JUDGMENT

SATISH CHANDRA SHARMA, C.J.

1. The present LPA arises out of an Order dated 02.09.2022 passed by the learned Single Judge in W.P.(C) 7566/2022 whereby the same was dismissed on the ground that an Order of the Ethics and Medical Board can only be subjected to an appeal by a ‘medical practitioner’ or a ‘professional’.

2. The facts in brief, leading to the instant appeal are as under:-

i. It is stated that in the year 2017, the Appellant lost his nephew as a result of Haplo Stem Cell Transplant, a clinical trial carried out by Respondent No.4/ Dr. Satyender Katewa at Respondent No.3/

Manipal Hospital, Jaipur.

ii. It is stated that the Appellant herein filed a complaint before Rajasthan State Medical Council on 12.03.2018, and before the Medical Council of India (MCI)/National Medical Commission (NMC) on 27.03.2018. Furthermore, an FIR was also registered by the Appellant at Bidyadhar Nagar PS, Jaipur, against Respondent No.4.

iii. Upon the failure of the Rajasthan State Medical Council to take action, the MCI vide letter dated 14.08.2018 asked the Rajasthan State Medical Council to begin proceedings, failing which the MCI would take over.

iv. As the Rajasthan State Medical Council still did not act on the complaint filed by the Appellant, the MCI was compelled to step in and, vide Order dated 13.12.2018, directed the Rajasthan State Medical Council to provide it with all the necessary documents pertaining to the complaint.

v. During the pendency of the said complaint before the MCI, the Rajasthan State Medical Council vide Order dated 05.03.2021, declared that the Respondent No. 4 was not guilty.

vi. This Order passed by the Rajasthan State Medical was challenged before the Ethics and Medical Registration Board of the MCI/NMC, which dismissed the appeal inter alia on the ground that nothing unethical seemed to have been done by the Physician, and further that Respondent No. 3 was well-equipped to carry out the transplant.

vii. Thereafter, vide Order dated 05.04.2021, the MCI/NMC dismissed the complaint of the Appellant.

viii. This order was challenged before the NMC vide letter dated

05.04.2021. However, due to the inaction of the NMC in addressing the grievance of the Appellant, the Appellant filed W.P. (C) No. 7566/2022 before this Court.

ix. The learned Single Judge vide Order dated 02.09.2022 dismissed W.P. (C) No. 7566/2022 on the ground that an appeal against the Order of the Ethics and Medical Registration Board cannot be preferred by a ‘complainant’ and can only be filed by a ‘medical practitioner’ or ‘professional’. It was further observed that the National Medical Commission Act, 2019 does not confer any right on a complainant to file appeals.

x. The complainant has, thereafter, filed this instant appeal.

3. The short question of law which arises for consideration in this case is whether an appeal against an order of the Ethics and Medical Registration Board is maintainable by the complainant before the National Medical Commission or not.

4. The facts of the case which are relevant for deciding this legal issue is that the Appellant had filed a complaint against Respondent No.4/ Dr. Satyender Katewa before Rajasthan State Medical Council stating that his nephew was suffering from thalassemia major and Respondent No. 4 induced the family to opt for Haplo Stem Cell Transplant treatment by charging an exorbitant amount of money without taking an informed consent from the family. The complaint notes that Respondent No.4, by doing so, had committed professional misconduct. The Ethics and Medical Registration Board by its order dated 31.03.2021, after considering the complaint of the Appellant, held that Respondent No.4 had conducted the Haplo Stem Cell Transplant treatment as per the universally accepted standard protocol in a well equipped hospital.

5. It is stated that the National Medical Commission has not been adjudicating the appeal of the Appellant against the Order dated 31.03.2021 passed by the Ethics and Medical Registrati