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Madhya Pradesh High Court · body

2017 DIGILAW 424 (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 election of respondent No. 6 as a member of Central Council of Indian Medicine, which is a Apex policy making body constituted under the IMCC Act, 1970 in the field of Indian Medicine, namely Ayurveda, Unani and Sidha Systems of Medicine. 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) Rules, 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 blit 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 in paper was scheduled on 30-7-2011, polling was on 21-8-2011 and date of declaration of result was 30-8-2011. 6. The respondent. No. 1, vide gazette publication dated 18-7-2011 notified the election of 1 Ayurveda seat to CCIM from the State of Madhya Pradesh. The election of the singular seat was held and the result was declared on 30-8-2011, wherein respondent No. 6 was declared elected. 7. 6. The respondent. No. 1, vide gazette publication dated 18-7-2011 notified the election of 1 Ayurveda seat to CCIM from the State of Madhya Pradesh. The election of the singular seat was held and the result was declared on 30-8-2011, wherein respondent No. 6 was declared elected. 7. According to the petitioner, respondent No. 6 is not qualified to contest the election against the singular seat of Ayurveda to CCIM from Madhya Pradesh since he is not residing in the State of Madhya Pradesh, because of taking admission in the post graduate post namely Shalakya Tantra as a regular student as in the College of Loknete Rajarambapu Patil, Ayurvedic Medical College, Hospital Post Graduate Institute and Research Centre, Islampur, Tal. Walwa, Distt. Sangli (Maharashtra) for the Academic session 2010-11. As per the PGACET 2009, eligibility criteria for taking admission in the Post Graduate course is that candidate must produce the proof of registration with Maharashtra Council of Indian Medicine Central Council. It is alleged that respondent No. 6 has suppressed this material fact at the time of submission of the nomination form and wrongly gave declaration that he is resident of Quarter No. N-2, 15-16, Habibganj, Bhopal. The respondent No. 1 had knowledge by way of complaint made to them but they are not taking any action, hence, the present petition. 8. Notices were issued in this petition and despite service to respondent Nos. 1, 2, 5, 6 and 7, did not appeared. Only respondent Nos. 3 and 4 filed their return stating that the name of respondent No. 6 was there in the voter list by virtue of registration with Ayurveda and Unani Chikitsa Board, Bhopal. The list was published by the Board of Bhopal as on 11-7-2011 in which the name of respondent No. 6 was there, accordingly he was eligible to contest the election and rightly been elected, hence, prayed for dismissal of the writ petition. 9. Vide order dated 24-6-2014, the petition was admitted for final hearing and it was directed to be listed in the category of “expedite cases”. The tenure of election has already been over. The issue only remains academic whether respondent No. 6 on taking admission in Postgraduate course at Maharashtra was entitled to contest the election for Madhya Pradesh? 10. In this petition, while issuing notice or at the time of admission of this petition, no interim relief was granted. The tenure of election has already been over. The issue only remains academic whether respondent No. 6 on taking admission in Postgraduate course at Maharashtra was entitled to contest the election for Madhya Pradesh? 10. 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 to 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. 11. The operative part of the judgment passed in the case of K.B. Nagur M.D. (Ayu) v. Union of India, reported in 2012 MPLJ Online (S.C.) 24 : (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. 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. (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.” 12. Therefore, in light of the Hon'ble Supreme Court order, the respondents are bound to conduct the election as admittedly 5 years from earlier election has been over, therefore, they are directed to initiate the election process under the provisions of Act and Rules. 13. The registration and mode of election provided in section 4 and section 5 provides restriction of election and membership and as per 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. 14. Section 5 is reproduced below: 5. Restriction on elections and membership. — (I) 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 in 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. 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. Under section 5 of the IMCC Act, 1970, here is no separate provision of preparation of voter list voter 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 subsection (I) of section 3.” 