MINISTRY OF AYUSH versus DR. VANITHA R. & ANR. on 27 September 2018

[2018] 12 S.C.R. 895

MINISTRY OF AYUSH

v.

DR. VANITHA R. & ANR.

(Civil Appeal No.10031 of 2018)

SEPTEMBER 27, 2018

[ARUN MISHRA AND VINEET SARAN, JJ.]

Indian Medicines Central Council Act, 1970 –s.7 – Interpretation of – Member of Central Council of IndianMedicine (CCIM) who represented the State of Uttarakhand losthis membership of CCIM – He was also holding the elected post ofthe President of the CCIM for the tenure which would have expiredon 04.07.2017 had he continued as Member – Thus, the office ofthe President fell vacant – Notice for holding election for the postof President issued – Election held on 14.03.2017– RespondentNo.1 elected as the President – Issue as to the tenure for whichelection was held – Ministry passed order holding that the electionfor the post of President was held for the remainder period availableto the erstwhile Member from Uttarakhand – Challenge thereto,dismissed by the Single Bench – However, Division Bench set asidethe said order – Held: s.7(3) deals with the casual vacancy in CCIMand makes it clear that the person elected or nominated to fill suchvacancy has to hold the office only for the remainder of the termfor which the Member whose place he takes was elected ornominated, as the case may be – In the instant case, Member fromUttarakhand lost his membership to the CCIM – He would haveheld the post of the President for the period up to 04.07.2017, hadhe continued as Member of the CCIM – Casual vacancy of post ofPresident was caused – Thus, the tenure for which election to thepost of President was held was to be, as provided u/s.7 (3) – s.7(1)provides for a term of five years, however, the casual vacancy isdealt with u/s.7(3) and both the provisions have to be harmoniouslyinterpreted – Present was not a case of regular vacancy but a casualvacancy that has arisen during the term of previous President– Thus,the period for which respondent No.1 was elected in March, 2017was confined for remainder of the term i.e. up to 04.07.2017, notbeyond that– Order passed by Division Bench set aside– Further,

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[2018] 12 S.C.R.

Afresh election for the post of President held on 23.03.2018 is legaland valid – Central Council of General Medicine (General)Regulations, 1976 – Regulation 5(2).

Allowing the appeal, the Court

BHELD: 1.1 A bare reading of the provisions contained inSection 7, Indian Medicine Central Council Act, 1970 makes itclear that person has to be first elected as Member of the CentralCouncil of Indian Medicine (CCIM) for being elected as Presidentor Vice President. By virtue of his holding the office as a Member,he holds the office of President or that of a Vice President. OnceChe ceases to be a Member, he automatically ceases to hold theoffice of the President or Vice President as the case may be. ThePresident, Vice President or Member of a Central Council has tohold the office for a term of five years as provided under Section7 read with Section 3 from the date of his election or nominationDas the case may be or until his successor is duly elected ornominated, whichever is longer. [Paras 8, 9] [901-F-H]

1.2 Section 7(3) of the 1970 Act deals with the casualvacancy in the CCIM and the person elected or nominated to fillthe vacancy has to hold the office only for the remainder of theEterm for which the Member whose place he takes was elected ornominated as the case may be. The expression ‘Casual Vacancy’in the Central Council may arise that of a Member or in caseMember was holding the post of President or Vice President,the vacancy for the post of President or Vice President alongwith Member may also occur simultaneously. In that event, theFprovision of Section 7(3) would come into play and the expression‘casual vacancy’ ‘would include in its ambit’ the vacancy so createdfor the post of President and Vice President. The provisions ofSection 7(3) makes it apparent that person elected or nominatedto fill the vacancy shall hold the office only for the remainder ofGthe term for which the Member whose place he takes was electedor nominated. In the instant case, Member from Uttarakhandlost his membership to the CCIM. He would have held the postof the President for the period up to 4.7.2017, had he continuedas Member of the representative of the CCIM from Uttarakhand.

