Bombay High Court
Ramling Basling Mali And 16 Ors vs The State Of Maharashtra And 2 Ors on 12 December, 2018
Bench: K.K. Tated, N.J. Jamadar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
NOTICE OF MOTION (LDG.) NO. 613 OF 2018
IN
WRIT PETITION NO. 2005 OF 2012
The State of Maharashtra ... Applicant.
(Org.Respondent No.1.)
In the matter between:
Mr.Ramling Basling Mali & 16 Ors. ... Petitioners.
V/s.
The State of Maharashtra & Ors. ... Respondents.
---
Mr. Akshay Shide, Spl. Counsel for the State - Applicant in NM
NO. 613/2018.
Mr. Joel J. Carlos, for the Petitioners (original Petitioners).
Mr. Uday Warunjikar, Advocate, aw. Mr. Siddhesh Pilankar for
Respondent No.2.
---
CORAM : K.K. TATED & N.J. JAMADAR,JJ.
DATE : DECEMBER 12, 2018.
PC :
1 The State of Maharashtra, the Respondent No.1, has taken out this Notice of Motion to vacate the interim order dated 18.04.2011, as continued by the order dated 27.04.2011, in Writ Petition [(ldg.) no. 727/2011] No. 2005 of 2012 in view of subsequent developments.Borey 1/11 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 05:55:46 :::
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2 The substance of the Notice of Motion is that the
interim order dated 18.04.2011, whereby the impugned
Notification dated 08.04.2011 whereunder the Maharashtra Nursing Council came to be dissolved and an administrator came to be appointed, in exercise of the power under sub-
section (1) of section 40 of the Maharashtra Nurses Act, 1966, was stayed in terms of the prayer clause (b) of the petition is required to be vacated, on account of change in circumstances and law as well.
3 Relevant part of the order dated 18.04.2011 passed by this court reads as under :
"In our opinion, as we find prima facie that the order impugned in the petition is infirm and considering that the petitioners are elected body, it will be in the interest of justice to grant interim relief. Ad-interim order in terms of prayer clause (b) is granted, however, it is made clear that the petitioners shall carry on only day to day administration and shall not undertake any financial obligation on behalf of the Council and shall also not take any policy decision without taking leave of the Court."Borey 2/11 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 05:55:46 :::
spb/ 12-12-18nm613-18.odt Prayer clause (b) of the writ petition reads as under :
"(b) Pending the hearing and final disposal of this petition, this Honourable Court be pleased to stay the implementation operation of, giving effect of, the Special Notification bearing no.48 dated 8th April, 2011, dissolving Maharashtra Nursing Council , (which is annexed as Exhibit "II" to this petition) and to allow the Maharashtra Nursing Council through Petitioners which was validly constituted on 22.12.2008 to carry on its functions and duties under the provisions of Maharashtra Nursed Act;"
4 On 27.04.2011, this court was pleased to issue Rule and further ordered that "ad-interim order dated 18.04.2011, granted by this court, to continue".
5 It would be contextually relevant to briefly note the circumstances which led to filing of the present writ petition and passing of aforesaid ad-interim/ interim orders :
a) The Maharashtra Nursing Council is constituted under section 3(1) of the Maharashtra Nurses Act, 1966 (hereinafter referred to as "the Council" and "the Act", respectively). The Council consists of ex-officio, elected and nominated members.Borey 3/11 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 05:55:46 :::
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b) The Council, of which the petitioner nos. 1 to 16
are elected, and the petitioner no. 17 is nominated,
member(s) came to be constituted vide Notification dated 24.09.2008. Soon thereafter, certain complaints of mismanagement and maladministration were received. An enquiry was instituted. After the inquiry committee submitted its report, the Respondent no.1 dissolved the Council, firstly, on 08.04.2010. The said Notification dated 08.04.2010 dissolving the council was challenged in writ petition no. 980 of 2010. The State Government withdrew the said Notification vide order dated 26.08.2010.
