Full Text
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2997 OF 2025
Dr. Sachin Prabhu Pawar ...Petitioner
2. Maharashtra Medical Council, through its
Administrator
3. Ms. Shilpa Parab, Returning Officer
Maharashtra Medical Council ...Respondents
Ms. S.A. Prabhune, AGP for the State.
Mr. Brijesh Rathod a/w. Ms. Jesika Rathod for respondent no. 2.
Ms. Priyanka Patil for respondent no. 3.
JUDGMENT
1. This petition under Article 226 of the Constitution of India primarily assails the appointment of respondent no. 3 as the “Returning Officer”, to hold elections of respondent no. 2-Maharashtra Medical Council (for short “MMC”). The substantive reliefs as prayed for in the petition are as follows:- “(a) call for the relevant records and proceeding from the office of the Respondents and after going into the legality of the same, direct the Maharashtra Medical Council to declare the voters’ list afresh and amend/alter further steps accordingly, including filling up nomination, withdrawal of the same and the date of election and for that purpose issue writ and/or order.
VILAS RANE (b) direct the Respondent State to forthwith appoint unbiased returning officer as stipulated under Rule 6 of the MMC Rules
1967.
(c) direct the Respondent State of Maharashtra to forthwith appoint the Returning Officer to monitor election of Maharashtra Medical Council with further direction to declare the voter list in accordance with Rule 5.”
2. The relevant facts are: The petitioner claims to be a medical practitioner by profession enrolled with respondent no. 2-MMC. He is a voter in the ensuing elections of the MMC to be held on 3 April 2025.
3. The petitioner contends that the appointment of respondent no. 3 as a Returning Officer is illegal, being contrary to the provisions of Rule 6 of the Maharashtra Medical Council (1st Amendment) Rules, 2002 (for short “Rules”). He also contends that the actions taken by respondent no.3 of publication of the voters list, hence, is required to be held to be illegal.
4. It is the petitioner’s case that MMC is a statutory body established under Maharashtra Medical Council Act, 1965 which exercises authority and powers under the MMC Act as also under the National Medical Commission Act, 2019. The powers are in the nature of disciplinary procedures on professional misconduct against the doctors practicing Modern Scientific Medicine, who are enrolled with MMC. He further contends that MMC comprises of 18 members, out of which, 9 members are to be elected amongst the registered medical practitioners and out of the remaining 9 members, 4 members are to be nominated by the State from amongst the registered medical practitioners having MBBS degree and 1 member who is not medical practitioner. That out of the remaining members, 1 member is to be nominated from the College of Physician & Surgeons, 1 member from Maharashtra University of Health Sciences, and
2 Directors, namely, one Director of Medical Education and another director of Public Health Services of State of Maharashtra.
5. The petitioner has stated that the election of MMC is to be held every 5 years, and the period of 5 years comes to an end from the date of notification of establishing council. It is stated that last election of the MMC was held for 9 posts on 18 December, 2016. In or about August 2017, the Council was accordingly constituted after the appointment of the members nominated by the State of Maharashtra. It is contended that the term of MMC has come to an end on or about August 2022 and since then, an Administrator was appointed to look after the day-to-day affairs of the MMC.
6. The petitioner contends that there are 2 lakhs doctors who are enrolled with MMC and who have the right to vote in the elections of MMC. It is stated that on the date of voting, the voters are required to cast their votes by secret ballot by approaching the voting centers. In every district, there is a voting center at the district place and the Collector is authorized to nominate and/or arrange the staff under him for voting at the MMC elections.
7. The petitioner has contended that with a view to avoid allegations of favoritism and to conduct the election in a fair and transparent manner, a provision is made under the said Rules to appoint Returning Officer, who is not connected with the office of Council. It is the petitioner’s case that Rule 6 of the said Rules is the relevant Rule pertaining to the appointment of Returning Officer, which provides a person to be appointed as a Returning Officer by State Government, should not be below the rank of an Under Secretary to the Government, which would imply that the person being appointed as Returning Officer should necessarily be holding a post equivalent to the post of Under Secretary and/or that no person who is below the rank of Under Secretary should be appointed.
