding electrons to the Medical Council and instead being managed bv an adhoc committee. Learned Government Pleader who represented the State was directed to obtain instructions as to thc date on which steps would be taken to notifl' the elections for constituting the Medical Council.

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In the proceedings held on 17 .O3.2O21, learned Additional Advocate General had srrhmittecl, that a.fter bifurcation of the composite St;rte of Andhra Pradesh option was given to the doctors as rvell ils to the other professionals to

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register themselves either in the State of Andhra Pradesh or in the State of Telangana. By way of notification dated 13.02.2O2O, time was granted to all the doctors upto 3l .O3.2021 to get themselves registered in the State of Teiangana ifthey propose to practice in the State of Telangana. Till the time the order dated 17 .O3.2O27 was passed, about 17,000 doctors had registered themseives in the State of Telangana. After 3 1.O3.202 I , the electoral list would be finalized for conducting elections to the Medical Council. To complete the process, a period of three months was sought for.

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1. In view of the abovc submissions made by learned Additional Advocate General, this Court granted time as sought for and directed that results of the election to the Medical Council should be declared and placed on record by way of an affidavit by the first respondent.

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It was thereafter that the second writ petition was liled expressing the apprehension that elections would be held to the Medical Council in the skewed ratio as provided in paragraph a(3)(i) of the notification in G.O.Ms.No.6B dated 03.08.2015 and sought for quashing of the same.

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It was contended before the Court that the notification issued vide G O.Ms.No.68 dated 03.08.2015 u'as an executive order by virtur: of which the State could not have amended the Medical Practitioners Registration Act by disproportionateiy reducing the number of elected members in the Medical Council; only lry a legislative act the same can be done.

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In view of such submission, this Court by order dated 26.O4.2021 while issuing notice directed deferment of elections to the Medical Council till t he next date of hearing, further directing listing of W.P.No. IO24O of 2021 with W.P.No. 1 i 1 1 of 2019.

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It may br' mentioned that the deferment order has since been continued and is now holding the field.

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In W.P.No. I 111 of 2019 first respondent filed affidavit. It has been mentioned that the Medical Practitioners Registration Act was initiallv amended rride Amendment Act No.28 of 1986 which came into effect from 01.04.19qO, It r.r,a.s again arnended by way of the Amendment A(:t No.10 of 2O13 which came into force with effect from O9.O7 .2013. After coming into force of

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the Andhra Pradesh Reorganization Act, 2014, by virtue of Section 101 thereof, State of Telangana has adopted the Medical Practitioners Registration Act as it existed on 02.06.2014 for the purpose of facilitating its application to the State of Telangana

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I . After referring to Section 3(2) of the Medical Practitioners Registration Act, first respondent has mentioned that by virtue of G.O.Ms.No.68 dated 03.08.2015, instead of thirteen eiected members under Section 3(2)(i), it was made five members besides certain other amendments.

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23.2. Reference has been made to Section 101 of the Andhra Pradesh Reorganization Act, 2014 and thereafter has contended that Government of Telangana has adapted the Medical Practitioners Registration Act vide G.O.Ms.No.68 dated O3.O8.2O15. Accordingly, amendments were carried out in Section 3(2)(b) of the Medical Practitioners Registration Act, whereby the number of elected members has been reduced from thirteen to five. From around 970O0 medical practitioners registered with the Andhra Pradesh Medical Council, after bifurcation, around 47,OOO medical practitioners have opted

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registration with the Telangana Medical Council. It is submitted that the reduction rvas necessitated because after bifurcation of tire composite State, Medical Practitioners of one region of the undivided State got registered themselves with the Medical Council. Therefore, in proportion to the medical practitioners who got themselves registered with the Medical Councii, the number of elected members has been reduced to hve. Answering deponent has mentioned that in addition to the elected members, there are other categories of members such as six members to be nominated by the government, four ex oJficio members and two members to be elected by the executive council of the University of Health Sciences.

