Patna High Court
Dr. Mirdul Kumar Sahani vs The Union Of India & Ors on 12 April, 2017
Equivalent citations: AIR 2017 PATNA 180, (2017) 3 PAT LJR 846 (2017) 175 ALLINDCAS 343 (PAT), (2017) 175 ALLINDCAS 343 (PAT), (2017) 175 ALLINDCAS 343 (PAT) (2017) 3 PAT LJR 846, (2017) 3 PAT LJR 846
Author: Ahsanuddin Amanullah
Bench: Ahsanuddin Amanullah
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.1238 of 2017
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Dr. Mirdul Kumar Sahani Son of Late B. Sahani Resident of Shivpuri, Behind A.N.
College P.S.- S.K. Puri Town & District- Patna (Bihar).
.... .... Petitioner/s
Versus
1. The Union of India through its Secretary Ministry Of Ayush, Ayush Bhawan, B
Block, G.P.O. Complex, INA New Delhi- 110023
2. The Director & Returning Officer Election of President of the Central Council
of Homeopathy, Ministry Of Ayush, Ayush Bhawan, B Block, G.P.O.
Complex, INA New Delhi- 110023
3. The State of Bihar through its Principal Secretary Department of Health &
Family Welfare Government Of Bihar, Patna
4. Central Council of Homoeopathy through its Registrar-cum- Secretary 61-65,
Institutional Area, Opp. D Block, Janak puri, New Delhi- 110058.
5. The Director, Deshi Chikitsa, Department of Health & Family Welfare
Government of Bihar, Patna.
.... .... Respondent/s
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Appearance :
For the Petitioner : Mr. Shashi Nath Jha, Advocate
For the State : Mr. Pankaj Kumar, SC 12 with
Mr. Santosh Kumar Singh, AC to SC 12
For the UOI : Mr. S. D. Sanjay, Addl. S.G. with
Mr. Ravinder Kumar Sharma, CGC
For the CCH : Mr. Amrendra Kumar Sinha, Advocate
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CORAM: HONOURABLE MR. JUSTICE AHSANUDDIN AMANULLAH
ORAL JUDGMENT
Date: 12-04-2017
Heard learned counsel for the petitioner, Mr. S. D. Sanjay,
learned Additional Solicitor General, assisted by Mr. Ravinder Kumar
Patna High Court CWJC No.1238 of 2017 dt.12-04-2017
2/6
Sharma, learned counsel for the Union of India, learned counsel for
the State and learned counsel for the respondent no. 4.
2. The petitioner has moved the Court for the following
reliefs:
" (i) Directing the Respondents-authorities
to allow the petitioner to continue as Member of the
Homoeopathy Centrala Council in terms of Section 7
(1) of the Homoeopathy Central Council Act, 1973
(hereinafter referred to as the Act) until the Central
Council is constituted in accordance with Section 3 of
the said Act, and/or the successor of the petitioner is
duly elected.
(ii) Directing the Respondents-authorities
to permit the petitioner to discharge his all duties as
Member of the Council till his successor is
elected/nominated to his post.
(iii) Directing the Respondents-authorities
to permit the petitioner to cast his vote and to perform
all functions associated with the post, as he is still the
eligible member to participate in all the meetings of
the Central Council.
(iv) Holding and declaring that the
petitioner would continue to be the Member of the
Central Council till his successor is not
appointed/elected on his post.
(v) Restraining the respondents-authorities
from representing the petitioner from the State of
Bihar in the central council of Homoeopathy.
Patna High Court CWJC No.1238 of 2017 dt.12-04-2017
3/6
(vi) Granting any other relief/reliefs for
which the petitioner may be found entitled to."
3. Earlier, by order dated 06.03.2017, the Court, by way of
an interim measure, had directed that if the vacancy of the petitioner
has not been filled up in accordance with the statutory provisions, he
shall continue to be a Member of the Central Council of
Homoeopathy and shall be entitled to perform all functions
associated with the said post, till his successor takes charge of the
office. It is not in dispute that the term of the petitioner as a Member
of Central Council of Homoeopathy came to an end on 01.08.2016,
i.e., after completion of five years from the gazette notification dated
02.08.2011in terms of Section 7 (1) of the Homoeopathy Central Council Act, 1973 (hereinafter referred to as the „Act‟).
