w w w . L a w y e r S e r v i c e s . i n



Dr. Kunal Saha & Another v/s Principal Secretary, Department of Health And Family Welfare, Government of West Bengal & Others


Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- K K SAHA AND CO PVT LTD [Strike Off] CIN = U51109WB1938PTC009499

Company & Directors' Information:- KUNAL (INDIA) PRIVATE LIMITED [Strike Off] CIN = U17120DL1998PTC095663

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

    WP Nos. 17057(W) of 2017 & 217 & 2402 of 2017 (Appellete Side)

    Decided On, 02 February 2018

    At, High Court of Judicature at Calcutta

    By, THE HONOURABLE MR. JUSTICE SANJIB BANERJEE & THE HONOURABLE MR. JUSTICE SABYASACHI BHATTACHARYYA

    For the Petitioners: Dr. Kunal Saha, Srikanta Dutta, Rituparna Sarkar Dutta, Advocates, (In person). For the Respondents: Kishore Dutta, Advocate General, Abhratosh Majumdar, Addl. AG., Debasish Ghosh, Paritosh Sinha, R2, Pratap Chatterjee, Sr Advocate, Debajyoti Datta, Rishad Medora, Bikash Goswami, N. Mythrey Abhilash, Advocates.



Judgment Text

Sanjib Banerjee, J.

1. Both the petitions underArticle 226of the Constitution challenge the appointment of a senior doctor as a member of the West Bengal Clinical Establishment Regulatory Commission on the ground that he has been found to be negligent in the conduct of a particular case and adverse comments have been made against him in a judgment of the Supreme Court of India. The petitioners exhort that in view ofArticle 144of the Constitution the appointment as a member be annulled.

2. The petitioner in person in WP 17057(W) of 2017 claims to be a "physician from Kolkata ... permanently settled in the USA for the past more than two decades ..." Such petitioner is not a citizen of India but is an overseas citizen of India within the meaning of that expression in theCitizenship Act, 1955. According to such petitioner, his wife took ill while on a social visit to India with the petitioner and died at the age of 36 "primarily due to the negligent therapy by" the second respondent to his petition. Such petitioner claims to have battled in courts across India before the Supreme Court apparently held the second respondent herein guilty of medical negligence and primarily responsible for the death of such petitioner's wife. Such petitioner mainly relies on the following observations made by the Supreme Court against the second respondent herein in a judgment rendered in 2013.

"It is also important to highlight in this judgment that the manner in which Dr Mukherjee attempted to shirk from his individual responsibility both in the criminal and civil cases made against him on the death of the claimant's wife is very much unbecoming of a doctor as renowned and revered as he is."

"Since he is a senior doctor who was in charge of the treatment of the deceased, we are inclined to mention here that Dr Mukherjee has shown utmost disrespect to his profession by being so casual in his approach in treating his patient. Moreover, on being charged with the liability, he attempted to shift the blame on other doctors."

3. The petitioner in WP 217 of 2017 is a citizen of India and complains of the West Bengal Clinical Establishments (Registration, Regulation and Transparency) Act, 2017 being "silent with regard to the disqualification/removal of the members of the said Commission." Though the petitioner in such Original Side matter has not directly complained against the appointment of Dr Sukumar Mukerhjee as a member of the commission and has not even mentioned him by name or impleaded him, there is little doubt from paragraph 5 of the petition that it is such appointment which is the subject-matter of challenge.

4. Such other petitioner primarily contends that there is a lacuna or gap in the statute in the matter of the qualifications or credentials of the persons to be appointed as members of the commission and submits that till such time that firm rules in such regard are brought in by the State, this court should step in to regulate the appointment and removal of the members of the commission by framing guidelines therefor.

5. The matters were directed to be heard together by a previous order and, since the petitioner in person is ordinarily a resident of the United States, the matter was also taken up by way of video-conferencing with such petitioner in person. The video-conference hearings were held on January 24, 2018 and January 30, 2018.

6. The primary objections on behalf of the State to the petition by the foreigner-petitioner are that the petitioner in person has an axe to grind against the second respondent, that the filing of the petition is out of his personal vendetta and that the petition of the petitioner in person should be thrown out as it is brought on account of personal interest and cannot involve any public interest. As to the other petition, it is the State's principal contention that no case is made out therein for any interference by this or any other court, particularly as the vires of the said Act of 2017 have not been challenged.

7. The second respondent in the petition filed by the petitioner in person harps on the impermissibility on the part of a foreign citizen to invokeArticle 226of the Constitution of India with the kind of complaint that has been carried to this court. The substance of such submission is that since the foreigner-petitioner is not ordinarily a resident of this country, he cannot be affected by the working of the said Act nor be concerned with the functioning of the commission set up thereunder. The second respondent squarely attacks the foreigner-petitioner's right to institute any public interest litigation in this country.

