State Of West Bengal & Others Vs Dr. Md. Nazir Hossain & Others

Re: C. A. N. 4850 of 2019.

Although this application is appearing in the list for hearing since the applicants have addressed us on the merit of the appeal we propose to dispose of the appeal itself with the consent of the parties treating the appeal to be on the day's list.

Re: M. A. T. 693 of 2019.

This is an appeal from an order dated May 15, 2019 passed by a learned single judge in W. P. 8990 (W) of 2019. By the said order the learned single judge had passed three directions :- 1) the respondents have been directed to produce the records of the in-service doctors who had served the remote areas as per a certain Regulation of the Medical Council of India (MCI, for short), 2) the interim order already granted was extended till May 24, 2019, and 3) the matter has been directed to appear in the list on May 22, 2019.

Of these three directions the last fixes the date on which the matter has been directed to appear before learned single judge. The appellants cannot be aggrieved by this direction. It is the other two directions about which, it appears, the appellants are really aggrieved.

We have heard at length Mr. Sen, the Joint Secretary (Law), Department of Health and Family Welfare, Government of West Bengal.

The primary contention of the appellants which appears to be the raison d' etre for filing this appeal is a tight time schedule which has to be maintained by them in order to complete the process of admission to the various post graduate medical courses. Mr. Sen submitted that if the respondents have to wait for the disposal of the writ petition the time schedule fixed by the MCI may not be complied with and, therefore, this appeal has been filed so that the Court may vacate the interim order and allow the respondents to admit the students for the present.

Connected with it are other submissions as well. The appellants submitted that their stand was clarified to the learned single judge who without considering the same had passed the impugned order. He further submitted that since the notification, dated November 23, 2011, issued by the relevant branch of the Department of Health and Family Welfare, Government of West Bengal has been set aside by a Division Bench of this Court, it is not possible for the State Government to distinguish between rural, urban and remote or difficult areas as no further notification has been issued since then. Clause 9 of the said notification dealt with the weightage to be given to the in-service doctors. After setting aside of that notification a new notification was required to be issued by the Government and without the same such distinction between different areas cannot be maintained.

Two other submissions of the appellants are that the interim order was obtained by the petitioners behind the back of the State respondents and by suppressing material facts. For example, Mr. Sen submitted, it does not appear from the writ petition that some of the petitioners had appeared at the counselling and some of them have also been admitted.

The interim order was initially granted on April 26, 2019. The learned single judge specifically recorded that despite service of notice none had appeared on behalf of the respondent authorities. If after service of notice a litigant does not appear before a Court, he cannot subsequently come and complain that the order was passed behind his back or he was not given an opportunity to make any submission. The justification for non-appearance, as submitted by Mr. Sen, was that the cease work of the learned advocates was continuing at the relevant point of time and no notice had been given that the matter would appear on that date itself.

Neither of them does appear to be a convincing one. Now also the cease work of the learned advocates is continuing and the appellants are represented by the officials. After the initial interim order was granted they had appeared before the learned single judge more than once and no such point was ever taken that the notice was flawed and, therefore, the interim order should be vacated. On the contrary, submissions on merits were made and interim order was extended in presence of the representatives of the present appellants. The point that the appellants want to make out now that they had no notice about the listing of the matter, if not taken before the learned single judge who had recorded that despite notice the respondents to the writ petition went unrepresented, cannot be entertained by the Court at the appellante stage and that too after the third round of hearing before the learned single judge.

The learned single judge had passed the interim order after a detailed discussion of the case of the petitioners and recording the reasons why the order had been passed. The order records that the petitioners had applied at the written examination and they were called for the counselling which started from March 29. 2019 and they appeared at the counselling. After this the appellants cannot prima facie agitate the alleged suppression of material fact that some of the petitioners appeared at the counseling. That apart, whether there has been any material suppression in the writ petition that some of them have even been admitted to the course is a matter to be decided by the learned single judge while disposing of the writ petition itself. While hearing an appeal from an interim order we cannot dispose of the writ petition on merits nor can we make any observation on the merits of the writ petition.

The primary direction contained in the impugned order is to produce the records of the in- service doctors who had served in the remote areas as per the relevant regulation. The learned single judge had specifically recorded the reasons passing this order, i.e. she was not at all satisfied with the submissions of the respondent authorities. It is for that reason that she had directed the records to be produced before the Court which are bound to speak for themselves.

