Delhi High Court
Dr Vanitha R vs Ministry Of Ayush & Anr on 22 March, 2018
$~55
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: 20.03.2018.
Date of Decision: 22.03.2018.
+ W.P.(C) 2296/2018 & C.M. No.9533/2018
DR VANITHA R ..... PETITIONER
Through: Mr.V.P. Singh, Mr.Vinay
Bhasin, Sr. Advs. with
Mr.Arjun Pant, Adv.
versus
MINISTRY OF AYUSH & ANR ..... RESPONDENTS
Through: Mr.Sandeep Sethi, ASG with
Mr.Kirtiman Singh, CGSC,
Mr.Waize Ali Noor, Mr.Prateek
Dhanda & Mr.Saeed Qadri,
Advs. for UOI.
Ms.Tasneem Ahmadi with
Ms.Mahima Rathi, Adv. for R-
2.
Mr.T.K. Joseph, Adv. for
intervenor.
CORAM:
HON'BLE MS. JUSTICE REKHA PALLI
REKHA PALLI, J
JUDGMENT
1. Vide the present petition under Articles 226 and 227 of the
Constitution of India, the Petitioner, a practitioner of Ayurvedic
Medicine, is seeking quashing of letter dated 08.03.2018 issued by
Respondent No.1 (hereinafter referred to as the "Impugned Letter"),
whereby it has been held that her tenure as President of Respondent
No. 2/Central Council of Indian Medicine (hereinafter referred to as
"CCIM") had expired on 04.07.2017 and, therefore, she was required
to immediately vacate the said office. The Petitioner also challenges
the other letters issued and actions taken on 09.03.2018, as a
consequence of the Impugned Letter, particularly the notice dated
09.03.2018 issued by Respondent No.2, whereby fresh elections to the
post of President have been scheduled for 23.03.2018.
2. The facts, as relevant for adjudicating the present petition, are
that one Dr. Ved Prakash Tyagi had been elected as the President of
Respondent No. 2 and remained its President till 27.08.2016. Since
Dr. V.P. Tyagi was defeated in the CCIM elections in 2016 and had,
therefore, ceased to be a member of the Respondent No. 2, the
Supreme Court, vide its order dated 22.08.2016, directed him to
discontinue as the President of Respondent No. 2.
3. After Dr. V.P. Tyagi ceased to be the President of Respondent
No. 2, one Dr. V. Arunachalam, being the Vice President, was handed
over charge of the post of President in accordance with Regulation
5(2) of the Central Council of Indian Medicine (General) Regulations,
1976 (hereinafter referred to as the "1976 Regulations"). On
27.02.2017, the Executive Committee of the Respondent No.2
resolved to hold fresh elections for the post of President on
14.03.2017. Accordingly, Respondent No.2 issued a 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 the President of Respondent No.2. In the elections held on
14.03.2017, the Petitioner was elected as the President of the
Respondent No.2.
4. The Petitioner claims that, ever since her appointment as
President, she has been taking steps to improve the working of
Respondent No.2, including digitization of all college attendance and
records, leaving no room for manipulation of inspection records and
corruption, due to which she has been facing opposition from various
interested factions. It is contended that one Mr.Vd. Raghnandan
Sharma had raised objections to the Petitioner‟s election under
Sections 7(1) and 7(3) of the Act and in response thereto, the
Respondent No.1 had, vide its letter dated 24.08.2017, while rejecting
the representation, specifically stated that the elections to the posts of
President and Vice-President are conducted under Section 7(1) of the
Act, whereas Section 7(3) of the Act, dealing with filling up of casual
vacancies, was applicable only to the other members of the
Respondent No.2.
5. The Petitioner‟s further claim is that, while she had been
working most diligently as the President of Respondent No.2, the
Respondent No.1 issued the Impugned Letter informing her that
Section 7(3) of the Act was applicable to the election of the President
and, accordingly, her term was only valid till 04.07.2017, i.e., for the
remaining period of the previous President‟s term. The Impugned
Letter also directed the Petitioner to vacate the post of President with
immediate effect and further directed the Secretary of Respondent
No.2 to conduct fresh elections for the said post.