4. Mr. S. D. Sanjay, learned Additional Solicitor General pointed out that the Court could not be assisted with regard to the fact that the Hon‟ble Supreme Court in the case of K. B. Nagur, M.D. (Ayu.) v. Union of India reported as AIR 2012 Supreme Court 1774 has categorically held that 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. He submitted that the judgment was with regard to Section 7 of the Indian Medicine Central Patna High Court CWJC No.1238 of 2017 dt.12-04-2017 4/6 Council Act, 1970 and the prayer was to strike down and quash the said clause of Section 7 of the Act reading as "or until his successor shall have been duly elected or nominated, whichever is longer" as contrary to the very Act, unconstitutional and undemocratic and violative of Articles 14 and 16 of the Constitution of India. Learned counsel drew the attention of the Court to Section 7 (1) of the Act which also has pari materia provisions. It was, thus, submitted that once the Hon‟ble Supreme Court has decided the issue relating to the same very provisions, though with regard to a different Central Act, which along with the present Act having been regulated by the common Ministry of AYUSH of the Central Government, the ratio of the aforesaid judgment of the Hon‟ble Supreme Court squarely applies to the present case also and thus, the petitioner cannot be allowed to continue beyond 01.11.2016.
5. Learned counsel for the petitioner submitted that in the case before the Hon‟ble Supreme Court, they were not heard and, thus, the same is not binding on the petitioner as he is governed by the Act and also for the reason that paragraph no. 25 (D) of the decision is with regard to three systems of medicine namely Ayurveda, Unani and Siddha but not with regard to Homoeopathy.
6. Such stand has also been supported and reiterated by learned counsel for the respondent no. 4.
Patna High Court CWJC No.1238 of 2017 dt.12-04-2017 5/6
7. Mr. S. D. Sanjay, learned Additional Solicitor General submitted that the respondent no. 4 cannot take such a stand as under
the Act itself it is bound by the decision of the Central Government and once the Central Government has instructed him and has taken the stand that the principle of K. B. Nagur, M.D. (Ayu.) (supra) is also applicable in the present case, the respondent no. 4 cannot take a contrary stand.
8. Be that as it may, the Court would not involve itself as to whether the stand taken by the respondent no. 4 before this Court in the present case could have been taken by it.
9. Having considered the rival contentions, the Court finds no merit in the writ petition. The Court is not required to go into the merits once the Hon‟ble Supreme Court has already considered the issue on its merits in the aforesaid case of K. B. Nagur, M.D. (Ayu.) (supra). The contention of learned counsel for the petitioner and respondent no. 4 that the said judgment does not cover the present issue because the Act was not considered in the aforesaid case, is noticed only for the sake of rejecting the same. It would be suffice to say that just because a specific Act is not the subject matter of a decision, the principle laid down in such decision shall not apply in any other case. In the present case, the fact is that the provision which was under consideration by the Hon‟ble Supreme Court in the case of Patna High Court CWJC No.1238 of 2017 dt.12-04-2017 6/6 K. B. Nagur, M.D. (Ayu.) (supra) is pari materia to the issue involved in the present case as the language of Section 7 of the Indian Medicine Central Council Act, 1970, which was being considered by the Hon‟ble Suprme Court is pari materia with Section 7 (1) of the present Act.
10. That being the position, the principle of law having been laid down that no elected member shall hold office of the President, Vice President or Member beyond a period of three months from the expiry of their term, shall govern the issue involved in the present case also.
11. For the reasons aforesaid, the petitioner cannot continue as a Member of the Central Council of Homoeopathy beyond 01.11.2016.
12. Accordingly, the writ petition stands dismissed.
13. It goes without saying that whatever cooperation or action is required for election of Members to the Central Council of Homoeopathy from the State of Bihar, by the State authorities, the same shall be complied with expeditiously.
14. The interim order dated 06.03.2017 stands vacated.
(Ahsanuddin Amanullah, J) Anjani/-
AFR/NAFR AFR U