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The casual vacancy of post of President had been caused. Thus,the tenure for which election to the post of President was to be,as provided under Section 7(3). The provision of Section 7(1)provides for a term of five years however the casual vacancy isdealt with under Section 7 (3) and both the provisions have to beread together and harmoniously interpreted. It was not a case ofregular vacancy but a casual vacancy that has arisen during theterm of previous President. Thus, the period for which respondentNo.1 was elected in March 2017 was confined for remainder ofthe term i.e. up to 4.7.2017, not beyond that. [Paras 10, 11][902-A-F]

1.3 It is apparent from the notice issued for holding electionthat it was under Section 7(1) and it was clearly with respect tothe casual vacancy. As such provisions contained in Section 7(3)would come into play. Non-mention of provisions of Section 7(3)would not govern the tenure for which election has to be held inthe case of casual vacancy. Section 7(3) clearly provides that inthe case of the casual vacancy the term of election is only for theremainder of the period for which outgoing person would haveheld the office. It has to be held on the proper interpretation ofthe said provisions that the term of election of the person whohad been elected in the casual vacancy is only for the remainderof the period. Resultantly, the order passed by the Division Benchof the High Court is set aside. Also, election for President heldon 23.3.2018 is legal and valid. The result be declared aftercounting of the votes in accordance with law, within a period often days. [Paras 18, 20] [904-E-G; 905-B-C]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 10031of 2018.

From the Judgment and Order dated 11.07.2018 of the High Courtof Delhi at New Delhi in LPA No. 167 of 2018.

Tushar Mehta, ASG, K. V. Vishwanathan, Pinaki Misra, Sr. Advs.,Ms. Swati Ghildiyal, Rajat Nair, Arvind Kumar Sharma, Ms. AishwaryaBhati, Ms. Chitrangda Rastravara, Ms. Ritu Aparna, Anirudh Sharma,Arjun Pant, Abhaid Parikh, Advs. for the appearing parties.

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SUPREME COURT REPORTS

AThe following Judgment of the Court was delivered :

JUDGMENT

1. The singular question arises for consideration as to interpretationof provisions contained in Section 7 of the Indian Medicines CentralCouncil Act, 1970 (in short referred to as ‘the Act of 1970’). It is not inBdispute that the erstwhile member of Council was holding the office ofthe President of the Central Council of Indian Medicine (in short ‘CCIM’).He was the representative of the State of Uttarakhand. His term expiredon 27.8.2016. He was also holding the elected post of the President ofthe CCIM for the tenure which would have expired on 4.7.2017 had heCcontinued as Member.

2. Notice for the purposes of holding an election for the post ofPresident was issued on 27.2.2017 by the Returning Officer/Secretaryof CCIM. On 14.3.2017, the election was held in which the respondentNo.1, namely, Dr.Vanitha R. was elected as the President. Vd.DRaghunandan Sharma, Jaipur filed representation on 18.4.2017 to theGovernment, Ministry of Ayush as to tenure for which election washeld. It was decided on 24.8.2017 by the said Ministry and representationwas rejected on the ground that the provision under Section 7 (3) of theAct of 1970 is applicable to Members only and not for the President andfor Vice President.

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3. Thereafter, the Ministry had taken opinion from the LawDepartment and the fresh order came to be passed on 8.3.2018 in whichit was observed that, the election for the post of President was held forthe remainder period available to the erstwhile Member from Uttarakhand,to hold the said office which came to an end on 4.7.2017. As such, aFfresh election for the post of President was required to be held.

4. The order dated 8.3.2018 had been questioned by the appellantby way of filing writ petition in the High Court of Delhi. The Writ Petitionwas dismissed by the Single Bench. However, in Writ Appeal, the DivisionBench has set aside the order passed by the Single Bench and also theGfresh election held for the post of President in March 2018. Aggrievedthereby, the Ministry of Ayush and Central Council both came to thisCourt. The Central Council had withdrawn its Special Leave Petition(C)No.18329/2018 on 14.8.2018. Hence, the surviving appeal by the Ministryof Ayush.

