Patna High Court
Smt. Uma Kumari And Ors., Surya Banshi ... vs State Of Bihar And Ors. on 6 April, 1990
Equivalent citations: 1990(38)BLJR975
Author: B.P. Singh
Bench: B.P. Singh
JUDGMENT B.P. Singh, J.
1. In all these three writ applications, common questions are involved and hence they have been heard together and are being disposed of by this common judgment. Essentially the question involved in these writ applications is as to whether the posts held by the petitioners had been abolished in accordance with law and secondly whether the Board which decided to abolish those posts were validly constituted.
2. I shall take the facts from CWJC. 4039/88. The petitioner was an employee of the Bihar Homeopathy Chikitsha Board, respondent No. 3 herein which is a body corporate established under the Bihar Development of Homeopathy System of Medicine Act, 1953 (Bihar Act 24 of 1953) (hereinafter to be referred to as "the Act"). The Act provides for the constitution of a Board in accordance with Section 3 thereof. The Board has been empowered to appoint such officers and servants as may be necessary for carrying out the purposes of the Act. It is, however, the State Government which appoint a Registrar who shall be the Secretary of the Board. The provision to Sub-section (3} of Section 19 provides that the number and designation of such Officers and servants appointed by the Board and their salaries and allowances shall be subject to the previous approval of the State Government. According to the petitioner, the post of Homeopathy Chikitshato was approved by the Government by order dated 2941-1972. An advertisement had been issued for filling up the post of Homeopathy Chikitshak on 14-12-1982, which is Annexure-1 to the writ application. The petitioner and others had applied in response to the said advertisement. Ultimately the petitioner was selected to be appointed as Homeopathy Chikitshak on temporary basis and ho was so appointed by the Board on 4th March, 1983.
3. According to the petitioners, the Cabinet of minister took a decision at its meeting held on 54-84 that to the extent possible ad hoc appointments and promotions should be reduced and ad hoc appointments and promotions which had continued for a long time should be regularised. This decision of the Cabinet was communicated to all Departments of the Government by letter dated January 9, 1984 as contained in annexure-4 A similar decision was communicated by the Director of Health Services, Government of Bihar by its letter dated 30th April, 1986 (Annexure-4/1). The Board at its meeting held on 25-9-84 took a decision in the light of this Government decision to consider the cases of regularisation of those employees who had been appointed on temporary/ad hoc basis. It was decided that a Committee by appointed to consider this question having regard to all aspects of the matter including reservation etc. and the President was authorised to take necessary steps in this direction. The decision of the Board is contained in annexure-3. A Committee was accordingly appointed consisting of three members and it considered the cases of six persons, who are the petitioners in the three writ applications, and who had been appointed on an ad hoc/temporly basis. The proceeding of the aforesaid Committee has been annexed as Annexure-5, The Committee recommended for regularisation of the service of those temporary/ad hoc employees. According to the petitioner, a meeting of the Board had earlier taken place on 8th February, 1985. Annexure46 is a copy of the proceeding of that meeting. One of the members complained that there had been considerable delay in the regularisation of the services of temporary/ad hoc employees and that immediate steps should be taken. The Committee authorised the President to take steps for quick disposal of the matter.
4. Ultimately, by order issued under the signature of the Registrar of the Board dated 2342-1985, Annexure-6, the appointment of the petitioner was regularised in accordance with the recommendation of the Committee constituted by the Board at its meeting held on 25-9-84. It is noteworthy that the letter of appointment does not refer to the appointment being made by the Board itself. This is relevant because there was considerable controversy that the recommendation of the Committee was never placed before the Board for is approval and the order regularising the services of the petitioner, Annexure-6 was issued without reference to the Board.
5. The grievance of the petitioner is that in February, 1986 a new President of the Board was appointed and in view of the internal differences, he started looking into all past acts of the rest-while President. In fact, a sub-committee was appointed to go into all past transactions. On 8-5-1986, the said Sub-committee submitted a report in which a finding was recorded that the service of the petitioner and others had been regularised in an irregular manner. The grievance of the petitioner is that before recording such a finding, the Sub-committee did not give him an opportunity of representing his case. According to the petitioner in the audit report Ext. 7, there was no objection regarding the irregular appointments made by the rest-while Board and consequently the Government sanctioned a sum of Rs. 2,50,000/- for payment of salary and allowances to the employees of the Board. The averment in the writ application does not appear to be correct because Annexure-7 which is an extract from the audit report dated 6-11-1986 discloses that objection had been raised that six persons had been appointed by the President of the Board in the year ly82-83 without going through the necessary procedure for appointment. Though appointments were made against sanctioned posts but approval of the Board was not taken. Later on, their appointments were regularised through a Sub-Committee meeting held on 30th October, 1985. The audit report pointed out that the existing strength of the staff was more than the actual requirement of the Board because the major part of the work relating to examination had been transferred to Bihar University since the year 1975. There was hardly any justification for appointment of six additional staff which adversely affected the otherwise poor financial position of-he Board, thereby imposing an extra burden of expenditure to the tune of Rs.
