Judgment 1. This appeal is directed against the order dated 12-10-1999 passed in C.W.J.C. No. 6729 of 1998 by a learned single Judge of this Court by which he has quashed the notification issued by the Department of Health, Medical Education and Family Welfare dated 16-7-1998 (Annexure-20 to the writ application) appointing the Secretary, Department of Health, Medical Education and Family Welfare, Govt. of Bihar respondent No. 3, as a President of the Bihar State Board of Homeopathic Medicine (hereinafter referred to as the Board) till the reconstitution of Board as the term of the previous President respondent No. 1 which was for a period of three years had expired on 28-2-1996. 2. The Bihar Development of Homeopathic System of Medicine Act, 1953 (hereinafter referred to as the Act) was enacted with the object to develop the homeopathic system of medicine and to regulate its teaching and pratice in the State of Bihar. Sec. 3 of the Act provides for establishment and constitution of the Board to achieve the object. In accordance with the said provision, the Board was constituted from time to time consisting of the President nominated by the State Government and other members nominated and elected as provided under the Act. 3. On 1-3-1993 respondent No. 1 writ petitioner was nominated as a President of the Board by a notification (Annexure 1 to the writ application) for a perod of three years as provided under Sec. 3 of the Act. By the subsequent notification dated 25th January, 1994 (Annexure-2 to the writ application) respondent No. 1 was given the status of Minister of State which provided the payment of salary and other benefits as detailed given in the notification. Thereafter the impugned notification was issued appointing the Secretary, Department of Health, Medical Education and Family Welfare, Govt. of Bihar, respondent No. 3 as a President of the Board as the term of the respondent No. 1 had come to an end. Respondent No. 1 had challenged the aforesaid notification. 4. His case is that he is well known scholar in the field of Homeopathic Medicines and he has worked as a Principal of Bhupendra Narayan Mandal Homeopath Medical College and Hospital, Saharsha for nearly 20 years and taking into consideration his achievement in the field of Heomeopathy, the Government nominated him as a President of the Board for a period of three years. Thereafter, after the expiry of the term of the aforesaid three years, the Government issued an order on 23-3-1996 (Annexure-4 to the writ application) that he will continue till a new Board is constituted, but later on Sri C. K. Basu, Secretary, Department of Health, Medical Education and Family Welfare Govt. of Bihar, Patna, respondent No. 3 in an arbitrary manner and with a view to usurp the office of the President of the Board got the aforesaid impugned notification issued. According to Sec. 5 of the Act, the term of the office of the members which includes President also, is for a period of three years from the date of publication of their names in the Official Gazette under Sec. 6 of the Act, but they may continue for a further period till the date of the first meeting of the next succeeding Board at which a quorum is present. As the succeeding Board has not been constituted, he will continue to be the President of the Board in terms of Sec. 5 of the Act and thus the impugned notification is arbitrary and contrary to the aforesaid Act. He has also alleged mala fide against respondent No. 3 Sri C.K. Basu and in this connection, he has referred to certain decisions taken by him as a Secretary with regard to the affairs of the Board which include transfer of the Registrar, direction for proper running of the accounts of the Board etc. 5. Two sets of counter-affidavit have been filed, one on behalf of the Board and the other by respondents 3 and 4 to the writ application on behalf of the State. 6. The stand of the Board is that respondent No. 1 as a President along with the Registrar of the Boad made illegal appointment. They also started enlisting unqualified Homeopathic practitioners and issued enlistment certificates against the provisions of the Act as well as against the provisions of the Central Homeopathic Council Act, 1973. Their action was objected by the State Government and also by the Central Homeopathic Council and notices were published in different newspapers declaring enlistment certificates issued by the Board as illegal. The State Government enquired into the matter in details and found the allegations including the acceptance of illegal gratification by respondent No. 1 as correct. Kadamkuan P. S. Case No. 498 of 1998 under Secs. The State Government enquired into the matter in details and found the allegations including the acceptance of illegal gratification by respondent No. 1 as correct. Kadamkuan P. S. Case No. 498 of 1998 under Secs. 467, 468, 471 and 420 of the Indian Penal Code was registered against respondent No. 1. Another criminal case was also registered against him being Kadamkuan P. S. Case No. 623 of 1993 under Secs. 406, 420 and 120B of the Indian Penal Code. Respondent No. 1 has also withdrawn huge money from the Board and the audit report having noticed pointed out for recovery of the money. A copy of the audit report has been annexed as Annexure C to the counter-affidavit. It is also stated that respondent No. 1 cannot contine as a President after expiry of three years unless a fresh notification is issued appointing him as a President under Sec. 6 of the Act and as no notification has been issued,he cannot function as a President of the Board after expiry of the term of three years. 