8. It appears that the foreigner-petitioner has gone after the second respondent not only by instituting proceedings for medical negligence and criminal complaints but also in trying to impede the conferment of an award on such respondent and even his participation in conferences and colloquiums. Upon the State Government deciding to honour the second respondent with the Bangabibhusan Award in or about 2015, the foreigner-petitioner challenged the same by way of a petition underArticle 226of the Constitution. Such petition was dismissed on the ground that the petitioner therein had no locus standi to maintain the writ petition. However, the decision was confined to the aspect that the foreigner- petitioner could not be regarded as a person aggrieved by the decision or prejudiced in any manner in the conferment of the award on the second respondent herein. In appeal, the order of dismissal of the writ petition on the ground of locus standi was set aside. Upon the rehearing of the writ petition, a different aspect of locus standi was urged on behalf the State and the second respondent herein since the petitioner was a foreign national. Such objection was upheld by a single bench in a judgment of January 28, 2016 where it was observed that none of the rights available to an overseas citizens were shown to have been infringed by the impugned decision of the State. The petition failed and no appeal was carried therefrom.

9. The foreigner-petitioner, however, contends that his right to pursue the second respondent herein has been recognised in the Division Bench judgment of August 21, 2015. He also relies on the judgment of the Supreme Court against the second respondent herein reported at (2014) 1 SCC 384 (Balram Prasad v. Kunal Saha).

10. The other petitioner has cited several well-known judgments for the proposition that a constitutional court should step in when it is brought to its notice that there is a gap in the statute or the rules. The judgments reported at (2002) 5 SCC 294 (Union of India v. Associationfor Democratic Reforms), (2012) 1 SCC 333 (Dayaram v. Sudhir Batham), AIR 1997 SC 3011 (Vishaka v. State of Rajasthan), AIR 1986 SC 272 (Laxmi Kant Pandey v. Union of India) and (2013) 5 SCC 1 (State of Punjab v. Salil Sabhlok) have been placed for such purpose. Such petitioner has also relied on the judgment in Balram Prasad and the observations made therein against the second respondent to the other petition.

11. The State has stressed on the recent judgments of the Supreme Court to rein in public interest litigation to ensure that personal causes are not espoused for oblique purpose or to blackmail any person. In such light, the judgments reported at (2004) 3 SCC 349 (Ashok Kumar Pandey v. State of West Bengal) and (2004) 3 SCC 363 (Dr B. Singh v. Union of India) have been placed for the identical passages contained in the two judgments. Another judgment reported at (2007) 10 SCC 614 (Neetu v. State of Punjab) has been brought by the State to remind the court that it should guard against the personal vendetta of a petitioner resulting in a public interest litigation being filed. Finally, the State relies on a constitution bench judgment reported at (2010) 6 SCC 331 (B. P. Singhal v. Union of India) for its enunciation of the parameters of the "doctrine of pleasure" when a particular post is held as per the pleasure the President or the Governor or the State.

12. In considering the scope of the "doctrine of pleasure" in the context ofArticle 156of the Constitution and the term of office of a Governor of a State being "during the pleasure of the President", the constitution bench held, at paragraph 34 of the report, that the doctrine of pleasure "is not a licence to act with unfettered discretion to act arbitrarily, whimsically, or capriciously." However, the judgment also cautioned that there were several categories of offices held "under pleasure" and "it is not possible to mix up or extend the type of protection against removal, granted to one category of offices, to another category." Though the underlying principle of the judgment may be kept in mind, it cannot be lost sight of that the judgment was confined to the different types of tenure provided under the Constitution and the discussion on the "doctrine of pleasure" has to be confined to the offices of pleasure under the Constitution.

13. The State also emphasises that there is no gap in either the said Act or the rules framed thereunder and asserts that the State Government has acted within the bounds of its authority in nominating or appointing the second respondent in the first petition as a member of the regulatory commission. The State claims the second respondent to be a doyen in the field of medicine who may have been found to be at fault on a solitary occasion but whose prowess as a doctor is unquestionable.

14. The second respondent to the petition filed by the foreigner-petitioner suggests that the relevant petition should be thrown out as the petitioner therein cannot be seen to have any manner of interest in respect of the matters complained of. As to the challenge to the second respondent's appointment as a member of the commission, it is submitted that the second respondent should not be punished any more than he has already been, particularly since no judicial order found him to be unfit to continue in practice or expressed any reservation regarding his holding any office.