c) A show cause notice dated 27.08.2010 followed. After considering the reply of the Council and its members, the State Government again dissolved the Council vide Notification dated 16.12.2010. This led to a challenge in writ petition (ldg.) no. 2880 of 2010. The State Government again withdrew the said Notification dated 16.12.2010 with liberty to pass appropriate orders under section 40 of the Act. This court had then disposed of the said writ petition, recording the said statement.
d) Finally, on 08.04.2011, the Respondent No. 1 again dissolved the Council in purported exercise of power under section 40 of the Act by issuing impugned Notification. Operation of the impugned Notification came to be stayed by the above extracted orders.
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6 The State Government-Respondent No. 1 now seeks
to vacate the aforesaid ad-interim / interim orders by this
notice of motion. The principal ground is that the term of the Council and its members i.e. Petitioner Nos.1 to 17, came to end on 23.09.2013. As the term of the Council and its members has expired long-back, the interim orders constitute an impediment in reconstituting the council after holding fresh elections. Secondly, there has been a legislative intervention in the form of insertion of sub-section (3) of section 40 of the Act, whereby in the event of non-constitution of the council after expiry of the term of its members, the Government is empowered to appoint an administrator or board of administrators for a period not exceeding two years in the aggregate. Thus, the interim orders are required to be vacated.
7 The Petitioners have not filed any reply to the Notice of Motion though duly served.
8 We have heard Adv.Akshay Shinde, Special Counsel for the Applicant- State/ Respondent No.1, and Adv. Joel J. Carlos for the original Petitioners and Uday Warunjikar for Respondent No.2-Council.
9 It is evident that term of the Council of which the
Petitioners Nos. 1 to 17 were elected and nominated
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members, has expired on 23.09.2013, as the term of office in accordance with section 4(2) of the Act is five years. By virtue of the interim orders passed by this court, the incumbent members of the council continued to be the members thereof even after the expiry of the term of the office, statutorily prescribed by section 4 of the Act.
10 In the light of the aforesaid undisputed facts, the question that warrants consideration is whether the incumbent members of the Council can be allowed to continue to hold the office in pursuance of the aforesaid interim orders. We have examined the provisions of the Act, 1966, especially the changes brought about by the Amendment Act No.XXXIII of 2018. It is imperative to note that sub-sections (3), (4), (5) of Section 4 of the Act (as stood prior to the Amendment Act, XXXIII of 2018) envisaged deemed extension and continuation of the term of office upto the day immediately preceding the day on which the successor member or office bearer is elected.
11 Sub-sections (3), (4) and (5) of section 4 (as they stood prior to the amendment) read as under :
(3) Save as otherwise provided by this Act, the President and the Vice President shall hold office from the date of his election upto the date on which his term of office as a member expires.Borey 6/11 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 05:55:46 :::
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(4) The term of office of the outgoing members
shall, notwithstanding anything contained in sub-
section (2), be deemed to extend to and expire with the day immediately preceding the day on which the names of the successor members are published under sub-
section (1).
(5) The term of office of an outgoing President or Vice-President shall, notwithstanding anything contained in sub-sections (2) and (3), be deemed to extend to and expire with the day immediately preceding the day on which the names of the successor President or Vice -President, as the case may be, is elected."
It is pertinent to note that by section 2 of the Act No.XXXIII of 2018, the following proviso came to be added before the existing proviso to sub-section (2) of Section 4 and the aforesaid subsections (3), (4) and (5) came to be deleted.
" "Provided that, the State Government may,by order, give extension to a Member, President or Vice- President, even after expiry of his term, initially, for such period not exceeding six months, which period may, in the like manner furtehr be extended bya further period not exceeding sis months, so that the total period Borey 7/11 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 05:55:46 ::: spb/ 12-12-18nm613-18.odt of extensions shall not exceed one year in the aggregate."
