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PETITIONER: THE BIHAR STATE BOARD OFHOMEOPATHIC MEDICINE, PATNA

       Vs.

RESPONDENT: THE STATE OF BIHAR & ORS.

DATE OF JUDGMENT10/10/1995

BENCH: PUNCHHI, M.M. BENCH: PUNCHHI, M.M. MANOHAR SUJATA V. (J)

CITATION:  1996 AIR  341            1995 SCC  (6) 503  JT 1995 (7)   657        1995 SCALE  (5)712

ACT:

HEADNOTE:

JUDGMENT:                        J U D G M E N T Mrs. Sujata V. Manohar,J.      Leave granted.      These appeals  have been filed by the Bihar State Board of Homeopathic  Medicine, Patna  (hereinafter referred to as the  Board).  The  Board  is  constituted  under  the  Bihar Development of Homeopathic System of Medicine Act, 1953. The dispute relates  to the  abolition of 8 posts of Homeopathic Chikitshak out  of which  6 posts  were occupied  by the six petitioners in  the three  writ petitions bearing nos. 4462, 4039 and  7424 of  1988 filed  in the High Court of Patna. A learned Single  Judge of the High Court who heard these writ petitions  held   that  the  posts  were  not  abolished  in accordance with  law because  the respondent  i.e. the Board which passed  the Resolution  abolishing these posts was not duly constituted. This decision has been upheld in appeal by the Division  Bench of  the  Patna  High  Court.  From  this decision, the present appeals have been filed before us.      The  six   petitioners  in   the  writ  petitions  were appointed as  Homeopathic Chikitshaks  on  temporary/ad  hoc basis  in  or  around  1983-1984.  Their  appointments  were regularised in  1985 pursuant  to a  decision taken  by  the President of  the Board.  During this  period the  Board was under severe financial constraints. It is pointed out in the counter  affidavit   that   pursuant   to   the   Government Notification  dated   22.11.1975,  the  appellant-Board  was divested of  its powers  to  hold  examinations  and  confer degrees and diplomas. Consequently, a major part of the work of  the  Board  relating  to  holding  of  examinations  was transferred to  the Bihar  University.  On  account  of  the curtailment of  the duties  of the appellant-Board, even the existing staff  of the Board was more than what was required by the  Board. Despite having such excess staff, six further appointments  were  made  as  a  result  of  which  the  six petitioners  in   the  writ   petitions  were  appointed  as

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Homeopathic Chikitshaks.  According to  the appellant-Board, this imposed  an unnecessary  financial liability  upon  the Board which  was already under financial strain. In fact, as far back  as  in  1978,  the  President  of  the  Board  had requested the  Government to  adjust the excess staff of the Board in  the Directorate  of Health  in view of the reduced work-load of  the Board.  This request was repeated in 1983. The audit report raised certain objections to the additional staff being engaged and salary being paid to such additional staff.  Ultimately,   the  Additional   Secretary   in   the Department of  Health, Government  of Bihar  directed, inter alia, that  in order to have a check on the financial burden of the appellant-Board, no new post should be created and no new expenditure  should be incurred. A further direction was given  that   unnecessary  posts  should  be  abolished  and irregular appointments should be cancelled.      The appellant-Board,  therefore, convened  a meeting on 14th of May, 1988 at which it passed a Resolution abolishing 8 posts  of Homeopathic  Chikitishaks which included the six posts held  by the  petitioners in these writ petitions. The Resolution of  the appellant-Board  dated 14th  of May, 1988 was  challenged  in  these  writ  petitions  by  way  of  an amendment since  the Resolution  was passed  after the  writ petitions were filed. The writ petitions were originally for payment of salary and for other reliefs.      The learned  Single Judge has held that the decision to abolish these  posts was  taken bona fide. He has also found that the  appointments of the six petitioners were irregular and should  have been  cancelled. However,  he has held that the Board  which passed  the Resolution  in question was not duly  constituted   in  accordance   with  law.   Hence  the Resolution has  no legal  effect. Accordingly,  he  has  set aside the Resolution abolishing the posts of the petitioners in the  writ petitions.  He has also observed that this will not preclude  the Board  from holding  a proper  meeting  in accordance with  law and  taking any appropriate decision in regard to  the petitioners in the writ petitions. A Division Bench of  the High  Court has  dismissed the appeals without any speaking order.      The only  question that  we have to consider is whether the Board  which took  the decision on 14th of May, 1988 was validly constituted.  For that  purpose, it  is necessary to turn to the provisions of Section 3 of the Bihar Development of Homeopathic  System of  Medicine  Act,  1953.  Section  3 provides as follows :      "3.  Establishment and  constitution  of      Board.      1.   The  State   Government   may,   by      notification establish  a  Board  to  be      called  the   Bihar   State   Board   of      Homeopathic Medicine consisting of :      a.   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 practitioners  from  amongst      themselves;      d.   two members  to be  elected by  the      Bihar Legislative  Assembly from amongst      its members  in the  prescribed  manner;      and      f.   two members  to be  elected in  the      prescribed manner  by the members of the

