The singular question arises for consideration as to
interpretation of provisions contained in Section 7 of the
Indian Medicines Central Council Act, 1970 (in short referred
to as ‘the Act of 1970’). It is not in dispute that the
erstwhile member of Council was holding the office of the
President of the Central Council of Indian Medicine (in short
‘CCIM’). He was the representative of the State of
Uttarakhand. His term expired on 27.8.2016. He was also
holding the elected post of the President of the CCIM for the
tenure which would have expired on 4.7.2017 had he continued
as Member.
Notice for the purposes of holding an election for the
post of President was issued on 27.2.2017 by the Returning
Officer/Secretary of CCIM. On 14.3.2017, the election was
held in which the respondent No.1, namely, Dr.Vanitha R. was
elected as the President. Vd. Raghunandan Sharma, Jaipur
filed representation on 18.4.2017 to the Government, Ministry
of Ayush as to tenure for which election was held. It was
decided on 24.8.2017 by the said Ministry and representation
was rejected on the ground that the provision under Section 7
(3) of the Act of 1970 is applicable to Members only and not
for the President and for Vice President.
Thereafter, the Ministry had taken opinion from the Law
Department and the fresh order came to be passed on
8.3.2018 in which it was observed that, the election for
the post of President was held for the remainder period
available to the erstwhile Member from Uttarakhand, to hold
the said office which came to an end on 4.7.2017. As such,
a fresh election for the post of President was required to
be held.
The order dated 8.3.2018 had been questioned by the
appellant by way of filing writ petition in the High Court
of Delhi. The Writ Petition was dismissed by the Single
Bench. However, in Writ Appeal, the Division Bench has set
aside the order passed by the Single Bench and also the
fresh election held for the post of President in March
2018. Aggrieved thereby, the Ministry of Ayush and Central
Council both came to this Court. The Central Council had
withdrawn its Special Leave Petition(C) No.18329/2018 on
14.8.2018. Hence, the surviving appeal by the Ministry of
Ayush.
Mr. Tushar Mehta, learned Additional Solicitor General
appearing on behalf of the appellant urged that a bare
reading of the provisions of Section 7(3) read with Section
7(1) of the Act of 1970 makes it clear that the election
held on 14.3.2017 was only for the remainder of the period
of post of President for which Member from Uttarakhand
would have held the office, who lost the membership and
consequently the office of the President of CCIM, had
fallen vacant. He has also referred to the provisions
contained in Section 3 of the Act of 1970.
Shri Pinaki Misra, learned senior counsel appearing on
behalf of the respondent No.1 contended that election had
been held, not under the provisions contained in Section 7
(3) but under Section 7 (1), as apparent from the notice
issued by the Returning Officer for the purpose of holding
the election. It was not held for the remainder term, but
it was regular election and, as such, the term of elected
President would be for five years. He has also relied upon
the order passed by the Ministry of Ayush on 24.8.2017, in
which, it was opined that provisions contained in Section
7(3) of the Act of 1970 applies to the post of Members not
to the post of President or Vice President. Thus, election
was held for a period of five years. The Ministry is bound
by its own order and cannot be permitted to take a
different stand in this Court. Thus, the impugned order
dated 8.3.2018 passed by the Ministry had been quashed,
rightly by the Division Bench while allowing the writ
appeal. Thus, no case for interference is made out.
The main question for consideration is interpretation of
the provisions contained in Sections 7 (1) and 7 (3) of the
Act of 1970. Before we advert to the same, Section 3 of
the Act of 1970 provides for the constitution of the
Council. Section 3 is extracted hereunder:
“Section 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 percent 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 a 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.”
The term of the office of the President, Vice President
and Members of the Central Council is dealt with in Section
7. Section 7 is extracted hereunder:
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 subsection,
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.
(4) Members of the Central Council shall be
eligible for re-election or re-nomination.
(5) Where the said term of five years is
about to expire in respect of any member, a
successor may be elected or nominated at any
time within three months before the said
term expires but he shall not assume office
until the said term has expired.”
A bare reading of the provisions contained in
Section 7 makes it clear that person has to be first elected
as Member of the CCIM for being elected as President or Vice
President. By virtue of his holding the office as a Member,
he holds the office of President or that of a Vice
President. Once he ceases to be a Member, he automatically
ceases to hold the office of the President or Vice President
as the case may be.
No doubt about it that the President, Vice President or
Member of a Central Council has to hold the office for a term
of five years as provided under Section 7 read with Section 3
from the date of his election or nomination as the case may
be or until his successor is duly elected or nominated,
whichever is longer.
Section 7 (3) of the Act of 1970 deals with the casual
vacancy in the Central Council and the person elected or
nominated to fill the vacancy has to hold the office only for
the remainder of the term for which the Member whose place he
takes was elected or nominated as the case may be.
The expression ‘casual vacancy’ in the Central Council
may arise that of a Member or in case Member was holding the
post of President or Vice President, the vacancy for the
post of President or Vice President along with Member may
also occur simultaneously. In that event, in our considered
opinion, the provision of Section 7 (3) would come into play
and the expression ‘casual vacancy’ ‘would include in its
ambit’ the vacancy so created for the post of President and
Vice President. The provisions of Section 7 (3) makes it
apparent that person elected or nominated to fill the
vacancy shall hold the office only for the remainder of the
term for which the Member whose place he takes was elected
or nominated.
