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Madhya Pradesh High Court · body

2017 DIGILAW 422 (MP)

Pramod Kumar Jain v. Secretary, Union of India

2017-03-30

VIVEK RUSIA

body2017
ORDER : Petitioner has filed the present petition being aggrieved by the notification dated 18-7-2011 published in the Gazette of India, by which only one seat has been allotted in the Central Council of Indian Medicine for Ayurveda, Unani and Siddha Systems of Medicine under section 3 of the Indian Medicine Central Council Act, 1970 (hereinafter referred to as the “IMCC Act, 1970”) for state of Madhya Pradesh. 2. The petitioner is a qualified practitioner of Ayurveda and holding necessary qualifications to contest the elections. 3. The Central Council of Indian Medicine (hereinafter referred to as “CCIM”) is the apex body constituted under the IMCC Act, 1970 regulating the field of Indian Medicine for Ayurveda, Unani and Siddha Systems of Medicine. The election of the members of CCIM is governed under the Act and the Rules framed thereunder called as Indian Medicine Central Council (Election) Rule's 1975 (hereinafter referred to as the Rules of 1975). The last election of CCIM in the State of Madhya Pradesh was held in 1994 and at that time, there were 50,000 practitioners in the Ayurveda and thus they elected 5 members as notified by the State Government by way of notification. 4. Since, there was no election in the CCIM, a Public Interest Litigation was filed before the apex Court, which was registered as Writ Petition (Civil) No. 33 of 2009. By way of interim order dated 18-7-2011, the apex Court has directed the State Council to finalize the voter list and complete the election process latest by 30-8-2011. In pursuant to the direction of the Apex Court, the process of election has started. 5. Initially, by notification dated 7-2-2011, 5 seats for Ayurveda and 1 seat for Unani was allotted in the election of CCIM but vide notification dated 17-7-2000, 1 seat for Ayurveda and 1 seat for Unani was allotted for Madhya Pradesh. Thereafter, election program was published in the Dainik Bhaskar, Indore dated 18-7-2011, in which submission of nomination paper was on 30-7-2011, polling was on 21-8-2011 and date of declaration of result was scheduled on 30-8-2011. 6. According to the petitioner, the Central Government has wrongly reduced the seat from 5 to 1 for Ayurveda and because of which the chance of election of the petitioner has been curtailed, hence the petition has been filed. 7. The petition was admitted for final hearing on 24-6-2014. 6. According to the petitioner, the Central Government has wrongly reduced the seat from 5 to 1 for Ayurveda and because of which the chance of election of the petitioner has been curtailed, hence the petition has been filed. 7. The petition was admitted for final hearing on 24-6-2014. Thereafter, vide order dated 14-7-2016, the Division Bench of this Court has allowed the mention slip and directed the office to list the case in under the head “expedite cases”. 8. Shri Piyush Mathur, learned senior counsel appearing on behalf of the petitioner submits that as per the number of practitioners enrolled in the Madhya Pradesh State Council, the State of Madhya Pradesh had rightly been allotted 5 seats for Ayurveda and 1 seat for Unani thereafter none of the practitioner in their respective field were removed from the list of registered practitioner, therefore, the respondent has wrongly reduced the seats of Ayruveda from 5 to 1 by way of impugned notification, hence the said notification is liable to be quashed and elections are liable to be canceled. 9. In this petition, while issuing notice or at the time of admission of this petition, no interim relief was granted. Tenure of election has already been over in the year 2015. Thereafter, the Writ Petition (Civil) No. 33 of 2009 pending before the Hon'ble Supreme Court has also been finally decided, in which, the validity of section 7 of IMCC Act has been upheld and the apex Court has directed all the State Councils to conduct the election immediately after completion of 5 years of the term of body and in any case the period shall not exceeded beyond 3 months thereafter. 10. The operative part of the judgment passed in the case of K.B. Nagur M.D. (Ayu) v. Union of India, reported in (2012) 4 SCC 483 is reproduced below: “41. For the reasons afore-recorded, we partially allow this Public Interest Litigation, with the above observations and the following directions: (A) Section 7 of the Indian Medicine Central Council Act, 1970 or any part thereof is neither ultra vires nor violative of Articles 14 and/or 16 of the Constitution of India. (B) We hereby mandate that the Central Government shall discharge all its duties and functions as contemplated under sections 3, 4 and 7 of the Indian Medicine Central Council Act, 1970, without default, delay and within the required intervals. (B) We hereby mandate that the Central Government shall discharge all its duties and functions as contemplated under sections 3, 4 and 7 of the Indian Medicine Central Council Act, 1970, without default, delay and within the required intervals. We make it clear that it is the obligation of the Central Government to hold election to the Central Council within the period of five years i.e., before expiry of the term of office of the President/Vice- President and Member of the Central Council, as provided under section 7 of the Act. (C) In the eventuality of exceptional circumstances, if the Central Government is not able to hold elections within the period of the prescribed term, it shall complete the process within a reasonable time thereafter and in no case, exceeding three months from the date on which the term of the members in office expires. (D) No elected Member, under any of the three systems of medicine, Ayurveda, Unani or Siddha shall hold the office of the President, Vice President or Member, beyond a period of three months from the expiry of their term. (E) We direct the Secretary, Ministry of Health and Family Welfare and the President of the Central Council to circulate copies of this judgment, for strict compliance by all concerned.” 11. Therefore, in light of the Hon'ble Supreme Court order, the respondents are bound to conduct the election as soon as possible, because admittedly 5 years from earlier election has already been over, therefore, they are directed to held the election under the provisions of Act and Rules. 