CA
Government Registered Medical Officers Association and another
v John Seneviratne, Minister of Health and others (Sripavan, J.)
349
GOVERNMENT REGISTERED MEDICALOFFICERS ASSOCIATION AND ANOTHERv
JOHN SENEVIRATNEMINISTER OF HEALTH AND OTHERSCOURT OF APPEALSRIPAVAN, J.
C.A. 1498/2000JULY 1,2003AUGUST 7, 2003SEPTEMBER 16, 2003NOVEMBER 18, 2003
Writ of certiorari – Medical Ordinance section 29(2)(b)(iii)b – Amended by Act No.3 of 1987 – Section 19(c)-Regislered Medical Officers (R.M.O) — To follow MDDegree – Russian Medical Academy recognized – De-recognition thereafter.Validity? – Doctrine of ultra vires.
The Sri Lanka Medical Council (SLMC) (4th respondent) recognized a MedicalAcademy in Russia to enable R.M.O’s to follow M.D.Degree offered by theAcademy. Thereafter the SLMC de-recognized the M.D.Degree offered by the saidAcademy.
The petitioner sought to quash the said decision.
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Held:
The procedure to be followed when withdrawing the recognition of qualifi-cations granted by recognized Universities is spelt out in section 19(c) ofthe Medical Ordinance. The standard of medical education ofSt.Petersburg can only be assessed in terms of the standards prescribedby the Minister. No regulations have so far been framed by the Minister.
The 4th respondent SLMC can only recommend to the Minister that theM.D.Degree course of standing shall not be recognised for the purpose ofregistration under the Medical Ordinance.
The SLMC – 4th respondent does not have the power or authority to dere-cognise the MD Degree course of St.Petersburg.
Per Sripavan, J.
‘The ultra vires doctrine is not limited to cases of excess of power, it
governs decisions arrived at by following wrong proceduresif the
administrative act of anybody created by a statute is proved to beunlawful or unauthorised by law, such an act is ultra vires and the courtshave a duty to quash it.’’
APPLICATION for a Writ of Certiorari.
Case referred to:
1 Government Agent, Superintendent of Police v Suddhana el al – 1905Thambiya reports 39
Romesh de Silva P.C., with Hiran de Aiwis and Amarasiri Panditharatne for peti-tioners.
Y.J.W.Wijayatilake, D.S.G., for 1st, 2nd and 3rd respondents.
ShiblyAziz P.C., with Ms.Priyanthi Gunaratne for 4th and 5th respondents.
Cur.adv.vult
February 24, 2004SRIPAVAN, J.
The first petitioner is the “Government Registered Medical OfficersAssociation”, a trade union registered under the provisions of theTrade Unions Ordinance. The second petitioner is a RegisteredMedical Officer who has been registered as a person entitled to prac-tice medicine and surgery in Sri Lanka in terms of a certificate issue bythe fourth respondent. The members of the first petitioner union andthe second petitioner in order to explore the possibilities of advancing
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CA
Government Registered Medical Officers Association and another
v John Seneviratne, Minister of Health and others (Sripavan, J.)
351
their career and to obtain an M.D.degree or its equivalent from a rec-ognized university persuaded the then Minister of Health to have nego-tiations with the StPetersburg State Medical Academy (hereinafterreferred to as St.Petersburg) in Russia to enable them to follow theM.D.Degree offered by the said academy. Accordingly, the fourthrespondent recognized the StPetersburg as evidenced by the docu-ment marked P25 which contains a list of medical schools recognizedby the fourth respondent. Presumably, this recognition would havebeen done in terms of sec.29 (2) (b) (iii) (bb) of the Medical Ordinanceas amended by Act, No.30 of 1987 having regard to the standard ofmedical education at St.Petersburg. The petitioners in C.A.applicationNo. 1499/99 and the second petitioner in this application who areAssistant Medical Officers and Registered Medical Officer respectivelywere given leave to follow the course offered by St.Petersburg.However, it would appear that the fourth respondent by a notice pub-lished in the Daily News paper of 6th August 2000 de-recognized theM.D.degree of the St.Petersburg. The petitioners, by this applicationseek to quash:-
The decision of the fourth respondent to de-recognize theM.D.degree of St.Petersburg in respect of students admitted tothe said institution after 1st January 1998 and published in theDaily News paper of 6th August 2000 marked P40; and
the letters dated 1 st November 2000 sent by the fifth respondentto the petitioners refusing to recognize the said degree.
On 1 st July 2003, this court directed Mr.Aziz to produce the originalletter by which St.Petersburg was initially recognized by the fourthrespondent in terms of sec.29 of the Medical Ordinance as amendedin order to ascertain the duration of the course leading to theM.D.degree. However, no such letter was produced to court.
Sec.19(c) of the Medical Ordinance as amended by Act, No.30 of1987 in PART IIIA provides as follows:-
Where the Medical Council is satisfied, on a report made to itunder subsection (3) of section 19A or any information furnishedto it under section 19B that the courses of study provided by arecognized university or institution leading to the grant or con-ferment of a medical qualification or the degree of proficiencyrequired by such university or institution at any examination held
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for the grant or conferment of any such qualification or that thestaff accommodation and equipment provided by such universi-ty or institution for the purpose of such course of study, do notconform to the prescribed standards it may recommend to theMinister that such qualification-shall not be recognized for thepurpose of registration under this ordinance.
