Patna High Court
Dr. Basant Singh vs The State Of Bihar & Ors on 1 December, 2016
Equivalent citations: AIR 2017 PATNA 29
Author: Ajay Kumar Tripathi
Bench: Ajay Kumar Tripathi
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No. 5291 of 2016
===========================================================
Dr. Basant Singh, Son of Late Raghubir Singh, Resident of Mohalla-Golghar, P.S.-
Gandhi Maidan, P.O.-G.P.O. District-Patna
.... .... Petitioner/s
Versus
1. The State of Bihar, through Principal Secretary, Education, Department, Vikash
Bhawan, New Secretariat, Patna
2. The Vice Chancellor, B.N. Mandal University Lalu Nagar Madhepura
3. B.N. Mandal University through its Registrar-Cum-Returning Officer, Lalu
Nagar, Madhepura
4. The Medical Council of India Through its Secretary, Sector-8, Pocket-14,
Dwarika Phase-1, New Delhi-110077
.... .... Respondent/s
===========================================================
Appearance :
For the Petitioner/s : Mr. Y. V. Giri,
Sr. Advocate
Mr. Pranav Kumar, Advocate
For the Private-respondent : Mr. P. K. Shahi,
Sr. Advocate
Mr. Sanjeet Kumar, Advocate
Mr. Raj Kamal
For the State : Mr. Kumar Alok, SC-7
Mr. Satyeshwar Prsaad,
AC to SC-7
Mr. Neeraj Kumar
AC to SC-7
For the Union of India: Mr. S. D. Sanjay, ASG
Mr. Abhishek Kumar, Advocate
Mr. Alok Kumar Jha, CGC
For the University : Mr. Mithilesh Kumar Rai, Advocate
Ms. Vandana Kishore, Advocate
For the MCI : Mr. Kumar Brijnandan, Advocate
Mr. Tarees Hameed, Advocate
===========================================================
CORAM: HONOURABLE MR. JUSTICE AJAY KUMAR TRIPATHI
ORAL JUDGMENT
Date: 01-12-2016
Heard learned counsels for all the parties
extensively.
2. By virtue of Annexure - 13, dated 25th of
Patna High Court CWJC No.5291 of 2016 dt.01-12-2016
2/15
January, 2016, the election petition filed by the petitioner
against nomination of private-respondent no. 6, namely
Dr. Arun Kumar Agrawal, as a member of Medical
Council of India (hereafter referred to as "MCI" for short)
under section 3 (1) (b) of the Indian Medical Council Act,
1956, has been rejected under the signature of the
Secretary of Government of India, Ministry of Health and
Family Welfare. It is this order of rejection, contained in
Annexure-13, whose quashing the petitioner wants
through this writ application.
3. The background facts leading to the
present writ application is that in terms of the provision,
contained in Indian Medical Council Act, 1956, especially
section 3 (1) (b), one member from each university is
required to be elected from amongst the members of the
"medical faculty" of the university, by the members of the
Senate of the university or in case the university has no
Senate by members of the Court. The petitioner and the
private-respondent no. 6 became candidates for the said
election and they filed their nomination. The nomination
of both the candidates were objected to, but those
objections were rejected or brushed aside and election
was held between the two contesting parties, i.e.,
between the petitioner and the private-respondent no. 6.
Patna High Court CWJC No.5291 of 2016 dt.01-12-2016
3/15
Private-respondent no. 6 came to be returned by
securing 64 votes and the petitioner, namely, Dr. Basant
Singh lost the electoral battle and, therefore, he
approached the High Court first by filing a writ
application. The order passed in the previous writ
application is Annexure - 12. The Learned Single Judge
directed the petitioner to first exhaust the statutory
remedy of appeal and thus the appeal was moved and
Annexure - 13 was passed.
4. Besides the various deliberations, by the
Secretary, Health, Government of India in the discussion
while rejecting election petition of the petitioner, the main
thrust of the argument, which has been advanced on
behalf of the learned senior counsel for the petitioner is
that grave mistake has been committed by the Election
Tribunal by coming to a conclusion that since the private-
respondent no. 6 has been shown to be a "medical
faculty" of B. N. Mandal University by the university,
therefore, the Election Tribunal will not go behind such a
declaration or notification. It is for the university to take a
call. But since the petitioner lost decisively in the election,
the election of the private-respondent no. 6 cannot be set
aside.