6. Immediately, upon receiving the Impugned Letter, the Petitioner
approached Respondent No.1 with a request to withdraw the same, but
the Respondent No.1, instead of taking steps to redress the Petitioner‟s
grievances, directed the Secretary of Respondent No.2 to conduct the
elections for the post of President on or before 25.03.2018. On the
same day, i.e., 09.03.2018, office memorandums were issued by
Respondent No.1 to the DG CCRS, DG CCRUM and DG CCRH,
asking them to ensure that the Petitioner vacates her office by 5:00
p.m. on that day itself. The Petitioner has also placed reliance on the
letter dated 10.03.2018 by the Secretary of Respondent No.2, to
contend that he was forced to sign and issue a notice for election after
8:00 pm on 09.03.2018, and that too from the office of Respondent
No.1 itself.
7. In these circumstances, the Petitioner has filed the present
petition, seeking quashing of the Impugned Letter and all the
consequential actions of Respondent No.1, including the election
notice dated 09.03.2018. The Petitioner has also filed an interim
application for staying the Impugned Letter and all the actions taken
by the Respondent No.1 pursuant thereto, including the steps taken
towards conducting the elections scheduled on 25.03.2018.
8. Mr. V.P. Singh, learned Senior Counsel for the Petitioner, while
challenging the action of Respondent No.1, contends that the action of
the Respondents is wholly malafide and in contravention of the
provisions of the Act. He draws my attention to Sections 2, 3, 7 & 36 of
the Act and also to paragraphs 2, 4 & 5 of the 1976 Regulations to
contend that the action of the Respondent No. 1 in issuing the Impugned
Letter and taking further consequential steps has been challenged on
three basic grounds.
9. The first and foremost plea raised by the learned Senior Counsel
for the Petitioner is that there is a basic fallacy in the Impugned Letter
insofar as it proceeds on the basis that the Petitioner had been elected
against a casual vacancy for the post of President under section 7(3) of
the Act. He contends that, as per the scheme of the Act, the elections to
the post of President can 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. He further submits that, in cases where
there is a casual vacancy of a President, the same is filled up only as per
Regulation 5(2) of the 1976 Regulations, which are 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 - Ayurvedic, Siddha and Unani - are to hold the said
post by rotation.
10. He, thus, contends that once the Petitioner was elected to the post
of the President in accordance with Section 7(1) of the Act, her tenure
was fixed for a period of five years and the same could not be cut short
by resorting to Section 7(3) of the Act, which according to him is not at
all applicable to the post of President. He places reliance on the decision
of the Supreme Court in the case of Nazir Ahmad v. King-Emperor
[1936 law suit 24 (PC)] to contend that, where power is given to do a
certain thing in a certain way, the thing must be done in that way alone.
Therefore, he urges that the Petitioner's term as a President was governed
only by Section 7(1) of the Act and the same could not be curtailed by
resorting to Section 7(3) of the Act.
11. The second submission raised by the learned Senior Counsel for
the Petitioner is that, once there is a specific provision in the Act that the
election of a President is for a period of five years or till his successor
assumes the said office, which clearly shows that a vacancy in the
presidential post in only a regular vacancy, the Respondents cannot
ignore the said statutory provisions and try to label the vacancy of the
President, against which the Petitioner was elected, as a casual vacancy.
He places reliance on the decision of the Supreme Court in Jagan Nath
v. Jaswant Singh [AIR 1954 SC 2010] to contend that statutory
requirements of election law must be strictly observed. Mr. Singh also
relies on the decision of the Supreme Court in Kamong Dolo Vs. Atum
Welly [(2017) 7 SCC 512], to contend that an election contest is not an
action at law or a suit in equity but is purely a statutory proceeding
unknown to common law.
12. Mr. Singh also places reliance on the Respondent No.1's specific
stand, in their counter affidavit filed in W.P.(C) No.6867/2013, to the
effect that the Act as well as the 1976 Regulations do not provide for a
re-election to the post of President or Vice-President and that Section
7(3) of the Act, dealing with the casual vacancies, applies only to the re-
election of an ordinary member. He, therefore, contends that the
Respondent No.1 is estopped from taking a contrary stand in the present
petition.
13. Mr. Singh finally contends that the action of the Respondents was
not at all bona fide as they have in an unusual hush-hush manner issued
the Impugned Letter, which not only retrospectively curtails the
Petitioner's tenure as president but also asks to immediately vacate the
said office without even following the basic principles of natural justice.