64,870/-, annualy to meet their establishment cost.
6. in the writ petition originally filed by the petitioner, a grievance was made that despite the fact that Government has sanctioned enough funds, the petitioner was not being paid his salary and allowances since July, 1987 onwards which was arbitrary and unreasonable. The with holding of salary, allowances and other pecuniary benefits of the petitioner amounted to violation of Articles 14 and 16 of the Constitution of India. It was, therefore, prayed that the respondents be commanded by a writ of mandamus to disburse salary and other allowances to the petitioner from July, 1987 onwards and to continue making payment of salary and other allowances to the petitioner from month to month on the sanctioned scale of pay of 850-1350 and grant all other pecuniary benefits of group insurance, provident fund, gratuity etc. as admissible to the employees of the Board.
7. The aforesaid writ application was filed on 27-5-88 claiming the relief's aforesaid. On 22nd of June, 1988 an application for amendment of the writ application was filed on behalf of the petitioner, in which it was stated that during the pendency of the aforesaid writ application, the petitioner was served with a memo on 4th of June, 1988 removing the petitioner from service as the Board had decided through resolution dated 14-5-88 to abolish the Data by a Ausdhalaya and the post of Chikitshak. it was also decided that payment of salary and other allowances shall be made when grant was received from the Government. The aforesaid communication dated 4th June, 1988 was marked as annexure-8. It was submitted by the petitioner that in these circumstances it had become necessary to amend the writ application and to pray for quashing of the resolution of the Board dated 14-5-88 and the order as communicated to the petitioner vide annexure-8, dated 4-6-88. The petitioner took the stand in the amended writ application that the Board which decided to abolish the Databya Ausdhalaya together with the post of Chikitshak was not duly constituted. The relevant facts in connection with the aforesaid allegation were stated thus -
(a) That the 4th Board was constituted by notification dated 19-11-81 appointing Dr. Narendra Kumar Singh as the President of the Board and by issuance of another notification dated 21-12-82 8 other members of the Board were nominated by the State Government. In terms of Section 3(1)(c) of the Act, 7 members were elected in the prescribed manner and the notification in respect thereto was published on 17-8-84. Another notification was issued on 14-12-85 notifying the election of two M.L.As. to be members of the Board. According to the petitioner, the terms of the President and members of the Board under the Act was three years.
(b) That when the term of, the President and other nominated members of the 4th Board expired, the Government by notification dated 29-1-86 nominated another President and four members in terms of Section 3(i)(a) and 3(1)(b) of the Act. The notification under Section 6 of the Act constituting the Board was published in the Official Gazette on 29-1-86 which not outer included newly nominated President and four members nominated by the Government but also included as its members those whose election was notified by notification dated 17-8 84 and 14-12-85 restricting their period of office for the remainder of the term of three years from the date of the notification notifying them to be the members of the 5th Board. According to the petitioner, the term of office of the seven elected members expired on 16-8-87 and thereafter they were never nominated or elected as members of the Board. In fact, no election under Section 3(1)(c) of the Act to elect members had been held. Similarly no election with regard to member as envisaged under Section 3(1)(c) and 3(1)(f) of the Act for the 5th Board was ever held It was, therefore, submitted that the Board had not been duly constituted since it had only a President, 4 nominated members under Section 3(1)(b) of the Act and two members of the Bihar Legislative Assembly under Section 3(1)(e) of the Act. According to the petitioner, the quorum prescribed for a meeting of the Board under Section 13(2) of the Act is six members.
(c) Even when the Board was not duly constituted in accordance with law, a meeting of the Board was conveyed on 14-5-88 in which only four qualified members participated, since two members elected under Section 3(1)(d) of the Act and one nominated member were not informed about the meeting. They had objected to the meeting of the Board vide their letters dated 27-3-88 and 31-3-88. In that meeting a decision was taken to abolish Databya Ausdhalaya and the post of Chikitshak. The grievance of the petitioner is that the Board which was not duly constituted could not abolish the post and the decision of the Board was illegal and had no effect whatsoever.