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First respondent has also filed an additional affidavit justifying the issuance of G.O.Ms.No.68 dated 03.08.2015 as a valid exercise oi power traceable to Section lOl of the Andhra Pradesh Reorganization Act, 2O14. Further, the reduction of elected members from thirteen to five has also been justified on the basis ol the division ol population bctween the tu,o successor States ofAndhra Pradesh and Telangana

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Second respondent has filed an affidavit through its Registrar more or less on the same lines as the affidavits filed by the hrst respondent. It is also stated that many doctors are yet to renew their registration. Steps have been taken for getting the medical practitioners renew their registration.

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Identical affidavits have been filed by respondent Nos- 1 and 2 in W.P.No. 1O24O of 2021.

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27 . Mr. Sama Sandeep Reddy, learned counsel for the writ petitioners made three-fo1d submissions. F irstly, he submits that last time elections were held to the Medical Council was in the year 2OO7. Thereafter, no elections have been held. Now the Interim Medical Council is holding office. It is purely an adhoc body. Already it is in office for more than six years since the year 2016. An adhoc body cannot continue for an indefinite period. Therefore, holding of elections to the Medicai Council has become imperative. As such, G.O.Rt.No.15 dated 06.01.2016 cannot be sustained.

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27.1. Second limb of his argument is that the number of elected members in the Medical Council has been reduced from thirteen to five. While the State may be^justified tn

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reducing the number of electcd members proportionately rx,ith the number of rnedical practitioners, it is not open to the State at the same tinle not to proportionately reduce the nominated or the ex officio members. Altogether they are more than the elected membt:rs. Therefore, in an indirect manner, the government is running the show and thus undermining the autonomy of the Medical Council. He therefore submits that to uphold the aulonomy of the Medical Council, it is essential that majority s:ry of the elected rnembers is maintained.

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27.2. Third argument of learned counsel for the writ petitioners is that in the Medical Practitioners Registration Act the number of elected members was mentioned as thirteen. Though under Section iOl of the Reorganization Act, 2014, the provisions of the Medical Practitioners Registration Act has been adapted and made applicable to the State of Telangana, any substantive amendment to the Medical Practitioners Registration Act would require legislative sanction. No such amendment can be made b1' an executive order. Therefore, G.O.Ms.No.68 dated O3.O8.2015 cannot be sustained.

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2a. In reply to the above submissions of learned counsel for the writ petitioners, Mr. N. Praveen Kumar, learned Government Pleader has supported the two G.Os., by contending that there is no infirmit5r in issuing the said G.Os. He has elaborately referred to Section 1O1 of the Andhra Pradesh Reorganization Act, 2014 and submits that the limited modi{ication which is manifest in the two government orders is clearly traceable to Section 101 of the Andhra Pradesh Reorganization Act, 2014. The number of elected representatives has been scaled down from thirteen to five keeping in mind the reduction in the number of registered medical practitioners following bifurcation of the composite State. No oblique motive should be read into such a purely administrative decision. He further submits that first respondent will hold eiections to the Medical Council as per assurance made to this Court as and when the order deferring holding of elections is lifted. According to him, the apprehension expressed by the writ petitioners regarding erosion in autonomy of Medical Council is wholly misplaced.

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Submissions made by learned counsel for the parties have received the due consideration of the Court

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At the outset, it would be apposite to advert to^the Andhra Pradesh Medical Practit ioners Registration Act, 1968 (already referrecl to hereinabove as 'the Medicai Practitioners Registration ActJ as it stood at the time of bifurcation of the State. it is an act to consolidate and amend the law relating to registration of medical practitioners of modern scientilic medicine in the State of Ar-rdhra Pradesh and to provide for matters connected therewith. Sr:ction 2(c) defines Council' to mean the Andhra Pradesh Medi<:al Council (already referred to as 'Medicai Council') established under Section 3. As per subsection (1) of Section 3, governrnent, shall by notification, establish a Council called the Andhra Pradesh Medica] Council (Medical Council) which shall be a body corporate having perpetual succession with a common seal which can sue or can be sued by its name. Sub-section (2) of Section 3 deals with constitution of Medical Council. At the time of bifurcation the following members constituted the Medical Council:

