JUDGMENT
N.K. Sodhi, C.J.
1. Whether the State Government had the power to nominate the 11 members of the Council of Indigenous Medicine (for short ‘the Council’) is the short question which arises for consideration in this public interest litigation filed by the Ayurveda Medical Association of India, a registered body under the Societies Registration Act.
2. The State Government, by notification dated February 3, 2003 in exercise of its powers under Section 4 of the Travancore Cochin Medical Practitioners Act, 1953 (hereinafter referred to as ‘the Act’) and in supersession of the earlier notifications, nominated 11 members of the Council of Indigenous Medicine. This notification is sought to be challenged by the petitioner-Association on the plea that the State Government could not nominate the 11 members and that such members had a right to be elected in terms of Sub-section (4) of Section 3 of the Act read with Sections 6 and 8 thereof. Since the question raised in the petition has to be answered in the light of the provisions contained in Sections 3, 4, 5, 6 and 8, it will be useful to reproduce the relevant provisions for facility of reference. Section 3(l) in so far as it is relevant for our purpose and other provisions read as under:
“Establishment, incorporation and constitution of Councils:–
(1) The Government shall, by notification in the Gazette, establish the following three Councils:-
(a) the Council of Modern Medicine;
(b) the Council of Homeopathic Medicine; and
(c) the Council of Indigenous Medicine.
Each such Council shall be a body corporate, and have perpetual succession and a common seal and shall by the said name sue and be sued.
xxx xxx xxx (4) The Council of Indigenous Medicine shall consist of the following eleven members:-- (a) one member elected by the Faculty of Ayurveda, University of Travancore, from among themselves; (b) one member elected from among themselves by the teachers of--(i) the Ayurveda College, Trivandrurn; (ii) The Ayurveda Bhooshana Section of the Sanskrit College, Tripunithura; and (iii) the Madhava Ayurveda College, Ernakulam. (c) four members, one from each Revenue district elected by the registered practitioners of Ayurvedic medicine of that district from among themselves; (d) one member elected by the registered practitioners of the Ayurvedic grant-in-aid Vaidyans from among themselves; (e) two members elected by the registered practitioners of Sidha medicine from among themselves; (f) one member elected by the registered practitioners of Unani Tibbi medicine from among themselves; (g) one member nominated by the Government from among the registered practitioners of Indigenous Medicine:
Provided that, if there are not at least twenty-five registered practitioners in the Ayurvedic medicine or the Sidha medicine or the Unani Tibbi medicine, the Government shall nominate a member in respect of that medicine from among the registered practitioners of that Medicine and the member so nominated shall, for the purposes of this sub-section, be deemed to have been duly elected.
(5) Notwithstanding anything contained in Sub-section (4), the Government may, by notification in the Gazette, direct that the Council of Indigenous Medicine shall consist of less than eleven members if there are no qualified registered practitioners in the Ayurvedic Medicine or the Sidha Medicine or the Unani Tibbi medicine to be elected from among them.
4. Nomination of members in default of election:-
If any of the members mentioned in clause (i)(b), (i)(c) or (i)(d) of Sub-section (2) or in clause (a) of Sub-section (3) or in clause (a), (b), (c), (d), (e) or (0 of Sub-section (4) of Section 3 is not elected, the Government may nominate such qualified registered practitioner as they may deem fit; and the practitioners so nominated shall, for the purposes of this Act, be deemed to have been duly elected under clause (i)(b), (i)(c) or (i)(d) of Sub-section (2) or clause (a) of Sub-section (3) or clause (a), (b), (c), (d), (e) or (f) of Sub-section (4) of Section 3 as the case may be.
5. Qualification of members:–Every member of a council shall be a registered practitioner and the holder of a recognized qualification.
6. Nomination of members of first Councils: Notwithstanding anything contained in Sections 3,4 and 5, in the case of the first Councils, all the members other than the ex-officio member shall be nominated by the Government:
Provided that the members so nominated shall be holders of recognised qualifications.
xxx xxx xxx
7. Term of office of members:–
(1) Save as otherwise provided in this Act, the term of office of the members other than the ex-officio member shall-
(a) in the case of the first Councils, be for a period of two years commencing from the date on which the first meeting of such Councils is held; and
(b) in the case of any Council other than the first Council, be for a period of five years from the date on which the first meeting of such Council is held.
