Karnataka High Court
Dr. Amaragouda L Patil vs Union Of India on 10 January, 2024
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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NC: 2024:KHC:1486
WP No. 15859 of 2021
C/W WP No. 15590 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
WRIT PETITION NO. 15859 OF 2021 (S-RES)
C/W
WRIT PETITION NO. 15590 OF 2021 (S-RES)
IN W.P.No.15859/2021:
BETWEEN:
DR.AMARAGOUDA.L.PATIL,
S/O LINGANAGOUDA.A.PATIL,
AGE 63 YEARS,
RETIRED PROFESSOR AND DIRECTOR,
DEPARTMENT OF AYUSH,
GOVERNMENT OF KARNATAKA,
BANGALORE, R/AT No.86,
AURORAA PRIDE APARTMENT, 9TH MAIN,
J.C.NAGAR, KURUBARAHALLI,
BANGALORE-560 086.
Digitally
signed by
MANJANNA
...PETITIONER
MANJANNA E
E Date:
2024.01.12
(BY SRI.VIJAY KUMAR., ADVOCATE(VC))
14:39:14
+0530
AND:
1. UNION OF INDIA,
REPRESENTED BY ITS SECRETARY,
MINISTRY OF AYUSH,
AYUSH BHAVAN, 'B' BLOCK,
GPO COMPLEX, INA,
NEW DELHI-110 023.
2. THE SEARCH COMMITTEE
REPRESENTED BY ITS CONVENOR/SECRETARY
FOR APPOINTMENT TO THE POST OF
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WP No. 15859 of 2021
C/W WP No. 15590 of 2021
PRESIDENT MEDICAL EDUCATION & RATING BOARD
MINISTRY OF AYUSH, AYUSH BHAVAN,
B BLOCK, INA, NEW DELHI-110 023.
3. DR.ANILKHURANA,
CHAIRPERSON, NATIONAL COMMISSION
FOR HOMOEOPATHY,
JAWAHARLAL NEHRU BHARATIYA VIUM
HOMOEOPATHIC ANUSANDHAN BHAVAN,
No:61-65, INSTUTUTIONAL AREA,
OPP D BLOCK, JANAKPURI,
NEW DELHI.110 058.
...RESPONDENTS
(BY SRI.H.SHANTHI BHUSHAN, DSGI, FOR R-1 & R-2;
SMT.MANASI KUMAR, ADVOCATE FOR R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 FO
THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR
COMPLETE RECORDS RELATING TO RECEIPTS AND SCRUTINY
OF APPLICATIONS, RECOMMENDATIONS OF SELECT
COMMITTEE AND ISSUE OF THE IMPUGNED NOTIFICATION
DATED 05.07.2021 BEARING No.F.No.R-21011/10/2021-EP-iii
VIDE ANNEXURE-D ISSUED BY THE 1ST RESPONDENT AND
AFTER PERUSAL, SET ASIDE THE SAME IN SO FAR AS IT
RELATES TO SELECTION AND APPOINTMENT OF 3RD
RESPONDENT FOR THE POST OF CHAIRPERSON, NATIONAL
COMMISSION FOR HOMOEOPATHY,
I-A) TO QUASH THE IMPUGNED ORDER BEARING
F.NO.R.21011/11/2021-EP-III DATED 05.07.2021 OF THE 1ST
RESPONDENT VIDE ANNEXURE-D1, ETC.
IN W.P.No.15590/2021:
BETWEEN:
DR.AMARAGOUDA.L.PATIL,
S/O LINGANAGOUDA.A.PATIL,
AGE 63 YEARS,
RETIRED PROFESSOR AND DIRECTOR,
DEPARTMENT OF AYUSH,
GOVERNMENT OF KARNATAKA,
-3-
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WP No. 15859 of 2021
C/W WP No. 15590 of 2021
BANGALORE, R/AT No.86,
AURORAA PRIDE APARTMENT, 9TH MAIN,
J.C.NAGAR, KURUBARAHALLI,
BANGALORE-560 086.