8. The petitioner has contended that respondent no. 3 came to be appointed by the State Government vide notification dated 31 October, 2023 and by an order of even date, respondent no. 3 was also appointed as including former MMC members protested against the appointment of respondent no. 3 as Returning Officer. The petitioner also protested against the appointment of respondent no. 3 by approaching the then Secretary, Medical Education Department. It is the petitioner’s case that although respondent no. 3 was appointed as Returning Officer on 31 October, 2023, she has not taken any steps for holding the elections of MMC and that she has tried to delay the same.
9. The petitioner has raised several contentions against respondent NO. 3 including that respondent no. 3 is creating a situation which would lead to irregularities in the process of elections. It is alleged that on 15 January, 2025, respondent no. 3 declared the voters’ list, and subsequent thereto, the election programme was declared on 17 January, 2025 which was due to the interference of this Court in the proceedings of Criminal Writ Petition No. 1569 of 2022. The petitioner has also raised concerns on the names which are included in the voters’ list which, according to the petitioner, would result in excluding the names of about 70,000 doctors.
10. The primary contention of the petitioner is that when respondent no. 3 was appointed as the Registrar of MMC, she could not have been appointed as Returning Officer, this for two fold reasons, firstly, that she cannot be held to satisfy the eligibility stipulated by Rule 6 of the said Rules namely that she cannot be considered to be an officer now below the rank of an ‘Under Secretary to Government’; and secondly, for the reason that the duties she discharged in her administrative capacity as an Incharge Registrar, would bring about a conflict of interest, if she works as a Returning Officer. It appears that however no basis / material is available in the petition on the second issue. It is on the basis of such case, the petitioner is before the Court praying for the reliefs as noted by us hereinabove.
11. A reply affidavit is filed on behalf of the State Government of Dr. Tushar Pitambar Pawar, Deputy Secretary, Medical Education and Drugs Department, Mantralaya, Mumbai, disputing the contentions as urged on behalf of the petitioner, in opposing the reliefs as prayed for. The reply contends that as the term of the office of members of the MMC expired on 7 August 2022, consequent thereto, the State Government appointed Dr. Pallavi Saple, Dean, Grant Government Medical College and Sir J.J. Group of Hospital, Mumbai, as an Administrator vide Government Notification dated 10 October 2022 for a period of one year or until new Council is constituted, whichever is earlier, to discharge all the powers and duties of the Council. It is stated that after the expiry of term of Dr. Pallavi Saple, the Government appointed Dr. Dilip Mhaisekar, Director, Directorate of Medical Education and Research, Mumbai, as an Administrator vide Government Notification dated 30 October 2023. It is stated that in the same notification as per Rule 6 of the said Rules, the State Government appointed respondent No.3 - Registrar, Maharashtra State Dental Council as the Returning Officer to conduct the elections of the MMC in accordance with the provisions prescribed in the Maharashtra Medical Council Rules, 1967. It is stated that after the appointment of Dr. Dilip Mhaisekar, Dr. Vinky Rughwani, former member of the said Council was appointed as an Administrator vide Government Notification dated 22 February 2024 and an extension was given to him for a period of one year or until a new Council is duly constituted through elections, whichever occurred earlier, which was by Government Notification dated 21 February 2025.
12. The affidavit of the State Government further contends that under Section 14 of the MMC Act, additional charge of Registrar of MMC was given to the Assistant Registrar, Maharashtra University of Health Sciences. However, due to some administrative reasons Smt. Shilpa Parab, of Registrar of MMC vide Government Order dated 30 October 2023. It is stated that her additional charge had come to an end vide Government Order dated 14 March 2024 as the Government had given such additional charge to Dr. Ibrahim Ansari, Associate Professor, B.J. Government Medical College, Pune. It is stated that at present Dr. Rakesh Waghmare, Associate Professor, Health Unit, Palghar (Grant Government Medical College, Mumbai) is working as Registrar, MMC as an additional charge vide Government Order dated 27 January 2025.