In the writ petition the petitioners have prayed for a writ in the nature of certiorari directing the respondents to produce the entire records including the Government orders, memorandum etc. In a writ petition where certiorari has been prayed for it is within the competence of the Court to direct the respondents to produce the relevant records for being satisfied about the merits of the respective cases. Even otherwise also it is always competent for a Court to direct the parties to produce the records for a complete and effective adjudication of the issues before it. That apart, the impugned direction is a very innocuous. The respondents should produce the records of the in-service doctors which the learned single judge can satisfy herself about merits of the case. It is not understood why such an innocuous direction has left the present appellants aggrieved so as to challenge the same in the form of an appeal.

The reason submitted by the appellants that after the setting aside of the notification dated November 23, 2011 no fresh notification had been issued and therefore, the distinction between the rural, urban and remote or difficult areas have not been very clearly delineated is difficult to accept as a justification for non-production of records. If the appellants have not issued any notification subsequently it is for them say why it has not been, but that cannot be any justification for not producing the records of the in-service doctors. If for any reason whatsoever the remote or difficult areas have not been specifically earmarked the records can still be produced and relevant submissions may be made.

We find absolutely no justification on the part of the present appellants to take any exception to an otherwise inoffensive direction for production of records.

The appellants lastly submitted that the interim order should be vacated and the admission process should be completed which shall abide by the result of the writ petition.

For reasons far too obvious such a prayer cannot be entertained in the present appeal assailing the order, dated May 15, 2019. If a party is aggrieved by the grant of an interim order he must have to challenge the initial grant of it and not its subsequent extension. After the initial interim order was granted the appellants had appeared before the learned single judge on several occasions and in their presence the interim order was subsequently extended. The initial grant of the interim order not having been challenged the appellants cannot assail the extension of the same which has been passed in furtherance of the order passed on April 26, 2019.

Coming to the issue of urgency of the case we do not find this to be a valid ground to interfere with the order impugned. We have been informed that affidavits in connection with the writ petition have already been filed. The learned single judge was in the midst of hearing of the writ petition. She has recorded that she has heard different parties in person. She has, on the submission of the present appellants, modified the interim order on May 1, 2019. Even that was not challenged. About fifteen days thereafter when the learned single judge had directed the records to be produced the impropriety of passing of the interim order became a subject matter of challenge by the appellants.

It cannot be glossed over that the learned single judge, in course of hearing of the writ petition expressed her dissatisfaction about the submission of the respondents and wanted to be satisfied upon perusal of the service records. That is why the Court had directed the records of the in-service doctors who had served the remote areas as per the Regulations, 2000 of the MCI to be produced before the Court. It is not clear how the appellants want to save time by initiating a fresh proceeding in the form of an appeal and the connected application when the learned single judge is already in seisin of the matter and is in the midst of hearing the writ petition. If the appellants want the interim order to be vacated it has to be done on affidavits which will certainly take more time. The process is bound to be further delayed and not expedited. The learned single judge has fixed the matter on May 22, 2019 which is only tomorrow and had extended the interim order till May 24, 2019. There cannot be any earthly reason for the present appellants to file an appeal on the ground of urgency when the case is fixed for hearing tomorrow. Thus urgency does not appear to be a convincing reason for filing the present appeal.

We have indicated that the order impugned is a very innocuous one merely directing the respondents to produce the records. We repeat, where writ of certiorari has been prayed for every writ court has power to direct the respondents to produce the records. If they face any difficulty about it or if they consider that the petitioners are not entitled to the interim order or to any other relief they have all the opportunity to agitate the same before the learned single judge. Nothing of what the appellants have submitted before us can be said to be any ground for not producing the records before the learned single judge.

The last submission of the appellants that the admission should be allowed to be completed, subject to the result of the writ petition, cannot be entertained in the present appeal as the appellants have not come against the grant of the interim order. To accede to the prayer of the appellants would amount to vacating the interim order the grant of which is not under challenge.

For the reasons aforesaid there is nothing to interfere in the present appeal. The order impugned calls for no interference. We find no understandable or reasonable justification for the appellants to feel aggrieved by the order impugned. The order impugned has not touched their rights in any manner nor has it prejudicially affected their case.

The appeal merits no consideration and the same is dismissed.

With the dismissal of the appeal the connected application being C.A.N. 4850 of 2019 has become infructuous and the same is also dismissed.

The learned single judge is requested to dispose of the writ petition as expeditiously as possible.

There will be no order as to costs.