Delhi High Court
Dr.Vanitha. R vs Ministry Of Ayush & Anr on 11 July, 2018
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 14.05.2018
Pronounced on: 11.07.2018
+ LPA 167/2018, C.M. APPL.12496/2018, 12497/2018,
12498/2018 & 15093/2018
DR. VANITHA. R ..... Appellant
Through : Sh. V.P. Singh, Sr. Advocate with
Sh. Vinay Bhasin, Sr. Advocate, Sh. Arjun
Pant and Ms. Isha, Advocates.
versus
MINISTRY OF AYUSH & ANR ..... Respondents
Through : Sh. Sandeep Sethi, ASG with Sh.
Kirtiman Singh, CGSC, Sh. Prateek Dhanda,
Sh. Waize Ali Noor and Sh. Saeed Qadri,
Advocates, for Respondent No.1.
Sh. Jatan Singh, Sh. T.K. Joseph, Sh. P.K.
Jayakrishnan and Sh. Pavan Madhukar,
Advocates, for Respondent No.2.
Sh. Ravi Sikri, Sr. Advocate with Sh.
Suryadeep Singh and Sh. Deepank Yadav,
Advocates, for applicant/intervener, in C.M.
Appl.19864/2018.
CORAM:
HON'BLE MR. JUSTICE S. RAVINDRA BHAT
HON'BLE MR. JUSTICE A.K. CHAWLA
MR. JUSTICE S. RAVINDRA BHAT
1. Dr. Vanitha R (hereinafter referred to as "appellant") is aggrieved
by the Ld. Single Judge's decision, rejecting her writ petition. She
approached this court, challenging a letter dated 08.03.2018 issued by
the Union Ministry of Ayush (hereinafter referred to "the Union")
stating that her tenure as President of the Central Council of Indian
Medicine (hereinafter referred to as "CCIM") had expired on
04.07.2017 and, requiring her to forthwith vacate that said office. The
appellant also challenged the other letters, which initiated
consequential action scheduling fresh elections to the post of the
President have been scheduled for 23.03.2018.
2. In the present case, the relevant facts are that, Dr. Ved Prakash
Tyagi was earlier elected as the President of CCIM and remained so
till 27.08.2016. Since he was defeated in the CCIM elections in 2016
and he ceased to be a member of that body, the Supreme Court, vide
its order dated 22.08.2016, directed him to discontinue as the CCIM
President. Thereafter, as per the terms of Regulation 5(2) of the
Central Council of Indian Medicine (General) Regulations, 1976
(hereinafter referred to as "the Regulations"), Dr. V. Arunachalam, the
Vice President of CCIM was handed over charge of the post of
President. Pursuant to the resolution of the CCIM executive dated
27.02.2017 with regard to holding of fresh elections for the post of
President on 14.03.2017, notice under Section 7 (1) of the Indian
Medicine Central Council Act, 1970 (hereinafter referred to as "the
Act"), calling for elections to the post of CCIM President was issued.
In ensuing elections held on 14.03.2017, the appellant was elected as
the President.
3. The appellant claims to have taken steps to improve the CCIM's
working. Furthermore, Mr. V.D Raghnandan Sharma objected to her
election under Sections 7 (1) and (3) of the Act. In response to this,
while rejecting the representation, the Union, vide its letter dated
24.08.2017, specifically stated that the elections to the posts of
President and Vice-President were conducted under Section 7 (1) the
Act, whereas Section 7 (3) which dealt with issue of filling of casual
vacancies, applied to other CCIM members. However, subsequently,
the Union took the position that the appellant's term was valid only till
04.07.2017, i.e., for the remaining period of the previous President's
term. The impugned letter directed the appellant to vacate the post of
President with immediate effect and further directed the CCIM
Secretary to conduct fresh elections for that post. The appellant
requested the respondents, including the Union, to withdraw the letter,
but instead of doing so, it directed completion of elections by
25.03.2018. Thereafter, on 09.03.2018, office memoranda were issued
by the Union to the various authorities, asking them to ensure that the
appellant had vacated her office by 5:00 p.m. that day. The appellant
also placed reliance on a letter by the Secretary of CCIM dated
10.03.2018 to say that he was forced to sign and issue a notice for
election after 8:00 pm on 09.03.2018, by the Union.
