IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 WP(C).No. 21031 of 2007(D) -------------------------- PETITIONER(S): --------------- DR. JOSE ISAAC, LECTURER, DEPARTMENT OF ORGANON OF MEDICINE, GOVERNMENT HOMOEOPATHIC MEDICAL COLLEGE, THIRUVANANTHAPURAM. BY ADV. SRI.T.G.RAJENDRAN RESPONDENT(S): --------------- 1. GOVERNMENT OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HEALTH AND FAMILY WELFARE, DEPARTMENT OF INDIAN SYSTEMS OF MEDICINE AND HOMOEOPATHY, RED CROSS BUILDING, NEW DELHI. 2. CENTRAL COUNCIL OF HOMOEOPATHY, REP. BY ITS SECRETARY, I.R.C.S.BUILDINGS, NEW DELHI-110 001. 3. THE PRESIDENT, CENTRAL COUNCIL OF HOMOEOPATHY, IRCS BUILDINGS, NEW DELHI-110 001. 4. UNIVERSITY OF KERALA, REP. BY ITS REGISTRAR, THIRUVANANTHAPURAM. ADV. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY. FOR R4 SRI.P.PARAMESWARAN NAIR,ASST.SOLICITOR FOR R1-3 SRI.CHERIAN VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 21031 of 2007 APPENDIX EXHIBITS EXT.P1- TRUE COPY OF THE LETTER SENT BY THE 4TH RESPONDENT TO DR.ALOK KUMAR EXT.P2- TRUE COPY OF THE LETTER SENT BY THE 2ND RESPONDENT TO THE PETITIONER DATED 8.11.06 EXT.P3- TRUE COPY OF THE LETTER SENT BY THE 2ND RESPONDENT TO THE PETITIONER DATED 18.5.06 EXT.P4- TRUE COPY OF THE RELEVANT PAGES OF THE NOTIFICATION DATED 9.10.96 EXT.P5- TRUE COPY OF THE REPRESENTATION SENT BY THE PETITIONER TO THE 3RD RESPONDENT DATED 26.6.07 (TRUE COPY) P.A TO JUDGE P.R.RAMACHANDRA MENON, J ....................................................... W.P.(C).21031/2007 .............................................. Dated this the 7th day of June, 2011 JUDGMENT The right of the petitioner to hold the office as a member of the Central Council of Homeopathy constituted under Section 3 of The Homeopathy Central Council Act, 1973, is the issue involved. 2. The case of the petitioner is that the petitioner, representing the Faculty of Homeopathy of the University of the Kerala, having been elected as a member on 20.1.2005 and the same having been notified as stipulated by the concerned authority as per notification dated 13.7.2005, is entitled to continue for a period of 'five' years, as provided under Section 7 of the Act. It is stated that the petitioner is still continuing as a member of the Faculty of the University and as such, he is eligible to continue; thus seeking to intercept with the steps being taken to oust the petitioner, which forms the subject matter of challenge in this writ petition. 3. The writ petition was admitted, granting an interim order of stay on 26.7.2007; on the basis of which the petitioner is still W.P.(C).21031/07 2 continuing. A statement has been filed on behalf of respondents 2 and 3 pointing out that, by virtue of the mandate under Section 7 (4) of the Act, the petitioner is not eligible to continue as a member of the Council. The said provision is extracted below. 7(4). 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 Homeopathy, 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 Homeopathy of the University concerned. 4. Admittedly, the petitioner is a person who has been elected from the constituency under Section 3(1)(b) of the Act. It is also stated that the status of the petitioner as a member of the Faculty has already come to an end and as such, there is no point in permitting the petitioner to continue as a member of the Council W.P.(C).21031/07 3 on the strength of the interim order passed by this Court. 5. During the pendency of the above proceedings, respondents 2 and 3 have filed different verified petitions at different points of time, through the learned counsel, pointing out that the term of the petitioner as a member of the Faculty of Homeopathy of the Kerala University ceased to exist on 19.5.2007 as borne by Annexure-2 communication dated 24.5.2006 issued by the University (produced along with I.A.16813/2010). The University has also filed a statement dated 6.8.2007 to the effect that the term of the petitioner is already over and as such, the petitioner cannot continue as a member of the Council, thus seeking to dismiss the writ petition. 6. However, the learned counsel for the petitioner submits that by virtue of the clear stipulation under sub-Section (1) of Section 7, in spite of the tenure specified under sub-section (4), petitioner is entitled to continue till the successor is duly elected or nominated whichever is longer. The above provision reads as follows:- 7(1). The President, Vice-President or a W.P.(C).21031/07 4 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,o whichever is longer. 7. On considering the scope of sub-section (1) of Section 7, in the light of sub-Section (4), though it is true that the term of the petitioner is already over and the petitioner is not a member of the Faculty of the Homeopathy as pointed out by the University in their statement, he is entitled to continue till the successor is elected or nominated as the case may be, if such an exercise is still to be presumed. The statement filed from the part of the respondent/University does not reveal the factual position in this regard. Obviously, the said statement is dated 6.8.2007, and merely four years have already lapsed in the meanwhile. 8. In the above facts and circumstances, it is made clear that if the petitioner has already been replaced by the University by electing or nominating such other person in respect of representing the Faculty, petitioner is no more eligible to continue as a member of the Council. On the other hand, if the election or W.P.(C).21031/07 5 nomination is still to be made, petitioner can continue to be a member till he is replaced by another person who is duly elected or nominated, as the case may be. It is open for the concerned University to fill up the vacancy since the term of 'five' years is already over and, the outcome shall be duly communicated to the Council, so as to make appropriate arrangements to constitute the Council by effecting the notification with the newly elected nominated member. Writ petition is disposed of as above. P.R.RAMACHANDRA MENON, Judge mrcs