20. Conjoint reading of section 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, the State shall notify the number of seats in the Central Council. 21. Counsel for the petitioner has placed heavy reliance over the condition number 4.6.1 of General Information, Procedure for Selection to Post Graduate Courses in Ayurveda for 2009 issued by Directorate of Ayurveda, Maharashtra State, Mumbai. 22. The relevant clause is reproduced below: “4.6.1 Eligibility for Out of State Candidates— (a) Candidate must be an Indian National, Nationality Certificate issued by appropriate authority or Candidates valid passport. (b) A candidate should have passed final B. A.M.S. degree from a recognized Ayurved college included in the schedule to the Central Council of Indian Medicine Act, 1970. 22. The relevant clause is reproduced below: “4.6.1 Eligibility for Out of State Candidates— (a) Candidate must be an Indian National, Nationality Certificate issued by appropriate authority or Candidates valid passport. (b) A candidate should have passed final B. A.M.S. degree from a recognized Ayurved college included in the schedule to the Central Council of Indian Medicine Act, 1970. (c) The C.C.I.M./M.C.I.M. registration is a condition for admission to Postgraduate Ayurveda courses. The candidate must produced the proof of application to Maharashtra Council of Indian Medicine (MCIM) at the time of Counseling. However, if the candidate fails to produce the Registration Certificate within the period of 90 days, his/her selection will automatically stand canceled.” 23. The contention of the petitioner is that once the petitioner has taken admission in the Postgraduate course in Maharashtra, he is deem to be resident of the said area and qualified to contest the election in that state only section 31 of the Act of 1970 provides that person enrolled at the Central Register of Indian Medicine to notify the place of resident and medicine. Section 31 of the aforesaid Act is reproduced below: “31. Persons enrolled on Central Register of Indian Medicine to notify change of place of residence and practice Every person registered in the Central Register of Indian Medicine shall notify any transfer of the place of his residence or practice to the Central Council and to the Board concerned, within ninety days of such transfer, failing which his right to participate in the election of members to the Central Council or a Board shall be liable to be forfeited by order of the Central Government either permanently or for such period as may be specified therein.” 24. Every person registered in the Central Register of Indian Medicine shall notify any transfer of the place of his residence or practice to the Central Council and to the Board concerned, failing which his right to participate in the election of members to the Central Council or Board shall liable to be forfeited. As per requirement of section 33, if the person wants to shift in the place of resident and practice he shall notify such place to the Council. 25. In the present case, respondent No. 6 has not changed his residence or place of practice, he has only taken admission in the Postgraduate course of 2 years. As per requirement of section 33, if the person wants to shift in the place of resident and practice he shall notify such place to the Council. 25. In the present case, respondent No. 6 has not changed his residence or place of practice, he has only taken admission in the Postgraduate course of 2 years. Under Clause (c) of condition number 4.6.1 of General Information, Procedure For Selection To Post Graduate Courses in Ayurveda for 2009 issued by Directorate of Ayurveda, Maharashtra State, Mumbai, the registration with CCIM/MCIM is only condition for admission to the Postgraduate course of Ayurveda. 26. It is not disputed that respondent No. 6 is registered with the CCIM, therefore, he was eligible to take admission in the Postgraduate course in the State of Maharashtra. Clause 31 would not apply in case of respondent No. 6 because neither he has changed the place of residence nor practice, therefore, he is still registered with the State Board, therefore, was eligible to contest the election from one seat allotted to State of Madhya Pradesh. No material has been placed to show that he permanently shifted his place of residence, or practice to State of Maharashtra at the time of election. His name was in the Register maintained by the Madhya Pradesh State Board, therefore, he was eligible to contest the election. 27. As stated above, his tenure is already over and as per the direction given by the Supreme Court in the case of K.B. Nagur M.D. (Ayu) v. Union of India, reported in 2012 MPLJ Online (S.C.) 24 : (2012) 4 SCC 483 , the respondents are bound to notify the election forthwith. The present petition fails and is hereby dismissed.