In the supplementary affidavit filed on 5-7-88, it was stated that the Board decided to abolish the post without the previous sanction of the Government. It was stated that the meeting of the Board held on 14-5-88 was illegal inasmuch as it was held without giving 15 days clear notice to its members. The quorum of six members was also not there as only three qualified members and the President participated. The three other members whose term had already expired on 16-8-87 were also allowed to participate in the meeting on 14-5-88. Notice of the meeting had not been served upon the two members elected under Section 3(1)(d) (Members of Bihar Legislative Assembly) and one of the nominated members also could not attend because he did not receive any notice of the meeting. No member had been elected under Section 3(1)(e) and (f) of the Act.
On such averments it was contended that the meeting of the Board was illegal as it was held despite lack of quorum and the Board having not been duly constituted, its decisions were illegal and invalid.
8. A counter affidavit has been filed on behalf of respondents 3 and 4, the Board and its Registrar affirmed by the Registrar-cum-Secretary of the Board. In the counter affidavit, it has been stated that by Government notification dated 22-11-7, the Board was divested of the power to hold examinations and conferring degrees and diplomas, and consequently the major part of the world of the Board relating to holding of examinations was transferred to Bihar University. As a result of the curtailment of duties of the Board, even the existing staff strength of the Board was more than the actual requirement and there was no justification for making any further appointments of additional staff, which imposed an unnecessary liability upon the Board which had already been suffering severe financial stringency. The then President of the Board by his letter dated 5-12-78 requested the Government to adjust the excess stall of the Board in the Directorate of Health in view of the reduced workload of the Board. In that letter it was pointed out that there was sharp decline in income of the Board and therefore, the Board did not have adequate funds even to make regular payments of monthly salary to its existing staff. A copy of the aforesaid letter of the then President of the Board have been marked as Annexure-A to the counter affidavit. Even the successor President Sri Narendra Kumar Singh by his letter dated 10-4-82 wrote to the Government of Bihar that on account of the fact that the Board was no more empowered to hold examinations etc. its income had been greatly reduced and as such the available funds with the Board were not adequate to meet the expenses relating to salary of existing staff month to month. A similar request was made by him to the Government to adjust the excess staff in the Department of Health so as to relieve the Board of unnecessary financial burden.
Despite the fact that such was the financial position of the Board, the writ petitioners were appointed in addition to the existing staff. There was no justification for making further appointments during the years 1982-83. It was stated that the audit report dated 641-86 also pointed out the fact that Sri Narendra Kumar Singh, the then President, appointed the petitioner and others without going through the necessary procedure for appointment and without the approval of the Board. This had resulted in the imposition of unnecessary financial burden upon the Board, It was stated that the appointment of additional staff made by the then President was not even placed in the Board's meeting held on 4-2-83 and 30th May, 1983 and, therefore, it was not correct to say that the Board had approved the appointments made by the President apart from the fact that the procedure laid down for issuance of advertisement etc. and calling for names from the Employment Exchange, provision for reservation etc. was not followed. In fact. the audit report No. 201 of 1983-84 suggested that payments made to the tune of Rs. 34558/- to the additional staff. Irregularly appointed should be recovered from the persons responsible.
9. In these circumstances, the Joint Secretary of the Department of Health directed the President of the Board Dr. B. Bhattacharya by letter dated 15-4-86 to make detailed enquiry into the serious allegations made against the former President of the Board. Accordingly, a sub-committee was constituted to look into the matter and the said sub-committee submitted its report to the President on 8-5-86 finding that the additional six members of the staff including the petitioners had been appointed in a highly irregular manner. The report of the Sub-Committee was forwarded to the Government. The Additional Secretary in the Department of Health, Government of Bihar, directed that the amount suggested for recovery in the audit report be recovered in the current financial year and further directed that in order to have check on the financial burden of the Board, no new post should be created and no new expenditure should be incurred. He further directed that unnecessary posts should be abolished and irregular appointments should be cancelled. The Government sanctioned only a sum of Rs. 2,50,000 to the Board during financial year 1987-88 for disbursement amongst the officers and servants of the Board. A copy of the aforesaid letter has been annexure-(F) and is dated 9th February, 1988.