13. On the aforesaid statements it is categorically contended that respondent No.3 is not working as Registrar of Maharashtra Medical Council, as her charge has come to an end vide Government Order dated 14 March 2024, and she is not in any manner involved in the administration of respondent No.2. It is further stated that although she was appointed as Returning Officer of the MMC as well as Registrar on the same date, she did not prepare electoral roll nor notified the election programme of the MMC during her tenure of about five months as Incharge Registrar.
14. Insofar as the legal position under the Rule is concerned, it is stated that the State Government has power to appoint Returning Officer who is a person not below the rank of Under Secretary to the Government. It is stated that the appointment of Registrar of Maharashtra Dental Council i.e. respondent No.3, as a Returning Officer vide Government Notification dated 30 October 2023 was just and proper, and as per Rule 6 of the 1967 Rules. It is stated that the Registrar of the Maharashtra State Dental Council is of the rank of the post of Under Secretary to the Government. It is stated that the pay scale of the Registrar, Maharashtra State Dental Council is approved by the Government at Rs.15600-39100 and pay band Rs.6600/- as per sub section (1)(d) of Section 28 of the Dentists Act,1948 vide Government letter dated 29 February 2012 which is equivalent to that of the post of Under Secretary to Government as per the Maharashtra Civil Services (Revised Pay) Rules,2019. It is stated that Returning Officer’s (Respondent No.3) pay scale and the pay scale of the corresponding to pay band and grade pay or scale shown at Serial No.4 i.e. Pay Level in Revised Pay Matrix S-23: 67700-208700 which is equivalent to the Under Secretary to the Government. A copy of the Government Notification dated 30 January 2019 is annexed to the reply affidavit. “(Official Translation of a photocopy of MARKED PORTION from GOVERNMENT NOTIFICATION, printed in Marathi).
NOTIFICATION Constitution of India: No. R.O.P.-2019/M. No.1/Service – 9: In exercise of the powers conferred by the Proviso to Article 309 of the Constitution of India, Hon’ble Governor of Maharahstra is hereby pleased to make the following rules, namely:-
1) Short Title and Commencement: (1) These Rules shall be called as the Maharashtra Civil Services (Revised Pay) Rules, 2019. (2) The Rules shall be deemed to have come into force with effect from the date 01st January, 2016.
2) Categories of the Government Servants to whom these Rules shall become applicable: (1) Save as otherwise, provided by or under these Rules, these Rules shall apply to all persons who are under the Rule making control of the Hon’ble Governor of Maharashtra. (2) These Rules shall not apply to - (a) Government Servants not in the whole time employment; (b) Government Servants on consolidated rates of pay; ---- Accompaniment to the Government Notification, Finance Department No.RPS 2019/CR-01/SEVA-9 Dated 30th Jan. 2019
SCHEDULE SEE RULE 3(14) Mantralaya Department (Proper) (Amount in Rs.) Sr. No Designation Existing Pay Structure Pay level in Revised Pay Matrix Pay Bank Grad e Pay (1) (2) (3) (4) (5) (2) Posts common to all Mantralaya Departments (General Administration Department) Gazetted 1 (a) Additional Chief Secretary Cadre Post (b) Principal Secretary Cadre Post
(c) Secretary Cadre Post
4 Under Secretary 15600 – 39100 6600 S-23: 67700– 208700 5 Senior Personal Assistant 15600 – 39100 6600 S-23: 67700– 208700
7 Section Officer (i) 9300-34800 4800 S-17: 47600 – 151100 (ii)15600-39100 5400 S-20: 56100 – 177500 (After 4 years of regular service)
15. It is further contended that now respondent No.3 being Registrar of Maharashtra State Dental Council, is not discharging functions as the involved with the functioning of the MMC. It is next contended that it is imperative that the elections of the MMC are held as scheduled, being the only Council in the State that has regulatory authority over the medical practitioners. It is stated that accordingly, the Returning Officer has published an Election Programme vide Notification dated 17 January 2025, under which the nomination procedure has been completed and 41 candidates are contesting the elections of Maharashtra Medical Council-
2025. A copy of such notification dated 4 March 2025 is annexed to the reply afidavit. It is stated that the voting and the elections shall be by secret ballot. The voting of this election is being held in each District Headquarter under the supervision of the District Collector on Thursday, 3 April 2025 during 8 a.m. to 5 p.m.