4. Alleging these facts, the appellant approached this court and
also sought urgent interim relief as well. She relied on Sections 2, 3, 7
and 36 of the Act and provisions of the Regulations. Firstly, it was
contended that the Union's action is premised on the fact that the
appellant was elected against a casual vacancy, which was erroneous,
because in terms of the scheme of the Act elections to the post of
President could take place only against a regular vacancy and the Act
does not envisage filling up of a casual vacancy of the post of
President by way of election. The Appellant also urged that in casual
vacancies of President, are filled up only under Regulation 5(2) of the
Regulations framed under Section 36 of the Act. Regulation 5(2)
provides that, in case there is a casual vacancy in the post of President,
the Vice-Presidents of each of the three branches - Ayurveda, Siddha
and Unani - are to hold the said post by rotation. Therefore, the
appellant contended that her election meant that she could hold the
position of President of CCIM for five years. It was also stated that the
specific provision of Section 7 (1) which provides for election of a
President is for a period of five years (or till his successor assumes the
said office), meant that a vacancy in the post of president post in only
a regular vacancy, which could not be labeled as a casual vacancy.
Lastly, it was submitted that neither the Act nor the Regulations
provided for re-election to the post of President or Vice-President and
that Section 7 (3) dealing with the casual vacancies, applies only to the
re- election of an ordinary member. It was further stated that the
Union's action was not bona fide.
5. The Union and other respondents resisted the proceedings,
stating that once the election process commenced the court should not
interfere with it. It was also submitted that the vacancy against which
the appellant was elected as a President, was a casual vacancy, which
had arisen after Dr. V.P. Tyagi, the erstwhile President, had vacated
his post pursuant to the order dated 22.08.2016 passed by the Supreme
Court in SLP No. (C) 19476-77/2016. It was also submitted that after
Dr. V.P. Tyagi had vacated the said post, initially the Vice President
of Siddha Branch had been asked to take charge of the same in terms
of Regulation 5(2) of the 1976 Regulations. However, pursuant to a
decision taken by the Executive Committee of Respondent No.2 in its
meeting held on 27.02.2017, elections for the post of President were
held on 14.03.2017, in which the appellant was elected as the CCCIM
President. It was urged that the election was only against a casual
vacancy of a President, and the appellant could hold the post of
president only for the remainder term of the erstwhile President.
Reliance was placed on Section 3 to say that the president is a member
of the Central Council; therefore, Section 7 (3) applied.
6. The impugned judgment, after noticing the various provisions
of the Act and Regulations, rejected the appellant's plea. It was inter
alia, held as follows:
"22. In my considered opinion, a cogent reading of the
different sub- sections of Section 3 of the Act makes it
abundantly clear that, under the scheme of the Act, the
constitution of the Respondent No.2/CCIM is prescribed
under three categories of memberships. The three categories
are, namely (i) a practitioner (of Ayurveda, Siddha or
Unani/Sowa-Rigpa) elected from a State (ii) an elected
member from amongst the members of the faculty of a
University (iii) a member, having special knowledge or
practical experience in respect of Indian Medicine,
nominated by the Central Government. Section 3 (2) of the
Act prescribes that the President of the Respondent No.2
shall be elected from amongst the members of the
Respondent No.2. Furthermore, as per Section 3 (3) of the
Act, the Vice-President from each system of Medicine is
elected from amongst the Members of the Respondent No.2
under Section 3 (1).
23. I may now move to Section 7 of the Act, which in my
view, lies at the centre of the controversy between the
parties. Having carefully considered the provisions
of Section 7(1) viz-a-viz that of Section 7(3), I find that even
though the reference made to a casual vacancy in Section
7(3) is only to a member of the Central Council, without
there being any specific reference to the post of a President
(which finds mention in Section 7(1) of the Act alone), I
cannot lose sight of the fundamental fact that a President is
also a member of the Central Council, which is apparent
from a bare breading of Section 3 of the Act. Once the term
"Member" is found to include the post of President, there is
no reason as to why Section 7(3), which deals with elections
to fill casual vacancies of members, would not apply to the
post of President, who is equally a member of the Council.
24. There is yet another reason why, in my view, the election
of the Petitioner has to be treated as against a casual
vacancy, the term whereof had to come to an end with the
remainder term of Dr. V.P. Tyagi. Since the tenure of the
members of the Central Council itself is for five years, the
newly elected/nominated members of the Council would not
only have the right but also the responsibility to elect their
President and, therefore, there is absolutely no merit in the
plea of the learned senior counsel for the Petitioner that
every person elected as a „President‟, irrespective of the
nature of the vacancy, would be entitled to continue for a
period of five years. In my considered opinion, such an
interpretation, as is sought to be contended by the learned
senior counsel for the Petitioner, would lead to a wholly
absurd situation and cannot be permitted. Thus, in my
considered view, even though Section 7(3) of the Act refers
to filling up of a casual vacancy of a member and does not
specifically refer to the President, the provisions of Section
7(3) would be equally applicable to the President, who is
also very much a member of the Central Council. In view of
my aforesaid conclusion, I find that the decisions relied
upon by the learned senior counsel for the Petitioner are not
applicable to the facts of the present case.