By drawing attention to the letter dated 10.03.2010, written by the
Secretary of the Respondent No.2, Mr. Singh contends that the Secretary
was compelled to issue the election notice from the office of the
Respondent No.1 itself without even putting the proposal to the
Executive Committee of Respondent No.2, as required under the 1976
Regulations.
14. On the other hand, Mr. Sandeep Sethi, the learned ASG appearing
on advance notice, while opposing the present Petition, submits at the
outset that, in view of the admitted position that the election process
has already commenced, this Court ought not to interfere with the
election process at this stage. He places reliance on the decision of the
Supreme Court in the case of Shaji K. Joseph v. V. Viswanath and
Ors. [(2016) 4 SCC 429], to contend that it is a settled legal position,
that the Courts should not interfere once the election process has
already commenced.
15. Without prejudice to his preliminary submission, that the
present petition is not maintainable at this stage, the learned ASG
contends that the vacancy against which the Petitioner 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. He submits 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 Petitioner was elected as the President of Respondent No.2. He
submits that, since the said elections were only against a casual
vacancy of a President, the Petitioner could hold the post of president
only for the remainder term of the erstwhile President. By placing
reliance on Section 3 of the Act, Mr. Sethi submits that the President
is admittedly a member of the Central Council. Therefore, he submits,
it cannot be contended that Section 7(3), which deals with the filling
up of a casual vacancy of a member of the Central Council, would not
be applicable to the post of President. He, thus, contends that the
causal vacancy of a President has to be filled up in the same manner as
that of any other member of the Central Council.
16. Mr. Sethi further submits 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. In support of his plea, he has placed reliance on an
unreported decision of this Court in the case of Rashiddulah Khan v.
Ministry of Health and Family Welfare and Ors. [WP(C) No.
9082/2011], as also the decision of the High Court of Calcutta 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. The State of Punjab and Ors. [AIR 2009 P&H 22].
17. The learned ASG also contends that, in view of the decision of
the Supreme Court in K.B. Nagur M.D. (Ayu.) v. Union of India
[WP(C) No. 33/2009], it was incumbent upon the Central Government
to ensure that timely and fair elections for all members, including
President and Vice President of the Respondent No. 2, are held. He
submits that the issuance of the Impugned Letter was a part of the
duties which the Central Government was expected to discharge. He
submits that in view of the decision of the Supreme Court in the case
of K.B. Nagar M.D. (supra), it was incumbent upon Respondent No. 1
to ensure that no elected member of the Respondent No. 2, including
the President or Vice-President, shall hold office beyond three months
from the expiry of their respective terms. He, therefore, submits that
the decision of the Respondent No. 1 to hold fresh elections, wherein
the Petitioner would also be entitled to participate, cannot be faulted.
18. While rebutting the plea raised by the learned senior counsel for
the Petitioner, that the Respondent No.1 is estopped from contending
that the vacancy against which the Petitioner was elected was a casual
vacancy in view of its specific stand in its counter affidavit in WP(C)
6867/2013, the learned ASG submits that there can be no estoppel
against the law and a state or statutory authority is not bound by its
previous erroneous understanding and no statutory authority can be
asked to act in contravention of law. He submits that, once the
provisions of the Act make it clear that the Petitioner was elected only
against a casual vacancy of the President, her tenure as a President
could not extend beyond the remainder of the erstwhile President's
term and the statement made by the Respondent No. 1 in the aforesaid
counter-affidavit cannot be read by ignoring the specific provisions of
the Act. He places reliance on the decision of the Supreme Court in
State of Manipur and Ors v. Chandam Manihar Singh [(1999) 7
SCC 503] in support of his aforesaid contention.
19. Having heard the learned Senior Counsel for the parties at great
length at the admission stage itself, I find that, besides the question of
the maintainability of the petition at this stage, when the election
process has already commenced, the only short issue arising in the
facts of the present case is whether the Petitioner was appointed
against a casual vacancy or a regular vacancy of the President of the
Respondent No.2. The admitted position is that, if the election was
against a casual vacancy, it had to be only for the remainder of the
term of the earlier occupant's tenure as President. It has been
vehemently urged by both the learned Senior Counsels for the
Petitioner that the vacancy of President, against which the Petitioner
was elected on 14.03.2017, was a regular vacancy, thereby giving her
a right to have a tenure of five full years. On the contrary, it is the
specific stand of the Respondents that the said vacancy was only a
casual vacancy and, therefore, the Petitioner could only hold the said
post for the remainder of Dr. V.P. Tyagi's term, i.e, till 04.07.2017.