Upon receipt of a recommendation under subsection (1) inrespect of a recognized university or institution, the Minister shallsend a copy of such recommendation to such university or insti-tution and invite it to make its comments thereon within a spec-ified period.
Where the Minister is satisfied, after examining the comments, ifany, made under subsection (2) by a university or institution, andafter making such further inquiry as he considers necessary,that-
the course of study provided, by such university or institutionleading to the grant or conferment of a medical qualification,
the degree of proficiency required at examinations held bysuch university or institution for the grant or conferment ofsuch qualification, or
the staff equipment, accommodation and facilities providedby such university or institution for such course of study,
do not conform to the prescribed standards, he shall, declare byregulation, that any provision of this Ordinance which enables theholder of that qualification to be registered under this Ordinanceshall cease to have effect in relation to such university or institutionor in relation to any institution affiliated to such university, from suchdate as is specified in such regulation.
The procedure to be followed when withdrawing the recognition ofqualifications granted by recognized universities or institutions is speltout in the aforesaid section. Thus, the standard of medical educationof St.Petersburg can only be assessed in terms of the standards pre-scribed by the Minister under sec. 19. Mr.Aziz conceded that up to dateno regulations have been framed by the Minister specifying the stan-dards required for medical education at universities and other institu-tions conferring medical degrees. In any event, the aforesaid section
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CA
Government Registered Medical Officers Association and another
vJohn Seneviratne. Minister of Health and others fSripavan. J.)
353
empowers the fourth respondent only to recommend to the Ministerthat the M.D.degree course of study shall not be recognized for thepurpose of registration under the Medical Ordinance. The fourthrespondent does not have any power or authority to de-recognize theM.D.degree course of St.Petersburg.
Where the statute prescribes the manner in which the statutorypower has to be exercised, the power must be exercised in that man-ner alone; if the exercise of power is in utter violation of the mandato-ry procedure laid down in sec.19(c), it cannot be regarded as an actiondone in pursuance of Act, No.30 of 1987. The ultra vires doctrine is not 90limited to cases of excess of power. It governs decisions arrived at byfollowing wrong procedures. Accordingly, if there has been some pro-cedural failing such as a false or an incorrect step in the procedure, theact may be condemned as unlawful. The administrative act of any bodycreated by a statute is proved to be unlawful or unauthorized by law,such an act is ultra vires and the courts have a duty to quash it. In thecircumstances, I hold that the impugned decision of the fourth respon-dent without following the procedure prescribed in sec. 19(c) is illegal,invalid and is of no force or avail in law.
. The learned President’s Counsel for the fourth and fifth respon- 100dents sought to argue that PART IMA of Act, No.30 of 1987 dealing withthe “Powers of Medical Council” does not apply to foreign universitiesor institutions conferring medical degrees. I am unable to agree withthis submission. The interpretation given in sec.19(e) to the words“recognized university or institution” means any university or institutionwhich grants or confers a medical qualification. Thus, no distinction isdrawn between foreign universities and local universities granting med-ical degrees. The court can only take the intention of Parliament fromthe words used in the Act and apply them as they stand howeverunreasonable or unjust the consequences would be. Justice A.R.B. noAmerasinghe in his book titled "Judicial Conduct, Ethics andResponsibilities” at page 284 states thus:-
“The function of a judge is to give effect to the expressed intentionof Parliament. If legislation needs amendment, because it results ininjustice, the democratic processes must be used to bring about thechange. This has been the unchallenged view expressed by theSupreme Court of Sri Lanka for almost a hundred years. InGovernment Agent, Superintendent of Police v Suddhana etal,,1 Chief
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Justice Layard said, at a time when the privy council was the country’sapex tribunal:120
If we wrongly construe the law the remedy is by appeal to HisMajesty in Council. If on the other hand we rightly construe thelaw and the law is unpalatable to any section of the community,the remedy of that section of the community to endeavour, if pos-sible, to have the law amended. Such endeavours, however,should be constitutional.”
Therefore, the submission of Mr.Aziz that these words are capableof a more limited construction is untenable and cannot be accepted.Mr.Aziz urged that in the notice dated 6th August 2000 marked P40there had been an unfortunate and erroneous use of the term “de- 130recognition”. Counsel submitted that the question of “de-recognition”does not arise since “recognition” which is the condition precedent to“de-recognition” had not in any event been granted in respect of a threeyear course. In the absence of any documentary evidence to establishthat recognition was in fact granted in respect of a six year course, thiscourt cannot arrive at a finding that the fourth respondent recognized asix year course and not a three year course. It may be relevant to men-tion that the first, second and third respondents did not file any objec-tions to this application. For the reasons stated, a Writ of Certiorari isissued quashing the decision of the fourth respondent contained in the uonotice published in the Daily News paper of 6th August 2000 markedP40 and the letters dated 1 st November 2000 sent by the fifth respon-dent to .the petitioners refusing to recognize the said degree. A writ ofMandamus is issued directing the fourth respondent to take steps interms of the law to duly recognize the M.D.degree awarded to the sec-ond petitioner and other members of the first petitioner union.
I make no order as to costs.
Application allowed.