25. In my view, the reliance placed on Regulation 5(2) of the
1976 Regulations, by the learned senior counsel for the
Petitioner, is wholly misplaced, since the said regulation is
meant to cater to a stop gapsituation, where a Vice-
President can be asked to discharge the functions of the
President. A bare perusal of Regulation 5(2) shows that it is
applicable in situations where the post of the President is
vacant or, for any reason, the elected President is unable to
exercise the power or discharge the functions of his office.
Regulation 5(2) does not at all deal with either the election
of the President or of his term."
7. Appearing on behalf of the appellant, Mr. V.P. Singh, Learned
Senior Counsel, urged that the impugned judgment overlooked the
scheme of the Act. Section 3(1) of the Act speaks of a Central Council
consisting of 'Members' while Section 3(2) speaks of the 'President of
the Central Council being elected by the Members of the Central
Council from amongst themselves in the prescribed manner. It is
argued that the appellant's election on 14.03.2017 was held under
Section 7(1) of the IMCC Act, and she contested the said election
based upon the notice issued under Section 7(1) of the IMCC Act.
Therefore, she had a right to continue in the post for five years, as
prescribed by that provision.
8. It was argued that the respondents were un-able to show a single
instance from the inception of CCIM where any tenure of any
President or Vice President was considered and/or treated as a casual
vacancy. The consistent past practice of the CCIM i.e. that it was the
Executive Committee of the CCIM that would meet and decide the
date of elections for the post of President and Vice President of CCIM.
Therefore, it was argued that the procedure of virtually directing the
CCIM to hold elections after first indicating that the appellant had a
five-year term, was mala fide. It was also submitted that the election
was sought to be called by the Ministry without reference to the
Executive Committee of the CCIM.
9. Mr. Singh reiterated that Section 7(1) is applicable to a member,
President as well as Vice President of CCIM while section 7 (3) which
pertains to casual vacancies clearly omits the words/terms President
and Vice President. This means that subject to certain statutorily
recognized eventualities, those functionaries would serve the term
prescribed by the Act. Section 7(1) of the Act clearly provides that the
tenure of the President would be for 5 years. On the other hand,
Section 7 (3) textually and by any yardstick is inapplicable to the term
of the President.
10. Learned counsel submitted that Regulation 5 (2) of the
Regulations clearly deals with a situation if the President's post falls
vacant; however, the concept of casual vacancy under the IMCC Act
is not extended to the post of President of CCIM. While concluding
that reference to the post of President is only in Section 7 (1) of the
Act and reference made to a casual vacancy in Section 7(3) is only to a
member without any reference to the post of a President, the Learned
Single Judge erred therefore, in law. It was submitted that Section 7
(3) refers to filling up of a casual vacancy of member and does not
refer to the President. The Learned Single Judge, therefore, went
against the plain wording of the statute, which made a clear distinction
between Section 7 (1) and 7 (3) whereby the post of President was
explicitly included in Section 7 (1) and explicitly excluded in Section
7 (3). Therefore, the content of the latter could not have been read into
the former, by any principle of statutory interpretation. It was lastly
urged that the impugned judgment is erroneous inasmuch as it holds
that "Member" includes "President". It is submitted that being a
member is a condition precedent for being "President". Yet, the two
are interchangeable terms. The functions and method of election and
removal of the Members and the President are fundamentally
different.
11. The Additional Solicitor General (hereinafter referred to as
"ASG"), Mr. Sandeep Sethi submitted that the impugned judgment
does not call for interference. He urged that the rationale for filling
casual vacancies of all posts only for the remainder term permeates
through all the election statutes and contends that, in case it were to be
held that any causal member elected against a casual vacancy of a
President is entitled to a tenure of 5 years, the same would lead to
absurd results and would be completely abhorrent to the very
governance of the Central Council, which itself is reconstituted by
elections/nomination after every 5 years. The ASG relied on an
unreported decision of this Court in the case of Rashiddulah Khan v
Ministry of Health and Family Welfare [WP. No. 9082/2011], as well
as on the decision of Calcutta High Court in Pemba Tshering v. The
State of West Bengal and Ors. [WP No. 2349 (W)/2008] and a
decision of the High Court of Punjab and Haryana in Sukhdip Singh v
State of Punjab & Ors [AIR 2009 P&H 22].