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(a) two members to be elected in the prescribed manner by the members of the Executive Council of the University of Health Sciences ln the State lrom amongst persons holding any degree in modern medicine;

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(b) seven members to be elected in the prescribed manner br- the registered practitioners from amongst themselves:

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(c) four members to be nominated b1z the government out of whom two shall be from amongst the teaching faculty of medical colleges in the State who are also registered practitioners; and

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(d) Director of Medical Education, Director of Health and Family Welfare, Commissioner of Andhra Pradesh Vaidya Vidhana Parishad and Vice-Chancellor of DT.NTR University of Health Sciences.

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While sub-section (3) lays down the eligibility criteria for elected members as weil as for nominated members, in terms of sub-section (4), the government while making nominations shall have due regard to gender as well as adequate representation of the deprived classes etc. Sub-section (5) clarifies that no person shall be a member of the Medical Councii in more than one category as specified in sub-section (2).

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As per Section 4, whether he is an elected member or is a nominated member, the term of oflice is for a period of five years from the date of election or nomination. However, he shail be eligible for re-election or re-nomination, as the case may be. Section 5 deals with election of Chairman. As per subsection (1), the Council shall elect from amongst its members a Chairman who shail hold oflice for a period of two years from

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the date of his election as Chairman and shall be eligible for re-election. Holvever, as per the proviso, for a period of two years from the date of first constitution of the Medical Council, one of t}re ex officio members shall be the Chairman of the Medical Council.

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In similar manner, thc oouncil shall elect from amongst its members a /ice chairmzrn u,ho shall perform the functions of the ChairmarL when the olfice of the Chairman is vacant

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The other provisions of the Medical Practit-ioners Registration Act niay not be relevant for our present purpose. Be that as it may, from tht-' above it is seen that the Medical Practitioners Registration Act provides for constitution of the Medical Council which sl-rzrll consist of the members as mentioned supra. There are four categories of members - two to be elected by the members of the executive council of the University of Health Sciences; seven to be elected by the registered practitioners from amongst themselves; four to be norninated b1r llla g5r7q1nment, olr.t of vrhom two a-r-e from the teaching facultl; in addition there are ex officio members. The term of elected or nominatecl member is hve years though he is

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eligible for re-nomination. A Chairman once eiected can hold office for two years though he is eligible for re-election; however, at the initial stage one of the ex offi.cio rnernbers was to be the Chairman but for a limited period of two years.

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We may mention that there is no provision in the Medical Practitioners Registration Act for an interim council. All that the proviso to sub-section (1) of Section 5 says is that for a period of two years from the date of first constitution of the Medical Council, one of the ex officio members nominated by the government shall be the Chairman. Thus, under the Act, such an ex officio member can be the Chairman for a limited period of two years from the date of first constitution of the Medical Council.

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As already noticed, by the Amendment Act No. 10 of 20 13 certain amendments were carried out in the Medical Practitioners Registration Act. What is relevant for our purpose is that in clause (b) of sub-section (2) of Section 3, in place "thirteen members", it was substituted by "seven members". In clause (c) of sub-section (2) of Section 3, the six nominated members were reduced to four. That apart, in clause (d) of

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sub-section (2) of Section 3, Commissioner of Andhra Pradesh Vaidya Vidharra Parishad and Vice-Chancellor of Dr. NTR University of Health Sciences were added as ex officio members nominated b-v the government.

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However. the point to be noted is that the substitutions or the reductions in the number of elected members or the reduction in the number ol' ex officio members were carried out through a legislative act of tre then State Legislature by way of the Amendment Act No. 10 ol 20 i3.

