1

REPORTABLE    IN THE SUPREME COURT OF INDIA

CIVIL  APPELLATE JURISDICTION

  CIVIL APPEAL NO.10031  OF 2018 (Arising out of S.L.P.(C) No.18979/2018)

MINISTRY OF AYUSH Appellant(s)

               Versus

DR. VANITHA R & ANR. Respondent(s)

   JUDGMENT

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

2

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withdrawn  its  Special  Leave  Petition(C)  No.18329/2018  on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

3

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

4

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.

5

(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.

6

(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

7

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.

8

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

9

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

10

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

11

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.

12

........................J.                     (ARUN MISHRA)

                    ........................J.                          (VINEET SARAN)

New Delhi, September 27, 2018