12. The ASG contended that though Section 7 (3) applied to
members, its logic and universal application was compelling, given
that in a case if for some reason, a President or Vice President had to
vacate office, the remainder of the term had to be filled as a casual
vacancy. Therefore, Section 7 (3) was by way of limitation to the
provision under Section 7 (1). It was submitted that in other words,
had there been no provision like Section 7 (3), the appellant could
have justifiably argued that the President, when elected necessarily has
a fixed term of five years. However, that construction is not possible,
given that every President is has to be from amongst the pool of CCIM
members and can hold office as long as their membership exists.
Therefore, Section 7 (3) would apply with equal force to the tenure of
a President, and qualify it.
13. The learned ASG also contended that, having regard to the
judgment in K.B. Nagur M.D. (Ayu.) v. Union of India [WP(C) No.
33/2009] of the Supreme Court, the Central Government was under
obligation to ensure that timely and fair elections for all members,
including President and Vice President of the CCIM, are held. The
ASG submitted that the Union had to ensure that no elected member
of the Council, including the President or Vice-President, shall hold
office beyond three months from the expiry of their respective terms.
He also relied on State of Manipur v Chandan Maniha Singh 1997 (7)
SCC 503 in support of his submission that the vacancy in the present
case had to be considered as a casual vacancy.
Analysis and Conclusions
14. The material and relevant provisions of the Act are extracted
below: -
"2. Definitions (1) In this Act, unless the context otherwise
requires, xxx xxx xxx
(c) "Central Council" means the Central Council of Indian
Medicine constituted under section 3;
xxx xxx xxx
(i) "regulation" means a regulation made under section 36;
xxx xxx xxx
3. Constitution of Central Council (1) The Central
Government shall, by notification in the Official Gazette
constitute for the purposes of this Act a Central Council
consisting of the following members, namely:-
(a) such number of members not exceeding five as may be
determined by the Central Government in accordance with
the provisions of the First Schedule for each of the
Ayurveda, Siddha and Unani systems of medicine from each
State in which a State Register of Indian Medicine is
maintained, to be elected from amongst themselves by
persons enrolled on that Register as practitioners of
Ayurveda, Siddha or Unani, as the case may be;
(b) one member for each of the Ayurveda, Siddha and Unani
systems of medicine from each University to be elected from
amongst themselves by the members of the Faculty or
Department (by whatever name called) of the respective
system of medicine of that University;
(c) such number of members, not exceeding thirty per cent of
the total number of members elected under clauses (a) and
(b), as may be nominated by the Central Government, from
amongst persons having special knowledge or practical
experience in respect of Indian medicine:
Provided that until members are elected under clause (a) or
clause (b) in accordance with the provisions of this Act and
the rules made thereunder, the Central Government shall
nominate such number of members, being persons qualified
to be chosen as such under the said clause (a) or clause (b),
as the case may be, as that Government thinks fit; and
references to elected members in this Act shall be construed
as including references to members so nominated.
(2) The President of the Central Council shall be elected by
the members of the Central Council from amongst
themselves in such 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 from amongst themselves by members
representing that system of medicine, elected under clause
(a) or clause (b) of sub-section (1) or nominated under
clause (c) of that sub-section.
xxx xxx xxx
7. Term of office of President, Vice-President and members
of Central Council (1) The President, a Vice-President or a
member of the Central Council shall hold office for a term of
five years from the date of his election or nomination, as the
case may be, or until his successor shall have been duly
elected or nominated, whichever is longer.
(2) An elected or nominated member shall be deemed to
have vacated his seat if he is absent without excuse,
sufficient in the opinion of the Central Council, from three
consecutive ordinary meetings of the Central Council or, in
the case of a member elected under clause (a) of sub-
section (1) of Section 3, if he ceases to be enrolled on the
concerned State Register of Indian Medicine, or in the case
of a member elected under clause (b) of that sub- section, if
he ceases to be a member of the faculty or Department (by
whatever name called) of Indian Medicine of the University
concerned.