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Parliament enacted the Andhra Pradesh Reorganization Act, 2OL4 (briefly, 'the Reorgan izatior' Act) to provide for reorganization of the existing State of Andhra Pradesh and for matters connected therewith. Section 2 (a) defined "appointed day" as the day to be notified by the Central Government in the official gazetle. Central govcrnment notified 02.06.2014 as the appointed day. As per Section 3, on and from the appointed day, a new State r,r,as formed known as the State of Telangana comf'rising the territories mentioned thereunder. For our present deliberation, Section 101 ofthe Reorganization Act is relevant.^'lhe same is extracted hereunder:

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i01. For the purpose of facilitating the application in relation to the State of Andhra Pradesh or the State of Telangana of any law made before the appointed day, the appropriate Government may, before the expiration of two years from that day, by order, make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modifications so made until altered, repealed or amended by a competent tegisiature or other competent authority.

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Explanation:- In this section, the expression "appropriate Government" means as respects any law relating to a matter enumerated in the Union List, the Central Government, and as respects any other law in its application to a State, the State Government.

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From a careful analysis of the above, what Section 101 provides for is that to facilitate the application of any law made before the appointed day in relation to the State of Andhra Pradesh to the new State of Telangana and to the residuary State of Andhra Pradesh, the appropriate government may before expiry of two years from the appointed day, by order make such adaptations and modifications of the law, whether by way of repeal or amendment, as may be necessary or expedient, and thereupon every such law shall have effect subject to the adaptations and modilications so made until altered, repealed or amended by a competent legislature or

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other competent authority. As per the Explanation, the expression "appropriate government" would mean in respect of any law relating to a matter enumerated in the Union List, the Central Government and as respect any other law in its application to a state, the State^(iovernment.

¶141

The marginal note besides Section lOl reads as: "power to adopt laws". Insofar marginal notes are concerned, the traditional vier.r' is that those cannot be referred to for the purpose of construing an enzrctment. In earlier decisions, Supreme Court vl'as emphatic in its view that marginal notes in an Indian statute cannot be referred to for the purpose of construing the statute; the marginal note cannot control the meaning of the body of tht: se<'tion if the language employed therein is clear. But, over the 5'ears, a view has emerged that reference to marginal notes malr' be permissible for construing a section in a statute.^()f crrurse, insofar articles of the Constitution of India are concerned, marginal notes appended thereto have been held to constitute part of the Constitution as passed by the Constituent Ass€mbly and therefore those have been made use of while constlucting the relevant article. In

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Prem Parkash Pahwa v. United Commercial Bankr, it has been held that the notes under the rules cannot control the rules, but those can provide an aid for interpretation of the rules. Further, a note which is made contemporaneously lrith the rules is part of the rule; it makes explicit what is implicit in the rule. As held in Prem Parkash Pahwa (supra), the marginal note in the present case is made contemporaneously with the Andhra Pradesh Reorganization Act. Therefore, the marginal note made besides Section 101 can be said to be a part of the said section.

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1 . Basically and in substance, Section 101 is intended to facilitate application of the earlier laws governing the composite State of Andhra Pradesh to the newly created State of Telangana. It is a provision to facilitate adaptation of the existing laws. The section also enables the appropriate government to make modifications of the law whether by way of repeal or amendment, as may be necessary or expedient. The principal object being adaptation, the modification or amendment contemplated must be construed only to aid such adaptation. It is not a provision for making substantive 1 (2012]. l SCC r23

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modification or amendment in the law in the process of adaptation. Any substantive amendment would have to be placed before the Telangana kgislature post-adaptation for amending the enactment so adapted.

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Having noticed the above, we may refer to G.O.Ms.No.68 dated 03.08.2015 and G.O.Rt.No. 15 dated O6.01.2016 issued by the Government of Telangana in the Health, Medical and Family Welfare (C1) Department.

