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A PIL (public interest litigation) was filed by the petitioner challenging the vires of Section 36(2)(a) of the West Bengal Clinical Establishments Act, 2017, which deals with the appointment of the chairperson. The petitioner complained that a High court judge being the chairperson of West Bengal Clinical Establishments is unconstitutional.

Facts of the case

Learned Counsel for the petitioner submitted that the Notification dated 17 March 2017 has become infructuous since the Learned Judge, after taking charge as Chairperson of the said Commission, subsequently demitted that office. The main issue pertaining to the case is whether 36(2)(a) of the said Act is ultra vires the Constitution of India.

Arguments presented by the Petitioner

Learned Counsel for the petitioner argued that the State Government has the final say as regards the appointment of the Chairperson of the said Commission. Furthermore also stated that if a sitting High Court Judge is appointed as Chairperson, he/she will not be able to discharge his/her duties independently by keeping the dignity and integrity of the judicial system intact. The Counsel also stated that this is violative of various articles that give independent power to the judiciary and have the liberty to take unhindered decisions under the doctrine of separation of power. Further, a decision of the High Court Judge rendered as the Chairperson of the said Commission would be open to challenge before the High Court which is undesirable.

Arguments presented by the State 

Learned counsel while stating their argument bought a case which was heard before Hon’ble Supreme Court  𝘛. 𝘍𝘦𝘯𝘯 𝘞𝘢𝘭𝘵𝘦𝘳 𝘢𝘯𝘥 𝘖𝘳𝘴. where the supreme court submitted the decision which, itself envisages situations in which a sitting High Court Judge may be appointed as a Chairperson or Member of a Commission or Tribunal. Learned Counsel submitted that since the Supreme Court itself contemplated cases in which a sitting High Court Judge could be appointed as a Member or Chairperson of a Commission or Tribunal, Section 36(2)(a) of the said Act cannot be held to be unconstitutional. 

Judgment 

After hearing both sides the court concluded that the provision to Section 36(2)(a) makes the intention of the legislature implication that a sitting High Court Judge who is appointed as Chairperson of the said Commission cannot continue to discharge judicial functions as a High Court Judge simultaneously with discharging duties as Chairperson of the said Commission.

While Section 36(2)(a) permits the Government to appoint a sitting High Court Judge as Chairperson of the said Commission, since that person can start functioning as Chairperson of the Commission only after demitting office by way of superannuation or resignation or, at any rate, only upon ceasing to function as a High Court Judge, either in a judicial or administrative capacity. As the court did not find the said provision to fall foul under any of the Articles of the Constitution of India, there is no ground to strike down Section 36(2)(a) of the said Act as being ultra vires the Constitution of India or being otherwise illegal in any manner.

Click here to read the judgment.


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