DR MANJUNATH B D vs. THE GOVERNMENT OF INDIA

® IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 28TH DAY OF AUGUST, 2013

BEFORE

THE HON’BLE MR. JUSTICE A S BOPANNA

W.P.Nos.36079-36080/2013 (GM-RES) c/w W.P.No.36204/2013 (GM-RES)

W.P.Nos.36079-36080/2013

BETWEEN:

... PETITIONERS

(BY SRI MADHUSUDAN R NAIK, SR. ADV. FOR SRI OMKAR KAMBI, ADV. FOR M/S. NAIK AND NAIK LAW FIRM)

AND:

... RESPONDENTS

(BY SRI S VIJAYASHANKAR, SR.ADV. FOR SRI N K RAMESH, ADV. FOR R3 SRI KALYAN BASAVARAJ, ASG. FOR R1 SRI ZULFIKAR KUMAR SHAFFI, ADV. FOR R2)

THESE WRIT PETITIONS ARE FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO; CALL FOR RECORDS OF THE PROCEEDINGS FROM THE RESPONDENTS; QUASH THE IMPUGNED NOTIFICATION DT.30.7.2013 AND ISSUED BY THE R-3 AS PER ANNX-F & DIRECT THE R-3 UNIVERSITY TO HOLD ELECTIONS IN TERMS OF THE MANDATE OF THE AMENDMENT TO SEC. 3(1)(b) BY INDIAN MEDICAL COUNCIL (AMENDMENT) ORDINANCE, 2013, AND WITH A FURTHER DIRECTION TO RE NOTIFY THE NOTICE OF ELECTION SO AS TO FACILITATE PARTICIPATION OF PETITIONERS AND OTHER TEACHING FACULTY MEMBERS OF AFFILIATED MEDICAL COLLEGES IN THE STATE OF KARNATAKA, AND COMPLETE THE PROCESS WITHIN THE TIME FRAME AS PER DIRECTIONS OF THE CENTRAL GOVERNMENT AS PER ANNX-E.

W.P.No.36204/2013

BETWEEN:

DR. K MADAN MOHAN BALLAL S/O DR. H D BALLAL

AGED ABOUT 43 YEARS R/O NO.35, 2ND MAIN ROAD GANGANAGAR BANGALORE-560 032

... PETITIONER

(BY SRI SHASHI KIRAN SHETTY AND SMT. FARAH FATHIMA, ADVS. FOR M/S. SHETTY AND HEGDE ASSTS.)

AND:

... RESPONDENTS

(BY SRI KALYAN BASAVARAJ, ASG. FOR R1 SRI ZULFIKAR KUMAR SHAFFI, ADV. FOR R2 SRI S VIJAYASHANKAR, SR.ADV. FOR SRI N K RAMESH, ADV. FOR R3)

THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO; CALL FOR RECORDS OF THE PROCEEDINGS FROM THE RESPONDENTS; QUASH THE IMPUGNED NOTIFICATION DT.30.7.2013 AND NUMBERS AS NO.AUTH/ELE/MC1/021 /2012-13, ISSUED BY THE R-3 AS PER ANNX-F & DIRECT THE R-3 UNIVERSITY TO HOLD ELECTIONS IN TERMS OF THE MANDATE OF THE

AMENDMENT TO SEC. 3(1)(b) BY INDIAN MEDICAL COUNCIL (AMENDMENT) ORDINANCE, 2013, AND WITH A FURTHER DIRECTION TO RENOTIFY THE NOTICE OF ELECTION SO AS TO FACILITATE PARTICIPATION OF PETITIONERS AND OTHER TEACHING FACULTY MEMBERS OF AFFILIATED MEDICAL COLLEGES IN THE STATE OF KARNATAKA, AND COMPLETE THE PROCESS WITHIN THE TIME FRAME AS PER DIRECTIONS OF THE CENTRAL GOVERNMENT AS PER ANNX-B DATED 14.06.2013.

THESE WRIT PETITIONS ARE HAVING BEEN RESERVED FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:

O R D E R

The petitioners in W.P.Nos.36079-80/2013 are working as Assistant Professor in Bangalore Medical College and Research Institute and Assistant Professor of Orthopaedics in Kempegowda Institute of Medical Sciences respectively, while the petitioner in W.P.No.36204/2013 is working as Assistant Professor in Sanjay Gandhi Institute of Trauma and Orthopaedics. They are therefore on the Medical Faculty of the said Institutes and are desirous of contesting the elections to the Council to be constituted in terms of Section 3 of the Indian Medical Council Act, 1956 (‘IMC Act’ for short).

notified to elect four members from amongst the Faculty of Medicine of RG Health University. The petitioners contend that the petitioners being the members of Faculty of the Medical colleges affiliated to RG Health University are also entitled to file their nomination, but they have been excluded by the impugned notice of election dated 30.07.2013.

together for consideration on merits with the consent of the learned senior counsel representing the parties.