7. The stand of the State as stated in the counter-affidavit filed on behalf of respondent Nos. 3 and 4 to the writ application is that respondent No. 1 writ petitioner was appointed as a President of the Board in terms of Sec. 3 of the Act for a period of three years and thereafter he cannot continue unless a fresh notification is issued and earlier order dated 23-3-1996 (Annexure-4 to the writ application) to the effect that he will continue till a new Board is constituted was against the provision of Sec. 5 of the Act and the same was accordingly recalled by the impugned notification which has been issued in terms of the provisions contained in Sec. 3 (1)(a) of the Act. The allegations of mala fide were denied. 8. The writ petitioner-respondent No. 1 filed reply to the counter-affidavit and reiterated the same very things. 9. The learned single Judge allowed the writ application on the ground that in view of the provisions contained in Sec. 5 of the Act, previous or old Board shall continue to discharge its function till a new Board is constituted and the first meeting of the said Board is held in which a quorum is present. 9. The learned single Judge allowed the writ application on the ground that in view of the provisions contained in Sec. 5 of the Act, previous or old Board shall continue to discharge its function till a new Board is constituted and the first meeting of the said Board is held in which a quorum is present. As no new Board has been constituted, the appointment of a President by the impugned notification after expiry of three years was in violation of Sec. 5 of the Act and accordingly quashed the same and directed the State to constitute a new Board at the earliest and the first meeting of the said Board be held within a period of six months from the date of passing the order. 10. The learned Counsel for the Board submitted that the learned single Judge has misconstrued the provisins of Sec. 5 of the Act as the said provision does not apply in a case of the President of the Board. Secondly, he submitted that even if the said provision contained in Sec. 5 of the Act is applicable in a case of the President, the Government has power to nominate the President of the Board after expiry of the term as the Board is a composite body. It is composed of different sets of members who are appointed or elected by different bodies in different ways and they may be notified on different dates and accordingly their term will expire on different dates. There is no duration fixed of the Board and the duration is only of the members and as such the new Board or the succeeding Board does not mean a Board consisting of all the newly nominated and elected members, but it consists of the members whose term has not expired and the new members elected or nominated after the expiry of the term of the members. The learned single Judge misinterpretated Sec. 5 of the Act and wrongly held that unless a new Board is constituted, the previous Board under the President of respondent No. 1 will continue. 11. The learned single Judge misinterpretated Sec. 5 of the Act and wrongly held that unless a new Board is constituted, the previous Board under the President of respondent No. 1 will continue. 11. The learned counsel for writ petitioner respondent No. 1 on the other hand contended that Sec. 5 of the Act, which provides for duration of the term of the member will also apply in the case of the President and the term of the office of the President is for a perod of three years, but even after the expiry of the same, he will continue in terms of the provisions of the said Section till the first meeting of the succeeding Board is held in which a new quorum is present. In this case, as the next succeeding Board has not been constituted, respondent No. 1 will continue to hold the office of the President and a decision to that effect was also taken by the State Government and accordingly the impugned notification is in breach of Sec. 5 of the Act. He has also alleged the mala fide action of the respondent No. 3, and stated that the impugned notification is vitiated on account of his mala fide action. 