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    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  Govt.  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      immovable  and   to  transfer  any  such      property  subject   to  the   prescribed      conditions and  shall by  the said  name      sue be sued."      The term  of office  of the  members of  the  Board  is prescribed by Section 5 which is as follows:      "Section 5:  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      date 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 succeeding      Board at which the quorum is present."      Sections 6  and 13  are also  relevant.  These  are  as follows:      "Section 6:  The names  of the President      and of  any members nominated or elected      under section  4 shall  be published  by      the State  Government  in  the  Official      Gazette.      Section 13:      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

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    of quorum at the original meeting may be      transacted  if   not  less   than  three      members attend such meeting."      The Board, therefore, is a mixed body which is composed of various  sets of  members. The President and four members of the  Board are  to be  nominated by the State Government. Seven members  have to  be elected by registered homeopathic practitioners. Two members have to be elected from the Bihar Legislative  Assembly  from  amongst  its  members  and  two members have  to be  elected by  the members  of the various Homeopathic Associations  recognised in  the State of Bihar. The names  of members  as and when nominated or elected have to be notified.      By a  Notification dated  31st of  December,  1982,  it seems that  a Board  was notified  by the  State  Government consisting of  a President, four nominated members and other elected members. The Notification is not produced before us. From the  recitals in  the judgment  of the  learned  Single Judge of  the High  Court, it  seems that  the term  of  the President and  four nominated  members was  to commence from 31st of  January, 1983  and, therefore,  would expire at the end of three years on 31st of January, 1986.      The names  of the  seven elected  members were notified only on  17th of August, 1984 after the elections were held. The names  of the  two members  of the  Legislative Assembly were notified on 14th of December, 1985.      It is an accepted position that since the seven elected members’ names  were notified on 17th of August, 1984, their term would  expire only  on 17th  of August, 1987. While the term of  the  two  Legislative  Assembly  members  who  were notified on  14th of December, 1985, would expire on 14th of December, 1988.      Clearly, therefore,  the Board  is a composite body and the terms  of its various members expire at different times. The composition of the Board, therefore, keeps on changing.      Since the  term of  the President  and  four  nominated members  was   expiring  on   31st  of   January,  1986,   a Notification was  issued on 29th of January, 1986 nominating a  new   President  and  four  new  nominated  members.  The Notification also  set out that those members of the earlier Board   whose   appointments   had   been   notified   under Notifications dated  17.8.1984  and  14.12.1985  (the  seven elected members  and the  two  members  of  the  Legislative Assembly) shall  continue as  members of  the new Board till they complete  the term of three years. After February 1986, therefore, the  Board consisted of a new President, four new nominated members and the existing seven elected members and the existing two members of the Legislative Assembly.      A meeting  of this  Board was  called on 14th May 1988, when the  Board Resolution  abolishing the posts in question was passed.  As on  14th May  1988, the  term of  the  seven elected members  had come  to an end. However, they were not replaced by  seven new elected members. At the Board meeting of 14th  of  May  1988,  apart  from  the  President,  three nominated members  and three  elected members  were present. According to  the appellants, since the quorum for any Board meeting is six and there were six persons present apart from the President,  the Board  had a  quorum and was entitled to conduct business.      The question  is whether  under Section  5,  the  seven elected members  continued to  hold their  posts until seven new members  were elected  and  a  Board  meeting  was  held thereafter at  which there  was a quorum. Section 5 provides that the  term of  office of  elected members shall be for a period of  three years  and any  further period beyond three