“3. Constitution and composition of the Council.- (1) The Central Government shall cause to be constituted a Council consisting of the following members, namely:-

(a) One member from each State other than a Union territory, to be nominated by the Central Government in consultation with the State Government concerned;

“(aa) one member, to represent the Union territories by rotation, to be nominated by the Central Government;”

b) One member from each University, 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;

Provided 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;

Provided further that a Health University with less than ten Medical colleges affiliated to it, shall also be eligible to elect one representative to represent such Medical colleges:

Provided also that such number of representatives shall be reviewed by the Central Government after every four years.

(c) one member from each State in which a State Medical Register is maintained, to be elected from

amongst themselves by persons enrolled on such Register who possess the Medical qualifications included in the First or the Second Schedule or in Part II of the Third Schedule;

(d) omitted by ordinance

(e) eight members to be nominated by the Central Government.”

(a) the manner of electing the representative of the Medical colleges under the first proviso to clause (b) of sub-section (1) of section 3;

(b) the manner of election of the Council under sub-section (1) of section 4;

(c) such other functions of the Council under clause (h) sub-section (2) of section 9A as may be laid down by the Central Government;

(d) the conditions, the manner and payment of fees for filing an appeal before the Central Government under sub-section (2) of section 24; (e) any other matter which is required to be, or may be, provided by rules or in respect of which provision is to be made by rules.”

not have been contrary to the substantive provision. The learned Senior counsel for the petitioners in that regard has relied on the decision in the case of Surinder Singh Vs. Central Government and Others [(1986) 4 SCC 667] wherein it is held that framing of rules is not a condition precedent to the exercise of power expressly and unconditionally conferred by the statute and the expression subject to rules means in accordance with rules, if any. But, if no rules are framed, there is no void and the authority is not precluded from exercising the power conferred by the statute. In that view, the purport of the provision contained in the statute needs consideration.

(i) The case of Ishverlal Thakorelal Almaula (Deceased) by LRs. Vs. Motibhai Nagjibhai (AIR 1966 SC 459) wherein it is held as follows;

“(8) The proper function of a proviso is to except or qualify something enacted in the substantive clause, which but for the proviso would be within that clause. It may ordinarily be presumed in construing a proviso that it was intended that the enacting part of the section would have included the subject-matter of the proviso. But the question is one of interpretation of the proviso: and there is no rule that the proviso must always be restricted to the ambit of the main enactment. Occasionally in a statute a proviso is unrelated to the subject-matter of the preceding section, or contains matters extraneous to that section, and it may have then to be interpreted as a substantive provision, dealing independently with the matter specified therein, and not as qualifying the main or the preceding section.”

(ii). The case of The Commissioner of Income Tax Vs. Indo Merchantile Bank (AIR 1959 SC 713) wherein the Hon'ble Supreme Court after referring to the other decisions, has held that the proviso is used to carve out an exception to the main enactment and exclude something which otherwise would have been within the section. It has to operate in the same field and if the language of the main enactment is clear, it

cannot be used for interpreting the main enactment or to exclude by implication what the enactment says.

(iii). The case of Kaviraj Pandit Durga Dutt Sharma Vs. Navaratna Pharmaceutical Laboratories (AIR 1965 SC 980) wherein it is held that it would not be reasonable construction of any statute to say that a proviso which in terms purports to create an exception and seeks to confer certain special rights on a particular class of cases included in it should be held to be otiose and to have achieved nothing.

(iv). The case of Kedarnath Jute Manufacturing Co. Ltd. Vs. The Commercial Tax Officer & Others (AIR 1966 SC 12) wherein “Craies on Statute Law” was noticed stating that the effect of an excepting or qualifying proviso, according to the rules of construction, is to except out the preceding portion of the enactment or to qualify something enacted therein which but for the proviso would be within it.

(v). In the case of Dattatraya Govind Mahajan and Others Vs. The State of Maharashtra and Another (AIR 1977 SC 915) wherein while considering the second proviso to Article-31A (1) of the Constitution, it was held that it is absolutely plain in the context; setting and purpose of a provision, even a proviso may function as an independent clause.