16. There is a reply affidavit filed on behalf of respondent No.2 MMC of Dr. Rakesh Balaji Waghmare, opposing the petition. At the outset it is contended that the contentions as urged by the petitioner are vague, the petition is being filed without collecting due information and without exercising available remedy, without stating correct facts and also applicability of correct position in law. It is contended that the voters list contains the names of the registered practitioners who have valid registrations and the same is to be considered under the provisions of Section 16 and Section 23 of the MMC Act as the voters list is prepared as per the Rules having the names of all medical practitioners who are duly registered with the MMC and the name of the medical practitioners who have valid registrations are entered in the voters list/ electoral roll, and there is no error while publishing the electoral roll. It is contended that the Returning Officer has followed the provisions of the MMC Act and Rules thereunder in taking all such actions in relation to the election. It is contended that the intention of the petitioner is malicious that is to stay the elections for illegal motives and the allegations are made without verification of proper records and without gathering due information. It is stated that respondent No.2 have published electoral roll /voters list after taking into considerations all necessary aspects as also the MMC has done an in-depth observation as well as verification while publishing electoral roll and the same ought not to be interfered.
17. Respondent No.3 has also filed a reply affidavit denying the allegations as made against her by the petitioner contending that she has followed all Rules and Regulations in commencing the election process which has already been set into motion. Her reply affidavit has set out the details in regard to stages, scrutiny which was completed by her in regard to the nomination papers which were received from the candidates. She has stated that 6 nomination forms were rejected and therefore, 51 nomination forms were remained with the Returning Officer. She has stated that she has completed the scrutiny procedure as per the MMC Rules on 27 February 2025. She has also stated that on 3 March 2025 as per the election programme and as permissible under Rule 13 of the MMC Act, 10 candidates withdrew their nominations and final list of 41 contesting candidates remained with the Returning officer. She has also stated that on 4 March 2025, under her signature a final list of contesting candidates was published on the web site of the MMC. She has dealt with the allegations which are made by the petitioner to contend that they are wholly untenable and she has discharged official duty in accordance with law.
18. It is on such conspectus we have heard learned Counsel for the parties. Mr. Thorat, learned counsel for the petitioner has limited submissions. His primary contention is on the eligibility of respondent No.3 to appoint as a Returning Officer in the context of the relevant rule namely Rule 6 of the 1967 Rules as noted by us hereinabove. The contention is based on the premise that being a Registrar of the Maharashtra Dental Council, respondent No.3 cannot be treated to have eligibility of being an an officer not below the rank of ‘Under Secretary to the Government of Maharashtra’, merely on the basis of the pay scale. It is therefore, his contention that per se the appointment of respondent No.3 was illegal and contrary to the provisions of Rule 6 of the 1967 Rules. Mr. Thorat has also urged contention on the merits of the election programme which has been set into motion to which we have made a detail reference hereinabove, even by referring to Rule 5 which pertains to preparation of electoral roll.
19. Ms. S. A. Prabhune, learned AGP has opposed the petition relying on the affidavit in reply as filed by the State. She contends that the actions of the State Government in appointing respondent No.3 vide notification dated 30 October 2023 as impugned, is legal and valid and that considering the pay scale which respondent No.3 receives as a Registrar, Maharashtra State Dental Council, therefore, she would qualify to be a person holding a post not below the rank “Under Secretary” as is equivalent to the post “Under Secretary”. She has drawn our attention to the notification as annexed to the reply affidavit and the averments made in the reply affidavit.
20. Learned Counsel for respondent No.2 – MMC as also respondent No.3 has supported the case of the State Government in opposing the petition referring to their respective reply affidavits which we have discussed in the forgoing paragraphs.
ANALYSIS
21. Having heard learned Counsel for the parties and having perused the record at the outset we would consider whether respondent No.3 was eligible to be appointed as a Returning Officer under Rule 6 of the 1967 Rules. In considering this issue at the outset it is imperative to note the provisions of Rule 6 of the 1967 Rules, which reads thus: “6. Returning Officer. - The State Government shall appoint a person, not below the rank of Under Secretry to Government to be the Returning Officer. The staff of the Council’s office shall assist the Returning Officer for conducting elections smoothly. The Returning Officer shall issue such necessary instructions to all Presiding Officers, Polling Officers and other staff appointed by District Collector for conducting election and counting of votes as required to maintain complete secrecy in the process.”