5. Certain preliminary objection was raised
Patna High Court CWJC No.5291 of 2016 dt.01-12-2016
4/15
on behalf of private-respondent no. 6, which included the
fact that since the petitioner cannot get any relief by way
of a direction and cannot be declared as a returned
candidate, the impugned decision, contained in
Annexure-13, ought not to be interfered with. The present
writ application is a challenge to Annexure - 13 and not a
writ of quo warranto, which is required to be entertained
and adjudication made.
6. The Court allowed all the parties to the
dispute to place their point of view extensively. During the
course of submissions the Court came to a considered
opinion that there is a legal question which emerges for
serious consideration emerging from the statutory
provisions, which are the Indian Medical Council Act,
1956 and the Bihar State Universities Act, 1976, from
where the right of the parties to be elected as a member
of the "medical faculty", emerges.
7. The Court is tempted to reproduce
section 3 (1) (b) of the Indian Medical Council Act, 1956
for the reason that it is under this provision that election
was held for returning a candidate as a medical faculty of
a university.
"3 (1) (b) one member from each University,
to be elected from amongst the members of the
medical faculty of the University by members of
Patna High Court CWJC No.5291 of 2016 dt.01-12-2016
5/15
the Senate of the University or in case the
University has no Senate by members of the
court."
8. Some further facts are required to be
taken note of as to how private-respondent no. 6 came to
be notified as a member of medical faculty of B. N.
Mandal University. On 31.10.2013, the Registrar of B. N.
Mandal University issued a letter to the Director /
Principal of three private medical colleges. The colleges
are Katihar Medical College, Katihar; M.G.M. Medical
College, Kishanganj; and Lord Buddha Medical College
at Saharsa. This was a joint letter addressed to all the
three private medical colleges. The subject indicated in
the said letter is "Regarding visits of Dr. Arun Kumar
Agrawal, Professor of Neurosurgery as Visiting Professor in
Neurosurgery in the faculty of medicine." The letter
forwarded the bio-data of private-respondent no. 6 to the
three medical colleges with a request to arrange for his
visits as a Visiting Professor, for requirement from the
administration for benefit of students community and the
institution as well.
9. Dr. Agrawal is a Professor of
Neurosurgery at Patna Medical College and Hospital in a
substantive capacity and he still continues to hold that
post. He is a permanent government servant under the
Patna High Court CWJC No.5291 of 2016 dt.01-12-2016
6/15
State of Bihar. What was the occasion for the B. N.
Mandal University to recommend his case to private
medical colleges is not satisfactorily explained.
10. From Annexure - R 6/9, which forms
part of the counter affidavit of the private-respondent, it
seems the Katihar Medical College, Katihar obliged the
university as well as the private-respondent no. 6 by
quickly taking cognizance of Annexure - 1 of the writ,
dated 31.10.2013 by issuing a letter to the private-
respondent no. 6, Dr. Agrawal on 05.11.2013 in following
terms: -
"To,
Dr. Arun Kumar Agrawal,
Professor & Head,
Department of Neurosurgery,
Patna Medical College,
Patna
Sub: Appointment to the post of Professor
in the department of General Surgery on Honorary
basis.
Sir,
The undersigned takes pleasure to inform
you that considering your academic excellence, you
have been appointed to the post of Professor in the
department of General Surgery in this college on
honorary basis. Your appointment on honorary
basis is purely in the academic interest of the
college with a view to enhance academic knowledge
of the students undergoing various UG and PG
courses in this institution. Emphasis mine.
Necessary arrangement for your stay
Patna High Court CWJC No.5291 of 2016 dt.01-12-2016
7/15
during your visit to this college will be made by us.
In addition, admissible T. A. / D. A. will be also
payable / reimbursed to you.
You are requested to intimate us about
your visit programme to this college at least one
week in advance to facilitate timely preparation of
teaching schedule and availability of suitable patient
for clinical teaching.
Kindly confirm your acceptance.
Thanking your,
Yours faithfully
B. Mukherjee / 05.11.2013
Principal"
11. Based on the engagement / appointment
of private-respondent no. 6 in Katihar Medical College as
a Visiting Professor of General Surgery and not
Neurosurgery, the B. N. Mandal University notified him to
be a medical faculty under B. N. Mandal University.
Under what principle of law when the medical college and
not the university had notified him as a visiting Professor.
12. There is no dispute that the terminology
used with regard to private-respondent no. 6 in the letter
of appointment by Katihar Medical College, Katihar was
that of a Visiting Professor of General Surgery, therefore,
there is no confusion as to in what capacity and position
private-respondent no. 6 was made a Visiting Professor.