15. The second respondent has placed several notifications issued under theCitizenship Act. The contention is that underSection 7Bof such Act an overseas citizen of India "shall be entitled to such rights, other than the rights specified under sub-section (2), as the Central Government may, by notification in the Official Gazette, specify in this behalf." The second respondent says that since the foreigner-petitioner has not been conferred any right by the Central Government to invokeArticle 226of the Constitution, his petition should be dismissed as not maintainable. The judgments reported at (2010) 172 DLT 521 (Karm Kumar v. Union of India) and CDJ 2017 BHC 960 (Raviprakash Govindrao Dani v. The Chancellor, Dr Panjabrao Deshmukh Krushi Vidhyapeeth) have been cited by the second respondent to demonstrate the limited rights enjoyed by an overseas citizen.

16. In the first of such judgments, an overseas citizen claimed the right to represent India at an international sporting event. While considering such question, a single judge of the Delhi High Court observed that it is a limited right which is granted to an OCI and there cannot be a presumption that a right "not taken away by notification is deemed to have been granted." In the other case, a person appointed as a vice-chancellor of a university was terminated as he was a citizen of the United States of America and, therefore, not eligible to occupy the post of vice-chancellor in the relevant university. A Division Bench of the Bombay High Court held in such case that merely because underSection 7B(2)of the said Act an OCI is prohibited form exercising certain rights does not imply that an OCI is entitled to exercise all other rights as a citizen of India is.

17. There cannot be any doubt that the prohibition in sub-section (2) ofSection 7Bof the Citizenship Act is only a reminder to the Central Government that the Central Government cannot confer the authority to exercise the rights prohibited thereby, even by issuing any notification.Section 7B(2)of the Act cannot be read to imply that the other rights which are not prohibited thereby may ordinarily be exercised by an OCI just like an ordinary citizen can. A rational reading of the entirety ofSection 7Bof the Act would lead to the irresistible conclusion that an OCI is entitled to exercise only such rights as are specifically conferred by notifications issued by the Central Government under such provision.

18. At the focus of the two petitions is the said Act of 2017, which seeks to provide for the registration, regulation and transparency of clinical establishments in the State and for matters connected therewith or incidental thereto.Section 2(c)of the Act defines a clinical establishment and such an establishment includes any place that provides medical facilities with or without beds, the building or premises of any hospital, maternity homes, nursing homes, dispensaries, clinics, polyclinics, clinical laboratories, physical therapy establishments and the like. Even a single- doctor establishment can be regarded as a clinical establishment if the place is used or intended to be used for consultation and treatment by a registered medical practitioner. UnderSection 5of the Act all clinical establishments within any district are required to be registered with the Chief Medical Officer of Health of such district.Section 6of the Act contemplates the issuance of a license to a clinical establishment to specify the terms of its operation. Chapter III of the Act deals with the procedure for registration and licensing and includes the power to cancel the registration and license. Chapter IV deals with contraventions and penalties. Chapter V of the Act envisages an adjudicating authority and the setting up of the West Bengal Clinical Establishment Regulatory Commission.Section 36in Chapter V of the Act provides for the composition of the commission with a chairperson, a vice-chairperson and members not exceeding 11 in number.Section 36(2)(c)is the provision relating to the appointment of members on the commission and provides as follows:

"(c). members not exceeding eleven in number, to be appointed by the State Government, selected from the fields of medicine including diagnostics, public health, academia, social services, law, finance, public administration, nursing and consumer interests."

19.Section 37(1)of the Act provides that the chairperson, vice-chairperson and the members of the commission "shall hold the office of the Commission during the pleasure of the State Government." Later provisions in the Chapter V provide for, inter alia, the powers and functions of the commission and the like, which are not relevant for the present discussion.

20. Though much has been said on the locus standi of the foreigner's petition and his right to raise any grievance against the appointment of the second respondent as a member of the commission under the Act of 2017, it must be appreciated that the concept of public interest litigation is based on the dilution of the strict rules of locus standi. The jurisprudence that has developed in this country around the epistolary jurisdiction of public interest litigation permits any public-minded person to draw the attention of a constitutional court to any public malady or matter of public importance even if the person may not be seen to have any direct interest therein. Indeed, a person having an interest in a matter complained of is, more often than not, shooed away from the public interest litigation forum and left free to pursue his remedies in accordance with law to protect his interest. The role of a petitioner in such a case is merely that of an informant complaining of an act that has a public element involved. Merely because the petitioner may not have the locus to pursue the complaint does not mean that the court whose attention is drawn to a matter of public importance will cast it aside on the rule of locus standi. Again, as to whether a complaint is born out of personal animosity or vendetta may not have any impact on the assessment of the complaint. In such a situation the court may receive the complaint, and if the court finds it worthy to proceed therewith, the court may shut out the complainant; but a good cause espoused by the worst rogue or actuated by the vilest of personal motives would not lose its lustre solely on the basis of the character of the bearer of the complaint. The personal angst of the complainant against the person complained of will encourage the court to exercise more caution in receiving the complaint; but if the complaint is found to be worthy, the colour of the complainant's skin or the conduct of his character should not be permitted to detract from the gravity of the matter complained of.