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However. before that we may briefly advert to G.O.Rt.No.8 dated 02.O7.2012 issued by the then Government of Andhra Pradesh in the Health, Medical and Family Welfare (C1) Department. From a perusal of the same, it is seen that the elected body of the Mediczrl Council had assumed charge on O3.01.2007. The five vear term was to expire on O2.Ol .2012. Since the requisite steps for holding elections would require some more tirne, Chairman of the Medical Council requested the government to extend the term of the council. On such request. the' government vic'l.e C.O.RI.No.S dated 02.O1.20 12 constituted and notified an interim council for a period of one year or till constitution of the Medical

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Council whichever was earlier with three ex officio members and six members representing medical practitioners. It was notified that Dr. E.Ravinder Reddy who was the then Chairman of the Medical Council would continue as Chairman of the interim council till the new body was elected.

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Thereafter, the Reorganization Act intervened whereafter Government of Telangana in the Health, Medical and Family Wellare (C1) Department notified the Andhra Pradesh Medical Practitioners Registration Act, 1968 (Telangana Adaptation) Order,2074 in exercise of powers conferred by Section i01 of the Reorgani zation Act. A1l amendments carried out to the Medical Practitioners Registration Act upto 02.06.2O14 were also adapted with effect from 02.06.20 14. In sub-section (i) of Section 4, it was mentioned that for the expression Andhra Pradesh' occurring otherwise than in a title or in a citation or description etc, the word Telangana' shall be substituted. While deleting clauses (a) and (k) in Section 2, under Section 4(3Xi) it is provided that in sub-section (2) of Section 3, for the words 'thirteen members" as appearing in clause (b), the words 'five members' sha11 be substituted. The said notification was issued vide G.O.Ms.No.68 dated O3.08.2015.

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Before we proceed to G.O.Rt.No.15 dated 06.01.2016, we may examine as to whether the flrst respondent was^justilied or could have made the amendments in Section 3(2)(b) in terms of Para 4(3)(i) of G.O.Ms.No.68 by substituting thirteen elected members (sic) with five elected members. It is, therefore, necessary to examine the scope and ambit of an adaplation orde. or provision.

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In P. Ramrrnatha Aiyar's The Law Lexicon, 3'd Edition, the

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-,l,ord 'adapt' has been defined as under

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to make srritable; to frt or suil; to adjust; to alter so as to fit for a nerv use; to change b],adaptation - often followed by to, or for'; to make suitable; to alter so as to fit for a new use or condition.

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45.1. The word 'adaptation' has been explained as an act or process of adapting, or state of being adapted. The act of adapting or adjusting; the state of being adapted or htted; adjustment to circumstances or relations. Likewise, adaptation ordcr'has been explained as an order issued for the purposes 6,f a.daptation, pa.rticr-rla-rly an order mor:l.ifying the existing lau,s so as to bring them in conformity with the new constitutional provisions.

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Likewise, in K.J. Aiyar's Judicial Dictionary, l4ttr Edition,

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the word 'adapt'has been defined as under:

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to make apt or fit; to accommodate; to modify; arrange; transcript.

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46.1. Similarly, the word adaptation has been defined to mean arrangement; transcription.

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We have referred to the dictionary meaning of the words 'adapt', 'adaptation' and 'adaptation order', because the word 'adaptation' is not a dehned expression in the Reorganization Act.

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British Parliament enacted the Indian Independence Act, L947 , to make provision for setting up in India two independent Dominions, to substitute other provisions for certain provisions of the Government of India Act, 1935, which apply outside those Dominions, and to provide for other matters consequential on or connected with the setting up of those Dominions. The two independent Dominions to be set up in India were India and Pakistan. Section 18 thereof deals with provisions as to existing laws, etc. Sub-section (3) of Section 18 thereof is reievant and the same is extracted hereunder:

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18 (3). Save as otherwisc expressly provided in this Act, the law oI British India and of the several parts thereof existing irnmediately before the appointed day shall, so far as applicable and with the necessary adaptations, continue as the law of each of the new Dominions and the several parts thereof until other provision is made by laws of the Legislature of the Dominion in question or by any other Legislature or other authority having power in that behalf.