(3) A casual vacancy in the Central Council shall be filled
by election or nomination, as the case may be, and the
person elected or nominated to fill the vacancy shall hold
office only for the remainder of the term for which the
member whose place he takes was elected or nominated.
xxx xxx xxx
36. Power to make regulations-
[(1) The Central Council, may, with the previous sanction of
the Central Government, by notification in the Official
Gazette, make regulations generally to carry out the
purposes of this Act, and, without prejudice to the generally
of this power, such regulations may provide for-
(a) the manner of election of the President and the Vice-
Presidents of the Central Council;"
15. The relevant provisions in the Regulations, i.e. Regulations 2(e), 4
and 5(2) of the 1976 Regulations read as under:-
"2. Definitions:
In these regulations, unless the context otherwise requires:-
(e) "President" means the President of the Central Council
elected under sub-section (2) of section 3 of the Act.
xxx xxx xxx
4. President
The President shall exercise such powers and perform duties
as may be assigned to him by or under the provisions of the
Act and the rules and regulations made thereunder.
xxx xxx xxx
5(1).....
(2) If the office of the President is vacant or if the President
for any reason is unable to exercise the powers or discharge
the functions of his office, the Vice-Presidents, in rotation,
for one year at a time shall act in his place and shall
exercise the powers and discharge the functions of the
President."
16. It is a matter of record that if the previous President, Shri Tyagi,
was allowed to continue his term as President, uninterrupted, the
tenure would have ended on 04.07.2017. However, he ceased to hold
the position with effect from 27.08.2016. In terms of Regulation 5 (2),
one of the CCIM's Vice President officiated as President. The
question then is whether the election held on 14.03.2017, whereby all
CCIM members throughout the country, voted to elect a President,
was to fill a "stop gap" or casual vacancy, for only 4 months.
17. A conjoint reading of Sections 3 and 7 would indicate firstly,
that the elected term of central council members and president/vice
president is identical: it is five years (in terms of Section 7(1)).
Secondly, the electoral college of the council members is not uniform
or identical: those members elected from the state registers cannot
exceed a certain number for each system (Ayurveda, Unani and
Siddha); those elected from notified Universities, are through a
different electoral college of faculty members and those in category of
nominees are nominated by the Central Government. A joint reading
of the entire Section 7 would therefore, in this context, indicate that
whereas all CC members and office bearers such as President and
Vice Presidents enjoy the same tenure of 5 years, that tenure is not
through the same process. Section 7 (2) is crucial for an overall
analysis and understanding of Section 7 (3). It states that elected
members (i.e. those provided for in Section 3 (a) and (b)) shall be
deemed to have vacated his seat if he is absent without excuse,
sufficient in the opinion of the Central Council, from three
consecutive ordinary meetings of the Central Council "or, in the case
of a member elected under clause (a) of sub- section (1) of Section 3,
if he ceases to be enrolled on the concerned State Register of Indian
Medicine, or in the case of a member elected under clause (b) of that
sub- section, if he ceases to be a member of the faculty or Department
(by whatever name called) of Indian Medicine of the University
concerned." It is after spelling out the disqualifying event that the
manner of filling up of "casual vacancy" is provided in Section 7 (3).
18. To this court's mind, a compartmentalized reading of Section 7
(1) and (2) is not warranted. In proper sequence, while Section 7 (1)
spells out the term of all members and specified office bearers, Section
7 (2) goes on to provide for contingencies of vacation of office (due to
absence or loss of enrolment of state register). Axiomatically, if such
member holds any office - such as being a President or Vice
President, that too automatically ceases. In such event, not one, but
two vacancies arise: one, as a Central council member; and two, as
President/Vice President. Filling of the vacancy as central council
member, in such event, is the one which is provided for in Section 7
(3) as a "casual vacancy" of which the new incumbent fills for the rest
of the term. However, that would not apply in the case of
President/Vice President.
19. The rationale for this court holding that Section 7 (3) does not
apply to elections to the position of President or Vice President is that
a clear term is provided for in respect of such posts. Such
functionaries undergo two electoral processes: one, earlier as members
and the second, later by the entire college of members of the central
council. Upon the expiry of term of a President, (which need not be
co-terminus with the tenure of the entire membership of the Central
Council, which is a continuing body), the rest of the members elect an
existing central council member as President: that tenure is
necessarily for five years. This is of course subject to the concerned
member-President's outer limit of tenure as central council member.
20. In the present case, Mr. Tyagi lost the election, but continued to
occupy the post of President, which he was asked to vacate by the
Supreme Court. Apparently, his tenure as the central council member
ended in July, 2017. Such being the position, what was advertised for
election in March 2017 (and for which elections were held on
14.03.2017) was not the "casual vacancy" of member of central
council, but the post of President. The electoral college was the central
council, all of whom participated from different parts of the country
and elected the appellant. Clearly, the vacancy of member was not the
subject matter of election; rather it was of the President. The appellant
was declared successful. The appellant was already a central council
member and was not elected to the casual vacancy of Dr. Tyagi's
cessation of central council membership. This meant that she was
entitled to continue as President for five years, subject to her tenure as
central council member ending, sometime in 2020/2021.