(vi). In the case of S. Sundaram Pillai etc., Vs. V.R.Pattabiraman & Others (AIR 1985 SC 582) wherein it is held that a proviso may have three separate functions. Normally a proviso is meant to be an exception to something within the main enactment or to qualify something enacted therein which but for the proviso would be within the purview of the enactment. A proviso cannot be torn apart from the main enactment nor can it be used to nullify or set at naught the real object of the main enactment. The four purposes which the proviso may serve, has also been stated therein.

(i) The case of The Sales Tax Commissioner etc., Vs. B.G.Patal etc., (JT 1995 (6) SC 271) wherein it is held that it is settled law that the proviso and the main part of the Act or Rule are to be harmoniously read together and interpreted to give effect to the object of the provision.

(ii) The case of A.N.Sehgal and Others Vs. Raje Ram, Sheoran and Others (1992 supp (1) SCC 304) wherein it is held as follows;

“14. It is cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carves out an exception to the main provision to which it has been enacted by the proviso and to no other. The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is to confine to that case. Where the language of the main enactment is explicit and unambiguous, the

proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms.

(iii). The case of J.K. Industries Ltd. & Others Vs. Chief Inspector of Factories and Boilers and Others (1996 (6) SCC 665) wherein it is held that a proviso to a provision in a statute has several functions and while interpreting a provision of the statute, the Court is required to carefully scrutinize and find out the real object of the proviso appended to that provision. The Section and the proviso thereto must be construed as a whole, each portion throwing light, if need be on

the rest. A proviso is normally used to remove special cases from the general enactment and provide for them specially. A proviso may be considered in relation to the principal matter to which it stands as a proviso. A proviso should not be read as if providing something by way of addition to the main provision which is foreign to the main provision itself. In some cases, a proviso may be an exception to the main provision though it cannot be inconsistent with what is expressed in the main provision. The general rule to construe an enactment containing a proviso is to construe the provisions together without making either of them redundant or otiose. It is desirable to make an effort to give meaning to the proviso with a view to justify its necessity.

(iv). The case of Delhi International Airport Private Ltd. Vs. Union of India and Others [(2011) 12 SCC 449)] wherein while construing the provisions of the Industrial Disputes Act, it is held that it is a well established canon of statutory construction that the legislature is known to avoid tautology and redundancy.

“A proviso is a formula beginning ‘Provided that….’. which is placed at the end of a section or subsection of an Act, or of a paragraph or sub- paragraph of a Schedule, and the intention of which is to narrow the effect of the preceding words.”

clause is only while it is seen to be so in the context, setting and purpose of a provision as stated therein.

entitled to be elected and the electoral College which would elect such representative has been specified. By the proviso incorporated by the Ordinance, a Health University has been excepted from the main provision insofar as the number of representatives to be elected to the Council in proportion to the number of Medical Colleges affiliated to it. Hence, instead of one representative for the University as contained in the main provision, the proviso states that a Health University will be entitled to elect one representative for every ten Medical colleges affiliated to it. Therefore, when the representation given to a University in the Council vide the main provision is further magnified in the proviso to that clause by excepting and providing larger representation to Health University in proportion to the number of Medical Colleges affiliated to such Health University as more Medical colleges would be affiliated as compared to a University which is not a Health University, it cannot be treated as an independent provision providing for a different manner or category of representation through a different source.

Hence, in the present context, setting and purpose, the proviso would have to be construed with the main provision to deduce the intention of the Ordinance keeping in view the contention and the phrases appearing in the provision and not as an independent and separate provision.

home that point, reference is made to Clause (a) of Sub- section (2) to Section 32 in the Ordinance wherein it provides that the framing of the rules is to provide for the manner of electing the “representative of the Medical colleges”. Hence, it is contended that the representation is to the Medical college in the Council since the word ‘of’ is used therein. The statement of objects and reasons are referred to contend that the proviso is introduced for giving larger representation for Medical colleges. The decision in the case of Dental Council of India and another –vs- Hari Prakash and Others (AIR 2001 SC 3303) wherein it is held that the intention of legislature is to be gathered from the language used in the statute and wider meaning should be given is relied upon. In that view, it is contended that the reference made by the learned senior counsel for the respondent to the Entry in List 1 and 3 of Schedule 7 of the Constitution and the provisions of Rajiv Gandhi Health University Act (‘RGHU Act’ for short) is not justified.

