THE HON'BLE SRI JUSTICE A.RAJASHEKER REDDY Writ Petition No.33855 of 2013 02-01-2014 Dr. C.L. Venkat Rao..... Petitioner Dr. N.T.R. University of Health Sciences, Represented by its Registrar, Vijayawada, And 6 others.... Respondents Counsel for petitioner: Sri C.V. Mohan Reddy, Senior Counsel Counsel for respondent: Sri A. Prabhakara Rao, standing counsel for the 1st respondent Sri S. Ravi, senior counsel for the 4th respondent Sri K. Ramakrishna Reddy, senior counsel for the 7th respondent : ?.Cases referred 1) AIR1989Kerala 75 2) AIR1989Karnataka 75 HON'BLE SRI JUSTICE A. RAJASHEKER REDDY Writ Petition No.33855 of 2013 Date:
02. 01-2014 ORDER
: This writ petition is filed for declaring the election of respondents 4 to 7 as members of the 3rd respondent-Medical Council of India held on 19-08-2013 as illegal and void, for directing the 1st respondent to frame statutes to define ".medical faculty". and constitute ".faculty". as per Section 25 of the DR. NTR University of Health Sciences Act, 1986, for directing the 2nd respondent to frame appropriate rules pursuant to amendment to Section 3 (1) (b) proviso of Indian Medical Council Ordinance, 2013 for laying down the procedure for election of members from Health Universities, and for directing the 1st respondent to conduct elections to Members of Medical Council of India, in accordance with the procedure laid down in the Indian Medical Council Rules, 1957 as amended in 1980 after the 2nd respondent frames the appropriate Rules in accordance with Section 3 (1) (b) of Indian Medical Council Ordinance, 2013.
2. The case of the petitioner is that he is a qualified Medical Practitioner having done his MBBS, M.S. and FRCS in the year 1979, 1983 and 1988 respectively. He was elected as a Member of the Medical Council of India and functioned as such for a period of five years from 1997 to 2002. It is stated that he is interested in proper functioning of the Indian Medical Council so that it can maintain strict standards in the Medical Education, Practice of Medicine etc. It is also stated that the 2nd respondent issued a notification dated 14-06-2013 informing all the Universities and Health Universities that the Medical Council is to be reconstituted by 10-11-2013 and as such members are to be elected under Section 3 (1) (b) of the Indian Medical Council Act before 31- 08-2013. It was also informed that Indian Medical Council Rules, 1957 as amended in 1980 would be applicable for electing a member under Section 3 (1)(b) and pursuant to the said notice, the 1st respondent issued a notice dated 10-07- 2013 calling for nominations from the faculty members of Medical Sciences of Dr. NTR University of Health Sciences as per 3(1)(b) of the Act and Rule 4 (b) of the Rules and that an election notification was also issued on the same date giving the schedule of the elections in which the eligibility for contestants is fixed as follows: ".Contestants: Any member of the Medical teaching faculty working in the Medical College affiliated to this University can contest in the elections.".
3. It is also stated that pursuant to the notification elections were conducted on 19-08-2013 and the respondents 4 to 7 have allegedly been elected. It is further stated that Dr. NTR University of Health Sciences is constituted under the NTR University of Health Sciences Act, 1986 and it does not define the word ".faculty". and that the word ".faculty". cannot be deemed to be synonymous with the word ".teacher". and ".Teacher". is defined under Section 2 (v) of the Dr. NTR University of Health Sciences Act and that the definition ".teacher". will bring out the distinction between ".teacher". and ".faculty".. However, the notification dated 10-07-2013 issued by the 1st respondent ignores the said distinction and enables all the ".teachers". working in all Medical Colleges to contest in the elections to the 3rd respondent, which is contrary to the Act and the Rules. The Registrar is not empowered to give his own interpretation to the provisions of Act and Rules and fix eligibility of the contestants as per his own understanding. Hence, challenging the election of respondents 4 to 7, the present writ petition has been filed seeking appropriate reliefs.
4. Sri C.V. Mohan Reddy, learned senior counsel appearing for the petitioner contends that Section 3 of the Indian Medical Council Act, 1956 provides Constitution and Composition of the Council. As per Section 3 (1) (b) thereof, one member from each University is to be elected from amongst the members of the medical faculty of the University by members of the Senate of the University or in case the University has no Senate, by members of the Court. In the present case, after amendment, proviso is added to Section 3 (1) (b) of the Act, which says that where there is a Health University in a State, that University shall elect, in such manner as may be provided by the rules made by the Central Government, one representative for every ten medical colleges affiliated to it to represent such medical colleges. This being the position, the 1st respondent issued notification dated 10-07-2013 for conducting elections and elected the members to the Medical Council of India under Section 3 (1) (b) of the Act though the word ".medical faculty". is neither defined under the Indian Medical Council Act nor under the Dr. NTR University of Health Sciences Act. He also contends that Section 25 of the NTR University of Health Sciences Act only refers to the term '".faculty"., but the ".faculty". is not defined under the statutes mentioned in the first schedule to the said Act nor medical faculty is defined. He also contends that there is no electoral college for conducting elections to the Medical Council of India in the absence of electoral college, elections could not have been conducted, as such, the conduct of the elections itself is illegal and liable to be set aside. He further contends that election notification is also in contravention of Rule 4 (b) and (i) of the Indian Medical Council Rules, 1957 as framed in exercise of the power conferred by Section 4 and 32 of the Indian Medical Council Act. Therefore, the elections of respondents 4 to 7 has to be set aside and appropriate directions may be issued to frame statutes to define ".faculty". and also frame relevant rules pursuant to the amendment and thereafter elections should be conducted in accordance with the procedure laid down by the Indian Council of India after framing appropriate Rules.