In the instant case, Member from Uttarakhand lost his
membership to the CCIM. He would have held the post of the
President for the period up to 4.7.2017, had he continued as
Member of the representative of the CCIM from Uttarakhand.
The casual vacancy of post of President had been caused.
Thus, the tenure for which election to the post of President
was to be, as provided under Section 7 (3). The provision
of Section 7 (1) provides for a term of five years however
the casual vacancy is dealt with under Section 7 (3) and
both the provisions have to be read together and
harmoniously interpreted. It was not a case of regular
vacancy but a casual vacancy that has arisen during the term
of previous President. Thus, in our considered opinion, the
period for which respondent No.1 was elected in March 2017
was confined for remainder of the term i.e. up to 4.7.2017,
not beyond that.
It was urged by the learned counsel appearing on
behalf of the respondent No.1 that once Ministry had taken
the decision under Section 4 (2) and had rejected the
representation vide order dated 24.8.2017, it was not open
to the Ministry to review the order and to take inconsistent
view while passing the impugned order dated 8.3.2018, it
should be held bound by its own order. There is no power
of review with the Central Council.
In our opinion, it is not the order of the Central
Government which has to govern the tenure. Tenure is
governed by Section 7 (3) read with Section 7(1). Even if
there is no power of review the period for which election
could be held was only up to 4th July, 2017. Whether there
is an order by the Central Government or no order it cannot
govern the tenure and the period for which the election was
held could not have been extended even by the Ministry of
Ayush by wrong interpretation of provisions and writ is not
issued to perpetuate an illegality, particularly to enable
holding the office unauthorizedly beyond period for which
election was held. Thus, it is on this count also, we are
not inclined to make any interference.
Shri Pinaki Misra, learned senior counsel appearing on
behalf of the respondent No.1 has placed reliance upon the
Central Council of General Medicine (General) Regulations,
1976 (in Short ‘Regulations of 1976'). He has pointed out on
the strength of Regulation 5 (2) of the Regulations of 1976
that if the office of the President is vacant or in the
circumstances risen is unable to exercise powers or
discharge the function, his office is to be held by the Vice
President in rotation for one year at a time. Thus, the
Regulation 5 (2) contemplates that office of the President
is to be held for a period of five years it cannot be cut
short. The Regulation fortifies the stand taken by the
Central Government in order passed earlier i.e. on
24.8.2017. Thus, this Court should not interfere.
We have no hesitation in rejecting the submission as
firstly, for the reason that Regulations cannot govern the
provisions of the Act and secondly, we find that Regulation
5 (2) deals with powers of Vice President. The same is
extracted hereunder:
“5. Vice Presidents:
(1) The Vice Presidents shall exercise such
powers and perform such duties as may be
assigned to him by or under the provisions of
the Act and Rules and Regulations made
thereunder:
(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 be exercise the powers
and discharge the functions of the President.
The order of the rotation shall be as
below:
(a) Vice President – Ayurveda
(b) Vice-President – Unani
(c) Vice-President – Sidha”
It is provided in Regulation 5 (1) that the Vice
Presidents shall exercise such powers and perform such
duties as may be assigned to him by or under the provisions
of the Act. As per Regulation 5 (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
of Ayurveda, Unani and Siddha branch and shall hold the
office.
The provisions of Regulation 5 are not at all
attributed as the election had been held under Section 7(3)
for the remainder of the term on 14.3.2017 as a ‘casual
vacancy’ had arisen. In case, the interpretation as
suggested by learned senior counsel is accepted, in that
case no election could have been held in March 2017 and
vacancy would be required to be maintained till the period
the post of President would have been held by the Member
who represented from Uttarakhand which was came to an end
on 4th July 2017. Nonetheless, once election has been held
for such vacancy the tenure is to be for remainder of the
period only as provided specifically under Section 7 (3).
It is apparent from the notice issued for holding
election that it was under Section 7(1) and it was clearly
with respect to the casual vacancy. As such provisions
contained in Section 7(3) would come into play. Non-
mention of provisions of Section 7(3) would not govern the
tenure for which election has to be held in the case of
casual vacancy. Section 7(3) clearly provides that in the
case of the casual vacancy the term of election is only for
the remainder of the period for which outgoing person would
have held the office. In our considered opinion, it has to
be held on the proper interpretation of the said provisions
that the term of election of the person who had been
elected in the casual vacancy is only for the remainder of
the period.
In case it is held that an election under Section 7
(1) will be for a period of five years, and period cannot
be curtailed then, if we read it with Regulation 5(1),
ignoring provisions contained in Section 7 (3) no election
could have been held before completion of five years.
That is not what is contemplated by the provisions
contained in Section 7 as and when vacancy arises in the
office of President, Vice President or Member, obviously,
an election has to be held not only for the post of the
Member and also for the post held by him for remainder of
the period.
Resultantly, we have no hesitation to set aside the
order passed by the Division Bench of the High Court.
We also hold that election for President held on 23.3.2018
is legal and valid. Let the result be declared after
counting of the votes in accordance with law, within a
period of ten days. Since we have decided the matter, any
order of stay passed by any court on declaration of results
shall cease to be operative and shall not come in the way
of declaration of result.
Accordingly, the appeal is allowed. No costs.
New Delhi, September 27, 2018