...PETITIONER
(BY SRI.VIJAY KUMAR., ADVOCATE(VC))
AND:
1. UNION OF INDIA,
REPRESENTED BY ITS SECRETARY,
MINISTRY OF AYUSH,
AYUSH BHAVAN, 'B' BLOCK,
GPO COMPLEX, INA,
NEW DELHI-110 023.
2. THE SEARCH COMMITTEE
REPRESENTED BY ITS CONVENOR/SECRETARY
FOR THE POST OF PRESIDENT
MEDICAL ASSESSMENT & RATING BOARD
MINISTRY OF AYUSH, AYUSH BHAVAN,
B BLOCK, GPO COMPLEX,
NEW DELHI-110 023.
3. DR.K R JANARDANAN NAIR
PRESIDENT, MEDICAL ASSESSMENT
AND RATING BOARD,
NATIONAL COMMISSION FOR HOMOEOPATHY,
No:61-65, INSTL. AREA,
JANAKPURI, NEW DELHI.110 058.
...RESPONDENTS
(BY SRI.H.SHANTHI BHUSHAN, DSGI, FOR R-1 & R-2;
SMT.ARUNA SHYAM, SENIOR COUNSEL FOR
SRI.SUYOG HERELE.E, ADVOCATE FOR R-3)
THIS WRIT PETITION IS FILED UNDER ARTICLE 226 FO
THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR
RECORDS RELATING TO ISSUE OF THE IMPUGNED
NOTIFICATIONS BOTH DATED 05.07.2021 BEARING No.F.No.R-
21011/10/2021-EP-iii VIDE ANNEXURES-D ISSUED BY THE 1ST
RESPONDENT AND AFTER PERUSAL SET ASIDE THE SAME IN
SO FAR AS THEY RELATE TO APPOINTMENT OF THE 3RD
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WP No. 15859 of 2021
C/W WP No. 15590 of 2021
RESPONDENT FOR THE POST OF PRESIDENT, MEDICAL
ASSESSMENT AND RATING BOARD FOR HOMOEOPATHY, "i-a)
TO QUASH THE IMPUGNED ORDER BEARING F.No.R-
21011/11/2021-EP-III DATED 05.07.2021, ISSUED BY THE 1ST
RESPONDENT, VIDE ANNEXURE-D1, ETC."
THESE PETITIONS HAVING BEEN HEARD AND RESERVED
FOR ORDERS ON 20.11.2023, COMING ON FOR
PRONOUNCEMENT THIS DAY, THE COURT MADE THE
FOLLOWING
ORDER
1. These Writ Petitions are filed by Dr. Amaragouda L.
Patil, challenging the appointment of Dr. Anil Khurana
(respondent No.3 in W.P. No.15859/2021) as Chairperson
of National Commission for Homeopathy, and the
appointment of Dr. K.R.Janardanan Nair (respondent No.3
in W.P.No.15590/2021) as the President of Medical
Assessment and Rating Board of the National Commission
for Homeopathy.
2. It is not in dispute that the petitioner was an
applicant for both the posts - of the Chairperson of
National Commission for Homeopathy, and of the
President of Medical Assessment and Rating Board of
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National Commission for Homeopathy, and
notwithstanding his application, the above-mentioned Dr.
Khurana and Dr. Nair have been appointed.
3. It is his principal contention that the aforementioned
persons are ineligible to be appointed as the Chairperson
and the President, and therefore, their appointments are
required to be quashed. It is also his further case that he
is eligible and consequently, he should be appointed in
their place.
4. In order to examine the contentions advanced, it
would be necessary to have an overview of the legal
provisions governing the petitioner's claim.
5. The National Commission for Homeopathy Act, 2020
(hereinafter referred to as, "the Act", for brevity) was
enacted for providing a medical education system that
improved access to quality and affordable medical
education, and to ensure availability of adequate and high
quality Homeopathy medical professionals in all parts of
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the country. The Act mandates the establishment of the
constitution of a National Commission for Homeopathy,
which is required to consist of a Chairperson, seven ex
officio members, and nineteen part-time members.