from the language used in the statute. Hence, I am of the opinion that all the other aids for gathering the intention referred to by the learned senior counsel for the respondent with reference to RGHU Act would not be relevant. However, the statement of objects and reasons stated while introducing the bill seeking to amend the Act would certainly act as an aid to understand the intention.

the Health University or from the members of the Faculty of Medical Colleges. The contention on behalf of the petitioners is that the phrase “one representative for every ten Medical college, to represent such Medical colleges” appearing in the proviso and the phrase “manner of electing the representative of the Medical college” appearing in the rule making power would make it clear that the representative is to be elected from the Faculty of the Medical college.

of the Health University. If the intention was otherwise, it should have been expressed in the proviso itself if it was to be considered as an independent provision and in that event, the phrase employed would have been “where there is a Health University, the medical faculty of the Medical Colleges affiliated to it shall elect” or in the subsequent phrase instead of the word ‘for’, the word ‘from’ would have been employed which then would have read as “one representative from every ten Medical colleges affiliated to it to represent such Medical colleges” which would not have left any doubt or ambiguity whatsoever. When the legislature did not choose to do so, the Court is not expected to supply words or replace words so as to give a purposive interpretation and widen the purport even if the Court is convinced that representation through the Medical college would have been effective as contended on behalf of the petitioners.

presented by the Hon’ble Minister referred to by the learned senior counsel on either side reads as hereunder:

“2. Now, it is proposed to amend the Indian Medical Council Act, 1956 to reconstitute the Council and review the composition of the said Council so as to give representation of Union territories and to remove the anomaly where States having larger number of Medical colleges, but having formed a Medical university, were having fewer seats in the Council as compared to States having fewer colleges affiliated to several Universities, by inserting a proviso in clause (b) of sub-section (1) of section 3.

introducing the proviso to Section 3(1)(b) of the IMC Act was to remove the anomaly by giving more representatives to the Health University in the Council as they had more Medical colleges affiliated to them as compared to the other Universities which had lesser number of Medical Colleges affiliated to them as otherwise a Health University with large number of Medical Colleges affiliated to it also would have had only one representative in the Council. Except that objective it was not to change the category of the composition to provide representation to the Faculty members of the Medical college since no other intention is mentioned in the statement of objects. This intention could be further gathered from the fact that no change whatsoever is introduced to the main provision in Section 3(1)(b) wherein, in respect of a University though it has Medical colleges affiliated to it, the member to the Council is to be elected from the Medical Faculty of the University by the members of the Senate of the University and not from the Faculty of Medical college affiliated to such University. When change is not

made to the main provision despite expansion of the long title to the IMC Act to include standards of medical education etc., a different intention cannot be attached to the proviso merely because only Medical Colleges are affiliated to the Health University and when they also would be represented by the Faculty of Health University. Ultimately the members in the Council under Clause (b) will be the representatives for and of the Medical Colleges affiliated to a University, but elected from amongst the members of the Medical Faculty of the University since that portion has not been amended. Further, the members of the Medical Faculty of the University are also the persons with qualification and experience who can contribute to achieve the objective of the Act as stated by the long title. When that be the position, there can be no different type of representation to the Medical college merely because they are affiliated to the Health University. Hence, the intention is very clear that by the proviso, only the number of representatives is sought to be increased keeping in view that more number of colleges are

affiliated to Health University, but all other requirements are intended to remain the same.

and are under one umbrella. In such situation, if the proviso under consideration was not introduced, all the forty colleges would have had only one representative in the Council while a State which did not have a Health University but had more Universities and probably lesser Medical colleges affiliated to different Universities would have had more representatives in the Council and the Karnataka State would have been under represented. That anomaly has been removed by the present amendment and wider representation to the Health University is enabled by the proviso and nothing beyond. If there was any other intention, it would have been expressed in the proviso itself or a separate clause or provision would have been enacted without leaving room whatsoever for interpretation.

alone will get elected and the Vice-Chancellor himself cannot be considered as a member of faculty are all issues which would not arise for consideration as it is for the legislature to look into all those aspects if it is a lacuna or shortcoming in the enactment and it is not for this Court to take any other view than what is provided in the Act or Ordinance. Further, the reliance placed on the election notification issued by Dr. NTR University of Health Sciences, A.P., Vijayawada and Kerala University of Health Sciences, Thrissur would not be of assistance as a detailed consideration is made by me on hearing the learned senior counsel on both sides.

Sd/-

JUDGE

akc/bms