12 In view of the legislative intervention erstwhile position of deemed extension and continuation of the term of the members and /or office bearers came to be done away with. Instead, the State Government reserved unto itself the power to grant extension of the term to the member and / or office bearer upto one year in the aggregate. This implies that once "the term" or "extended term", as the case may be , is over the member and/or office bearer ceases to hold the office under the Council. Thus, the mischief of the deemed continuation, resulting in self-perpetuation, has been addressed by the legislature in an effective manner.
13 As pointed out by the learned counsel for the State Government, sub-section (3) has also been introduced in section 40 of the Act, to address the contingency of a succeeding Council not being constituted for any reason. It provides for administration of affairs of the council by appointing an administrator or board of administrators for a period not exceeding two years in aggregate.
14 A conjoint reading of the aforesaid provisions, namely, addition of the proviso to subsection (2) to section 4 and subsection (3) to section 40, coupled with the deletion of Borey 8/11 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 05:55:46 ::: spb/ 12-12-18nm613-18.odt the subsections (3), (4) and (5) of section 4 of the Act, leads to an inescapable conclusion that members and office bearers of the Council cease to hold office after the expiry of the original term or the extended term, as the case may be. There can be no deemed continuation of the term till successor enters the office, as was the case under the erstwhile provisions.
15 Learned counsel for the petitioners submitted that the State Government may not hold the elections within a reasonable time and would continue to administer the affairs of the Council by appointing the administrator and thereby undermine the very object and purpose of the Act and democratic spirit of the constitution of the Council. The apprehension does not seem justifiable. In view of the provisions contained in sub-section (3) to section 40, the power vested in the State Government to appoint an administrator, cannot be said to be either unregulated or unfettered. Initially, the State Government can appoint an administrator for a period not extending one year. It can extend the said period but not exceeding two years in the aggregate. The State Government is not free to administer the affairs of the Council thereunder beyond a certain period.
16 Having considered the indisputable facts, the time lag, which has elapsed from the expiry of the term of office of the incumbent members of the Council, the changes brought Borey 9/11 ::: Uploaded on - 19/12/2018 ::: Downloaded on - 27/12/2018 05:55:46 ::: spb/ 12-12-18nm613-18.odt about by the legislative intervention, we are of the view that it would be inequitable to further continue the above extracted interim orders. The incumbent members have enjoyed two terms in office. It would be travesty of the democratic principles to allow the Council and its members to further perpetuate themselves on the strength of the interim orders passed by this court, at a point of time when the Council was dissolved while term of office of its members was yet to be over.
17 Upon being asked, as to what the State (Respondent No.1) proposes to do once the incumbent members/office bearers of the council cease to hold office in the event this court vacates the aforesaid interim orders, on instructions, it was submitted on behalf of Respondent No.1 that the State Government proposes to appoint an administrator in exercise of the powers conferred by sub- section 3 of section 40 of the Act and would hold elections to constitute the council within a period of one year.
18 At this juncture, we refrain from delving into this aspect of the matter. We are of the firm view that the incumbent office bearers and members of the Council cannot continue to cling to office on the strength of the interim orders. We are, therefore, inclined to vacate the aforesaid interim orders by allowing the Notice of Motion.
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19 We further direct the State Government to take
action strictly in conformity with the provisions of the Act, 1966. It is made clear that we have neither examined, much less approved, the proposed action of the State of appointment of an administrator nor it be understood that we have given the State Government one year's time to hold the elections. We expect the State Government to take appropriate steps in accordance with the provisions of the Act, 1966 so as to ensure that the Council is constituted, under section 3 of the Act, as expeditiously as possible and a suitable mechanism is put in place to administer the affairs, and discharge the functions and duties of the Council, in the intervening period.
20 Notice of Motion stands allowed as under:
(a) Ad-interim/ interim orders dated 18.04.2011 and 27.04.2011 staying the operation and implementation of the impugned Notification dated 08.04.2011 and allowing the Council to carry on its functions and duties through the Petitioners stand vacated.
(b) No order as to costs.
(N.J. JAMADAR, J.) (K. K. TATED,J.)
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