5. On the other hand, Sri K. Ramakrishna Reddy, learned senior counsel for the 7th respondent raised a preliminary objection regarding maintainability of the writ petition stating that the petitioner nowhere stated that he is a contestant in the elections nor is a faculty of any University and that what all is stated in the writ petition is that he is a Medical Practitioner and as such, he has no locus standi to question the election of the 7th respondent since he is not a faculty of any University. e He further contends that though the petitioner stated that he was elected as a Member of Medical Council of India, but it is not stated under which category he contested and probably he might have been elected under Section 3 (1) (c) and (1)(d) of the Act, as such he cannot have any grievance in respect the elections conducted under Section 3 (1)(b) of the Act. He further contends that election notification was issued on 10-07- 2013 and the election results were declared on 19-07-2013 and a Gazette notification was published on 05-11-2013 showing the elected members i.e. respondents 4 to 7 and that the writ petition is filed belatedly on 25-11-2013. He further contends that the writ petitioner is neither a voter nor a contestant under Section 3 (1) (b) of the Indian Medical Council Act. He also contended that the petitioner is not personally aggrieved since he nowhere stated that he is a candidate for election. He also contended that Section 4 of the Act states where any dispute arises regarding any election to the Council, it shall be referred to the Central Government whose decision shall be final. He further contended that the notification dated 05-11-2013 declaring the respondents 4 to 7 as elected members is not questioned and that there is alternative remedy under Section 4 (2) of the Act. He also contends that since he is neither a voter nor a contestant, he cannot maintain the writ petition. As stated in the writ petition that he is interested in proper functioning of the Medical Council, he can institute a separate writ petition in the nature of PIL, but he cannot question the election of the 7th respondent as he has no locus standi to challenge the same. He further contended that prayer in the writ petition to direct the 1st respondent to frame statutes to define ".medical faculty". and also to direct the 2nd respondent to frame appropriate rules cannot be granted and the writ petition cannot be maintained in respect of framing of statutes or the Rules. In support of his contention, he relied on Dr. S. Bheemappa and another v. The Returning Officer for Eelection to Indian Medical Council, Bangalore and others1.
6. Sri S. Ravi, learned senior counsel appearing for the 4th respondent adopted the arguments advanced on behalf of the 7th respondent and in addition to it, he contends that the writ is in the nature of PIL as the petitioner states that he is interested in proper functioning of Medical Council so that it can maintain strict standards in the Medical Education, Practice of Medicine etc., and the present prayer in the writ petition is not maintainable and the petitioner has no locus standi as he is neither a voter nor a contestant.
7. Sri A. Prabhakara Rao, learned standing counsel for the 1st respondent states that the election notification clearly provides about the electoral college and the petitioner has no locus standi to question the election of the respondents 4 to 7 as he is neither a voter nor a contestant, but is a medical practitioner.
8. In the instant case, though the petitioner states that he is interested in proper functioning of Indian Medical Council so that it can maintain strict standards in the Medical Education, Practice of Medicine but nowhere the petitioner stated that the election of the respondents 4 to 7, effects standards in the Medical education, practice of medicine. He has also not mentioned that what are the steps to be taken by the Indian Medical Council in the case of medical education or practicing medicine. The petitioner has also not mentioned that he is a faculty in any University or that he was deprived of contesting the elections nor he is a voter. He also stated that he was a member of the Medical Council of India for the years 1997 to 2002, which shows that he is aware of Section 3 (1) (b) of the Act earlier also, but he never choose to challenge the same. Since it is not stated that he is a contestant or voter for election to the members of the Indian Medical Council to be elected under Section 3 (1) (b) of the Act, he does not have any locus standi to question the elections of the respondents 4 to 7. He also stated that the election notification was issued and he is aware of the notification dated 14-06-2013 issued by the 2nd respondent informing all the Universities and Health Sciences that the Medical Council is to be reconstituted by 10-11-2013 and as such members are to be elected under Section 3 (1)(b) of the Indian Medical Council Act before 31-08- 2013. He further stated that pursuant to the said notification, the 1st respondent issued a notice dated 10-07-2013 calling for nominations from the faculty members of Medical Sciences of Dr. NTR University of Health Sciences as per Section 3 (1)(b) of the Act and Rule 4 (b) of the Rules, but he never questioned the election of the 4th respondent. Now, after issuance of notification, he filed the present writ petition questioning the election of the respondents 4 to 7 elected on 19-08-2013 stating that he is aware of the election only after the notification dated 05-11-2013 was issued. Being one of the member of the Indian Medical Council and very much concerned with the proper functioning of the Medical Council, he never choose to question the provision of Section 3 (1)(b) of the Act. Even as per Section 4 (2) of the Act, when any dispute arises regarding any election to the Council, it shall be referred to the Central Government whose decision shall be final. As per Rule 25 (1) of the Indian Medical Council Rules, 1957 as amended by virtue of powers conferred by Sections 4 and 32 of the Indian Medical Council Act, 1956, the Central Government may, on objection made by a candidate for any election within a period of thirty days from the date of the returned candidate, or of its own motive at any time, declare the election to be void on account of bribery, undue influence or other corrupt practice which, in the opinion of the Central Government, has interfered with the free and fair conduct of the election or for any other sufficient cause, and may call on the electorate to make a fresh election and under sub-rule (2) thereof the decision of the Central Government shall be final. In this case, the writ petition is filed after the period of thirty days as mentioned in the rule 25 (1) of the Rules.