10. The Board considered the letter of the Government Annexure-F and decided to abolish eight posts including the post held by the writ petitioner, in accordance with the decision of the Board, the impugned memo dated 4-6-88 was issued. The Board admitted its inability to pay salary to its employees and it was stated that payment of salary depends upon the amount of grant received from the Government. The salary of the petitioner from July, 1987 had been withheld not as a measure of punishment or despite availability of funds, but because of the fact that the Board had no funds to pay salary and allowance to its employees. In these circumstances, the petitioner was directed to take his salary for the month of July, 1987 but he did not accept that offer.
11. As regards the constitution of the Board, it was stated that it was not correct as stated by the petitioners that the 4th Board was constituted on 19-11-81. In fact, the Board had been superseded by order dated 4-4-77 and Sri K.K. Saran has been appointed as an administrator for the period of six months- Thereafter, Sri Lai Bihari Singh was nominated as President of the Board on 19-6-78. On completion of his term, the Government nominated Sri Narendra Kumar Singh as President of the Board by notification dated 19-11-8l. The 4th Board was however duly constituted by issuance of notification dated 31-12-82 whereby the Board was constituted consisting of Sri Narendra Kumar Singh as President and three other members under Section 3(1)(a)(b)(d)(e) of the Act. The other vacancies of the Board were not filled up by election or nomination. The seven members were later elected under Section 3(1)(c) of the Act which was notified by notification dated 17-8-84. Similar notification was issued on 14-12-85 with regard to the election of two members of the Legislative Assembly to be members of the Board under Section 3(1)(d) of the Act, and lastly by notification dated 14-10-86 the election of one member was notified under Section 3(1 )(e).
12. By notification No. 56, dated 29-1-86 published in the Bihar Gazette dated 5th March, 1986 Dr. B. Bhattacharya and four other members were nominated to the Board with Dr. B. Bhattacharya as the President. According to these respondents in view of the provisions of Section 5 of the Act, the term of office of nominated and elected members shall be for a period of three years from the date of publication of their names in the Official Gazette under Section 6 and shall include any further period which may elapse between expiration of the said period of three years and the date of the first meeting of the successive Board at which a quorum is present. In terms of Section 5, therefore, the seven elected members were authorised to take part in the proceeding of the new Board till such time as the first meeting of the nest Board with the requisite quorum was held. Reliance was placed on Section 18 of the Act which provides that no disqualification of, or defect in the election on nomination of, any person acting as the President or a member of the Board or as the presiding authority of a meeting shall be deemed to vitiate any act or proceeding of the Board in which such person had taken part, if the majority of persons who took part in such act or proceeding were duly qualified members of the Board. It is also provided that no act or proceeding of the Board shall be deemed to be a invalid only by reason of the existence of a vacancy in the Board. It was, therefore submitted that there was no illegality in the constitution of the Board which considered the proposal to abolish the post on 14-5-88. The more existence of vacancy did not render the constitution of the Board invalid.
13. So far as the letters of the two members of the Legislative Assembly Annexure 13 and 13/1. Were concerned, by which they had objected to the abolition of the post, it was stated that those letters were never received by the Board. It was surprising how those members could come to know about the abolition of post in March, 1988 itself when no decision had been taken by the Board. The letters therefore appear to have bean manufactured only for the purpose of the writ application. The letters were similarly worded. It was pointed out that those two members of the Board had not been attending the Board meetings and they had absented from 3/4 consecutive meetings of the Board.
14. It was also submitted that the Board had not dismissed or discharged any employees but had only abolished the posts since those were not required. It was further stated that it was not correct to say that the previous approval of the State Government for abolition of the post had not been obtained. In fact, the posts had been abolished pursuant to the direction of the Government itself as contained in its letter dated 9-2-88 Annexure-F. In any event, the Board was fully empowered to abolish such posts which were considered to be surplus. The decision to abolish the posts had been taken in good faith having regard to the financial stringency faced by the Board.
15. It was stated that notice of meeting of the Board was sent by memo No. 1533-1546; dated 28-4-88 to all members of the Board and no member of the Board had complained to the Board that he had no notice of the Board's meeting.
16. A similar counter affidavit has been filed on behalf of the State of Bihar, respondent No. 1.
17. It will be appreciated that originally the petitioner had filed a writ application for a direction that the Board should pay to the petitioner his pay and allowances which had been withheld since July, 1987. During the pendency of the writ application, the post itself was abolished. There was considerable controversy at the bar as to whether the appointment of the petitioner was made in accordance with law and whether be was regularised after following the necessary procedure and the legal provisions. In my view, that question is merely academic in view of the abolition of the post itself, and the Board itself has stated that the petitioner shall be paid his salary for the period during which be wag working under the Board when funds are made available. It is well settled that if a post is validly abolished, the provisions of Article 311 of the Constitution are not applicable, but the decision must be a bona fide decision which can be justified, if challenged.