21. The two Delhi and Bombay judgments cited by the second respondent onSection 7Bof the Citizenship Act were cases where the petitioners espoused their personal causes and not any public cause. As a general proposition of law, it cannot be held that merely because the complainant is a foreigner the complaint carried by way of a public interest litigation has to be thrown out without looking at the quality of the complaint or the matters complained of. The argument may be dealt with by using an example: a Haitian geologist conducting a study on ground-water on the basis of satellite images may send a post-card to the Calcutta High Court and draw its attention to the deadly arsenic content in the ground-water in South Bengal. Such a complaint cannot be thrown out merely because the complainant is a foreigner.

22. It then boils down to the substance of the two petitions and the matters that have been complained of. The foreigner's petition is a no-holds-barred attack on the character of the second respondent and the propriety of the State in appointing him as a member on the commission. The other petition is somewhat difficult to comprehend, but appears to be the crutches for the grievance in the foreigner's petition to stand on in the event the foreigner's petition is dismissed on the ground that it has been brought by a foreigner. As noticed above, paragraph 5 of such petition appears to be the principal grievance therein and the submission put forth on behalf of such petitioner is also that guidelines be framed by this court to regulate appointments to the commission by the State Government.

23. Just as in a matter of policy, courts are slow to entertain a challenge in a matter of choice of personnel for appointment to a public body. A constitutional court will not easily interfere with the choice. Though the submission of the State that such a matter is not justiciable cannot be accepted, it must also be said that a constitutional court would step in only when the choice appears to be bad to the meanest mind, almost being on the verge of defeating the purpose of the appointment. If the legislature does not deem it necessary to fix parameters for the selection, it would imply that an element of discretion is left to the executive. Unless such discretion is demonstrated to have been exercised in the most perverse manner that no reasonable person could have so done, the latitude given by the statute to the executive would not be curtailed by the court in fixing guidelines in such regard.

24. A case for fixing guidelines would be made out if repeated choices are capricious and perverse and have no nexus with the object of the app

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ointment or the purpose required to be served thereby. 25. As to the choice of the second respondent to the first petition as a member of the commission, there does not appear to be any room for interference. Even the Supreme Court judgment noticed that the second respondent was a respected and revered medical practitioner. The Supreme Court did not pass any order prohibiting the second respondent to be associated with any public body. The appointment of the second respondent as a member of the commission does not go against either the spirit or the letter of the relevant Supreme Court judgment and does not fall foul ofArticle 144of the Constitution. 26. In the event it was discovered upon the receipt of the present challenge to the nomination or appointment of the second respondent that the State was not aware of the Supreme Court judgment passed against the second respondent or the observations therein, there may have been a scope to suspect that some relevant considerations may not have been taken into account in making the choice; but, as it appears, the State was aware of the judgment and the State made a conscious decision to still nominate the second respondent as a medical practitioner of vast experience and great repute to be a member of the commission. It is a matter of the State's perception and subjective satisfaction that the second respondent is suited for the position. Such decision and the choice do not reflect any egregious caprice or lack of wisdom for the court to interdict the same. 27. Accordingly, WP 17057 (W) of 2017 and WP 217 of 2017 with GA 2402 of 2017 are dismissed as no steps are warranted to be taken on the basis thereof whether to interfere with the appointment of the second respondent in the first petition as a member of the commission or for setting right the perceived lacuna in the said Act of 2017 apparently not taken care of in the rules framed thereunder. 28. There will be no order as to costs. 29. Urgent certified website copies of this judgment, if applied for, be supplied to the parties subject to compliance with all requisite formalities. I agree.
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16-05-2018 Manager, Bank of Baroda Jodhpur Park Branch Versus Susanta Saha National Consumer Disputes Redressal Commission NCDRC
27-04-2018 Gopal Saha Versus Anil Roy Chowdhury & Another West Bengal State Consumer Disputes Redressal Commission Kolkata
26-04-2018 Dr. Anirban Jana, Medical Officer, Kasturi District Hospital Versus Kamal Saha & Others West Bengal State Consumer Disputes Redressal Commission Kolkata
25-04-2018 Sunipa Saha Versus State of Tripura High Court of Tripura
13-04-2018 Kunal Pradeep Savla & Others Versus Securities & Exchange Board of India, SEBI Bhavan SEBI Securities Exchange Board of India Securities Appellate Tribunal
19-03-2018 Sima Saha Versus Prabir Kumar Saha High Court of Tripura
15-03-2018 Rama Saha Versus M/s. Dream Dwellings & Others West Bengal State Consumer Disputes Redressal Commission Kolkata