6. The qualification of the Chairperson is stated in
Section 4(2) of the Act, which reads as follows:
"4(2) The Chairperson shall be a person of
outstanding ability, proven administrative capacity
and integrity, possessing a postgraduate degree in
Homeopathy from a recognized University and having
experience of not less than twenty years in the field of
Homeopathy, out of which at least ten years shall be
as a leader in the area of healthcare delivery, growth
and development of Homeopathy or is education."
7. An Explanation is also appended to Section 4, which
reads as follows-
"Explanation - For the purpose of this section
and section 19, the term "leader" means the Head of
a Department or the Head of an Organisation."
8. For the purpose of these Writ Petitions, the other
sub-sections under Section 4 would not be relevant and
are hence, not considered.
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9. Under Section 18(1) of the Act, the Central
Government is required to constitute three Autonomous
Boards, one of which is the 'Medical Assessment and
Rating Board for Homeopathy'. This Autonomous Board is
required to consist of a President and four Members from
the discipline of Homeopathy, and two other members, out
of whom one Member shall be from the discipline of
Homeopathy and the other Member shall be an
accreditation expert. The President of the Autonomous
Board, including the aforementioned Board, is required to
be appointed on the basis of recommendations made in
accordance with the procedure specified in Section 5, by
the Search Committee constituted thereunder.
10. Sub-section (2) of Section 19 reads as follows:
"(2) The President and Members of the
Autonomous Boards to be chosen under sub-section
(1) shall be persons of outstanding ability, proven
administrative capacity and integrity, possessing post-
graduate degree in respective disciplines from a
recognized University and having experience of not less
than fifteen years in respective fields, out of which at
least seven years shall be as a leader:
Provided that seven years as leader in the case
of the President and Member from Homeopathy shall
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be in the area of health, growth and development of
education in Homeopathy."
11. As could be seen from Section 4 and from Section
18, in order to be eligible appointed as a Chairperson or as
a President, as the case may be, a person should have an
outstanding ability, proven administrative capacity and
integrity, and should also possess a postgraduate degree
in Homeopathy from a recognized University as an
educational qualification. He should also have experience
of not less than 20 years in the field of Homeopathy (in
case of the Chairperson of the Commission) and 15 years
(in case of the President of the Autonomous Board).
12. Both provisions, however, mandate that out of the
requisite number of years of experience, they should be a
leader for a specified period. The Explanation appended to
Section 4 explains the meaning of a "leader" and states
that for the purpose of Sections 4 and 19, a "leader"
means the Head of a Department or the Head of an
Organisation.
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13. The Explanation, therefore, seeks to explain any
ambiguity that may arise as to the true intent of the law
makers when they used the expression "leader". The
explanation seeks to convey that the lawmakers
essentially meant that a leader should be a person who
had been the Head of the Department or the Head of an
Organisation.
14. Thus, in these Writ Petitions, the only question to be
considered is:
Whether Dr. Anil Khurana and Dr. M.K.
Janardhan Nair (respondent No.3 in the Writ
Petitions) possessed the necessary qualification
to be considered as a "leader" as defined under
Section 4 of the Act and as explained in the
Explanation appended to Section 4.
15. The Act seeks to explain the meaning of a "leader",
but it does not define the expressions "Head of a
Department" or "Head of an Organisation" used in the
explanation appended to Section 4 and hence, the present
controversy.
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16. It is to be kept in mind that the National Commission
for Homeopathy Act, is essentially an enactment to create
a medical education system and to provide adequate high
quality Homeopathy professionals in all parts of the
Country, and therefore, the term "Head of a Department"
or the term "Head of an Organisation" would have to
necessarily mean that they should have headed a
Department in a Homeopathic Unit or should have headed
an Organisation which dealt with Homeopathy or its
education.