9. In Dr. S. Bheemappa and another v. The Returning Officer for Election to Indian Medical Council, Bangalore and others2, it is held as follows: ".....Hence alternative remedy cannot, in the instant case, be construed as a bar or as a ground for refusing to exercise jurisdiction under Article 226 of the Constitution. It is not possible to accept the contention. The words or for any other sufficient cause in the context in which they occur cannot at all be construed as 'ejusdem generis'. The rule of ejusdem generis is a rule of interpretation. It is not a rule of law. It means that where particular words are followed by general words, the general words are limited to the same kind as the particular words. This rule of interpretation has to be applied with caution and not pushed too far. In the instant case, the very requirement to apply this rule of interpretation is not satisfied. Rule 25 of the Rules sets out the grounds for challenging the election as follows: ".Declare the election to be void on account of bribery, undue influence or other corrupt practice which, in the opinion of the Central Government has interfered with the free and 'fair conduct of the election or for any other sufficient cause and may call on the electorate to make a fresh election.". The words 'or for any other sufficient cause' are not preceded by the particular and specific words. These words are preceded by the words 'has interfered with the free and fair conduct of the election and not by the words bribery, under influence'. Therefore, it is not possible to hold as contended by Sri Subba Rao, learned counsel for the petitioner that the words or for any other sufficient cause' are also be referable to the grounds falling under bribery and undue influence'. On the contrary, as these words are preceded by the words 'has interfered with the free and fair conduct of the election' they can only be interpreted as indicating that any other sufficient cause other than bribery and undue influence or other corrupt practice which has interfered with the free and proper conduct of the election can also be made a ground for seeking the election to be set aside. The sound rule of interpretation is that every word in a statute ought prima facie to be considered in its primary and natural sense unless a secondary or more limited sense is required by the subject or the context. Thus the words 'or for any other sufficient causes read in the context in which they occur permit the challenge to be made to the election in an election petition on several grounds which have affected the free and fair conduct of the election.
13. It is next contended that the second petitioner is a voter and he has no right to challenge the election by way of election petition, therefore, he is entitled to invoke the jurisdiction under Art.226 of the Constitution at any stage of the election process. When the law does not give a right to challenge the election to a voter, it is too much for the 2nd petitioner to contend that 'he has a right to challenge the same under Article 226 of the Constitution. The right to vote and contest for the election to become a member of the Medical Council of India is conferred by the statute and as such, such a right is subject to the restriction imposed by the statute. That being so, if a voter at such an election does not choose to become a candidate, he has no right to challenge the election much less an election process as long as it does not affect his right to vote. Of course, he can approach this court provided his right to vote is affected in any way and not otherwise. After all the right to stand for election is a creature of the Act and the Rules. Thus it is a statutory right. It carries with it the limitations if any imposed by the Act and the rules. Therefore, a voter who is entitled to vote is not given a right to challenge the election under the Act and the Rules if he does not contest for the election. Therefore, it is not possible to hold that the position of the 2nd petitioner is in any way better than that of the 1st petitioner as far as the exercise of jurisdiction under Art. 226 of the Constitution to interfere in the middle of the election process. For the reasons stated above, I uphold the preliminary objection, discharge the rule and decline to interfere with the process of election at the intermediate stage. Accordingly, the writ petition is dismissed. All the contentions raised by both the sides having a bearing on the merits of the case are left open.
10. In view of the above facts and circumstances of the case, the writ petition is liable to be dismissed on the ground that the petitioner has no locus standi to challenge the election of the respondents 4 to 7 and also on the ground that this court cannot give any directions to the respondents to frame statutes or the Rules, which is absolutely a legislative function.
11. Accordingly, the writ petition is dismissed. No costs. As a sequel thereto, Miscellaneous Petitions, if any, pending shall stand closed. _____________________ A. RAJASHEKER REDDY, J Date:
02. 01-2014