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5. Mr. Tushar Mehta, learned Additional Solicitor Generalappearing on behalf of the appellant urged that a bare reading of theprovisions of Section 7(3) read with Section 7(1) of the Act of 1970makes it clear that the election held on 14.3.2017 was only for theremainder of the period of post of President for which Member fromUttarakhand would have held the office, who lost the membership andconsequently the office of the President of CCIM, had fallen vacant.He has also referred to the provisions contained in Section 3 of the Actof 1970.

6. Shri Pinaki Misra, learned senior counsel appearing on behalfof the respondent No.1 contended that election had been held, not underthe provisions contained in Section 7 (3) but under Section 7 (1), asapparent from the notice issued by the Returning Officer for the purposeof holding the election. It was not held for the remainder term, but it wasregular election and, as such, the term of elected President would be forfive years. He has also relied upon the order passed by the Ministry ofAyush on 24.8.2017, in which, it was opined that provisions contained inSection 7(3) of the Act of 1970 applies to the post of Members not to thepost of President or Vice President. Thus, election was held for a periodof five years. The Ministry is bound by its own order and cannot bepermitted to take a different stand in this Court. Thus, the impugnedorder dated 8.3.2018 passed by the Ministry had been quashed, rightlyby the Division Bench while allowing the writ appeal. Thus, no case forinterference is made out.

7. The main question for consideration is interpretation of theprovisions contained in Sections 7 (1) and 7 (3) of the Act of 1970.Before we advert to the same, Section 3 of the Act of 1970 provides forthe constitution of the Council. Section 3 is extracted hereunder:

“Section 3. Constitution of Central Council -(1) The CentralGovernment shall, by notification in the Official Gazette constitutefor the purposes of this Act a Central Council consisting of thefollowing members, namely: - (a) such number of members not exceeding five as may bedetermined by the Central Government in accordance with theprovisions of the First Schedule for each of the Ayurveda, Siddhaand Unani systems of medicine from each State in which aState Register of Indian Medicine is maintained, to be elected AB

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from amongst themselves by persons enrolled on that Registeras practitioners of Ayurveda, Siddha or Unani, as the casemay be; A

(b) one member for each of the Ayurveda, Siddha and Unanisystems of medicine from each University to be elected fromamongst themselves by the members of the Faculty orDepartment (by whatever name called) of the respective systemof medicine of that University; B

(c) such number of members, not exceeding thirty percent ofthe total number of members elected under clauses (a) and(b), as may be nominated by the Central Government, fromamongst persons having special knowledge or practicalexperience in respect of Indian medicine:

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Provided that until members are elected under clause (a) or clause(b) in accordance with the provisions of this Act and the rulesmade thereunder, the Central Government shall nominate suchnumber of members, being persons qualified to be chosen as suchunder the said clause (a) or clause (b), as the case may be, as thatGovernment thinks fit; and references to elected members in thisAct shall be construed as including references to members sonominated.

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(2) The President of the Central Council shall be elected by themembers of the Central Council from a amongst themselves insuch manner as may be prescribed.

(3) There shall be a Vice-President for each of the Ayurveda,Siddha and Unani systems of medicine who shall be elected fromamongst themselves by members representing that system ofmedicine, elected under clause (a) or clause (b) of sub-section(1) or nominated under clause (c) of that sub-section.”

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The term of the office of the President, Vice President andMembers of the Central Council is dealt with in Section 7. Section 7 isGextracted hereunder:

7. Term of office of President, Vice-President and Members ofCentral Council (1) The President, a Vice-President or a memberof the Central Council shall hold office for a term of five years H

from the date of his election or nomination, as the case may be, oruntil his successor shall have been duly elected or nominated,whichever is longer.