(2) An outgoing member shall continue in office until the election or nomination, as the case may be, of his successor.
(3) An outgoing member shall be eligible for re-election or renomination, if otherwise qualified”.
The Act was enacted with a view to regulate the qualifications and provide for the registration of practitioners of modern medicine, homeopathic medicine and indigenous medicine with a view to encourage the study and spread of such medicines and to enact a law relating to medical practitioners generally in the State of Travancore-Cochin. Section 3 of the Act requires that a Government shall, by notification, establish amongst others, a Council of Indigenous Medicine and Sub-section (4) thereof provides for its constitution. It is true that the members referred to in sub-clauses (a) to (f) of Sub-section (4) of Section 3 are required to be elected after the first Council is nominated by the Government by Section 4 of the Act provides that if there are no elected members, then the Government has the power to nominate such qualified registered practitioners as it may deem fit and the practitioners so nominated shall, for the purposes of the Act, be deemed to have been duly elected under the respective clauses of Sub-section (4) of Section 3. It is common case of the parties that no election was held and no member was elected. We are informed by the learned counsel for the parties that the State Government has not framed any rules under the Act providing for the election of members nor does the Act contain any provision for their election. The State Government found that the electoral college as referred to in some of the clauses of Sub-section (4) of Section 3 does not exist and, therefore, it is not possible to hold the elections. For instance, it is pointed out that the Ayurveda Bhooshana Section of the Sanskrit College Tripunithura and Madhava Ayurveda College, Ernakulam do not exist. Similarly, clause (c) of Sub-section (4) of S .3 provides for four members, one from each revenue district to be elected by the registered practitioners of Ayurvedic Medicine of that District from amongst themselves. It is pointed out that at the time when the Act was enacted, it was applicable to the erstwhile State of Travancore and Cochin which had only four revenue districts but after formation of the State of Kerala under the States Re-organisation Act of 1956, the State has 14 Revenue Districts and, therefore, the clause is not capable of being implemented. Be that as it may, the fact that remains that no election is held for any of the members referred to in clauses (a) to (f) of Sub-section (4) of Section 3 of the Act. In this view of the matter, the question that arises is – could the State Government exercise its power to nominate the Council? The answer to this question is contained in Section 4 of the Act. It clearly provides that if no election is held in regard to any of the members referred to in clauses (a) to (f) of Sub-section 4 of Section 3, then the Government could nominate such qualified registered practitioners as it may deem fit. This Section further provides that the practitioners so nominated shall, for the purposes of this Act, be deemed to have been duly elected under the respective clauses. It is, thus, clear that the nominated members will be deemed to be elected members of the Council and the Government has the power where such members are not elected in terms of Sub-section (4) of Section 3 of the Act. We are, therefore, of the view that the State Government had the power to nominate the members of the Council.
8. Learned counsel for the petitioner strenuously urged that the State Government had only the power to nominate the first Council in terms of Section 6 and all subsequent Councils had to be elected in terms of Sub-section (4) of Section 3. He referred to the provisions of Section 8 to contend that the Act does not give power to the State Government to nominate any subsequent Council. We have perused the provisions of Sections 3,4, 6 and 8 of the
Act and do not agree with the contention of the learned counsel. Section 6 provides that notwithstanding anything contained in Sections 3,4 and 5 in the case of first Council, all the members other than the ex-officio members shall be nominated by the Government. What this Section mandates is that the first Council shall be nominated. It does not debar the subsequent Councils from being nominated if the elections are not held. As already observed, in such an eventuality, the provision of Section 4 will come into play and the Government will have the power to nominate the members who will be deemed to have been elected for the purposes of the Act. Sub-ss. (2) and (3) of Section 8 would also go to indicate that the State Government has the power to nominate the members of the subsequent Councils and not only the first Council. According to Section 8(2), an outgoing member shall continue in office until the election or nomination, as the case may be, of his successor. Similarly, an outgoing member is eligible for re-election or re-nomination if otherwise qualified. This clearly indicate the power of the State Government to re-nominate members of the subsequent Councils. We cannot, therefore, subscribe to the view that the State Government had the power to nominate only the first Council and not members of the subsequent Councils.
9. No other point was raised.
In the result, we hold that the State Government had the power to nominate the Council. The answer to the question posed in the earlier part of the order has to be in the affirmative. There is, thus, no merits in the Writ Petition and the same is dismissed leaving the parties to bear their own costs.