12. The question which falls for consideration in this case is as to whether the impugned notification dated 16-7-1998 is in terms of the provisions of the Act or not. To appreciate the point, some relevant provisions of the Act has to be stated. Sec. 2(a) defines "Board" which means the Bihar State Board of Homeopathic Medicine constituted under Sec. 3. Sec. 2(d) defines the "member" which means a member of the Board and Sec. 2(f) defines "President" which means the President of the Board. Sec. 3 of the Act contains provision with regard to establisment and constitution of the Board. According to the said provision, the President and four members are to be nominated by the State Government, 7 members are to be elected in the prescribed manner by the registered homeopathic practitioners from amongst themselves, two members are to be elected by the Bihar Legislative Assembly from amongst its members, one member is to be elected by the Bihar Legislative Council from amongst its members in the prescribed manner and two members are to be elected by the members of the Homeopathic Association or Assciations recognised by the State Government for the State. Sub-sec. Sub-sec. (2) of Sec. 3 provides that the Board shall be a corporate body and shall have perpetual succession and a common seal with power to acquire and hold property. Sec. 5 contained provisions with regard to the term of office of members and the same runs as follows : "5. Term of office of members.- Save as otherwise provided by this Act, the term of office of nominated and elected members of the second and every subsequent Board shall be for a period of three years from the date of publication of their names in the Official Gazette under Sec. 6 and shall include any further period which may elapse between the expiration of the said period of three years and the date of the first meeting of the next succeeding Board at which a quorum is present." Sec. 6 provides that the names of the President and of any member nominated or elected under Sec. 3 or nominated under Sec. 4 shall be published by the State Government in the Official Gazette. Sec. 10 provides for eligibility of members of re-election. According to the said section, a member shall on the expiry of his term of office be eligible for re-nomination or re-election. The proviso provides that no person shall hold office as President of the Board for more than two consequtive terms. Sec. 7 contained provisions with regard to resignation of a member. Sec. 8 provides for removal of President and members from office. Sec. 12 contains a provision with regard to allowances to members and to the President. Sub-sec. (2) thereof provides that the President and the member shall not receive any payment or special pay. 13. The aforesaid provision show that no term or duration of the Board has been provided under the Act and the Board is a composite body consisting of President and members nominated and elected as mentioned in Sec. 3 of the Act. Sec. 5 of the Act provides that the term of the members and not of the President which has been defined as separate entity under the Act shall be for a period of three years from the date of publication of their names in the Official Gazette under Sec. 6 of the Act, but they may continue to hold the office till the first meeting of the succeeding Board is held where a quorum is present. As the nomination and election has to be made from different sources, the notifications under each category may not be issued on the same date and as such after expiry of the term of the members, new member falling under a particular category may be nominated. The provision does not show that while constituting a next succeeding Board, all members falling under different categories should be nominated at the same time. 14. The provisions of Secs. 3 and 5 of the Act fell for consideration before the Supreme Court in the case of Bihar State Board of Homeeopathic Medicine, Patna V/s. State of Bihar, (1995) 6 SCC 503 : ( AIR 1996 SC 341 ). In the said case, decision of the Board in its meeting held on 14-5-1988 abolishing 8 posts of Chikitsaks was challenged by the aggrieved person and the High Court quashed the said resolution on the ground that the Board which took the resolution abolishing the said posts was not properly constituted. The said judgment was upheld in appeal by the Division Bench of the High Court and the matter went before the Supreme Court. The Apex Court set aside the judgment holding that the Board which took the decision abolishing the posts was properly consituted. 