21. In this court's opinion, the interpretation favored by the Learned
Single Judge in the impugned judgment results in uncertainty and
inchoateness with respect to a President's tenure. Three clear
conclusions emerge from a plain reading of the statute: first, the
central council is comprised of members from diverse institutions,
however, all have to be borne in some state register of one of the
systems of indigenous medicine; second, that the central council
member's tenure of five years is identical; however, the council itself
is a continuing body and does not per se terminate or dissolve. In other
words, having regard to the diverse background and the system of
nominations, a given percentage of members cease to hold office (as
members of the council) each year. Third, central council members'
electoral college is entirely different from the electoral college for
President. To contest and hold office as President, it is necessary that
the concerned individual should be a central council member. Thus,
these three conclusions, support the court's conclusion that when a
Presidential vacancy is advertised for election, the elected incumbent
(who is an existing central council member) would hold office for five
years, or the outer limit of her term as central council member,
whichever is earlier.
22. In the decision reported as Smt. Bayamma v Deputy
Commissioner, (WP 85991/2012, decided on 23.01.2013) certain
provisions of the Karnataka Panchayats Act involving a similar
dispute arose. The statute, like in the present case, provided for
election of members of the Taluk Panchayats, who in turn were to
elect Chairperson (Adhyaksha) and Vice Charimen (Up-Adhyaksha).
The re-designation of a reserved vacancy (from ST to SC) category
led to dispute. The question therefore, was whether, the election of the
reserved candidate was for the balance period. The term for members
was 5 years; that for Adhyaksha was 20 months. The argument,
(repelled by the Karnataka High court) was that the election could be
not for 20 months, but only remainder. Section 2(5) of the Act (in that
case) defined what was a causal vacancy as one "occurring otherwise
than by efflux of time." Section 134 of the Act stated that "except as
otherwise provided" by the Act, members of a Taluk Panchayat were
to hold office for a term of five years. The provision relating to
Chairman/Vice Chairman read as follows:
"(3) The term of office of every Adhyaksha and
Upadhyaksha of Taluk Panchayat shall, save as otherwise
provided in the Act, be twenty months from the date of his
election or till he ceases to be a Member of Taluk
Panchayat, whichever is earlier."
The High Court held as follows:
"11. A reading of the aforesaid provisions makes it very
clear that term of office of members of a Taluk Panchayat
elected at a General election is five years. Term of office of
such members commences on the date appointed for the first
meeting of the Taluk Panchayat. However, the term of office
of a member elected to fill a casual vacancy shall commence
on the date of the publication of his name under Section 133
of the Act. Section 138 of the Act provides that the elected
members of the Taluk Panchayat within one month from the
date of publication of names of members under Section 133
of the Act has to choose two members from amongst them to
be respectively as Adhyaksha and Upadhyaksha. Sub-section
(3) of Section 138 of the Act specifically deals with the term
of office of such Adhyaksha and Upadhyaksha. It provides
save as otherwise provided in the Act, the term of office
shall be twenty months from the date of his election or till he
ceases to be a member of the Taluk Panchayat whichever is
earlier. Therefore, it is clear that the term is twenty months
and twenty months period has to be calculated from the date
of his or her election. The proviso to Sub-section (2) deals
with election of Adhyaksha and Upadhyaksha, when there is
a causal vacancy for the post of Adhyaksha or
Upadhyaksha. The argument is though a notification was
issued for conducting the election to the posts of Adhyaksha
and Upadhyaksha, because of the Court proceedings, the
election could not be conducted. When the election
was conducted after the legal proceedings were disposed of,
it is a case of election to a causal vacancy and therefore, the
persons who were elected can continue to hold the office
only for the remaining period as provided under Sub-section
(3) of Section 138 of the Act.