22. On a plain reading of the aforesaid rule, the requirement for a person to be appointed as a Returning Officer is that a person not below the rank of ‘Under Secretary to Government’ can be appointed as a Returning Officer. The Rule when it uses the expression “not below the rank”, as to what would be the purport of such expression in the context of of an expression a person holding “a rank” would be required to be considered. Article 311 of the Constitution uses the word “rank” when it provides for dismissal, removal or reduction in “rank” of persons employed in civil capacities under the Union or a State. As to what is the meaning of the term ‘rank’ fell for consideration of the Constitution Bench of the Supreme Court in the case of The High Court, Calcutta vs. Amal Kumar Roy & Ors.[1] wherein the Supreme Court was directly considering the decree of the City Civil Court at Calcutta decreeing the plaintiff’s suit. In the peculiar facts of the case, the said decision of the Civil Court could not be appealed before the High Court of Calcutta, as the sitting Judges of the said Court or the appellants were the principal contesting defendants in the Trial Court and hence, as observed by the Supreme Court, as a matter of propriety, the High Court could not have heard the appeal. The plaintiff was functioning as an Additional District Judge and Sessions Judge on the date of the suit and was a member of the West Bengal Civil Services (Judicial). The grievance of the plaintiff was that in his appointment as a subordinate Judge, several other persons were appointed, one after another in succession, in the order which their names were appearing in a civil list, and being aggrieved he instituted a suit in question against the State of West Bengal as a principal defendant and 8 munsifs who were appointed as subordinate Judges in preference to the plaintiff. It is in such context the Supreme Court was considering the plaintiff’s arguments that he was reduced in rank by 8 in the list of subordinate Judges and in law it amounted to reduction in rank within the meaning of Article 113 of the Constitution. It is in such context the Supreme Court was considering as to what is meaning of word “rank”. The dictionary meaning the word was pressed into service which described that “rank” signifies "relative position or status or place, according to Oxford English Dictionary. It was held that the word "rank" can be and has been used in different senses in different contexts. In the context of the expression "rank" in Article. 311(2) it was held that it has reference to a person's classification and not his particular place in the same cadre in the hierarchy of the service to which he belongs.
23. The aforesaid decision of the Supreme Court was followed by the Supreme Court in Shitla Sahai Srivastava vs. General Manager, North Eastern Railway[2] in which the Supreme Court reiterated the aforesaid principle that the word rank can be and has been used in different senses in different contexts, and that the expression “rank” in Article 311(2) has reference to a person's classification and not his particular place in the same cadre in the hierarchy of the service to which he belongs. In such context the Supreme Court held thus:- “This decision has established the following principle, viz., the expression ‘rank’ in Article 311 (2) has reference to a person’s classification and not his particular place in the same cadre in the hierarchy of the service of which he belongs and, therefore, losing some places in the seniority list is not tantamount to reduction in rank within the meaning of Article 311 (2) of the Constitution.”
24. In N. C. Dalwadi Vs. State of Gujrat[3], the Supreme Court held that the word used in the rule ‘rank’ and not ‘substantive rank’, hence, there was no reason why it should not be understood according to its ordinary sense as meaning grade or status.