17. It is well settled that at the time of enacting the law
itself, if the Legislature foresaw that the use of a particular
expression would lead to a misunderstanding,
misconstruction or an ambiguity, in order to address that
issue and ensure that the confusion, if any, stood
resolved, the Legislature commonly adopt the legislative
device of appending an Explanation to the provision.
18. Viewed from this background, it is clear that the
Legislature was aware that the use of the expression
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"leader" could lead to varied constructions in differing
contexts and would probably lead people astray, and
therefore, it appended an Explanation which made it clear
that a "leader" would mean a person who was either the
Head of a Department or the Head of an Organisation.
19. In light of this legal position, all that is required to be
examined in these Writ Petitions is as to whether Dr.Anil
Khurana (respondent No.3 in W.P. No.15859/2021) and
Dr.Janardanan Nair (respondent No. 3 in W.P.
No.15590/2021) were either the Head of a Department or
the Head of an Organisation, for the period prescribed
under Sections 4 and 19 of the Act. If the answer is to be
answered in their favour, their appointments would be
valid and if the answer was against them, their
appointments would be rendered invalid.
20. As already stated, Section 4(2) states that in order to
be a Chairperson, a candidate should have at least had an
experience of not less than 20 years in the field of
Homeopathy and out of these 20 years, he should have
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been a leader for at least 10 years in the area of
Healthcare delivery, growth and development of
Homeopathy, or its Education.
21. Thus, in order to be the Chairperson of the National
Commission for Homeopathy, a person should have 20
years' experience in the field of Homeopathy and out of
these 20 years, he should have been a Head of the
Department or the Head of an Organisation in the area of
Healthcare delivery, growth and development of
Homeopathy or its education.
22. Similarly, in order to be the President of the
Autonomous Board, a candidate should have had 15 years'
experience in their respective fields, out of which 7 years
should have been as a leader. In other words, in order to
be a President of an Autonomous Board, the candidate
should have at least 15 years' experience in the Medical
Assessment and Rating Board for Homeopathy, and out of
these 15 years, he/she should have been as the Head of a
Department relating to Medical Assessment and Rating
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Board, or as Head of a Department or an Organisation
dealing with the Medical Assessment and Rating, for 7
years.
23. It may be pertinent to state here that it is not in
dispute that both Dr. Khurana and Dr. Nair possess the
required educational qualifications, but the only dispute is
as to whether they had the experience as a leader, as
defined under the provisions of the Act and under the
Notification.
24. The applications that were required to be filed for the
above-mentioned posts contained a specific column
relating to the details of experience of the applicant as the
Head of a Department / Head of an Organisation.
25. Dr.Anil Khurana, who has been appointed as the
Chairperson of National Commission for Homeopathy, in
his application, in the column relating to the experience as
Head of the Department /Head of an organization, has
stated as follows:
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"Please specify details of experience as Head of the
Department/Head of an organization:
Sl. Nature of Designation From To
experience and Institute
No. of work
a) Monitored Scheme Officer on Feb. May,
of Essential Special Duty 2003 2004
Medicine for (OSD), then
Hospital and Department of
Dispensaries AYUSH, under
MoHFW
b) Monitored and Asstt. Director, 2008 2019
supervised Deputy
research studies Director, CCRH
relating to Hqrs., as
Fundamental and Technical Head
Basic research
c) Monitored Director August April
progress of all General In- 2017 2018
technical works of charge, CCRUM
CCRUM as Director Hqurs.
General In-charge
d) Monitoring and Director July Till
supervising all General, CCRH 2019 date
technical projects
of the CCRH
26. As could be seen from the application of Dr.Anil
Khurana, for the period 2003 to 2019, he was working as
an Officer on Special duty in the Department of AYUSH,
under the Ministry of Health and Family Welfare, and
thereafter, as an Assistant Director, Deputy Director,
CCRH Head Quarters. A plain reading of the said
designations held by Dr.Anil Khurana makes it clear that
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he was neither the Head of a Department nor the Head of
an Organisation from the year 2003-2019.
