The court emphasized the discretion of the executive in making appointments to public bodies and stated that interference by the court would only occur if the choices were capricious and perverse, with no nexus to the appointment's purpose.

Sanjib Banerjee, J.

Both the petitions under Article 226 of the Constitution challenge the appointment of a senior doctor as a member of the West Bengal Clinical Establishment Regulatory Commission on the ground that he has been found to be negligent in the conduct of a particular case and adverse comments have been made against him in a judgment of the Supreme Court of India. The petitioners exhort that in view of Article 144 of the Constitution the appointment as a member be annulled.

2. The petitioner in person in WP 17057(W) of 2017 claims to be a “physician from Kolkata … permanently settled in the USA for the past more than two decades …” Such petitioner is not a citizen of India but is an overseas citizen of India within the meaning of that expression in the Citizenship Act, 1955. According to such petitioner, his wife took ill while on a social visit to India with the petitioner and died at the age of 36 “primarily due to the negligent therapy by” the second respondent to his petition. Such petitioner claims to have battled in courts across India before the Supreme Court apparently held the second respondent herein guilty of medical negligence and primarily responsible for the death of such petitioner's wife. Such petitioner mainly relies on the following observations made by the Supreme Court against the second respondent herein in a judgment rendered in 2013.

“It is also important to highlight in this judgment that the manner in which Dr. Mukherjee attempted to shirk from his individual responsibility both in the criminal and civil cases made against him on the death of the claimant's wife is very much unbecoming of a doctor as renowned and revered as he is.”

“Since he is a senior doctor who was in charge of the treatment of the deceased, we are inclined to mention here that Dr. Mukherjee has shown utmost disrespect to his profession by being so casual in his approach in treating his patient. Moreover, on being charged with the liability, he attempted to shift the blame on other doctors.”

3. The petitioner in WP 217 of 2017 is a citizen of India and complains of the West Bengal Clinical Establishments (Registration, Regulation and Transparency) Act, 2017 being “silent with regard to the disqualification/removal of the members of the said Commission.” Though the petitioner in such Original Side matter has not directly complained against the appointment of Dr. Sukumar Mukerhjee as a member of the commission and has not even mentioned him by name or impleaded him, there is little doubt from paragraph 5 of the petition that it is such appointment which is the subject-matter of challenge.

4. Such other petitioner primarily contends that there is a lacuna or gap in the statute in the matter of the qualifications or credentials of the persons to be appointed as members of the commission and submits that till such time that firm rules in such regard are brought in by the State, this court should step in to regulate the appointment and removal of the members of the commission by framing guidelines therefor.

5. The matters were directed to be heard together by a previous order and, since the petitioner in person is ordinarily a resident of the United States, the matter was also taken up by way of video-conferencing with such petitioner in person. The video-conference hearings were held on January 24, 2018 and January 30, 2018.

6. The primary objections on behalf of the State to the petition by the foreigner-petitioner are that the petitioner in person has an axe to grind against the second respondent, that the filing of the petition is out of his personal vendetta and that the petition of the petitioner in person should be thrown out as it is brought on account of personal interest and cannot involve any public interest. As to the other petition, it is the State's principal contention that no case is made out therein for any interference by this or any other court, particularly as the vires of the said Act of 2017 have not b