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48.1. From a perusal of the .rbove, what sub-section (3) of Section 18 provided was that rhe law of British India and of the several parts thereof existing immediately before the appointed day shall, so far as applicable and with the necessary adaptations, continue as the law of each of the new Dominions and the several parts thereof until other provision is made by lau,s of the l,egislature of the Dominion in question or by any other Legislature or other authority having power in +} ^+ l-'-l-' ^ l f

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This prorision came to be considered in the case of sir Gulab Singh v. District Magistrate of Dehradun2. That was a case where Sir Gulab Singh, ex-Maharaja of Rewa State, was placed under personal restraint at Dehradun by an order passed by

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I 1950 Indian L.1\, Ileporter (lLR) All. 845 = AIR 1950 All. l l

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the Governor General under the provisions of Bengal State Prisoners Regulation, 1818, as adapted by the Bengal State Prisoners Regulation (Adaptation Order), 1947 . It may be mentioned that Rewa State had acceded to the Indian Union in August, 1947. Such restraint order was questioned in an application under Section 491 of the Code of Criminal Procedure, 1898.

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l. The question which fell for consideration in that case was that whether Bengal State Prisoners Regulation (Adaptation Order), 1947 was ultra uires of the powers of the Governor General. It was in that context Acting Chief Justice Mr. Waii -U11ah J, referred to sub-section (3) of Section 1B and observed that Section 18 (3) had made it clear that the laws of British India existing immediately before 15th August, 1947, shall so far as applicable and with necessary adaptations continue as the law of each of the new Dominions until other provisions were made by the laws of the legislature of the Dominions concerned. Section 18 (3) provided for necessary adaptations in the law of British India existing prior to 15th August, 7947 . It was laid down that the law of British India shall continue as the law of each of the new Dominions with

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necessary adal)tations. Noting that the word hdaptation' as it occurred in tht: expression "the necessary adaptations" in subsection (3) of Section 18 was not defined in the Indian Independence Act, 7947, it r.vas held that it should, therefore, be understood in the sense in which it is explained in the authoritative rlictionaries ol the English language. It was observed as un der:

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Sonre arguments have been addressed to us as regards tlre meaning of thc rvord 'adaptation" as it occurs in the expression "the necessary adaptations" in subsection (i)) of Section iiJ 01'the Independence Act. The word "ad:Lptation" is not defined in Section 19 of the Act. It must, therefore, be understood in the sense in rvhich it is explained in the authoritative dictionaries of the English language. According Lo Websters Dictionary Vol-l the word "adaptati()r'r" carries with it tl.re idea of modification for new uses or ir change in lbrrn or stnrcture- According to Munay's Dtctionary, Vol. I . the meaning to be assigned to "adaptatk,n" is this: "Proccss of modifying a thing so as to suit new conditions-" According to the Shorter Oxford English Dtcttonary, one ol tlle meanings assigned to the word " aduptation" is the process of modifying so as to suit new conditions.

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49.2. Thus, it rvas clear th,rt the expression 'necessary adaptations' iLppearing in Section 18(3) of the Indian Independence Act, 1947 intended alterations of the phraseologly ol an enactm{.rnt in order to bring the said

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enactment into accord with the changed constitutional positron.

