The Bihar State Board of Homeopathic Medicine, Patna Vs. The State of Bihar & Ors  INSC 544 (10 October 1995)
M.M. Punchhi, M.M. Manohar Sujata V. (J) Mrs. Sujata V. Manohar,J.
1996 AIR 341 1995 SCC (6) 503 JT 1995 (7) 657 1995 SCALE (5)712
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.
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 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.
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.
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.
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.
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 :
Establishment and constitution of Board.
State Government may, by notification establish a Board to be called the Bihar
State Board of Homeopathic Medicine consisting of :
President to be nominated by the State Government.
members to be nominated by the State Government;
members to be elected in the prescribed manner by the registered homeopathic
practitioners from amongst themselves;
members to be elected by the Bihar Legislative Assembly from amongst its members
in the prescribed manner;
two members to be elected in the prescribed manner by the members of the
Homeopathic Association or Associations recognised by the State Government for
the State of Bihar.
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.
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:
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:
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.
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;
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.
business shall be transacted at any meeting of the Board unless six members are
that in an adjourned meeting all business postponed for want 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.
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.
names of members as and when nominated or elected have to be notified.
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.
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.
names of the seven elected members were notified only on 17th of August, 1984
after the elections were held.
names of the two members of the Legislative Assembly were notified on 14th of
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.
therefore, the Board is a composite body and the terms of its various members
expire at different times.
composition of the Board, therefore, keeps on changing.
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
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.
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.
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 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
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.
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.
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,
therefore, should not be given effect to.
premises, the appeals are allowed and the judgment and order of the High Court
is set aside. The original writ petitions are accordingly dismissed.
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.