18. Out of deference for the counsel who have appeared for the parties, I may only notice that the respondents vehemently challenged the validity of the appointment of the petitioner. It was submitted that the initial appointment of the petitioner was not by the Board but he was illegal y appointed by the then President of the Board. The matter had never bean placed before the Board. This was also pointed out in the audit report No. 184, dated 6-11-86. Apart from that it was submitted that after a sub-committee had been appointed by the Board to consider the question of regularisation of temporary/ad hoc employees, the matter was never placed before the Board and the report discloses that even the recommendation of the sub-committee was never placed before the Board for its approval. Since there was considerable controversy on this subject, I had directed the Board to produce before me the minute book of the Board which was produced on the very day. It appears from the minute book produced in the court, which was also inspected by the counsel for the petitioner, that no meeting of the Board took place to consider the recommendations of the Committee appointed by it to make its recommendations regarding regularising all temporary/ad hoc employees. There is, therefore, considerable force in this submission of the respondent that the regularisation of the employees had been improperly done by the Board. It is obvious from the resolution of the Board dated 25-9-84 (Anaexure-5) and 8-2-85 (Annexure-16) that the President was only authorised to take necessary steps in that direction. That did not copier upon the president the power to make the appointments himself. He was only required to see that necessary steps were taken, and the final decision had to be taken by the Board itself. The Board never delegated its authority to the President. The power to make appointments is vested in the Board. There is considerable force, therefore, in the submission of the respondents that the appointment of the petitioner as well as his subsequent regularization was done by the then President himself without reference to the Board. This aspect of the matter is not, however, relevant in the changed circumstances because the post itself has been abolished. Only two questions survive consideration. Firstly, whether abolition of the post has been bona fide and in accordance with law; secondly whether the Board which decided to abolish the post was validly constituted so that it was authorised in law to take such a decision.
19. So far, as the first question is concerned the plea of the respondents is that on account of financial stringency it had become necessary to reduce the expenditure of the Board and to abolish posts which were considered unnecessary.
20. From the facts which I have stated above, a few facts appear to be not in dispute. The Board which was originally intended to hold examinations, confer degrees and diplomas etc. was denuded of that power, and the power to hold examination vested in the Bihar University. Consequently there was loss of income so far as the Board was concerned because it was no more entitled to realize examination fees etc. from large number of students who took the examinations. The successive Presidents of the Board wrote to the Government that in view of the fact that the workload had been considerably reduced, the existing staff had become surplus and that they should be taken over by the Government and adjusted elsewhere. It was also emphasised in those letters that the income of the Board had been considerably reduced so that it was not even in a position to pay salaries and allowances to its employees. This fact has also been emphasised in the audit report. It is therefore obvious that the financial crisis faced by the Board was a reality and not a mere pretext to cover up its illegal action. Large number of posts had become surplus. In this situation, in my view, there was hardly any justification for making additional appointments in the year 1982-83. This aspect has been emphasized in the audit report as well. Moreover it appears that the then President made several appointments without reference to the Board. The power to appoint vests in the Board and nothing has been brought to my notice to show that such power could be delegated and was actually delegated in favour of the President of the Board. It also stands to reason that when the Board had itself nominated a Committee to go into certain matters, that report ought to have been placed before the Board for its consideration and only thereafter any decision could be taken which could be said to be the decision of the Board. The facts of this case disclose that the report of the sub-committee appointed to look into the question of regulatisation of temporary/ad hoc employees was never placed for consideration before the Board and without the matter being considered by the Board, the then President appointed the petitioner. In the situation prevailing in the Board, the appointments were wholly unjustified and cast an avoidable financial burden on the Board.
