JUDGMENT
Arun Mishra, J.
1. This writ petition has been preferred assailing the nominations made by the Central Govt. in exercise of power under Section 3 of the Homoeopathy Central Council Act No. 59 of 1973 (hereinafter referred to as ‘the Act’).
2. Petitioner’s counsel has assailed the nominations of the members under the provisions of aforesaid Act on following 2 grounds;
(a) No election has taken place so far until unless election is held and members are elected Under Sections 3(1)(a) and 3(1)(b) of the said Act; it was not permissible to invoke the power to nominate the members Under Section 3(1)(c) of the aforesaid Act.
(b) He has further submitted that as the period for which respondents No. 5 and 6 were elected, is already over, they could not have been nominated as members Under Section 3(1)(c) of the Act to serve as nominated members. His precise submission is that as respondents No. 5 and 6 were earlier elected as members, they could not have been nominated to serve in the capacity of nominated members as per provision contained in Section 5(2) of the Act.
3. After hearing the learned Counsel for petitioner at length and going through the provisions of Section 3 and 5 of the Act, I find that none of the aforesaid submissions can be accepted for the reasons to follow.
4. Section 3(1)(a) of the Act provides for the election of the members not exceeding five as may be determined by the Central Govt. in accordance with the provisions of the First Schedule from each State in which a State Register of Homoeopathy is maintained to be elected from amongst themselves by persons enrolled on that register as practitioners of Homoeopathy of that University. Under Section 3(1)(c) of the Act such number of members, not exceeding forty percent of the total number of members elected under Clause (a) and (b)(sic) as may be nominated by the Central Government, from amongst persons having special knowledge or practical experience in respect of Homoeopathy or other related disciplines. However, the proviso to Section 3(1)(c) makes it clear that until members are elected under Clause (a) or Clause (b) in accordance with the provisions of this Act and the rules made thereunder, the Central Government shall nominate such number of members, being persons qualified to be chosen as such under the said Clause (a) or Clause (b), as the case may be, as that Government thinks fit.
5. It is not in dispute that election has not taken place Under Sections 3(1)(a) and 3(1)(b) of the Act, as such the power has been exercised under the proviso. Section 3(1) of the Act is quoted below:
3. (1) The Central Government shall, by notification in the Official Gazette, constitute for the purposes of this Act a Central Council consisting” of the following members, namely :
(a) such number of members not exceeding five as may be determined by the Central Govt. in accordance with the provisions, of the First Schedule from each State in which a State Register of Homoeopathy is maintained to be elected from amongst themselves by persons enrolled on that register as practitioners of Homoeopathy;
(b) one member from each University to be elected from amongst themselves by the members of the Faculty or Department (by whatever name called) of Homoeopathy of that University;
Provided that until any such Faculty or Department of Homoeopathy is started in at least seven Universities, the Central Government may nominate such number of members not exceeding seven as may be determined by the Central Government from amongst the teaching staff of medical institutions within India, so however, that the total number of members so nominated and elected under this Clause shall in No. Case exceed seven;
(c) such number of members, not exceeding forty percent of the total number of members elected under Clause (a) and (b), as may be nominated by the Central Government, from amongst persons having special knowledge or practical experience in respect of Homoeopathy or other related disciplines;
Provided that until members are elected under Clause (a) or Clause (b) in accordance with the provisions of this Act and the rules made thereunder, the Central Government shall nominate such number of members, being persons qualified to be chosen as such under the said Clause (a) or Clause (b), as the case may be, as that Government thinks (sic); and references to elected members in this Act shall be construed as including references to members so nominated.
6. It is apparent from the bare reading of the proviso to Section 3(1)(c) of the Act that until members are elected under Clause (a) or Clause (b) for interregnum period with the Central Govt. has to make the nominations of the persons qualified to be chosen, as such under Clause (a) and (b) of Sub section (1) of Section 3 of the Act, it is not in dispute that members nominated are qualified to be chosen, in my considered opinion, it is open to form such a committee of the nominated members till election, is held to take care of the interregnum period, thus, there is No. illegality in the action; action cannot be said to be without jurisdiction or illegal in any manner.
7. Coming to the other submission raised by learned Counsel appearing for petitioner based on section 5(2) of the Act, it is clear that respondents No. 5 and 6 were earlier elected as members, the period for which they were elected its over, has not been disputed on facts, thus, it cannot be said that as they have been nominated they are serving at the same time in the capacity of elected members, they are no more serving as elected member as period of election is over, thus, the bar created by Section 5(2) of the Act that no person may at the same time serve as a member in more than one capacity is not attracted; respondents No. 5 and 6 cannot be said to be acting in more than one capacity by virtue of their nominations. Section 5(2) of the Act is quoted below :
5(2) No. person may at the same, time serve as a member in more than one capacity.
Bare reading of the aforesaid provision makes it clear that there is bar on a person to serve as a member in more than one capacity; respondents No. 5 and 6 are serving as nominated members by virtue, of proviso to Section 3(1)(c) of the Act, hence, it cannot be said that they could not have been Nominated in view of Section 5(2) of the Act.
9. No. other submission was raised.
10. Resultantly writ petition fails and is hereby dismissed.