IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No.4012 of 2011 (O&M) Date of decision: 05.08.2011 Dr. Harjot Kamal Singh son of Shri Joginder Singh, resident of Village and Post Office, Ajitwal, District Moga. ...Petitioner versus Union of India, through the Secretary to Government of India, Ministry of Health and Family Welfare, Department of AYUSH, I.R.C.S. Building 1, Red Cross Road, New Delhi, and others. ....Respondents II. Civil Writ Petition No.4657 of 2011 (O&M) Dr. Kul Bhushan son of Shri Rama Nand, resident of Purani Nabhi, near Panchmukhi Mandir, Nabha, District Patiala. ...Petitioner versus Union of India, through the Secretary to Government of India, Ministry of Health and Family Welfare, Department of AYUSH, I.R.C.S. Building, 1, Red Cross Road, New Delhi, and others. ....Respondents III. Civil Writ Petition No.4884 of 2011 (O&M) Dr. Ishwar Chander son of Shri Askaran Dass Sardana, resident of Railway Road, Nangal Township, Tehsil Nangal, District Rupnagar, Punjab. ...Petitioner versus Union of India, through the Secretary to Government of India, Ministry of Health and Family Welfare, Department of AYUSH, I.R.C.S. Building, 1, Red Cross Road, New Delhi, and others. ....Respondents Civil Writ Petition No.4012 of 2011 (O&M) - 2 - IV. Civil Writ Petition No.5189 of 2011 (O&M) Dr. Porinder Chander Singla son of Shri Manmohan Lal, Registration No.4092, resident of 1514/4, Court Road Opposite Veterinary Hospital, Moga, and others. ...Petitioners versus Union of India, through the Secretary to Government of India, Ministry of Health and Family Welfare, Department of AYUSH, I.R.C.S. Building, 1, Red Cross Road, New Delhi, and others . ....Respondents V. Civil Writ Petition No.5821 of 2011 (O&M) Dr. Palwinder Singh son of S. Ajit Singh, Registration No.5328, resident of House No.201, Phase-VI, Mohali, District SAS Nagar (Punjab), and others. ...Petitioners versus Union of India, through the Secretary to Government of India, Ministry of Health and Family Welfare, Department of AYUSH, I.R.C.S. Building, 1, Red Cross Road, New Delhi, and others. ....Respondents VI. Civil Writ Petition No.6537 of 2011 (O&M) Dr. Pawan Kumar Sharma son of Shri Neel Kanth, resident of House No.320, Kaki Pind, Jalandhar Cantt. ...Petitioner versus Union of India, through the Secretary to Government of India, Ministry of Health and Family Welfare, Department of AYUSH, I.R.C.S. Building, 1, Red Cross Road, New Delhi, and others. ....Respondents ---- CORAM: HON’BLE MR. JUSTICE K. KANNAN ---- Civil Writ Petition No.4012 of 2011 (O&M) - 3 - Present: Mr. Rajiv Atma Ram, Senior Advocate, with Mr. Arjun Partap Atma Ram, Advocate and Mr. Nikhil Chopra, Advocate, for the petitioner/s in CWP No.4012 and 5189 of 2011. Mr. S.C. Nagpal, Advocate, for the petitioner in CWP No.4657 of 2011. Mr. Vijay Lath, Advocate, and Mr.Naveen Sharma, Advocate, for the petitioner in CWP No.4884 of 2011. Mr. Inderjit Kaushal, Advocate, for the petitioners in CWP No.5821 of 2011. Mr. S.K.Arora, Advocate, for the petitioner in CWP No.6537 of 2011. Dr. Anmol Rattan Sidhu, Senior Standing Counsel, Assistant Solicitor General of India, with Ms. Puneeta Sethi, Advocate, and Mr. R. Kartikeya, Advocate, for the Union of India. Mr. Anupam Gupta, Advocate, and Mr. Ashish Rawal, Advocate, for the Board. Mr. T.S.Dhindsa, Advocate, and Mr. Vivek Aggarwal and Mr. Som Dutt, Advocates. Mr. A.K. Tyagi, Advocate, and Mr. Amar Vivek, Advocate. Mr. D.D. Sharma, Advocate. Mr. Manoj Chahal, Advocate. Mr. Arvind Mittal, Additional Advocate General, Punjab, and Mr.Navdeep Sukhna, Deputy Advocate General, Punjab, for the State. ---- 1. Whether reporters of local papers may be allowed to see the judgment ? Yes. 2. To be referred to the reporters or not ? Yes. 3. Whether the judgment should be reported in the digest ? Yes. ---- Civil Writ Petition No.4012 of 2011 (O&M) - 4 - K.Kannan, J. I. The reliefs claimed in the respective writ petitions 1. All the writ petitions are at the instance of various persons, who claim to be registered Medical Practitioners in Indian Medicine and their grievance is that, in the election of office bearers to the State and the Central Councils of Indian Medicine, the Registrar had sought for compulsory registration of all the Medical Practitioners within the State of Punjab, whose registration was due to expire after 5 years on the pain of being removed from the State roll of members. The removal, it is stated, was in the process of updation of the State Register that would have an immediate ramification in the preparation of the electoral roll containing names of persons, who would become eligible to contest elections for the State body and also to cast the votes in the election. From amongst the representatives in the State Council depending on the number of members, they would have representations in the Central Council as well. The grievance of the petitioners is that, several of the members had been disenfranchised by deletion of names by the State Board from the State Register. 