25. Thus, applying the aforesaid principles of law to Rule 6 in question, namely that the word “rank” can be and/or is used in different senses and in different contexts, as also it is relatable to a person’s classification and not his particular place in the same cadre in the hierarchy of the service to which he may belong, as also the word “rank” is required to be understood according to its ordinary sense as meaning grade or status, we are of the clear opinion that considering the pay scale of respondent No.3 as set out in paragraph 3 of the reply affidavit filed by the State Government, the contention as urged on behalf of the petitioner that respondent no.3 cannot be considered to be a person below the rank of ‘Under Secretary to Government’ so as to be appointed as a Returning Officer, needs to be rejected. The contention in paragraph (3) of the reply affidavit of the State Government reads thus: “3. With reference to Para No.2 of the Hon'ble High Court order dated 05.03.2025, I say that The State Government has power to appoint Returning Officer a person, not below the rank of Under Secretary to Government. Appointment of Registrar of Maharashtra Dental Council i.e. Smt. Shilpa Parab, as Returning Officer vide Government Notification dated 30.10.2023 is just and proper as per rule 6 of Maharashtra Medical Council Rules,
1967. The Registrar of the Maharashtra State Dental Council is of the rank of the post of Under Secretary to Government. The pay scale of the Registrar, Maharashtra State Dental Council is approved by the Government as Rs.15600-39100 and pay band Rs.6600 as per sub section (1)(d) of section 28 of Dentists Act, 1948 vide Government letter dated 29.02.2012 which is equivalent to Under Secretary to Government as per Maharashtra Civil Services (Revised Pay) Rules, 2019. Hereto annexed and marked Exhibit- "F" is the copy of the Government letter dated 29.02.2012. Returning Officer i.e. Registrar, Maharashtra State Dental Council Smt. Shilpa Parab's applicable level in pay matrix corresponding to pay band and grade pay or Scale shown at Serial no. 4 i.e. is Pay Level in Revised Pay Matrix S-23: 67700-208700 which equivalent to the Under Secretary to Government. Hereto annexed and marked Exhibit-"G" is the copy of the Accompaniment of the Government Notification, Finance Department dated 30.01.2019.”
26. As noted above the State Government has also annexed a notification dated 30 January 2019 whereby the pay scale of the Under Secretary is shown to be 15600-39100 and the pay bank of Rs.6600 which is stated to be as per sub-section (1)(d) of Section 28 of the Dentist Act,1948 and in terms of the Government Letter dated 29 February 2012 the post is equivalent to “Under Secretary to Government of Maharashtra” as per the Maharashtra Civil Services (Revised Pay) Rules 2019. Hence, once respondent no.3’s applicable level in pay matrix corresponding to the pay band and grade pay was equivalent to “Under Secretary to Government”, it would be required to be held that she was eligible to be appointed as Returning Officer being a person not below the rank of Under Secretary, as per Rule 6 of 1967 Rules.
27. Insofar as the other allegations as made by the petitioner are concerned, we find substance in the contentions as urged on behalf of the respondents that the same are vague allegations, which are not supported by any substantive material. In any event all such issues pertain to the election process which is already set into motion which is scheduled to be held on 3 April 2025, to which we have made a detail reference hereinabove. We cannot interfere in the process of election which is already set into motion. The principle in this regard are well settled.
28. Before parting, we also cannot be oblivious to the fact that the appointment of respondent No.3 as a Returning Officer was made vide a notification dated 30 October 2023. As clearly stated in the reply affidavit, although she was appointed as Incharge Registrar for a limited period of about five months from 30 October 2023 as her additional charge had come to an end on 14 March 2024, as per the Government Order dated 14 March 2024, and thereafter, the charge was handed over to Dr. Ibrahim Ansari and presently Dr. Rakesh Waghmare, Associate Professor, Health Unit, Palghar (Grant Government Medical College, Mumbai) is working as Registrar of MMC under Government Order dated 27 January 2025, the present petition is filed on 10 February 2025. There is no explanation as to why the petitioner thought it appropriate to assail the 30 October 2023 appointment of respondent No.3 in February 2025. Be that as it may, it is clear that respondent No.3 is not working as Registrar of respondent No.2 MMC. There is nothing on record that she in any manner involved in administration of the MMC. She has also not prepared electoral roll or notified election programme during her tenure of five months as Incharge Registrar. In this view of the matter, we do not accept the allegations as made by the petitioner against respondent No.3 being in any manner connected with the administration of respondent No.2 MMC so as to not being an independent Returning Officer for conducting fair elections.
29. In the light of the aforesaid discussion, in our opinion, the petition is misconceived. It is accordingly, rejected. No costs. [ADVAIT M. SETHNA, J.] [G. S. KULKARNI, J.]