27. An argument was, however, advanced by the learned
counsel for Dr.Anil Khurana that he was a 'Technical Head'
between 2008 to 2019 and this would indicate that he was
the Head of the entire Technical Department and was,
thus, entitled to count this period as him being a leader.
She placed strong reliance on the 'Organisational Set up'
described in the Central Council for Research in
Homoeopathy, to contend that the Organisation is headed
by the DRDO and had two Units, i.e., a Technical Unit and
an Administrative Unit, and the Deputy Director of
Homeopathy was in charge of various Departments and
therefore, this would essentially mean Dr.Anil Khurana
was the Head of more than one Department,
simultaneously.
28. In my view, this argument cannot be accepted. A
Deputy Director, by its very nomenclature, would indicate
that he is a Deputy to a Director and it is the Director who
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would be the Head of a Unit. The true test for considering
a person to be a leader, as contemplated under the Act, is
to see whether he was the person who was ultimately
responsible for running the Department and everybody
else would be reportable or answerable to him. If a person
who holds the post of a Deputy Director is to report to a
Director or a Director General, it is obvious that said
person would not be the Head of a Department. It is,
therefore, clear that for this particular period i.e., from
2003 to 2019, the petitioner cannot be construed to be the
Head of a Department.
29. It is only in respect of the period when Dr.Anil
Khurana worked as the Director General (in-charge) from
August 2017 to April 2018 and as the Director General
from July 2019 to till 2021, can he be considered as a
leader, as envisaged under the provisions of the Act. This
would indicate that Dr.Anil Khurana was holding leadership
only for a period of about four years and therefore, did not
satisfy the requirement of Section 4, which required
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Dr.Anil Khurana to be a leader for at least 10 years as the
Head of a Department or 10 years as the Head of an
Organisation.
30. It is, thus, clear that Dr.Anil Khurana did not possess
the requisite experience as a leader to be appointed as the
Chairperson.
31. In the case of Dr.K.R. Janardanan Nair (who was
appointed as the President of the Autonomous Board), the
details of his experience as Head of the Department was
stated as follows -
"Experience as head of the Department/head of an
organization:-
Sl. Nature of Designation and From To
experience Institute of work
No.
a) Clinical Practice Senior Consultant, 2019 2021
Mar Sleeva
Medicity, Palai,
Kottayam
b) Clinical Research CCRH & National 2007 2019
Management & Homoeopathy
Administration Research Institute
in Mental Health
c) Clinical Research CCRH & NHRIMH, 1987 2019
Kottyam
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d) Clinical Practice Private 1980 1987
Homoeopathy
Clinic
"Experience as head of the Department/head of an
organization:-
Sl. Nature of Designation and From To
experience Institute of work
No.
1. Officer In- Officer In-charge, 30.04.2012 30.04.2018
charge CRIH, Kottayam
2. Principal Principal NHRIMH, 01.05.2018 01.05.2019
Kottayam
Experience (Administration):-
Sl. Administration Designation From To Major
and Institute Accomplishment
No. s
of work
a) Co-ordinator- Clinical officer 2007 2010 Submitted
Clinical Research and Assistant Projects for
and Director at development of
Collaborative CCRH, New NHRIMH,
Research Delhi & Kottyam.
NHRIMH, 2010 2019 Worked as
Kottayam Coordinator of
various Clinical
and
Collaborative
Research
Projects
undertaken by
CCRH.
b) Technical In- Assistant 2010 2012 Coordinating all
OPD, IPD
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Charge Director (H) Clinical and
Drug Proving
Research
activities of
NHRIMG under
Deputy Director
In-charge.
c) Officer In- 2012 2019 Administrative,
Charge & Research
Assistant Academic and
Director (H) & developmental
Principal activities were
proposed as
Principal and
Officer in
Charge.