2. In CWP No.4012 of 2011 instituted in March, 2011, the petitioner seeks for quashing of notification issued on 15.11.2010 (Annexure P-12) in the gazette of India, by the Ministry of Health and Family Welfare, allocating one seat for Ayurveda, and one seat for Unani for the Central Council of the Indian Medicines for Ayurveda, Unani and Siddha systems of Medicine (hereinafter referred to as, 'the Central Council'). The petitioner also seeks for quashing of the updated list of Civil Writ Petition No.4012 of 2011 (O&M) - 5 - voters prepared by the Returning Officer of the Punjab Board of Ayurveda, Unani and Siddha systems of Medicine. There is a prayer for permission to vote in the forthcoming elections and also to contest the election for members of the Central Council. 3. In CWP No.4657 of 2011, the petitioner seeks for quashing of the appointment of one Sanjeev Goyal as the Returning Officer and for his removal alleging that the 4th respondent is only an Ayurvedic Medical Officer, which is the lowest post in the hierarchy of Ayurvedic doctors in the State Government and this appointment was lower than the rank of the Deputy Secretary of the State, which, according to the petitioner, was the minimum qualification necessary to hold the post. The petitioner's contention is founded on an instruction dated 10.08.2010 alleged to have been issued upon the Hon'ble Supreme Court's direction to the Secretary, Patna, that in the manner of appointment of a Returning Officer, the Central Government was recommending that the State Council shall nominate a person not below the rank of the Deputy Secretary. 4. In CWP No.4884 of 2011, the petitioner seeks for identical reliefs as are sought in CWP No.4012 of 2011 and also to quash the order rejecting the petitioner's nomination on the ground that his name was not enrolled on the updated State Register of Indian Medicine. 5. In CWP No.5821 of 2011 instituted in March, 2011, containing similar prayers as in the other writ petitions in CWP No.4012 of 2011, the petitioners also seek for a prayer to permit all the members whose names were not in the Register of Ayurvedic Medical Civil Writ Petition No.4012 of 2011 (O&M) - 6 - Practitioners mentioned prior to this updation in the year, 2010 to be eligible to vote in the election. The writ petition is at the instance of 30 persons, who were similarly placed. All of whom were removed from the Register for their failure to obtain registration on the expiry of 5 years from the prior registration. 6. CWP No.5189 of 2011 is yet another writ petition filed in March, 2011, at the instance of about 54 persons, challenging the notification issued by the Ministry of Health and Family Welfare, on 15.11.2010, containing the same reliefs. 7. CWP No.6537 of 2011 seeks for quashing of the election process of the Central Council, since it was alleged not to be as per the mandatory provisions of the Indian Medicine Central Council (Election) Rules of 1975. The petitioner has also sought for stay of election process. The challenge is essentially on the fact that the Returning Officer was required within 30 days from the date appointed for election to send by post a letter of intimation in Form IV with a numbered declaration in Form III, a voting paper in Form II containing the names of candidates. The forms were not in conformity with the proforma given under the relevant Rules. II. Summation of the diverse reliefs 8. It could be seen, therefore, that all the writ petitions have been filed in March, 2011, contending for the reliefs that (i) the notices calling for registration on the expiry of 5 years after the initial registration was bad in law, (ii) the removal of the names as a measure of updation of the State Register of several of the members for their failure Civil Writ Petition No.4012 of 2011 (O&M) - 7 - to register was consequently bad, for, it disenfranchises them from participating in the election either to cast vote or to contest the election after a due nomination, (iii) the appointment of the Returning Officer was itself incompetent, since he did not have the requisite qualification to hold the post, (iv) the ballot papers supplied by the Returning Officer were also not inconsonance with the relevant Rules that made possible indiscriminate issue of ballot papers to compromise on the integrity and fairness of the election, (v) the notification issued by the Government making an allocation of one seat was wrongly made by making a reference to the number of members as found in the updated list, which itself was defective and the notification was, therefore, liable to be