Then, why and how could he be shown as a "Medical
Faculty" by B. N. Mandal University, when it did not
Patna High Court CWJC No.5291 of 2016 dt.01-12-2016
8/15
appoint him but only sponsored him.
13. Learned senior counsel for the petitioner
submits that there is no "medical faculty" under B. N.
Mandal University, therefore, B. N. Mandal University
showing the private-respondent no. 6 as a medical faculty
is a misnomer and playing fraud with the statutory
provision. Any appointment or arrangement made by a
private medical college and that too having minority
status and only affiliated with the university is not an
appointment or engagement under B. N. Mandal
University. Therefore, showing the private-respondent no.
6 as a medical faculty under B. N. Mandal University is a
sham and farce and the B. N. Mandal University has
basically tried to lend itself to be used as a platform for
facilitating election of a person, who is not a faculty under
the university.
14. It is also urged that in fact the B. N.
Mandal University is playing a game of surrogacy with
regard to such election. It had no business or occasion to
elect and return a candidate as a member of the
university under section 3 (1) (b) of the Indian Medical
Council of India Act as a „medical faculty of the
university".
15. Let us understand as to what the word
Patna High Court CWJC No.5291 of 2016 dt.01-12-2016
9/15
"Visiting Scholar" or a "Visiting Professor" means or is
understood in the academic world. A "Visiting Scholar" or
"Visiting Professor" is a scholar which belongs to a
particular institution and is a regular faculty of the
institution where he has been appointed. He only visits
the host university or the institution and is expected to
either teach, lecture or perform research on a topic the
Visitor is valued for. Typically the visiting scholar is
invited by the host institution. The invitation to such
Scholar or Professor is regarded as a significant
accolade and recognition not only to the institution but
also to the Scholar, who has certain prominence in his
field. He cannot become a faculty of the host institution or
university.
16. In other words, a Visiting Professor is a
full time employee of the parent university or institution
where he is a Professor and by fact of his eminence and
reputation in the academic world he is invited to enrich
the faculty as well as the academic environment of
another university or an institution from where invitation is
sent. Such invitation does make him a faculty under the
host.
17. In the present case, the Court finds it
fishy that the bio-data of private-respondent no. 6 was
Patna High Court CWJC No.5291 of 2016 dt.01-12-2016
10/15
sponsored and forwarded, and marked to three private
medical colleges to sponsor private-respondent no. 6 as
a Visiting Professor. Where was the occasion for the
university to do so, is not appreciated, especially when
there is no medical faculty under the B. N. Mandal
University, a fact not a matter of dispute. What
arrangement the private medical colleges would like to
make to enrich their faculty is not the business of B. N.
Mandal University. They should be more concerned
about the different departments and faculty which is
being run by the university and under the university not
some non-existent faculty. The very essence of the
nature of such engagement or appointment of private-
respondent no. 6 by the private medical college by no
interpretation or inference can make such an
engagement made by Katihar Medical College, Katihar
as a "Medical Faculty" under B. N. Mandal University. In
other words a game of farce in teeth of section 3 (1) (b) of
MCI Act is being played by B. N. Mandal University. The
university is being used by people, who are in a position
to manipulate things to their advantage to become a
member of Central Council of Medical Council of India.
18. The object of the Statute is not to create
representation in a sham way. The representative must
Patna High Court CWJC No.5291 of 2016 dt.01-12-2016
11/15
be of a faculty of the university and not by adoption or
manipulation of such kind, which is reflected from the
facts noted in the earlier part of the order.
19. The Bihar State Universities Act, 1976
also has certain definition clauses and the word "Faculty"
has been defined under section 2 (a) (f) "Faculty"
means a faculty of the university.
20. The definition of a teacher has also been
provided under section 2 (v) which reads as under:
"(v) "Teacher" means person holding the
post of only University Professor / Professor,
Reader, and Lecturer and such sanctioned posts
in the teacher's grade on the basis of regulations
issued by the U.G.C. from time to time:
Provided, that notwithstanding the said
substitution in section 2 (v), the action taken in
respect of working Demonstrators appointed
before 18.09.1975 on the post sanctioned before
1.1.1973with the concurrence of Bihar Public Service Commission or Bihar State University Service Commission shall not be affected by this substitution."