32. As could be seen from the above, Dr.K.R.Janardanan
Nair was a Senior Consultant from 2019 to 2021 and he
had Clinical Research Management and Administration
experience from 2007 to 2019, by his work at the CCRH in
the National Homeopathy Research Institute, in Mental
Health, and he was engaged in Clinical Research from
1987 to 2019, and from 1980 to 1987, he had experience
in Clinical Practice.
33. In the column for experience, Dr.K.R.Janardanan
Nair stated that he was a Research Officer and Assistant
Director at CCRH, New Delhi & NHRIMN, Kottayam from
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2007 to 2010 and he was, thereafter, an Assistant Director
from 2010 to 2012, and an Officer In-charge and Assistant
Director and Principal from 2012 to 2019. It is clear from
the above that Dr.K.R.Janardanan Nair was an Officer In-
chargeand the Assistant Director and Principal from 2012-
2019, which would indicate that he was a Principal for 7
years. Since by virtue of being the Principal, he was the
Head of an Organisation, it is clear that he possessed the
necessary qualifications to be considered as a leader for
the purposes of the Act.
34. Learned counsel for Dr.Anil Khurana, however,
sought to contend that a textual interpretation of the
expression used in the Explanation ought not to be
adopted and a purposive interpretation was necessary.
She sought to highlight the fact that though the
designation of respondent No.3 indicated that Dr.Anil
Khurana was the Deputy Director, the fact remained that
he headed the entire set of Technical Departments and
was responsible for the running of the Department
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completely, and thereby, by adopting the principles of
purposive interpretation, it was necessary to hold that
Dr.Anil Khurana possessed the requisite experience as a
leader.
35. She also averred that the authorities, after obtaining
an opinion in this regard, had come to the conclusion that
the positions that Dr.Anil Khurana held did constitute
leadership roles and since they were satisfied about the
leadership roles, this Court ought not to entertain the plea
in this regard.
36. The learned counsel for the petitioner, however,
relied upon the Memorandum of Association, the Rules and
Regulations, and the Bye-laws that had been framed by
the Central Council for Research in Homeopathy to
contend that the Bye-laws did not prescribe any such
organizational setup and therefore, the argument that
Dr.Anil Khurana was the Head of a Department cannot be
accepted.
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37. A reading of the Association and the Bye-laws
indicates the delegation of powers and the schedule of
powers that are vested in the Director General and in the
Officer declared as the Head of the Office. Nowhere in
these Bye-laws does it indicate that an Officer on Special
duty or an Assistant Director, Deputy Director or Technical
Head is declared to be the Head of the Office.
38. Furthermore, in the Annexure to the Bye-laws, the
Authority empowered to impose penalties in respect of
Group-A, B and C posts is conferred either on the
President, the Governing Body or the Director General of
the Institution. In respect of Group-C and D employees,
the Project Heads are conferred with the powers to impose
penalties. The power to impose a penalty is not conferred
on any post which is designated as a Technical Head. It is,
therefore, clear that Dr.Anil Khurana, by virtue of his
assertion that he was the Technical Head, cannot be
considered as the Head of a Department.
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39. Reliance placed on the organizational setup
appended to the annual report would really be of no
significance in light of the fact that the Memorandum of
Association and Rules, Regulations and Bye-laws have
been framed in respect of Central Council for Research in
Homeopathy, New Delhi and they do not indicate that
there exists any post called as the Technical Head.
40. The argument that a specific opinion was secured by
the Search Committee regarding the eligibility of Dr.Anil
Khurana and an opinion was also rendered that Dr.Anil
Khurana had the requisite experience of ten years
equivalent to that of the Head of a Department and this
opinion was required to be accepted, does not merit
acceptance.
41. It is no doubt true that in the original records that
were produced, there is a communication dated
06.05.2021, which indicates that a clarification was sought
regarding the eligibility of Dr.Anil Khurana and the
Scrutiny Committee examined the application of Dr.Anil
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Khurana and observed that he may be eligible, subject to
submission and verification of documents of experience as
the Head of a Department, from the competent Authority,
Cadre Clearance, and a Certificate of not having major /
minor penalties against him.