21. From the counter affidavits filed on behalf of the respondents it is also apparent that the new President reported the matter to the State Government and the State Government after considering all aspects of the matter itself directed the Board to take necessary steps. It will be obvious from the provisions of the Act that the State has to meet the financial burden of the Board to a great extent and that is the reason why according to the Act, the designation, pay-scale etc. as well as creating of posts must be done with the prior approval of the State Government. It was in this background that the Board in its meeting held on 14-5-88 decided to abolish eight posts including the post held by the petitioner. Can the decision of the Board be characterised as Jacking in good faith? Can it lie said that the decision taken by the Board was wholly unwarranted and unreasonable? In my view, both the questions must be answered in the negative. The financial crisis faced by the Board in view of reduction of its work load and income, and the existence of a large number of surplus staff, was in my view, enough justification for abolishing the posts which the Board did not consider necessary, particularly, the appointments which had been made not by the Board but by the then President contrary to the provisions of law, It fact, the appointments were made at a time when there was a justification whatsoever for such appointments, and for this there is abundant documentary evidence including the letters written by the then Presidents including Sri Narendra Kumar Singh who made the appointments. I have therefore no hesitation in holding that the posts were abolished fully in accordance with law. The action of the Board was bona fide and justified by the existing circumstances.
22. The only other question which requires to be considered is as to whether the Board was validly constituted. So far as the constitution of the Board is concerned according to the petitioners, the 5th Board was constituted by notification dated 29-1-86, it has been clarified in the counter affidavit that the notification dated 29-1-88 was published in the Gazette on 5-3-86. Before adverting to the facts of the case, 1 may refer to the legal provisions: - Section 3 of the Act provides as follows:
Section 3. Establishment and constitution of Board-(I) The State Government may, by notification stables a Board to be called the Bihar State Buffo of Homeopathic Medicine consisting of-
(a) President to be nominated by the State Government:
(b) four members to be nominated by the State Government;
(c) seven members to be elected in the prescribed manner by the registered homeopathic practices from amongst themselves:
(d) two members to be elected by the Bihar Legislative Assembly from amongst its members in the prescribed manner; and
(e) One member to be elected by the Bihar Legislative Council from amongst its members in the prescribed manner; and
(f) two members to be elected in the prescribed manner by the members of the Homeopathic Association or Associations recognised by the State Government for the State of Bihar:
Provided that when the Board is established for the first time, the President to be nominated under Clause (a) and the members to be nominated under Clause (b) and the members to be elected under Clause (c), Clause (d) Clause (e) or Clause (f) shall be appointed by the State Government and the Board as so constituted shall hold office for a period of three years from the date of the publication of the names of the President and members in the Official Gazette under Section 6 or such further period as the State Government may by notification, fix.
(2) The Board shall be a body corporate and shall have perpetual succession and a common seal with power to acquire and hold property, both moveable and improvable and to transfer any such property subject to the prescribed conditions and shall by the said name sue to be sued. Section 5 provides: -Terra 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 data of publication of their names in the official Gazette under Section 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 the quorum is present. Section 6 provides: -Publication of names of President and members j The names of the President and of any member nominated or elected under Section 3 or nominated under Section 4 shall be published by the State Government in the official Gazette.
Section 13 provides: -Meetings of the Board:
(1) The Board shall have an office at Patna and shall meet at such time and place and every meeting of the Board shall be summoned in such manner as may be provided by regulations: Provided that until regulations are made it shall be lawful for the President to summon a meeting of the council at such time and place as he may deem expedient by a letter addressed to each member on a clear notice of fifteen days.
(2) No business shall be transacted at any meeting of the Board unless six members are present: Provided that in an adjourned meeting all business postponed for want of quorum at the original meeting may be transacted if not less than three members attend such meeting.
Section 18 provides: -Validity of proceedings:
(1) No disqualification of or defect in the election or nomination of any person acting as the President or a member of the Board or as the presiding authority of a meeting shall be deemed to vitiate any act or proceeding of the Board in which such person has taken part if the majority of persons who took part in such act or pro ceding were duly qualified members of the Board:
(2) No act or proceeding of the Board shall be deemed to be invalid only by reason of the existence of a vacancy in the Board.
From the aforesaid provisions it would appear that the Board consists of a President nominated by the State Government as well as four members nominal ed by it. But apart from these nominated members, seven members are to be elected by registered homeopathy practioners; two to be elected by the members of the Bihar Legislative Assembly; one to be elected by members of the Bihar Legislative Council and two to be elected by the member of Homeopathy Association/Associations recognised by the State of Bihar. The term of office of nominated and elected members is three years, from the date of publication of their nomination in the official Gazette under Section 6, and also includes for further paned which may elapse between expiration of the said period three years and the date of the 1st meeting of the next succeeding Board at which a quorum is present. Section 6 provides for publication of the names of the President as well as nominated/elected members in the official Gazette. The quorum for the meeting of the Board has been fixed at six members present, though such a quorum is not required at an adjourned meeting. Section 18 provides that no disqualification of or defect in the election or nomination of, any person acting as the President or a member of the Board or as the presiding authority of a meeting shall be deemed to vitiate any act or proceeding of the Board in which such person has taken part, if:he majority of persons who took part in such act or proceeding were duly qualified members of the Board. Sub-section (2) further clarities that no act or proceeding of the Board shall be deemed to be invalid only by reason of the existence of a vacancy in the Board.
