Kerala High Court
Kerala State United Nurses Association vs State Of Kerala on 11 November, 2024
Author: V.G.Arun
Bench: V.G.Arun
WP(C).No. 35980 of 2024
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE V.G.ARUN
MONDAY, THE 11TH DAY OF NOVEMBER 2024 / 20TH KARTHIKA, 1946
WP(C) NO. 35980 OF 2024
PETITIONER
KERALA STATE UNITED NURSES ASSOCIATION
AGED 37 YEARS
REGSTD NO.8/6/2012, 2ND FLOOR, IVY CREST
APARTMENTS, 15TH STREET, KIZHAKKAMPAATTUKARA,
THRISSUR DISTRICT , REPRESENTED BY ITS PRESIDENT
MR. SHOBY JOSEPH, AGED 37 YEARS, S/O JOSEPH,
PUTHENPURACKAL HOUSE, MUKKUDAM PO, MUKKUDAM,
IDUKKI, PIN - 685562
BY ADV RAJIT
RESPONDENTS:-
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695033
2 PRINCIPAL SECRETARY
HEALTH AND FAMILY WELFARE DEPARTMENT,
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695001
WP(C).No. 35980 of 2024
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3 DIRECTOR OF HEALTH SERVICES
THIRUVANANTHAPURAM,PALAYAM - AIRPORT ROAD,
NEAR GENERAL HOSPITAL ROAD, JUNCTION,
THIRUVANANTHAPURAM, PIN - 695035
4 KERALA NURSES AND MIDWIVES COUNCIL
RED CROSS RD, JAI VIHAR, KUNNUKUZHY,
THIRUVANANTHAPURAM, KERALA ,
REPRESENTED BY THE REGISTRAR, PIN - 695035
5 SMT. P. USHADEVI
PARIYARATH HOUSE, ERANHIMANGAD P.O, NILAMBUR
VIA.MALAPPAURAM-679 329,PRESIDENT, KERALA NURSES
AND MIDWIVES COUNCIL, RED CROSS RD, JAI VIHAR,
KUNNUKUZHY, THIRUVANANTHAPURAM,
KERALA, PIN - 695035
6 SMT. USHA. T. P
KOUSTHUBAM, THANKAYAM, THRIKARPUR, KASARAGODE-671
310, VICE PRESIDENT, KERALA NURSES AND MIDWIVES
COUNCIL, RED CROSS RD, JAI VIHAR, KUNNUKUZHY,
THIRUVANANTHAPURAM, KERALA, PIN - 695035
BY ADVS.
ADVOCATE GENERAL OFFICE KERALA
VIVEK MENON
SHRI.N.MANOJ KUMAR, STATE ATTORNEY()
OTHER PRESENT:
SRI. N. MANOJ KUMAR FOR STATE ATTORNEY.
SR. ADV. N. RAGHURAJ SC FOR KNMC.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 06.11.2024, THE COURT ON 11.11.2024 DELIVERED
THE FOLLOWING:-
WP(C).No. 35980 of 2024
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V.G.ARUN, J
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W.P.(C).No.35980 of 2024
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Dated this the 11th day of November, 2024
JUDGMENT
The petitioner Association is a trade union formed
with the objective of protecting the rights and interests of
nursing personnel across the State of Kerala. This writ
petition is filed aggrieved by Ext.P5, by which the Director
of Health Services was informed that Ext.P4, requiring him
to assume charge as the ex-officio President of the Kerala
Nurses and Midwives Council stands cancelled.
2. The reason for petitioner's grievance, as set out in
the writ petition, are as under;
The constitution, functioning and elections to the Kerala
Nurses and Midwives Council is governed by the provisions of
the Kerala Nurses and Midwives Act, 1953 (the Act for short).
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As per Section 7(1)(b) of the Act, the term of any council
constituted, other than the first Council, shall be five years.
Section 7(2) permits an outgoing member to continue in office
until his successor is elected or nominated. As per Section 9,
dealing with the appointment of President, and Vice-president,
the Government has to nominate the President and the Vice-
president is to be elected by the Council from among its
members. The President and Vice president shall be deemed to
have vacated their office, either on resignation or on expiry of
their term of office as a member. Section 9(5) stipulates that,
when the office of the President has fallen vacant for any of
the reasons mentioned above, the Registrar should convene a
meeting of the Council for electing a President. Until the new
President is elected and assumes office, the Director of Health
Services shall be the ex-officio President.