42. It is also stated therein that the Secretary to the
Government of India had gotten the matter examined in
the Ministry of AYUSH and after verifying the documents of
experience, it was confirmed that Dr.Anil Khurana
possessed the requisite experience of 10 years equivalent
to the Head of a Department and therefore, fulfilled the
eligibility requirements forsaid post.
43. In my view, the opinion of the Ministry of AYUSH or
the opinion of the Scrutiny Committee to the effect that
Dr.Anil Khurana had 10 years' experience equivalent to
the Head of a Department would be of no solace and it
would really be of no significance, since they are mere
opinions and are not based on a Bye-law or a Regulation.
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44. As already stated above, the statutory provision
clearly stipulates that a leader means the Head of a
Department or the Head of an Organisation. Since the
provision is clear and explicit, an opinion to the effect that
the post held by Dr.Anil Khurana was equivalent to that of
the Head of a Department cannot be accepted. Whether
Dr.Anil Khurana was either the Head of a Department or
the Head of an Organisation, is all that would have to be
determined with reference to the posts that he, himself,
admitted holding during his 20 years of experience in the
field of Homeopathy.
45. The mere opinion of the Ministry of AYUSH that he
held a post which was equivalent to that of the Head of a
Department, cannot really translate into the fact that
Dr.Anil Khurana had actually been the Head of a
Department or the Head of an Organisation.
46. It may also be pertinent to note here that even
according to the opinion secured, Dr.Anil Khurana was
stated to have held the equivalent posts of the Head of a
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Department or as the Head of an Organisation and on this
basis, it is opined by the Scrutiny Committee that he may
be eligible.
47. In my view, such opinions or inferences of the
Ministry or the Scrutiny Committee cannot satisfy the clear
and specific requirement of the law that a person, in order
to be appointed as the Chairperson, would have to
necessarily be the Head of a Department or the Head of an
Organisation. Since, indisputably, Dr.Anil Khurana was not
the Head of a Department or the Head of an Organisation
for 10 years. The mere opinion that he was holding an
equivalent post cannot be accepted as having satisfied the
statutory requirement.
48. Learned counsel for respondent No.3 sought to place
reliance on judgments of Basavaiah1, Sajeesh Babu K.2,
Dalpat Abasaheb Solunke3 and National Institute of
Basavaiah (DR.) v. Dr.H.L.Ramesh and Others, (2010) 8 SCC 372.
Sajeesh Babu K. v. N.K.Santhosh and Others, (2012) 12 SCC 106.
DalpatAbasahebSolunke and Others v. Dr.B.S.Mahajan and Others, (1990)
1 SCC 305.
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Mental Health and Neuro Sciences4 to contend that the
Court ought not to interfere with the decision of the
Selection Committee, since they were domain experts and
were the best judges to examine the suitability of the
candidates appointed. This reliance on the decisions would
be of no relevance in this case. The proposition laid out by
the Hon'ble Supreme Court is that the Selection
Committee would be the best judge to assess the merits /
suitability of a candidate, cannot be in dispute at all.
49. It is to be stated here that in the present case, this
Court is not determining or assessing the suitability of
Dr.Anil Khurana or Dr.Janardanan Nair. This Court is
merely examining whether they satisfy the statutory
requirement of being a leader i.e., whether they were the
Head of a Department or the Head of an Organisation, as
stated by them in their applications. It is obvious that if
they do not satisfy the statutory requirement, as admitted
National Institute of Mental Health and Neuro Sciences vs. Dr.K.Kalyana
Raman and Others, 1992 Supp (2) SCC 481.
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by them in their applications, it would be clear that they
ought not to have been appointed.
50. Reliance placed on the judgment rendered by the
Hon'ble Supreme Court in Minosha India Limited5 to
contend that the principle of literal interpretation of
statutes has, over a period of time, indeed yielded to an
interpretation which is purposive, or which seeks to
accommodate the object of the law giver, would also be of
no avail.