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years till  the date  of the first meeting of the succeeding Board at  which the  quorum is present. What is meant by the "Succeeding Board"? Does it mean the Board minus the members whose term  has expired?  Or does it mean a Board with newly elected/appointed members in replacement of the outgoing? It is the  latter which  can be  considered  as  a  "Succeeding Board". The  Board is  a composite  body. It  is composed of different sets  of members  who are  appointed or elected by different bodies  in different  ways. It  cannot be expected that all  sets of  members  would  be  always  nominated  or elected  at   the  same  time.  In  fact,  this  is  clearly recognised in  the Notification  of 29th  of  January,  1986 which has freshly nominated the President and four nominated members. It  has  also  provided  that  two  other  sets  of members, namely,  the elected  members and  the  Legislative Assembly members  whose terms  have not  expired would  also continue to  be the  members of  the Board.  The same would, therefore, be true of all categories of members. If the term of a  substantial number of members comes to an end, can the remaining few  function as the Board simply because they are six or  more (the quorum figure)? To avoid such a situation, Section 5  provides for  continuation of  members in  office until the  succeeding Board is formed & holds a meeting with a quorum.      The first  part of  Section 5  clearly deals  with  the duration of  the term  of members  of the Board and not with the duration  of the  term  of  members  of  the  Board.  It provides that  the term  of office of members would continue till the  first meeting  (with  quorum)  of  the  succeeding Board. The  succeeding Board, therefore, does not refer to a depleted Board  without members  whose term  has expired. If this  were  the  intention,  there  would  be  no  point  in continuing the  membership  of  old  member  till  the  next meeting of  the Board.  In the  interregnum between  the two meetings, since  the Board  does not  transact any business, there is no purpose in continuing old members. They might as well cease  to hold office on the expiry of three years. The whole purpose  of continuing  them till they are replaced is to ensure  that  the  Board  remains  properly  constituted. Therefore, the  succeeding Board in the context of Section 5 can only  mean a  succeeding Board at which the old outgoing members are succeeded by a new set of members. Once they are appointed or  elected as  the case  may be, and a meeting of the new  Board with  quorum takes place, the previous set of members ceases to be a part of the Board.      In the  present case, therefore, although the President and four  nominated members  had changed from January, 1986, the other  existing members of the Board continued and would continue even after the expiry of their term until they were replaced by  another set  of members  belonging to  the same category and  a meeting  of the  Board with  quorum could be held. Therefore,  the seven  elected members whose names had been notified under the Notification of 17th of August, 1984 continued to  be the  members of  the Board  even after  the expiry of  their term  since they  had not  been replaced by newly elected  members and there was no successor Board. The same Board  continued. The seven elected members, therefore, continued to  be the  members of the Board and were entitled to attend  the meeting  of the  Board held  on 14th  of May, 1988. Since  six members  constitute  a  quorum,  the  Board meeting had  the requisite  quorum and,  therefore,  it  had validly passed  a Resolution  abolishing the  eight posts in question. The High Court, therefore, was not right in coming to a  conclusion that  the Board  Resolution of 14th of May, 1988 was  not  passed  by  a  duly  constituted  Board  and,

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therefore, should not be given effect to.      In the  premises,  the  appeals  are  allowed  and  the judgment and  order of  the High  Court is  set  aside.  The original   writ   petitions   are   accordingly   dismissed. Nevertheless, in  the event  of the said posts being revived or similar  posts being  created in  future  the  Board  may consider appointing  the six original petitioners or any one or more  of them to such posts in view of their past service by giving  a suitable waiver of age bar, if required. In the circumstances there will be no order as to costs.