3. Learned Counsel for the peititioner submitted that,
after election and nomination of the incumbent members, the
first meeting of the present committee was held on
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24.09.2019. As such, the term of the committee expired on
24.09.2024. Consequently, the office of President and Vice-
president has fallen vacant from that day. As no action was
being taken to constitute a new committee by conducting
election, the petitioner filed W.P.(C).No.3920 of 2024. Therein,
Ext.P3 interim order was passed by this Court on 27.09.2024,
directing to conduct and complete the election process within
three months. Thereafter, following the mandate of Section
9(5), Ext P4 communication was sent to the Director of Health
Services, calling upon him to assume charge as ex-officio
President of the Council. Within a few days, the impugned
Ext.P5 communication was sent, informing that the direction
to assume charge as ex-officio President stands cancelled.
According to the learned Counsel, the attempt is to conduct
the election with the present President and Vice president in
office. It is contended that, continuance of respondents 5 and 6
as office bearers is illegal and prompted by political
considerations.
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4. Learned State Attorney contended that, even though
the term of members of the Council is fixed as five years as per
Section 7(1)(b), by virtue of Section 7(2), an outgoing member
can continue in office until his successor is elected or
nominated. It is argued that, since Section 7 is qualified by the
words 'save as otherwise provided', the term of office of the
President and Vice president will also continue till the
successor is elected/nominated.
5. Learned Senior Counsel appearing for the 4 th
respondent Council adopted the contentions of the State
Attorney and further pointed out that, even though Section
11(a) stipulates that a member of the Council shall be deemed
to have vacated the seat on expiry of his term of office, that is
made is subject to Section 7(2) of the Act. This also indicates
that the President and Vice president can continue in office
until election/nomination of their successor.
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6. From the arguments advanced, the short question
arising for consideration is whether the office of the President
would stand vacated on expiry of his term of office, as a
member or will continue till his successor is elected. In order
to answer this question it is essential to read and understand
the relevant provisions of the Act.
"2(a) Council means the Kerala Nurses and Midwives Council
established under Section 3;
7. Term of office of members:-
Save as otherwise provided in this Act. The term of office of the
members other than the ex-officio members shall,-
(a) in the case of 1 the first Council constituted after the
commencement of the Travancore-Cochin Nurses and Midwives
(Amendment) Act,1960 be for a period of two years
commencing from the date on which the first meeting of such
Council is held;
(b) in the case of any Council other than the first Council
constituted after the commencement of the Travancore-Cochin
Nurses and Midwives (Amendment) Act,1960 be for a period of
five years from the date on which the first meeting of such
Council is held.
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2. An outgoing member shall continue in office until the election
or nomination, as the case may be, of his successor.
3.An outgoing member shall be eligible for re-election or re-
nomination, if otherwise qualified.
xxx xxx xxx
9. President and Vice President:-
1. The Government shall nominate one of the members of the
Council to be its President.
2. The Council shall elect one of its members other than the
President to be its Vice President.
3. The President or the Vice President shall be deemed to have
vacated his office on resignation or on the expiry of his term of
office as a member or on his otherwise ceasing to be a
member.
4. When the office of the President is vacant, the Vice -
President shall exercise the functions of the President until a
new President assumes office.
5. When the office of the President is vacant or the President is
incapacitated and there is either a vacancy in the office of the
Vice President or the Vice President is incapacitated, the
Registrar shall after giving notice of not less than seven clear
days to the members of the Council, convene a meeting for the
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election of a President if there is a vacancy in that office, and
until a new President or the Vice President is elected and
assumes office, or either the President or the Vice President
recovers from his incapacity, as the case may be the Director of
Health Services shall, not withstanding anything contained in
this Act, be ex-officio President of the Council.
xxx xxx xxx
11. Cessation of Membership:- A Member of the Council
other than an ex-officio member shall be deemed to have
vacated his seat.
1(a) subject to the provisions of sub-section (2) of section 7, on
the expiry of the term of office;
(b) on resignation;
(c) on absence, without excuse sufficient in the opinion of the
Council from three consecutive meetings of the Council;
(d) on becoming subject to any of the disqualifications
mentioned in section 6;
(e) in the case of a member elected by the Medical Council if he
ceases to be a member of that Council."