21. If the facts are what they are and there is no serious dispute with regard to the engagement of private-respondent no. 6 as a "Visiting Professor" by a private medical college and not by the university then the private-respondent no. 6 remains a Professor in PMCH in substantive capacity. His obtaining a no objection from Patna High Court CWJC No.5291 of 2016 dt.01-12-2016 12/15 the Principal of PMCH that he can make visits so long the work of premium hospital in the State of Bihar is not affected, is of no avail or consequence. It is absolutely clear that a person cannot have two masters and he cannot serve two institutions simultaneously, even if there was a no objection given, but that no objection only relates to his visit and not for his appointment as such as a "Faculty" under the university.
22. The engagement of the private-
respondent no. 6 even otherwise is by Katihar Medical College, Katihar, which is a minority institution, having its independent managing committee and why and how the B. N. Mandal University and its authorities have decided to adopt private-respondent no. 6 by first sponsoring his name by forwarding his bio-data, is not required to be really investigated. But according to the Court the cat is out of the bag and such an action of university is not only reprehensible but the university is further barred from sending any person as a "Medical Faculty" for any future vacancy, which may arise. The B. N. Mandal University does not have a medical faculty under it and it cannot further by surrogacy adopt a Visiting Professor of a private medical college as a faculty of the university. The present arrangement of returning candidates under Patna High Court CWJC No.5291 of 2016 dt.01-12-2016 13/15 section 3 (1) (b) cannot be used or utilized by B. N. Mandal University.
23. The Court is further reinforced in observing as above after reading the definition of the word "Faculty", "Teacher" and what constitute a faculty under section 26 of the Bihar State Universities Act, 1976, which too is reproduced hereinbelow.
"26. The Faculties. - (1) The University, other than the Kameshwar Singh Darbhanga Sanskrit University, may include the Faculties of Arts, Science, Commerce, Medicine, Law, Education, Engineering and such other Faculties as may be prescribed by the Statutes:
Provided that no Faculty shall be created by the Senate in respect of any branch of learning for the instruction of which no provision exists in any department of the University or any of its colleges. Emphasis mine.
(2) Each Faculty shall, subject to the control of the Academic Council, have charge of the courses of studies, teaching and research work in such subjects as may be assigned to such Faculty by the [Statutes].
(3) The total number of members of each Faculty shall not exceed such as may, from time to time, be prescribed by the Statutes.
(4) Subject to the provisions of sub- section (3) each Faculty shall consist of -
(a) Such number of members of the Senate as are teachers and as may be assigned to each Faculty by the Senate keeping in view the qualifications of such teacher members.
(b) such members of the Senate as are not teachers, their number in any faculty not Patna High Court CWJC No.5291 of 2016 dt.01-12-2016 14/15 exceeding one-fifth of the total number of members of that Faculty, other than the Faculty of Agriculture, Engineering, Law, Medicine, Commerce or Veterinary Science and as may be elected from amongst and by the Senate in the manner prescribed by the Statutes:
Provided that in the case of the Faculty of Agriculture, Engineering, Law, Medicine, Commerce or Veterinary Science, the number of members of the Senate who are not teachers shall be such as may be prescribed by the Statutes; and
(c) such number of members, to be co-
opted as experts by the Academic Council from amongst persons who are not members of the Senate, as may be prescribed by the Statutes:
Provided that no person shall be a member of more than two Faculties."
24. The position of law being what it is, the election of the private-respondent no. 6 as a medical faculty elected by the Senate of B. N. Mandal University, therefore, is not supported by law. He cannot be the true representative under the statutory provision of the Indian Medical Council Act, especially section 3 (1) (b) and, therefore, the Election Tribunal made a serious error by not examining the objection of the petitioner whether the private-respondent no. 6 was actually a medical faculty under B. N. Mandal University or not. By ignoring such objection and putting the onus on the university, the Election Tribunal, in the opinion of the Court, has committed a serious error of law, which goes to the root Patna High Court CWJC No.5291 of 2016 dt.01-12-2016 15/15 of the election of the private-respondent no. 6.
25. In view of the above, the impugned order, contained in Annexure-13, is quashed. The writ application is allowed. The election of private-respondent no. 6 is declared null and void forthwith.
As a corollary, it does not mean that the petitioner gets any relief of being returned as a candidate in lieu of the private-respondent no. 6, because even he seems to be hit by the rational and reasoning provided by this Court for setting aside the election of private- respondent no. 6.
(Ajay Kumar Tripathi, J) SKM/-
AFR/NAFR AFR CAV DATE Uploading Date 05.12.2016 Transmission Date