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49.3. In his concurring judgment, Justice Sapru aiso examined Sectionl8 (3) of the Indian Independence Act. After referring to the dictionary meaning of the word 'adaptation', it was observed that from a perusal of the Indian (Adaptation of Existing Indian Laws) Order, 1947, the notion conveyed by the word 'adaptation' was that of rendering the existing law consistent with the provisions of the Indian Independence Act, 1947. Therefore, it was held that by the Adaptation Order, the law could be brought into conformity with the changed constitutional status and nothing more. In other words, only changes of form and not of substance in existing British Indian laws could be brought about by an adaptation order. Section 18(3) merely iays down what the position in regard to existing British Indian laws was to be. After threadbare analysis, it was held as follows:

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I have pointed out that the word 'adaptation' connotes the idea of bringing the provisions of one Act into conformity or consonance with the changed constitutional position as visualized by the Indian Independence Act as defined by me before. Adaptation is not a merely ministerial Act. It is a legislative Act through the^powers of

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what might be called legislation included in the word "adaptation' are of limitcd character. By adaptation the Governor General r:ould change the form but not the substance of any statute. I Ie could not, for example, create an offence which did not exist before.

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Applying the above analogy to G.O.Ms.No.68 dated 03.08.2015, the Andhra Pradesh Medical Practitioners Registration Act, 1968 (Telangana Adaptation) Order, 2014, can only be construed to nl(':ln application of Andhra Pradesh Medical Practitioners Registration Act, 1968, as amended as on 02.06.2014. to the new Stale of Telangana. Therefore, only such modilication or amendment as may be necessary for aiignment of the aforesaid Ar.: | 1o the State of Telangana would be permissible. The modificat.ion or amendment can only be of form and not oi substance. For example, the name of the state can be substituted from tl-rc State of Andhra Pradesh to the State of Telangana, appearing either in the title of the Act or in the body of the Act and modiflcation or amendment of like nature. However, what was sought to be amended try way of Para a(3)(i) was substantial amendment to Section 3(2)(b) of the parent Act aflecting the substance of the legislation. Substitution o1' rhe $.ords "thirteen members" (sic) by the words "five members" vvould r:hange the nature and character

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of the Medical Council constituted under the Medical Practitioners Registration Act as adapted to the State of Telangana. From a dominant position, the elected members have now been made a minority block having lesser members than the members nominated by the government. The said exercise, in our view, could not have been carried out by way of an adaptation order. It is a legislative act for which legislation is necessary by way of an amendment by the State Legislature of Telangana. The same could not have been carried out by way of an executive order though in the form of an adaptation order.

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ln view of the above discussion, Para a(3)(i) appearing in Andhra Pradesh Medical Practitioners Registration Act, 1968 (Telangana Adaptation) Order, 2Ol4 as contained in G.O.Ms.No.68 dated 03.08.2015 cannot be sustained.

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Insofar, G.O.Rt.No. 15 dated 06.01 .2O 16 is concerned, from a reading of the same it is seen that by the said order an Interim Telangana State Medical Council was constituted as a stop gap arrangement with the following members:

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Section 3 {2} {cl 6 membqrs:

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Teaching staff of Medical C

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Dr. Raj Siddarth, Associalc Professor of Surgery, Kakatiya^Medical College, Warangal.

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Dr. V. Rajalingam, Associate Professor of Ophthalmolory, Sarojini Devi Eye Hospital, Hyderabad.

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Registered Medica! Practitio nei s;

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Dr. G. Rama Krishna Reddy, Physician, H.No.3-5-1093, Venkateshivara Colony, Na rayanaguda, Hyderabad.

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Dr. E. Rar indra Reddy, Pcciiatrician, S.V.R. Hospital, Khaleelwadi, Nizamabad.

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Dr. Ch. .raganmohan ttrLo. Ophthalmologist, H.No.2-8 79, Flat No.404, Pouk)mi Tou,ers, NI ukirrampura, KarimnaLgar.

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Dr. B. Ra;nesh Ktrnrar, i:;sociatc Professor of GastroentcrologJ, Osmania i{edical College/Osmania General Hospital, Hyderabad.

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Section 3 {2) rd) 4 members:

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Director of Medical Education, TS, Hyderabad.

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Director of Public Hcalth and Family Welfare, TS, Hyderabad.