12. The casual vacancy has been defined under Section 2(5)
of the Act, which means a vacancy occurring otherwise than
by efflux of time. Section 137 of the Act deals with casual
vacancy of a member of Taluk Panchayat. We are not
concerned with the casual vacancy of a member of Taluk
Panchayat. We are concerned with casual vacancy of
Adhyaksha or Upadhyaksha. Before it can be said that there
is casual vacancy in the post of Adhyaksha, he should have
been elected, his term is twenty months from the date of his
election. Except by way of efflux of time, if a vacancy arises
to the said post of Adhyaksha, by the elected Adhyaksha
ceasing to occupy the said post, it should be said that there
is casual vacancy. In the instant case, no Adhyaksha was
elected in terms of Section 138(1) within thirty days from the
date of constitution of Taluk Panchayat. A dispute arose
regarding reservation. Matter reached this Court, writ
petition was filed and allowed, writ appeal was filed and the
matter was stayed and was disposed of. Then only election
took place. During that interregnum, no person was
appointed or elected as Adhyaksha. For the first time,
Adhyaksha was elected on 12.01.2012, after the disposal of
the writ appeals. The said Adhyaksha continues to hold the
office even to this day. The period of the said Adhyaksha is
20 months from the date of her election, which expires on
11.09.2013. As there is no vacancy for the post of
Adhyaksha, the question of filling up of casual vacancy
would not arise. Therefore, the contention that the petitioner
is elected to fill a casual vacancy and the term comes to an
end as on 10.10.2012 is without any substance. As it is clear
from sub-section 3 of Section 138 of the Act, the term
of office of Adhyaksha and Upadhyaksha is twenty months
and twenty months period has to be calculated from the date
of his or her election. She is elected on 12.01.2012. Twenty
months expires on 11.09.2013. As there is no vacancy for the
post of Adhyaksha, the impugned notification issued to fill
up the said post is illegal and is contrary to law and
therefore, it requires to be set aside.
13. The language employed in Section 46, 138 and 178 of
the Act makes it abundantly clear that term of office of the
Adhyaksha of a Gram Panchayat and Adhyaksha of Taluk
Panchayat and Adhyaksha of Zilla Panchayat is to be
calculated from the date of his or her election. It is on the
assumption that in the case of Gram Panchayat, 60 months
period is provided for two terms i.e., 30 months each, in the
case of Taluk and Zilla Panchayat, twenty months each, for
three terms is provided. If the elections are conducted in
accordance with law, each of the persons who are elected
could enjoy the office for the aforesaid term. The problem
arises when a dispute arise regarding the conduct of
election, where the meeting is adjourned on the ground of
want of quorum, though there is quorum, or the notification
prescribing reservation is challenged and the Court grants
stay order, legal proceedings takes considerable time and
when the legal hurdles are removed, if elections are
conducted under the existing rules, a period has to be
calculated from the date of election then the second term or
the third term get reduced and curtailed. However, in the
light of the express provisions in the statute, where the
intention of the legislature is made abundantly clear by
declaring that the persons elected shall hold the office for a
period from the date of his or her election, the Courts
cannot place any interpretation, which reduces the term of
office. But at the same time, because of the aforesaid
circumstances, injustice is caused to the persons who are in
no way responsible for such unfortunate situation. It is in
this context, as the role of the Court is only to interpret the
provisions as they exist, when the words used in the Section
are very clear and unambiguous, it is not possible for the
Courts to place such interpretation which runs counter to
the express language in the Sections. It is for the legislators
to take note of the ground realities and how these provisions
are working against the interest of innocent persons and
remedy that defect."
23. Apart from the above conclusion, which support's this court's
view, there is yet another crucial aspect, i.e. that the letter (dated
08.03.2018 issued by the Central Government in the present case)
categorically stated that "The previous election of President CCIM
was conducted on 05.07.2017 which shall continue up to 04.07.2016.
Dr. V.P. Tyagi was elected as President vacated the post as his
Membership to CCIM ended on 12.09.2016 and was not re-elected as
Member from Uttarakhand. This clarifies beyond a doubt that Dr.
Tyagi - could at best have continued, till 12.09.2016, when a regular
vacancy for both the membership of the central council and the post of
President would have and did arise. At the stage when he relinquished
office, had the election been held, the tenure would have been for five
years. Instead, the election was held on 14.03.2017. Another way of
looking at the issue is if the respondents are right in saying that the
tenure is pursuant to a "casual vacancy" the five year term stipulated
in Section 7 (1) would be ineffectual. To equate vacancies of members
and vacancies of office bearers such as President, in the opinion of the
court would not be appropriate, given the sequence and scheme of
various provisions of Section 7. Furthermore, this would lead to
unsettling effects, because if the balance tenure of a former President
were to define the term of Presidency, the result would be chaotic;
every few months members of the central council all over the country
would have to descend and participate in elections. However, that
would not be the case with casual vacancy of members, because the
selection/election or nomination would be either by the nominating
body, or the concerned electoral college, i.e the University or state
concerned.