quashed. III. The respective contentions in defence by the respondents 9. The Central Council has in a way supported the cause of the petitioners by stating that the respective State enactments govern the registration, licensing and practice of Indian Medicine and there was no provision for periodical renewal of the licences or to require periodical registration in the State of Punjab. The updation ought to have relevance only for removal of members, who had ceased to practice or who were guilty of some malpractices or under the circumstances mentioned under the Act itself and a removal on the ground that the names were not registered after 5 years, was not contemplated under the Punjab Ayurvedic and Unani Practitioners Act, 1963. The removal of several of the members from the list was, therefore, not proper and they will have no objection if the petitioners' claim for proper enumeration of all the Civil Writ Petition No.4012 of 2011 (O&M) - 8 - members was undertaken afresh by due regard to the provisions contained in the State enactment. 10. The Union Government has not filed any independent reply, but would adopt the written statement filed by the Returning Officer appointed by it. The contention in reply by the Returning Officer is, (i) the writ petition itself is not maintainable, since any dispute arising with regard to election shall be referred to the Central Government, whose decision shall be final under Section 4(2) of the Indian Medicine Central Council Act of 1970, (ii) the petitions are also not maintainable in view of the fact that under the Indian Medicine Central Council (Election) Rules, 1975, the Returning Officer himself shall decide questions relating to right of persons to stand for or to vote at election and in case where a question arises whether a person is entitled to vote or not, it shall be decided by the Returning Officer. The petitioners had not availed of such remedy as provided by the statutory rules, (iii) the appointment of the Medical Practitioner as Returning Officer was not in any way incompetent for all that the law require was that the appointment shall be made by a notification issued on 10.11.2007 in terms of Rule 2(d) of the Indian Medicine Central Council (Election) Rules, 1975. The communication of the Central Government to the Secretary, Bihar State Board, on 10.08.2010, recommending the appointment of an officer not below the rank of a Secretary was under the particular circumstances where the election in the State had not taken place since 1983 and that the said letter will not govern the issue of appointment for a Returning Officer in Punjab, (iv) the enumeration of members of the State Board Civil Writ Petition No.4012 of 2011 (O&M) - 9 - was undertaken when the State Board was called upon to update the State Register and it had finalized the list on 31.07.2010, preparatory to conducting the election, (v) the notification of the Central Government had been issued only on the basis of the number of members entered in the State Register as 5,581 and the allocation of seats that was made to dependent on the number of members, was, therefore, appropriate and correct, and there was no scope for a challenge to the Union Government's notification and (vi) the ballot papers had been properly issued and the serial number which the Rules contemplate were part of the ballot paper that contained a portion with perforation in one portion of the papers so that it could be retained by the Returning Officer and the same number was also carried in the identification number given to the voter to ensure that there was no tampering and only the person to whom it was dispatched could return it duly filled in the ballot paper after having cast his vote. The State Board has also filed its objection stating that all its actions in preparation of the register of members have been in conformity with law and as per the directions of the Central Council, there have been no violations in the manner of preparation of such register and the electoral roll prepared on that basis, was correct and not amenable to any alteration. IV. Direction of the Hon'ble Supreme Court for final adjudication to make way for competition of election to Central Council 11. The elections to the Central Council as well as to the State Board have been the butt of contention, when the affairs of the Central Council came under the scanner of the Hon'ble Supreme Court in Writ Petition (Civil) No.33 of 2009 in the case titled K.B.Nagur M.D.