Punjab-Haryana High Court
Niper Research Employees Welfare ... vs Union Of India And Ors on 10 January, 2019
Author: Arun Monga
Bench: Arun Monga
CWP No.30037 of 2017 (O&M) 1
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
CWP No.30037 of 2017 (O&M)
Date of decision : 10.01.2019
NIPER Research Employees Welfare Association, Mohali and others
......Petitioners
Versus
Union of India and others
...Respondents
CORAM: HON'BLE MR. JUSTICE ARUN MONGA
Present: Mr. K.K. Gupta, Advocate
for the petitioners.
Mr. Satya Pal Jain, Additional Solicitor General of
India with Mr. Anil Chawla, Senior counsel for
Union of India.
Mr. J.S. Punia, Advocate,
for respondents No.3 and 4.
****
ARUN MONGA, J(ORAL)
1. The present writ petition has been filed seeking inter alia issuance of writ in the nature of mandamus declaring that the continuation of respondent No.3 as Chairman and respondent No.4 as Member Secretary in the Board of Governor of NIPER be declared as illegal and a further direction be issued for fresh constitution of Board of Governors of NIPER.
2. Further prayer has been made for issuance of a mandamus directing the respondents to comply with sub-section 4(3)(O) of the National Institute of Pharmaceutical Education and Research Act, 1998. For ready reference section of 4 ibid, is extracted hereinbelow:-
4.(1) With effect from such date as the Central Government may, by notification in the Official Gazette, appoint. The National Institute of Pharmaceutical Education and Research shall be constituted as a body corporate by the name aforesaid.
1 of 4 ::: Downloaded on - 10-02-2019 18:31:13 ::: CWP No.30037 of 2017 (O&M) 2 (2) The Institute shall have perpetual succession and a common seal with power, subject to the provisions of this Act. To acquire, hold and dispose of property and to contract, and shall, by that name, (3) The Institute shall consists of the Board of Governors having the following persons, namely:-
(a) A Chairperson who shall be an eminent academician, scientist or technologist or professional to be nominated by the Visitor:
(b) The Director of the Institute, ex officio: (O) Three Members of Parliament two from Lok Sabha to be nominated by the Speaker of Lok Sabha and one from Rajya Sabha to be nominated by the Chairman of Rajya Sabha.
3. Learned counsel for the petitioner has heavily relied on sub section 4(3)(O) (supra) to canvass the point that unless the two Hon'ble Members from the Lower of House/Parliament (Lok Sabha) and one Hon'ble member from the Upper House (Rajya Sabha) are nominated in the Board of Governors, the same cannot be considered as legally constituted Board of Governors.
4. Learned Senior Counsel appearing for NIPER at the outset points out that prayer of the petitioner qua the respondent no.4 (Director) and respondent No.5 (Registrar) does not survive in view of the fact that respondent no.4-Dr. V.M. Katoch has since expired and respondent no.5-Sh. P.J.P. Warraich is no more in the service of NIPER and in any case he was never member of the Board of Governor.
5. As regards, induction of Members of Parliament into Board of Governor of NIPER, learned Senior counsel Mr. Satya Pal Jain, Additional Solicitor General of India, points out that Section 31 of the Act clearly envisages that any vacancy or defect of constitution in either the Board or Senate of the Institute cannot render the entire Board of governors as non 2 of 4 ::: Downloaded on - 10-02-2019 18:31:13 ::: CWP No.30037 of 2017 (O&M) 3 functional. At the most, he contends, that it is a procedural irregularity which can be cured in due course of time.
6. Learned Additional Solicitor General of India contends that an opinion was sought from Department of Legal Affairs with respect to the nomination of the Hon'ble Members from the Parliament on the Board of Governors of NIPER. He states that Department of Legal Affairs opined that a member in the board of Governor of NIPER is an office of profit. The same is, therefore, hit by Article 102 Constitution of India which debars a sitting Hon'ble Parliamentarian to accept an office of profit. Per contra, learned counsel for the petitioner states that office of members of the Board of Governor of NIPER is not a office of profit.
7. Learned counsel for petitioners argued that, in any case, constitution of Board of Governor as notified by Government of India vide Annexure P-4 dated 03.10.016 was withdrawn earlier by NIPER and, therefore, the said Board of Governor cannot be allowed to function. He, therefore, seeks a mandamus for reconstitution of the Board of Governor of NIPER by inducting fresh members in the Board of Governor.
8. Learned Additional Solicitor General of India who appears for Government of India makes an unequivocal submission that neither NIPER was authorised to withdraw the same nor the Govt. of India has withdrawn the said notification. That being the position, the relief sought by the learned counsel for the petitioner on the basis of withdrawing of the said notification is completely misplaced.
9. As regards withdrawing of the Annexure P-4 dated 03.10.2016, a bare perusal thereof, reflects that the same was issued by the Director, 3 of 4 ::: Downloaded on - 10-02-2019 18:31:13 ::: CWP No.30037 of 2017 (O&M) 4 Department of Pharmaceuticals, Ministry of Chemicals and Fertilizers, Government of India. Therefore, the contention of the learned counsel for the petitioner that the same was withdrawn by NIPER is of no significance as NIPER is not authorised in law to withdraw what has been issued by Government of India.
10. Without going into the controversy as to office of member of Board of Governor of NIPER being a office of profit or not, suffice to clarify that in view of submissions of learned Additional Solicitor General of India, as noted above, respondent no.1 is directed to take appropriate steps to correct the irregularity by induction of Members of Parliament, in due course, as per sub section 4(3)(O) of the Act. Alternatively, appropriate steps be taken to make the office of member of Board of Governor of NIPER as a non profitable office so that sub section 4(3)(O) of NIPER Act, is in consonance with Article 102 of the Constitution of India and new members can be inducted. In view of the nature of directions passed, the controversy, whether office of member of Board of Governor of NIPER is an office of profit or not, is kept open, to be decided in an appropriate proceedings.
11. In view of my observations above, the present writ petition is disposed of. No order as to costs.
(ARUN MONGA)
10.01.2019 JUDGE
dkp
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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