7. It is evident from a reading of Section 7 that even
though the term of a member of the Council is five years, the
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member can continue till his successor is elected or nominated.
On the other hand, Section 9(3) is categoric to the effect that
the President or Vice president will be deemed to have vacated
office on the expiry of his term of office as a member. Thus, the
office of the President/Vice president is made co-terminus to
his membership in the Council. The position becomes further
clear from Section 9(5), which stipulates that the Director of
Health Services shall be the ex offico President of the Council
until a new President/Vice President is elected and assumes
office. A plain reading of the above provisions reveals that,
while a member can continue till his successor is elected
/nominated, the President or Vice President will have to vacate
office on expiry of his term of office as member in the Council.
8. The contention of the State Attorney is that, by
virtue of Section 7(2), the President/Vice President can
continue in office, since the words 'save as otherwise
provided in the Act', qualifies the later provisions. The said
argument cannot be countenanced for the reason that the
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words, 'save as otherwise provided' only means, except to
the extent specific provision is made. One of the cardinal
rules of interpretation of statutes is that, when there is a
general provision and the specific provision in regard to a
subject, the general provision should yield to the specific
provision and it is the latter that prevails. Here, Section
9(3) being the specific provision, Section 7(2) should yield
to it.
9. The argument of the Senior Counsel is that the
terminology, 'subject to the provisions of sub-section (2) of
Section 7' used in Section 11 also indicates that the
President and Vice President can continue in office, as their
membership will not cease till a new member is elected or
nominated. In this context, it is essential to note that the
words "subject to" is used when an exception from a rule or
provision contained in a different provision of an enactment
needs to be introduced. Therefore, by the words 'subject to'
in Section 11, the exception contained in Section 7(2) alone
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is introduced, which has nothing to do with the term of
office of the President/Vice President.
10. The above discussion leads to the conclusion that
the office of the President and Vice-President stood vacated
on 24.09.2024, the day on which the membership of
respondents 5 and 6 in the Council expired. As revealed
from Ext.P4, being aware of this position, respondents 1
and 2 had required the Director of Health Services to
assume office as ex officio President of the Council. On the
other hand, the cancellation of Ext.P4 vide Ext.P5, is
without assigning any reason whatsoever, let alone an
acceptable reason. It is also pertinent to note that by virtue
of the deeming provision in Section 9, the Director of
Health Services becomes the ex officio President, on the
office of the President being vacated, for which a separate
order from the 1st respondent is not required.
For the aforementioned reasons, the writ petition is
allowed and Ext.P5 is quashed. The 3rd respondent shall
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assume charge as ex officio President of the 4 th respondent
Council forthwith and continue as such till a new President
is elected in accordance with the provisions of the Act.
sd/-
V.G.ARUN, JUDGE
sj
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APPENDIX OF WP(C) 35980/2024
PETITIONER EXHIBITS:
Exhibit P1 A TRUE COPY OF THE ORDER GO(P).NO
94/2019/H&FWD DATED 07.09.2019 ISSUED
BY THE 2ND RESPONDENT
Exhibit P2 A TRUE COPY OF THE GOVERNMENT ORDER
G.O(K).NO.245/2024/H&FWD DATED
27.09.2024 APPOINTING RETURNING OFFICER
FOR THE CONDUCT OF ELECTION
Exhibit P3 A TRUE COPY OF THE ORDER DATED
03.09.2024 IN I.A.NO.2/2024 IN W.P.
(C).NO. 3920/2024 OF THIS HON'BLE COURT
Exhibit P4 A TRUE COPY OF THE ABOVE COMMUNICATION
ISSUED BY THE 2ND RESPONDENT TO THE 3RD
RESPONDENT DATED 03.10.2024
Exhibit P5 A TRUE COPY OF THE ORDER DATED
10.10.2024 ISSUED BY THE 2ND RESPONDENT
Exhibit P6 THE TRUE COPY OF THE NOTICE BEARING NO.
G1.22753/2019/NC DATED 21.10.2024
ISSUED BY THE 4TH RESPONDENT
Exhibit P7 THE TRUE COPY RECEIVED BY ONE OF THE
MEMBER OF THE PETITIONER ORGANIZATION
UNDER THE RIGHT TO INFORMATION ACT
DATED 23.10.2024