(AYU) Civil Writ Petition No.4012 of 2011 (O&M) - 10 - Versus Union of India-2010 (6) SCC 309, when it was observed that there had been no elections held for the Central Council for several years. Consequently, there had been a mandate from the Hon'ble Supreme Court that the elections shall be held in various States as well as for the Central Council immediately and at any rate, concluded before 31st August, 2011. The Central Council has also given an undertaking to conclude the election exercise as ordered by the Supreme Court. All the actions that were begun by the Union Government with the appointment of Returning Officer, the public notices demanding registration by the State Board and preparation of the electoral rolls were sequel to the undertaking given by the Central Government before the Hon'ble Supreme Court of India. 12. After the filing of the writ petition, the petitioner in CWP No.4012 of 2011 complained that his name was not merely removed from the Register but his nomination paper was also rejected. During the course of the proceedings, it was reported to the Court and the Court observed in its order dated 14.03.2011 that it was in violation of its order dated 07.03.2010 that the petitioner's nomination shall not be rejected. Consequently, it issued a notice to the Returning Officer as to why contempt proceeding be not initiated against him. On 23.05.2011, the counsel for the Union Government filed CM No.7430 of 2011 to place on record the order passed by the Hon'ble Supreme Court in Writ Petition (Civil) No.33 of 2009, where the Hon'ble Supreme Court had requested this Court to decide all connected writ petitions pending before the Court or to consider the vacation of stay passed already by this Court. The Civil Writ Petition No.4012 of 2011 (O&M) - 11 - application also made known that the Hon'ble Supreme Court had directed that the Union of India should complete the election process on 30th August, 2011. The Court, on that day, found that it would be expeditious to decide the main petition itself. The case was adjourned to 03.06.2011. Since the Union had not filed its reply, the Court had directed that all the pleadings of the party should be completed before then. On 03.06.2011, the case was adjourned to 05.07.2011 and when the matter came before me, all the counsel appearing for various parties agreed that the main case could be taken up and disposed of. V. Grounds of attack on behalf of the petitioners (a) Power of the State Board for updating the State Register of Members and its scope 13. Making a common case for all the petitioners, the learned senior counsel Mr. Atma Ram, began arguments by pointing out that the most crucial issue in the case is the power of the State Board for updating of the State Register of members, being qualified as practitioners of Indian Medicine, since in the scheme of the Indian Medical Council Act of 1970, the hierarchy is built-up through State to Centre upwards by a system of election that will first enumerate the members of the State Board, which will elect the office bearers of the State Board who, amongst the returned candidates would also offer themselves as eligible to contest for the post of Chairman and the members of the Central Council. The senior counsel argued that, in the manner of enumeration of membership to the State Register, there has been a serious violation of law that had disenfranchised several thousands of members. The election process was flawed at every turn Civil Writ Petition No.4012 of 2011 (O&M) - 12 - from the stage of preparation of electoral roll to the appointment of the Returning Officer and still later by the rejection of several of valid nomination to contest to the post of the Central Council. It becomes, therefore, necessary to first examine the process of preparation of the State Register and the relevant provisions relating to updation of list of members. 14. At a workshop to deliberate the problems and objections of the Central Register of Indian Medicine being maintained by the Central Council and the roll of State Boards thereon, there had been several recommendations made by the Central Council to all the Registrars of the State Boards and Councils. The recommendations had been forwarded with the details of the deliberations at the workshop by the letter of the Secretary of the Central Council to the State Council on 20.06.2007. Representatives from all the States of India had taken part in the workshop and it examined the provisions of various State enactments that provided for registration in various States. There was no homogeneity in various State enactments and the differences in the enactments were specifically noted and as regards the provisions in the State enactments, the Registrar of the State Board Shri Sanjeev Goyal had represented the State of Punjab, who had pointed out that there was no provision for renewal of registration in the State enactment. While summarizing the recommendations, the Central Council had on the subject of renewal of practitioners took note of the fact that there were several practitioners of Indian Medicine without due registration that led