23. The facts of the instant case may now be considered. It is not in dispute that a notification constituting the 5th Board was published in the Gazette on the 5th of March, 1986. A President and four members under Section 3(1)(b) of the Act were nominated by the State Government. The case of the respondents is that apart from these nominated members seven elected members of the earlier Board whose election was notified on 17-8-1984 under Section 6 of the Act were entitled to continue for three years i.e. till 17-8-87 and thereafter to continue till a meeting of the next Board with a quorum was held. The same position obtained with regard to the two elected M.L.A's who were elected on 14-12-85. In terms of Section 5 therefore these members were entitled to attend the meetings of the Board till such time as fresh elections took place to replace them in the Board, and the first meeting of the Board with a quorum took place. This was designed to maintain continuity. It is further their stated that in view of the provisions of Sub-section (2) of Section 18 no act or proceeding of the Board shall be deemed to be invalid only by reason of the existence of a vacancy in the Board. As a matter of principle therefore it cannot be held that merely because some of the vacancies had not been filed, the proceeding of the Board was vitiated.
24. The factual position as it emerges is as follows:
The Government had notified under Section 6 of the Act on 21-2-82 a Board consisting of a President, four members nominated by the Government, 2 members representing the members of the Legislative Assembly and one member representing Members of the Legislative Assembly and one member representing Members of the Legislative Council. Subsequently by notification dated 17-8-84, the election of seven elected members under Section 3(1)(c) was notified. It further appears that since the term of the members representing Legislative Assembly and Legislative council wag to expire, the Legislative Assembly elected two members and the Legislative council elected one member whose elections were notified under Section 6 on 14-12-1985 and 14-10-86 respectively.
Since the terms of the four nominated members and the President of the Board was to expire on 31-1-86, it was necessary to make the necessary nominations. Accordingly notification dated 29-1-86 published in the Gazette on 5-3-86 was issued which nominated a President and four members. The notification provided that those members of the 4th Board whose appointment had been notified under notifications dated 17-8-84 and 14-12-85 shall continue as members of the 5th Board till they complete the term of three years. The meeting at which the impugned decision was taken by the Board was held on 14th of May, 1988. There is no difficulty in holding that as on that day, there were five validly nominated members, as well as two elected members of the Legislative Assembly and seven elected members under Section 3(1)(b) who were continued under the notification published on 5-3-86 for the remainder of the term of three years. The term of the seven elected members expired on 17-8-87, and the term of the two members elected by the legislative Assembly was to expire on 14-12-85.
25. The question which requires consideration is whether two elected M. L. As who were elected on 14-12-85 validly attended the meeting of the Board as newly constituted and whether the same position obtained with regard to the seven elected members who were elected on 17-8-1984. The notification Annexure-11 dated 29-1-86 nominated five members including the President, and further provide that the elected members whose election was notified under Section 6 on 17-8-84 and 14-12-85 shall also continue for the remainder period of their term, The proviso to Section 3 mentions that the normal term of the Board is three years from the date of the publication of names of the President and members in the official Gazette under Section 6, or such further period as the State Government may by notification declare. Therefore, thy notification Annexure-11 can be deemed to have validly extended (he term of the seven elected members and the two members elected by the Legislative Assembly till 17-8-87 and 14-12-88 There is therefore, no difficulty in holding that the two elected M. L. As were members of the Board on 14-5-88 when the meeting took place. There is some difficulty however in saying the same about the seven elected members.