15. It appears from the facts of the said case that the Board was constituted on 31-12-1982. The President and four members were nominated by notification dated 31-1-1983 and their term was to expire on 31-1-1986 after expiry of three years. The names of elected members were notified on 17-8-1984 and the names of the two members of the Legislative Assembly were notified on 14-12-1985 and their terms expired on 17-8-1987 and 14-12-1988. As the term of the President and four other members nominated was to expire on 31-1-1986, a notification was issued on 29-1-1986 nominating a new President and four new nominated members. The notification provided that the elected members whose appointments have been notified under the earlier notifications dated 17-4-1984 and 14-12-1985 shall continue as members of the new Board till they complete the term of three years. Thus, on the date on which the resolution was passed, the Board consisted of a new President, four new nominated memers and the two members of the legislative assembly whose terms were not expired and 7 members whose term has come to an end on 17-8-1987. Thus, on the date on which the resolution was passed, the Board consisted of a new President, four new nominated memers and the two members of the legislative assembly whose terms were not expired and 7 members whose term has come to an end on 17-8-1987. The Apex Court held that the Board was properly constituted as the elected member whose terms have expired, will continued till they were replaced by another set of members belonging to the same category. It further held that the Board is a composite body and the term of its various members expire on different dates. The compostion of the Board, therefore, keeps on changing. It also held that it is not expected that all sets of members would be nominated and elected at the same time. Succeeding Board under Sec. 5 can only mean a succeeding Board at which the old outgoing members are succeeded by a new set of members. Once they are appointed or elected as the case may be, and a meeting of the new Board with quorum takes place, the previous set of members cases to be a part of the Board. In this connection, it is relevant to quote paragraphs 16 and 17 of the said judgment. "The question is whether under Sec. 5, the seven elected members continued to hold their posts until seven new members were elected and a Board meeting was held thereafter at which there was a quorum. Sec. 5 provides that the term of office of elected members shall be for a period of three years and any further period beyond three years till the date of the first meeting of the succeeding Board at which the quorum is present. What is meant by the "succeeding Board"? Does it mean the Board minus the members whose term has expired? Or does it mean a Board with newly elected/appointed members in replacement of the outgoing? It is the latter which can be considered as a "succeeding board". The Board is a composite body. It is composed of different sets of members who are appointed or elected by different bodies in different ways. It cannot be expected that all sets of members would be always nominated or elected at the same time. In fact, this is clearly recognised in the notification of 29-1-1986 which has freshly nominated the President and four nominated members. It is composed of different sets of members who are appointed or elected by different bodies in different ways. It cannot be expected that all sets of members would be always nominated or elected at the same time. In fact, this is clearly recognised in the notification of 29-1-1986 which has freshly nominated the President and four nominated members. It has also provided that two other sets of members, namely, the elected members and the Legislative Assembly members whose terms have not expired would also continue to be the members of the Board. The same would, therefore, be true of all categories of members. If the terms of substantial number of members comes to an end, can the remaining few function as the Board simply because they are six or more (the quorum figure)? To avoid such a situation Sec. 5 provides for continuation of members in office until the succeeding Board is formed and holds a meeting with a quorum.The first part of Sec. 5 clearly deals with the duration of the term of the Board. It provides that the term of office of members would continue till the first meeting (with quorum) of the succeeding Board. The succeeding Board, therefore, does not refer to a depleted Board without members whose term has expired. If this were the intention, there would be no point in continuing the membership of old members till the next meeting of the Board. In the interregnum between the two meetings, since the Board does not transact any business, there is no purpose in continuing old members. They might as well cease to hold office on the expiry of three years. The whole purpose of continuing them till they are replaced is to ensure that the Board remains properly constituted. Therefore, the succeeding Board in the context of Sec. 5 can only mean a succeeding Board at which the old outgoing members are succeeded by a new set of members. Once they are appointed or elected as the case may be, and a meeting of the new Board with quorum takes place, the provious set of members ceases to be a part of the Board." 16. Once they are appointed or elected as the case may be, and a meeting of the new Board with quorum takes place, the provious set of members ceases to be a part of the Board." 