24. In the decision reported as Chandan Maniha Singh, the
Supreme Court had to deal with an entirely different situation,
whereby the statute permitted an incumbent to continue after term
ended, awaiting the filling of the post; the concerned incumbent
argued that despite the completion of the three year period, his term
had to be counted from the date of his nomination from a later date
ignoring a previous order asking him to hold the post till further
orders. The court held as follows:
"13. It is obvious that if such removal takes place as per
Section 5 (3) the vacancy arising out of such termination
cannot be anything but a casual vacancy depending upon
such a contingency. Another instance of a casual vacancy is
furnished by the provisions of sub-section (4) of Section
5 which deal with the resignation of the members of the
Board, other than the member-secretary. If a member
including Chairman resigns before his term is over, the seat
of the Chairman or such other member thereupon shall
become vacant. But that apart, Section 6 (1) deals with
disqualification of sitting members of the Board. If such
disqualification is found to have been incurred by any
member under sub-section (1) then under sub-section (2)
of Section 6 after giving him reasonable opportunity he can
be removed from his office prior to the expiry of the usual
term of his office of three years. That would be a third
instance of a casual vacancy. When such casual vacancies
occur, sub-section (6) of Section 5 would start operating
and if another member is nominated to fill up that vacancy,
then his term of office would be for the remainder of the
unexpired term of the member in whose place he steps in by
nomination. In the facts of the present case, it is easy to
visualise that as the earlier Chairman resigned on 10-7-
1996 and he was nominated as Chairman on 5-5-1995, his
regular term of office would have expired on 4-5-1998. In
the meantime, because of his resignation, casual vacancy of
Chairman occurred and the said vacancy was filled up by
nomination of the respondent on 16-10-1996. Therefore, the
unexpired term of his tenure as a substituted nominee
Chairman would have continued only up to 4-5-1998. On
that day, by the thrust of sub-section (6) of Section 5,
vacancy of the Chairman could be said to have occurred
and till that vacancy was filled up in accordance with law by
the State authorities, the respondent could have continued to
hold office beyond 4-5-1998 till his successor was available
to hold that office. It is of course true that in the meantime
the appellants themselves thought that the respondent was
liable to be removed from office and passed order on 19-10-
1998. That appeared to have been on the assumption that
the successor was not available to take charge from the
respondent. Be that as it may, so far as the impugned
direction of the High Court is concerned and to which
exception is taken by learned Senior Counsel for the
appellants, it is to be stated on the correct interpretation of
relevant provisions of the Act as mentioned earlier, that in
case of any casual vacancy of any member of the Board duly
constituted under Section 4, the successor nominee who fills
up such vacancy will have only the unexpired period of
office available in the light of the initial appointment of the
original incumbent member vice whom he walks in to fill up
the vacancy. It may also be noted that it appears that
whenever there is a vacancy which is filled up, the State
authorities seem to be reconstituting the entire Board every
time when new members are inducted or a new Chairman is
inducted. In fact, sub-section (3) of Section 4 does not seem
to have been kept in view as it lays down that every State
Board shall be a body corporate with the name specified by
the State Government in the notification under sub-section
(1), having perpetual succession and a common seal. Under
these circumstances, even though the State Government has
authority to reconstitute the Board from time to time only
because some casual vacancy occurred, it may not strictly
be necessary for the authorities to undertake the exercise of
reconstituting the entire Board nor could the said
reconstitution be directed to continue until further orders, as
the tenure of the members of the reconstituted Board also
will be governed by sub-section (1) of Section4. It must,
therefore, be held while accepting the second contention of
the learned Senior Counsel for the appellant that the High
Court, with respect, was in error in taking the view that the
tenure of the respondent as Chairman could have gone
beyond 4-5-1998 or that there was no vacancy of Chairman
from that date till the expiry of 3 years from the date of
nomination of the respondent as Chairman."
Consequently, the above decision - as observed earlier, does not
constitute a guiding authority for the present dispute.
25. In view of the above discussion, the appeal has to succeed.
During the pendency of this appeal, the second respondent, the Central
Council of Indian Medicine, was permitted to declare the results of the
election (which were challenged in this case) with the further added
direction that the results would be expressly made subject to the
present proceedings. Consequently, it is hereby declared that the
appellant's five-year term would be from the date of her election as
President of the council, subject to the earlier ending of her tenure as a
council member. In other words, her election in question- held for the
President of the council, in March, 2017 leads to her continuation in
the office for the period as provided in Section 7 (1), but if her tenure
as a council member ends before March, 2022, she would be deemed
to vacate office as President on that date. The appeal is allowed; the
elections held in March 2018 are hereby set aside, but in these terms.
S. RAVINDRA BHAT
(JUDGE)
A.K. CHAWLA
(JUDGE)
JULY 11, 2018
