Case: MINISTRY OF AYUSH Vs. DR. VANITHA R &amp; ANR

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.14. 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.15. 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.16. 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.17. 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? 18. 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.19. 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).20. 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. Nonmention 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.21. 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]9. 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 be10. 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 longer13. 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 that15. 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 interference17. 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 President18. 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 office19. 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)20. 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. Nonmention 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 period21. 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.