12. So far as the question of reduction of seats by way of notification dated 18-7-2011 is concerned, the said notification is not required to be set aside firstly on the ground that the tenure of election is already over now, secondly section 3 of the IMCC Act, 1970 provides the constitution of Central Council and as per this section, it is for the Central Government to determine the number of members of the Central Council 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. Section 3 of the Indian Medicine Central Council Act, 1970 is reproduced below: “3. Constitution of Central Council. Section 3 of the Indian Medicine Central Council Act, 1970 is reproduced below: “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 per cent 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. (2) The President of the Central Council shall be elected by the members of the Central Council from amongst themselves in such manner as may be prescribed. (2) The President of the Central Council shall be elected by the members of the Central Council from 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 elect 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.” First schedule provides that where the number of person enrolled in the State register of Indian Medicine for any of such systems exceeds 100 but does not exceed 10,000, they would get 1 seat and likewise where the number of persons are more than 40,000, the State would get 5 seats but under Clause 2 for every subsequent election of the Central Council under Clause (a) of sub-section (1) of section 3, the Central Government shall, by notification in the Official Gazette, determine the number of seats allocated in the Central Council, therefore, before every next election, the Central Government is required to notify the seats on the basis of persons enrolled in the State register of the Indian Medicine Council. The life of notification is upto the period of election i.e. “coterminous” with the period of election 13. The First Schedule of the Indian Medicine Central Council Act, 1970 is reproduced below: “1. The life of notification is upto the period of election i.e. “coterminous” with the period of election 13. The First Schedule of the Indian Medicine Central Council Act, 1970 is reproduced below: “1. The Central Government shall, by notification in the Official Gazette, determine the number of seats allocated in the Central Council to each of the Ayurveda, Siddha and Unani systems of medicine in each State on the following basis, namely:- (a) Where the number of persons enrolled on a State Register of Indian Medicine for any of such systems exceeds 100 but does not exceed 10,000 1 seat (b) Where the number of persons enrolled on a State Register of Indian Medicine for any of such systems exceeds 10,000 but does not exceed 20,000 2 seats (c) Where the number of persons enrolled on a State Register of Indian Medicine for any of such systems exceeds 20,000 but does not exceed 30,000 3 seats (d) Where the number of persons enrolled on a State Register of Indian Medicine for any of such systems exceeds 30,000 but does not exceed 40,000 4 seats (e) Where the number of persons enrolled on a State Register of Indian Medicine for any of such systems exceeds 40,000 5 seats 2. For every subsequent election to the Central Council under clause (a) of sub-section (1) of section 3. the Central Government shall b\notification in the Official Gazette, determine the number of seats allocated in the Central Council to each of the Ayurveda. Siddha and Unani systems of medicine on the basis laid down in paragraph 1 above.” (Emphasis supplied) 14. Therefore, the apprehension of the petitioner is baseless that the notification dated 18-7-2011 would be used for subsequent election and the State would get only 1 seat in Ayurveda and 1 seat in Unani. Under Clause 2 of the First Schedule, before every election, the Central Government is required to notify the seat. The registration and mode of election provided in section 4 and section 5 provides restriction of election and membership and as per sub-section (1), no person shall be eligible for election to the Central Council unless he possesses any of the medical qualifications included in the Second, Third or Fourth Schedule, and is enrolled on any State Register of Indian Medicine and resides in the State concerned. Section 5 is reproduced below: 5. Section 5 is reproduced below: 5. Restriction on elections and membership — (1) No person shall be eligible for election to the Central Council unless he possesses any of the medical qualifications included in the Second, Third or Fourth Schedule, is enrolled on any State Register of Indian Medicine and resides in the State concerned. (2) No person may at the same time serve as a member in more than one capacity. 15. Therefore, all persons who are enrolled in the State Register of Indian Medicine Council are eligible to participate the election either as candidates or as voters. 16. The State Government has enacted Madhya Pradesh State Autonomous Ayurveda University and Institution Act. 17. Chapter 7 deals with the registration of practitioner. The Board shall maintain a Register of the registration of practitioner residing and practising in Madhya Pradesh. The section 29 gives power to board to prohibit the entry in State Register or in the list, therefore, unless the name of any person in the State Register of practitioner and any order has been passed under section 29, all the practitioners are eligible for election. There is no separate provision of preparation of voter list either in the Act of 1970 or in the election rules. 18. Under Rule 3 of the Election Rules, all persons whose names are enrolled on a State Register of Indian medicine Practitioners of Ayurveda, Siddha or Unani Systerms of Medicine shall be entitled to vote at the election of members to represent Ayurveda, Sidha or Unani System of Medicine. 19. Rule 3 of the Indian Medicine Central Council (Election) Rules, 1975 is reproduced below: “3. Person entitled to vote. — All persons whose names are enrolled on a State Register of Indian Medicine practitioners of Ayurveda, Siddha or Unani systems of Medicine shall be entitled to vote at the election of members to represent the Ayurveda, Siddha or Unani Systems of Medicine, as the case may be, under Clause (a) of sub-section (1) of section 3.” 20. Conjoint reading of Rule 3 of the Election Rules and section 28 of the State Act, reveals that all the persons, whose names are in the register are eligible for voting and on the basis of this list, the Government shall notify the number of seats in the Central Council. 21. Conjoint reading of Rule 3 of the Election Rules and section 28 of the State Act, reveals that all the persons, whose names are in the register are eligible for voting and on the basis of this list, the Government shall notify the number of seats in the Central Council. 21. Since the tenure of election held in the year 2011 has already been over and the notification dated 18-7-2011 is “coterminous”, therefore, same is not required to be set aside. However, it is observed that for the next election, Central Government shall notify the number of seats as per the First Schedule of the IMCC Act, 1970. 22. Petition is disposed of with the aforesaid directions.