51. It is to be stated here that in the very judgment
relied upon by the learned counsel, it is stated that if the
words of statutes are not ambiguous, the scope of
interpretation dwindles. It is also held that the principle
that literal meaning must be accepted is undoubtedly
subject to the principle that it will make way when such
interpretation would lead to an absurdity or grave
injustice, which a law maker could not have contemplated.
Thus, in the normal course, literal interpretation will have
New Delhi Municipal Council vs. Minosha India Limited, (2022) 8 SCC 384
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to be accepted unless adopting that mode of interpretation
leads to an absurd situation.
52. In the instant case, the statutory provision is clear
that a 'leader' means a person who was the Head of a
Department or the Head of an Organisation.
53. The Deputy Solicitor General of India has relied upon
the judgment rendered in Tajvir Singh Sodhi6, to
contend that the selection of Mr. Khurana and Mr. Nair
cannot be set aside unless the same has suffered from
irregularities which were grave and arbitrary in nature.
This judgment would be of no avail since it relates to the
selection to the post of drug inspectors in the then State of
Jammu and Kashmir, and the selection process, the posts
in question, the facts and the issues that arose in Tajvir
Singh Sodhi were completely different from that in the
instant case.
Tajvir Singh Sodhi and Others v. State of Jammu and Kashmir and Others,
2023 SCC OnLine SC 344
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54. In this regard, learned counsel for the petitioner
relied upon a judgment rendered by the Hon'ble Supreme
Court in Pramod Kumar7, in which it is stated as follows :
"16. The qualifications for holding a post have
been laid down under a statute. Any appointment in
violation thereof would be a nullity.
18. If the essential educational qualification for
recruitment to a post is not satisfied, ordinarily the
same cannot be condoned. Such an act cannot be
ratified. An appointment which is contrary to the
statute/statutory rules would be void in law. An
illegality cannot be regularized, particularly, when the
statute in no unmistakable term says so. Only an
irregularity can be. {Secretary, State of Karnataka
and Others Vs. Umadevi and Others [(2006) 4 SCC 1],
National Fertilizers Ltd. and Ors. Vs. Somvir Singh
[(2006)5SCC493] and Post Master General, Kolkata
and Others. Vs. Tutu Das (Dutta) [(2007) 5 SCC
317]."
55. In light of the above declaration, it is rather obvious
that if a qualification for holding a post (as prescribed in
the statute) is not satisfied, such appointment would be a
nullity.
56. In that view of the matter, it is clear that Dr.Anil
Khurana did not possess the requisite experience as a
Pramod Kumar vs. U.P. Secondary Education Services Commission and
Others, (2008)7 SCC 153
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"leader" and therefore, his appointment as the
Chairperson cannot be accepted as being in conformity
with the provisions of the statutes. The appointment of Dr.
Anil Khurana, made under Annexure-D shall, therefore,
stand quashed.
57. However, as held above, Dr. Janardhan Nair was a
Principal from 2012 to 2019 and was, thus, the Head of an
Organisation and possessed 7 years' experience as a
leader. Hence, his appointment would have to be held as
being valid and in conformity with terms of the statutory
provisions.
58. Learned counsel for the petitioner sought to contend
that the petitioner herein was eligible and meritorious, and
hence, a direction should be issued to appoint him.
59. In my view, such course of action is not permitted in
law. Once an appointment is found to be illegal, all that
the Court can do is to direct the Search Committee to re-
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do the process of appointment as per the statutory
procedure.
60. W.P.No.15859/2021 filed challenging the
appointment of Dr. Anil Khurana is, accordingly, allowed.
61. Consequently, the Central Government is directed to
take necessary action to appoint a Chairperson of the
National Commission for Homeopathy afresh, in the
manner prescribed under the statute and also keeping in
mind any observations made by this Court regarding the
eligibility of the candidates vis-à-vis the meaning of the
word "leader".
62. W.P.No.15590/2021 filed challenging the
appointment of Dr. K.R. Janardanan Nair is, however,
dismissed.
Sd/-
JUDGE
HNM