16. Thus, it is settled by the apex Court that the new Board or succeeding Board does not mean the Board consisting of new members and the President, but it means the Board consisted of President, or members whose terms have not expired and the new members elected or nominated in place of members whose terms have expired under a particular category. In case, the members, whose terms have expired, have not been replaced by another set of members, then they will continue till new members under the said category are replaced by new set of members. 17. Now coming to the submissions advanced at the bar, it is clear that under the provisions of the Act, the President and the Member have been defined. The President is nominated by the State Government and specific and separate provisions have been provided for resignation and removal of President and members from office. The President cannot hold office as President of the Board for more than two consecutive terms whereas other members can be renominated without putting any such limitation. Thus, prima facie, it appears that Sec. 5 which speaks for duration of the members is not applicable in a case of the President, but it is not necessary to go into the said case and the matter can be disposed of on the assumption that Sec. 5 of the Act is also applicable in the case of the President. As held by the Apex Court that tems of the members nominated or elected may expire on different dates and they may be nominated or elected. There is no fixed term of the Board, nor a new Board should consist of only new members nominated and elected. 18. Admittedly, the respondent No. 1 was appointed as a president for a period of three years on 1-3-1993 which expired by the end of February, 1996. He was asked to con-tinue by order dated 23-3-1996 till the constitution of the new Board. This decision of the State Government was as a result of misunderstanding of provisions of the Act. 18. Admittedly, the respondent No. 1 was appointed as a president for a period of three years on 1-3-1993 which expired by the end of February, 1996. He was asked to con-tinue by order dated 23-3-1996 till the constitution of the new Board. This decision of the State Government was as a result of misunderstanding of provisions of the Act. When the State Government realised the mistake, it passed the impugned notification appointing the respondent No. 3 as the President as the term of respondent No. 1 had expired. The State Government was competent to appoint the President of the Board after the expiry of the term and the submission advanced on behalf of the respondent No. 1 that unless a new President and other members as provided under Sec. 3 of the Act are elected or nominated at the same time, the present President and members will continue till the constitution of the next succeeding Board is without substance. The term of the President has expired as such the Government was competent to nominate another President. This Court cannot ignore the fact that there were allegations of issuing false registeration certificates, misappropriation of public money against respondent No. 1 and two criminal cases have been registered and pending against him. This Court also cannot ignore the fact that though the total period for which after re-nomination he could have remained as a President is for six years, but he has remained as a President for more than the aforesaid period. The learned counsel for respondent No. 1 tried to justify the order passed by the learned Single Judge on the other ground namely that respondent No. 3 acted mala fide in issuing the said notification. This point has to be rejected for the simple reason that issuing of certain orders by the Health Secretary, respondent No. 3 in discharge of its duty regarding transfer of Registrar of the Board or issuance of certain directions with regard to financial matters of the Board after having received several allegation against respondent No. 1, cannot be termed as a malafide or arbitrary act and as such the said point urged on behalf of respondent No. 1 is not worth accepatable. Thus, the impugned notification was rightly issued by the State Government and the learned Single Judge was not justified in quashing the same. 19. Thus, the impugned notification was rightly issued by the State Government and the learned Single Judge was not justified in quashing the same. 19. In the result, the appeal is allowed and the order of the learned Single Juege is set aside and the notification dated 16-7-1998 (Annexure-20 to the writ application) issued by the State Governemtn is upheld. It will be open for the State Government to constitute a succeeding Board in terms of S. 5 of the Act. It is clarified that succeeding Board which has been treated a new Board does not require replacement of President and all members at the same time, but it only means the replacement of the president and such members whose terms have expired. it will be open for the State Government either to continue respondent No. 3 as the President of the Board or to appoint another one as his appointment has been made for a limited period in terms of the notification. Respondent No. 1 writ petitioner, if working should immediatedly cease to work as president of the Board.Appeal allowed.