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

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 Member2. 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 President3. 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 held4. 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 The Central Council had withdrawn its Special Leave Petition(C) No.18329/2018 on 14.8.2018.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.

Reasoning: 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.