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Commissioner, Telangana Vaidhya Vidhana Parishad, Hyderabad.

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Vice Chancellor, Kaloji N;rrayana Rao University of Health Sciences, Warangal.

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i. it was fltrther mentioneci that the Interim Telangana State Medical Council shall carry out amongst others day-today activities of registration of doctors, conduct of continuing medical education programmes, disciplinary proceedings against doctors etc., as prescribed under the Medical Practitioners Registration Act.

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We have already noticed that there is no provision in the Medical Practitioners Registration Act constituting Interim Medical Council. The only provision that can have a remote relevance is the proviso to sub-section (1) of Section 5 which says that for a period of two years from the date of the first constitution of the Medical Council, one of the ex offcio members nominated by the government shall be the Chairman of the Medical Council. But this provision also cannot be stretched to justify constitution of Interim Medical Council. Even the Andhra Pradesh Medical Practitioners Registration Act, 1968 (Telangana Adaptation) Order,2Ol4 does not provide for such Interim Medical Council. Even assuming that for the sake of administrative necessity, constitution of such Interim Medical Council became imperative, continuance thereof for more than six years cannot at all be^justified. First of ali, constitution of Interim Medical Council itself cannot be traced to any valid source of power. Secondly, even assuming such constitution to be a necessity, the same cannot continue for an indeterminate period. By its very nature and what has been mentioned in G.O.Rt.No. 15 dated 06.01.2016, the Interim Medical Council is only a temporary measure; a stop^gap

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arrangement till the Medic:rl Council is duly constituted in terms of Sectron 3(2) of ther^'lelangana Medical Practitioners Registration Act, 1968. Therefore, continuation of G.O.Rt.No.15 dated 06.0i.2016 has now become legally untenable.

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54- We are aware of the immediate effect due to setting aside of G.O.Rt.No.15 dated 06.01 2016. The consequence would be that tiil the Mrrdical Council is constituted in terms of Section 3(2) ol the Medical Practitioncrs Registration Act, there would be no Medical Council in the interregnum. In other words, there would bc a vacuum. For this duration, there will be no regulatory body of doctors in the State of Telangana for the purpose of registration, disciplinary action etc. In a situation such as this, the doctrine of necessity may have to be applied. In Lallt Kumar Modi v. Board of Control for Cricket in India3, Supreme Court has held that the doctine of necessity is a common law doctrine and is applied to tide over situations where there are difficulties as law does not contemplate a vacuum. T!l-e doctrine of necessitg is often invoked in cases of bias where there is no other authority or judge to decide the 3 (2011) 10 SCC 106

c t

I I

issue. However, as the law has evolved, the doitine of necessity applies not only to judicial matters but also to quasijudicial and administrative matters. Therefore, applying the aforesaid doctrine, the Interim Telangana State Medical Council may have to be allowed to function till the time the new Medical Council is constituted in terms of Section 3(2) of the Telangana Medical Practitioners Registration Act, 1968 and takes charge.

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In the light of the above discussions, we, therefore, pass the following orders:

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(i) Para 4(3Xr) of the Andhra Pradesh Medical Practitioners Registration Act, 1968 (Telangana Adaptation) Order, 2014 as contained in G.O.Ms.No.68 dated 03.08.2015 is struck down as illegal as being beyond the scope and ambit of an adaptation order;

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(iil The Interim Telangana State Medical Council constituted vide G.O.Rt.No. 15 dated 06.01.2016 is legally untenable. However, for ensuring that there is no vacuum, the said lnterim Telangana State Medical Council shall continue for a further period of three

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months by which time elections and nominations to the Telangana State Medical Council shall be completed;

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(iii) Respondent No. 1 shall take requisite steps including holding of elections and nomination of members in terms of sub-section (2) of Section 3 of the Telangana Medical Practitioners Registration Act, i 968 and complete the exercise within a period of three months from the date of receipt of a copy of this order;

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