DR RAGHUNANDAN SHARMA v. UNION OF INDIA & ORS.

1. This petition instituted under Article 226 of the Constitution of India as a PIL challenges the appointment of respondent no.3 to the post of President of Board of Ayurveda (hereinafter referred to as “Board”) which is an Digiltally autonomous Board having been constituted under Section 18 of The National Commission for Indian System of Medicine Act, 2020 (hereinafter referred to as “NCISM Act, 2020”). Accordingly, a writ of Quo Warranto has been prayed for calling upon respondent no.3 to show as to how is reoccupying the office in question and further to quash his appointment.

2. It has been argued by learned counsel for the petitioner that Section 19(2) of the NCISM Act, 2020 provides that the President and Members of the Board to be chosen, shall be persons of outstanding ability, proven administrative capacity, and integrity, possessing postgraduate degree in respective disciplines and having experience of not less than fifteen years in respective fields, out of which at least seven years shall be as a „leader‟. Further submission is that proviso appended to Section 19(2) of the NCISM Act, 2020 prescribes the person to be chosen as President and Members of the Board shall have seven years‟ experience as „leader‟ in the area of health, growth and development of education in Indian System of Medicine. According to the petitioner, respondent no.3 does not fulfill the experience of seven years as „leader‟ as per the prescription available in the proviso appended to Section 19(2) of the NCISM Act, 2020 and hence, he lacks the statutorily prescribed qualification for the post in question and accordingly is an usurper of the office and therefore, his appointment is liable to be quashed and set aside.

3. Learned counsel representing respondent nos.1, 2 and 3 in unison have opposed the prayer made in the writ petition on several grounds, including the ground that the petition is not maintainable, having been filed not for bona fide reasons and further that in service matters, as laid down by the Hon‟ble Supreme Court, in its various pronouncements, public interest litigation is not maintainable.

4. Respondents in their counter affidavits have also stated that respondent no.3 has the requisite experience of fifteen years in the relevant discipline, and he also is possessed of seven years of experience as „leader‟ and therefore, even on merits, the petitioner does not have any case. The prayer, thus, is that the writ petition deserves to be dismissed at its threshold.

5. We have considered and given our anxious consideration to the respective submissions made by learned counsel for the parties and have also perused the records available before us on this writ petition.

6. Since a writ of Quo Warranto has been sought in these proceedings, the issue of locus of the petitioner losses its relevance in view of the law laid down by the Hon‟ble Supreme Court in Rajesh Awasthi v. Nand Lal Jaiswal, (2013) 1 SCC 501and Gambhirdan K. Gadhvi v. State of Gujarat, (2022) 5 SCC 179, wherein, it has been held that Quo Warranto proceedings afford a judicial remedy by which any person who holds and independent substantive public office or franchise or liberty is called upon to show by what right he holds the said office, franchise or liberty so that his title to it may be determined, and in case it is found that holder of office has no title, he would be ousted from that office by a judicial order. In Gambhirdan K. Gadhvi (supra) it has also been held, referring to Retd. Armed Forces Medical Assn. v. Union of India, (2006) 11 SCC 731 (1) that strict rules of locus standi are relaxed to some extent in a Quo Warranto proceedings. Paragraph no.17 of the judgment in Gambhirdan K. Gadhvi (supra) is extracted herein below: -

strict rules of locus standi are relaxed to some extent in a quo warranto proceedings. It is further observed in the said decision that broadly stated, the quo warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by a judicial order. It is further observed that in other words, the procedure of quo warranto gives the judiciary a weapon to control the executive from making appointments to public office against law and to protect citizens from being deprived of public office to which they have a right. These proceedings also tend to protect the public from usurpers of public office. It is further observed that it will, thus, be seen that before a person can effectively claim a writ of quo warranto, he has to satisfy the Court that the office in question is a public office and is held by a usurper without legal authority, and that inevitably would lead to an enquiry, as to, whether, the appointment of the alleged usurper has been made in accordance with law or not.”

7. Accordingly, since in the present proceedings a writ of Quo Warranto has been sought, the objection about maintainability of the instant Public Interest Litigation Petition at the instance of the petitioner is therefore, overruled.

8. Having observed as above, we now, proceed to determine as to whether, respondent no.3 fulfils the requisite qualifications as per the statutory prescription available in Section 19(2) of the NCISM Act, 2020.

9. Section 18 of the NCISM Act, 2020 provides that certain Autonomous Boards including the Board of Ayurveda shall be constituted by the Central Government by way of a notification to perform functions which may be assigned to such Boards. Section 18(2) of the NCISM Act, 2020 provides that each Board referred to in Section 18(1) shall be an Autonomous Board which shall carry out its functions under the Act in accordance with the regulations to be made by the National Commission for Indian System of Medicine which is constituted under Section 3 of the said Act.

10. Section 19 of the NCISM Act, 2020 provides for composition of the Board which consists of a President and four Members from Ayurveda Discipline of Indian System of Medicine.

11. Section 19(2) of the NCISM Act, 2020 provides the President and Members of the Board shall be the persons of outstanding ability, proven administrative capacity and integrity, possessing postgraduate degree in the field concerned from a recognized university and are also having experience of not less than fifteen years, out of which at least seven years shall be as a leader.

12. The proviso appended to Section 19(2) of the NCISM Act, 2020 provides that in case of President seven years of experience shall be in the area of health, growth, and development of education in Indian System of Medicine as leader. Section 19 of the said at reads as under: - „19. (1)The composition of the Autonomous Boards shall be as under, namely:- (a) the Board of Ayurveda shall consist of a President and from Members from the Ayurveda discipline of Indian System of Medicine; (b) the Board of Unani, Siddha and Sowa-Rigpa shall consist of a President and two Members from each of the Unani, Siddha and Sowa-Rigpa disciplines of Indian System of Medicine;

(c) the Medical Assessment and Rating Board for Indian System of Medicine shall consist of a President and eight Members: Provided that the President and six out of eight Members shall be chosen from the Ayurveda, Siddha. Sowa-Rigpa and Unani disciplines of Indian System of Medicine in such manner that at least one Member represents each stich discipline separately, and the remaining two Members shall be accreditation experts;