(2) An elected or nominated member shall be deemed to havevacated his seat if he is absent without excuse, sufficient in theopinion of the Central Council, from three consecutive ordinarymeetings of the Central Council or, in the case of a member electedunder clause (a) of sub-section (1) of Section 3, If he ceases tobe enrolled on the concerned State Register of Indian Medicine,or in the case of a member elected under clause (b) of thatsubsection, if he ceases to be a member of the faculty orDepartment (by whatever name called) of Indian Medicine ofthe University concerned.

(3) A casual vacancy in the Central Council shall be filled byelection or nomination, as the case may be, and the person electedor nominated to fill the vacancy shall hold office only for theremainder of the term for which the member whose place hetakes was elected or nominated.

(4) Members of the Central Council shall be eligible for re-electionor re-nomination.

(5) Where the said term of five years is about to expire in respectof any member, a successor may be elected or nominated at anytime within three months before the said term expires but he shallnot assume office until the said term has expired.”

8. A bare reading of the provisions contained in Section 7makes it clear that person has to be first elected as Member of theCCIM for being elected as President or Vice President. By virtue of hisholding the office as a Member, he holds the office of President or thatof a Vice President. Once he ceases to be a Member, he automaticallyceases to hold the office of the President or Vice President as the casemay be.

9. No doubt about it that the President, Vice President or Memberof a Central Council has to hold the office for a term of five years asprovided under Section 7 read with Section 3 from the date of his electionor nomination as the case may be or until his successor is duly elected ornominated, whichever is longer.

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10. Section 7 (3) of the Act of 1970 deals with the casual vacancyin the Central Council and the person elected or nominated to fill thevacancy has to hold the office only for the remainder of the term forwhich the Member whose place he takes was elected or nominated asthe case may be.

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11. The expression ‘casual vacancy’ in the Central Council mayarise that of a Member or in case Member was holding the post ofPresident or Vice President, the vacancy for the post of President orVice President along with Member may also occur simultaneously. Inthat event, in our considered opinion, the provision of Section 7 (3) wouldcome into play and the expression ‘casual vacancy’ ‘would include in itsambit’ the vacancy so created for the post of President and VicePresident. The provisions of Section 7 (3) makes it apparent that personelected or nominated to fill the vacancy shall hold the office only for theremainder of the term for which the Member whose place he takes waselected or nominated.

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In the instant case, Member from Uttarakhand lost his membershipto the CCIM. He would have held the post of the President for theperiod up to 4.7.2017, had he continued as Member of the representativeof the CCIM from Uttarakhand.The casual vacancy of post of Presidenthad been caused. Thus, the tenure for which election to the post ofEPresident was to be, as provided under Section 7 (3). The provision ofSection 7 (1) provides for a term of five years however the casual vacancyis dealt with under Section 7 (3) and both the provisions have to be readtogether and harmoniously interpreted. It was not a case of regularvacancy but a casual vacancy that has arisen during the term of previousPresident. Thus, in our considered opinion, the period for whichFrespondent No.1 was elected in March 2017 was confined for remainderof the term i.e. up to 4.7.2017, not beyond that.

12. It was urged by the learned counsel appearing on behalf ofthe respondent No.1 that once Ministry had taken the decision underSection 4 (2) and had rejected the representation vide order datedG24.8.2017, it was not open to the Ministry to review the order and totake inconsistent view while passing the impugned order dated 8.3.2018,it should be held bound by its own order. There is no power of reviewwith the Central Council.

13. In our opinion, it is not the order of the Central Governmentwhich has to govern the tenure. Tenure is governed by Section 7 (3)read with Section 7(1). Even if there is no power of review the periodfor which election could be held was only up to 4[th] July, 2017. Whetherthere is an order by the Central Government or no order it cannot governthe tenure and the period for which the election was held could not havebeen extended even by the Ministry of Ayush by wrong interpretation ofprovisions and writ is not issued to perpetuate an illegality, particularly toenable holding the office unauthorizedly beyond period for which electionwas held. Thus, it is on this count also, we are not inclined to make anyinterference.