20. Before I deal with the rival contentions of the parties, it would
be useful to refer to some of the relevant provisions of the Act which
are being reproduced hereinbelow:-
"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;"
21. At this stage, it may also be appropriate to refer to Regulations
2(e), 4 and 5(2) of the 1976 Regulations which 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."
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 gap
situation, 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.
26. The submission of the learned senior counsel for the Petitioner,
that the Respondents are estopped from taking a view contrary to their
stand in their counter affidavit filed in WP (C) No. 6867/2013,
wherein the Respondent No.1 had categorically stated that Section
7(3) of the Act does not apply to the post of a President, needs to be
rejected as in view of the settled legal position that there can be no
estoppel against the law. Reference may be made to paragraph 34 of
the decision of the Supreme Court in Rajasthan State Industrial
Development and Investment Corporation [(2013) 5 SCC 427],
which reads as under:-
"34. Be that as it may, there can be no estoppel against the
law or public policy. The State and statutory authorities are
not bound by their previous erroneous understanding or
interpretation of law. Statutory authorities or legislature
cannot be asked to act in contravention of law.
"13. ... „The statutory body cannot be estopped from
denying that it has entered into a contract which it was
ultra vires for it to make. No corporate body can be
bound by estoppel to do something beyond its powers, or
to refrain from doing what it is its duty to do....‟
[Ed.: Halsbury's Laws of England, 3rd Edn., Vol. 15, pp.
226-27, para 427.] "
Even an offer or concession made by the public authority
can always be withdrawn in public interest. [Vide State of
Madrasv. K.M. Rajagopalan [AIR 1955 SC 817], Badri
Prasad v. Nagarmal [AIR 1959 SC 559] and H.S.
Rikhy v. New Delhi Municipal Committee [AIR 1962 SC
554] (AIR p. 562, para 13).] In Surajmull
Nagoremull v. Triton Insurance Co. Ltd.[(1924-25) 52 IA
126 : AIR 1925 PC 83] , it was held as under: (IA pp. 128-
29)
"... No court can enforce as valid that which
competent enactments have declared shall not be valid,
nor is obedience to such an enactment a thing from
which a court can be dispensed by the consent of the
parties, or by a failure to plead or to argue the point at
the outset...."
A similar view was reiterated by the Privy Council in Shiba
Prasad Singh v. Srish Chandra Nandi [(1948-49) 76 IA 244
: (1949) 62 LW 786 : AIR 1949 PC 297] ."
27. However, before I conclude, I must add that there is merit in the
submission of the learned senior counsels for the Petitioner that the
action of the Respondent No.1, in issuing the Impugned Letter on
08.03.2018 and hurriedly announcing the commencement of the
election process on 09.03.2018 itself, and that too at around 8:00 p.m.,
was most uncalled for and not expected of a statutory authority.
However, in view of my conclusion that the Petitioner's term as
President had already expired on 04.07.2017 and that the Respondents,
particularly Respondent No.1, were duty bound to ensure that timely
and fair elections are held, the action of the Respondents directing
fresh elections, to the post of President as also the post of two Vice
Presidents, cannot be faulted. Nonetheless, in light of the facts and
circumstances of the present case, I find it appropriate to direct the
Respondents to allow the Petitioner, should she so desire, to contest
the elections for the post of President scheduled for 23.03.2018.
28. In view of my aforesaid conclusions, whereby I have found no
merit in the claim of the Petitioner, I have refrained from delving into
the preliminary objection raised by the learned Additional Solicitor
General that, since the election process has already commenced, the
writ petition is not maintainable at this stage.
29. The writ petition, being devoid of merit, is dismissed along with
the pending application, with no order as to costs.
C.M. No.10250/2018
30. In view of the fact that the writ petition is being dismissed as
meritless, the present application seeking intervention is dismissed as
infructuous.
(REKHA PALLI)
JUDGE
MARCH 22, 2018/sr/aa