26. It was contended that the seven elected members who had been elected on 17-8-84 should hold office for a period of three years i.e., till 17-8-87. This is also the effect of the notification Annexure-11 issued under Section 6 of the Act. On 17-8-87 they had completed the three years term. It was sought to be argued that in terms of Section 5 they continued as members till the next meeting of the Board was held with a quorum No doubt Section 5 provides that term of office of nominated and elected members shall be for a period of three years from the date of publication of their names in the official Gazette and shall include any further period which may elapse between the expiry 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. The section envisages is a situation where the term of a Board has expired but the successor Board has not held a meeting after its constitution. The Act envisages that the constitution of a Board shall be notified under Section 6 of the Act. The envisages issuance of only one such notification of under Section 6 constituting a Board and, perhaps, did not contemplate piecemeal constitution of the Board. It therefore contemplated that the earlier Board shall continue till such time as the newly constituted Board holds a meeting with a quorum. In my view, if this is the correct legal position, the elected members numbering seven whose term expired on 17-8-1987 could not attend there meeting of the Board thereafter, unless they were reelected. Their term came to an end on 17-8-87 and they were therefore not authorised to attend the Board's meeting.
27. I have no doubt with the nomination of five members and the continuance of two elected MLA's, the Board had been constituted under Section 6 which could function since the quorum required was only six and seven members had been validly nominated or elected. In view of the provision of Section 18(2) it's proceeding could not be deemed to be invalid by reason of existence of vacancy in the Board. The question however is whether the meeting held on 14-5 1988 had the necessary quorum.
28. It will appear from the notification dated 29th January, 1986 issued under Section 6 of the Act published in the Gazette on the 5th of March, 1986 that it nominated one President and four members. Apart from them those members whose election had earlier been notified on 17-8-84 and 14-12 85 were also continued as members for the remainder of the term of three years. I have already held that the elected members whose election was notified by notification dated 17-8-84 ceased to be members of the Board with effect from 17-8-1987. According to me, therefore, there were only seven validly nominated/elected members of the Board after 17-8-87 with included the President and four members nominated by the Government, and two members elected by the members of the Legislative Assembly. It is the admitted position that the two members required to be elected under Section 3(1)(f) representing the Homeopathy Association or Associations had not been elected.
29. In paragraph 3 of the supplementary affidavit filed on behalf of petitioner on 5-7-88 it has been stated that three members who had been elected and whose term had come to an end on 16-8-87 were allowed to participate. Out of the four nominated members only three had attended, apart from the President. Out of the two members representing the Legislative Assembly, none had attended. It follows that seven members attended the meeting, namely, the President, three members nominated by the Government under Section 3(1)(b) of the Act and three of the members who had been elected on 17-8-84 and whose term bad come to an end on 16-8-87, This factual position has not been denied by the respondents even though respondents 3 and 4 in their counter affidavit have replied to this averments in the supplementary affidavit. This is also clear from Annexure-15 in C.W.J.C. 7424/88 which is the proceeding of the Board dated 14-5-88. The factual position, therefore, is that out of seven members who attended the meeting of the Board held on 14-5-88, three were such whose term on the Board had already expired. There were, therefore, only four validly nominated/elected members of the Board who attended that meeting. The quorum being six, it must be held that there was no proper quorum for the meeting, held on 14-5-88 wherein the impugned decision was taken to abolish the posts Moreover, a Board is required to function collectively and, therefore, it is bound to happen that the members influence the thinking of each other by discussion. Therefore, by permitting three members who had ceased to be members of the Board to take part in the proceeding, the proceeding to my mind was vitiated by reason of the presence of those three persons. In any event, as I have already held, there was no quorum for the meeting on 14-5-88 as required by law.
30. I have, therefore, come to the conclusion that though the action of the Board in abolishing the posts was bona fide and, justified, and through on 14-5-88 the Board could have transacted business if the proper quorum was there, since on that date there were at least seven members validly nominated/ elected to the Boards by reason of the absence of three members validly nominated/elected, only four validly nominated/elected members attended the meeting, apart from three other members whose term had already expired. The decision of the Board therefore was taken at a meet leg when there was no quorum as required by law. That decision is, therefore, invalid and non est.
31. The question regarding the validity of the decision taken by the Managing Comminute at its meeting held on 14-5-88 being common to all the three writ applications, all the writ applications must be allowed and it must be held that the decision taken by the Board to abolish the posts at its meeting held on 14-5-88 was illegal and invalid. Consequently, the impugned orders Anriexure-8 dated 4-6-88 in C.W.J.C. 4O39/88, Aanexure-11 dated 4-5-88 in C.W.J.C. 4402/88 and Annexure-15 the proceeding of the Board dated 14-5-88 and Annexure-15/1 the order dated 3-6-88 passed pursuant thereto in C.W.J.C. 7424/88 are quashed. This will, however, not preclude the Board from holding a proper meeting in accordance with law and taking any appropriate decision, agar and to these petitioners.
These writ application are allowed to the extend indicated above. There will be no order as to costs.