14. Shri Pinaki Misra, learned senior counsel appearing on behalfof the respondent No.1 has placed reliance upon the Central Council ofGeneral Medicine (General) Regulations, 1976 (in Short ‘Regulations of1976’). He has pointed out on the strength of Regulation 5 (2) of theRegulations of 1976 that if the office of the President is vacant or in thecircumstances risen is unable to exercise powers or discharge thefunction, his office is to be held by the Vice President in rotation for oneyear at a time. Thus, the Regulation 5 (2) contemplates that office of thePresident is to be held for a period of five years it cannot be cut short.The Regulation fortifies the stand taken by the Central Government inorder passed earlier i.e. on 24.8.2017. Thus, this Court should notinterfere.

15. We have no hesitation in rejecting the submission as firstly, forthe reason that Regulations cannot govern the provisions of the Act andsecondly, we find that Regulation 5 (2) deals with powers of VicePresident. The same is extracted hereunder:

“5. Vice Presidents:

(1) The Vice Presidents shall exercise such powers and performsuch duties as may be assigned to him by or under the provisionsof the Act and Rules and Regulations made thereunder:

(2) If the office of the President is vacant or if the President forany reason is unable to exercise the powers or discharge thefunctions of his office, the Vice Presidents in rotation, for oneyear at a time shall act in his place and shall be exercise thepowers and discharge the functions of the President.

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AThe order of the rotation shall be as below:(a) Vice President – Ayurveda (b) Vice-President – Unani

(c) Vice-President – Sidha”

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B16. It is provided in Regulation 5 (1) that the Vice Presidents shallexercise such powers and perform such duties as may be assigned tohim by or under the provisions of the Act. As per Regulation 5 (2) if theoffice of the President is vacant or if the President for any reason isunable to exercise the powers or discharge the functions of his office,Cthe Vice Presidents in rotation, for one year of Ayurveda, Unani andSiddha branch and shall hold the office.

17. The provisions of Regulation 5 are not at all attributed as theelection had been held under Section 7(3) for the remainder of the termon 14.3.2017 as a ‘casual vacancy’ had arisen. In case, the interpretationas suggested by learned senior counsel is accepted, in that case no electionDcould have been held in March 2017 and vacancy would be required tobe maintained till the period the post of President would have been heldby the Member who represented from Uttarakhand which was came toan end on 4[th] July 2017. Nonetheless, once election has been held forsuch vacancy the tenure is to be for remainder of the period only asEprovided specifically under Section 7 (3).

18. It is apparent from the notice issued for holding election that itwas under Section 7(1) and it was clearly with respect to the casualvacancy. As such provisions contained in Section 7(3) would come intoplay. Non-mention of provisions of Section 7(3) would not govern theFtenure for which election has to be held in the case of casual vacancy.Section 7(3) clearly provides that in the case of the casual vacancy theterm of election is only for the remainder of the period for which outgoingperson would have held the office. In our considered opinion, it has to beheld on the proper interpretation of the said provisions that the term ofelection of the person who had been elected in the casual vacancy isGonly for the remainder of the period.

19. In case it is held that an election under Section 7 (1) will be fora period of five years, and period cannot be curtailed then, if we read itwith Regulation 5(1), ignoring provisions contained in Section 7 (3) no H

election could have been held before completion of five years. That isnot what is contemplated by the provisions contained in Section 7 as andwhen vacancy arises in the office of President, Vice President orMember, obviously, an election has to be held not only for the post of theMember and also for the post held by him for remainder of the period.

20. Resultantly, we have no hesitation to set aside the order passedby the Division Bench of the High Court. We also hold that election forPresident held on 23.3.2018 is legal and valid. Let the result be declaredafter counting of the votes in accordance with law, within a period of tendays. Since we have decided the matter, any order of stay passed byany court on declaration of results shall cease to be operative and shallnot come in the way of declaration of result.

21. Accordingly, the appeal is allowed. No costs.

Divya Pandey

Appeal allowed.

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