to serious threats to public interest and pressed upon the imperatives of Civil Writ Petition No.4012 of 2011 (O&M) - 13 - keeping registers current. The recommendations included that the registration of practitioners of Indian Medicine with State Board shall be valid for 5 years. The registration would require to be renewed with payment of Rs.500/- as renewal fee. The Central Council noted that large number of practitioners failed to renew the registration in time and even after individual notices as well as public notification, there had been failures to renew that resulted in deletion of names of a large number of registered practitioners from the State register. The recommendation under this subject concludes with the following words:- “This will be implemented after Gazette Notification.” As recommendation No.8 of the Central Council had states as under:- “........Central Council has decided that all the registered practitioners will renew their registration every five years for the purpose of updating the State Register. It will be duty of every practitioner to do so and the name will be removed from the State Register if not renewed in time. All changes in State Register of Indian Medicine occurred due to above should be informed by the State Boards/Councils to the CCIM without any delay from time to time.” Clause 11 of the recommendations refers to the Registrar of State Boards to ensure several details relating to the notification, qualifications of members to be verified before granting registration which includes in sub-clause 6 as follows:- “Every practitioner must get his registration renewed at every five years.” Civil Writ Petition No.4012 of 2011 (O&M) - 14 - It also states that that no registration would be allowed in two Boards simultaneously, meaning thereby that a member of one State Board cannot also be a member of another State Board to seek an election from some other State. 15. This requirement of registration once in 5 years which was referred to as a recommendation, the learned senior counsel argued, did not take effect as requiring registration immediately and even the Central Council had in its communication dated 12.08.2007 containing the recommendation clearly spelt out in the following words:- “1 ....... 2. State Boards to amend their Rules/Acts to make re- registration as a mandatory one as well as renewal.” The letter concludes with an exhortation, as follows:- “....You are, therefore, keeping in view the serious concerns expressed by the PAC of the Parliament, requested to take the above mentioned measures so as to achieve the target of updation of State Registers within the shortest possible time of say about three months period.” (b) There is no legal mandate for renewal, without amendment in State law; deletion of names of petitioners, not lawful 16. Even without bringing any amendment in the State enactment requiring registration to be undertaken once in 5 years, the State Board went obout its task by issuing a public notice through the Registrar on 12.07.2008 through a publication in Punjabi edition of 'Ajit' that large number of Ayurvedic practitioners were practising without having their registration renewed. All of them were required to get the Civil Writ Petition No.4012 of 2011 (O&M) - 15 - registration certificate renewed by 31.08.2008 and get their identity cards. There was also a notification on the following day i.e. on 13.07.2008 in an issue of 'Amar Ujala', reiterating the same information. Publications were carried out in 'The Tribune' on 14.07.2008 for the same message. Subsequently, on 04.10.2008, yet another notice was issued extending the deadline for registration from 30.08.2008 to 31.11.2008. The publication states that the failure to get renewal by the last date would result in the practitioner in not allowed to practice in Punjab and that their names would be removed from the State Register. The extended date also came through publication in 'Jagbani' and still later on 30.05.2009, yet another publication was issued in 'The Tribune', making a further extension for registration up to 30.07.2009. The publication stated that for updation of registration, they should send prescribed performa duly filled in and that it should be done before 30.07.2009. All this is to state that there had been repeatedly various publications in dailies requiring the practitioners of Indian Medicine to register their names, who had not been registered earlier, as also asking for renewal of registration for members whose registration had expired after five years, within specified dates. The learned counsel arguing for the petitioner states that these public notices did not specifically bring home the fact that a person who had been already registered would still not require to take a fresh registration or renewal of