Mr. Ashok Kumar Panigrahi, Mr Nabab Singh, Ms. Apurva Upamanyu and Mr. Suryadeep Singh v. UNION OF INDIA THROUGH SECRETARY MINISTRY OF AYUSH & ORS

Judgment

1. Since these two petitions raise common questions of law and facts, the same have been heard together and are being decided by this common judgment and order. For convenience, W.P.(C) 9382/2021 is being treated as the lead petition, and for deducing the facts necessary for appropriate Signature Not Verified Digiltally Signed By:SREERAM L Signing Date:06.06.2025 15:13:36 W.P.(C.) Nos.9382/2021& 9455/2021 adjudication of the issues involved in these petitions, W.P. (C) 9382/2021 shall be referred to. -CHALLENGE-

2. Instituting these petitions under Article 226 of the Constitution of India and impeaching the appointment of respondent no.5- Sh.Vaidya Jayant Yeshwant Deopujari to the post of Chairperson, National Commission for Indian System of Medicine (hereinafter referred to as “the Commission”) constituted under Section 3 of the National Commission for Indian System of Medicine Act 2020 (hereinafter referred to as NCISM Act, 2020), a prayer has been made for issuing a writ of Quo Warranto as well as writ of Certiorari quashing and setting aside the said appointment. -CONTENTIONS ON BEHALF OF THE PETITIONERs-

3. It has been argued by learned counsel for the petitioners that the appointment of the respondent no.5 has been made dehors the statutory provisions contained in Section 4(2) of the NCISM Act, 2020 and, therefore, such an appointment having been made in contravention of provisions of the statute, is not sustainable. It has been further argued that the respondent no.5 does not possess the statutorily provided requisite essential eligibility qualification in terms of Section 4(2) of the NCISM Act, 2020 hence, he is an usurper of the office of Chairperson of the Commission and, accordingly his appointment deserves to be quashed by issuing a writ of Quo Warranto.The submission on behalf of the petitioners further is that the respondents have utterly failed to establish that the respondent no.5 fulfils the essential eligibility qualification as prescribed under Section 4(2) of the Act NCISM Act, 2020, and hence he is not entitled to hold the said office any further. Signature Not Verified Digiltally Signed By:SREERAM L Signing Date:06.06.2025 15:13:36 W.P.(C.) Nos.9382/2021& 9455/2021

4. Referring to Section 4(2) of the NCISM Act, 2020, it has been stated that as per the statutory requirement, a person possessing a post-graduate degree in any discipline of Indian System of Medicine from a recognized University and having experience of not less than 20 years in any field of Indian System of Medicine, out of which at least 10 years shall be as a leader in the area of healthcare delivery, growth and development of Indian System Medicine or its education, shall be eligible to be appointed as Chairperson of the Commission, however the respondent no.5 neither possesses a post-graduate degree nor has 10 years experience as a leader in the area of healthcare delivery, growth and development of Indian System of Medicine or its education and, therefore, he lacks eligibility qualification and, accordingly, his appointment is liable to be set aside.

-SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.1- UNION OF INDIA- 5. Mr. Chetan Sharma, learned ASG appearing for the respondent no.1-Union of India has opposed the prayer made in these petitions and has argued that the instant petition as public interest litigation (hereinafter referred to as PIL) is not maintainable in view of the law laid down by the Hon‟ble Supreme Court in its various pronouncement including in the case of Dr. D.B. Singh v. Union of India (2004) 3 SCC 363 and Neetu v. State of Punjab (2007) 10 SCC 614. His submission is that in the said pronouncements, the Hon‟ble Supreme Court has clearly held that in service matters, PIL is not maintainable and, accordingly, this petition also is not maintainable.

6. Mr. Sharma has further argued that the petitions have not been filed with bona fide intentions for the reason that the petitioners claim themselves Signature Not Verified Digiltally Signed By:SREERAM L Signing Date:06.06.2025 15:13:36 W.P.(C.) Nos.9382/2021& 9455/2021 to be the former President of Central Council for Indian Medicine (hereinafter referred to as the CCIM), which is the predecessor of the Commission, and was earlier functioning under the provisions of the Indian Medicine Central Council Act 1970 (hereinafter referred to as IMCC Act, 1970), and thus being an interested party in the present case, they cannot be permitted to file the PIL.

7. It has further been stated by Mr. Sharma that the requisite qualification for appointment as Chairperson of the Commission as per Section 4(2) of the NCISM Act, 2020 and also as per the advertisement dated 16.01.2021 is experience of not less than 20 years in the field of Indian System of Medicine out of which at least 10 years as head of department or head of organization in the area of healthcare delivery, growth and development of Indian System of Medicine or its education, and that the respondent no.5 fulfills the eligibility criteria since he was the head of R&D and F&D departments of Shivayu Ayurved Limited, Nagpur for more than 11 years. He has further stated that the respondent no.5 was an elected member of CCIM from 2015-2020 and its President from 2018 till April 2020, and thereafter he was the Chairman of Board of Governors of the CCIM from April 2020 to June 2021. He has further stated that additionally, the respondent no.5 was also Chairman of institutional ethics committee of Central India Institute of Medical Sciences, Nagpur, since 2008, and, therefore, he fulfills the requisite qualification of being head of the department or head of the organization for a period of more than 10 years.

8. Mr. Sharma has also argued that the respondent no.5 holds bachelor‟s degree in Ayurvedic Medicine and Surgery (BAMS) and a Ph.D degree in Kayachikitsa from University of Pune, which, according to Mr. Sharma, is a Signature Not Verified Digiltally Signed By:SREERAM L Signing Date:06.06.2025 15:13:36 W.P.(C.) Nos.9382/2021& 9455/2021 post-graduate degree obtained after graduation and a higher qualification in the same line and, therefore, it cannot be said that the respondent no.5 lacks the requisite statutory eligibility criteria.

9. Drawing our attention to Section 5(1) of the NCISM Act, 2020, Mr. Sharma has stated that in terms of the said provision Chairperson of the Commission shall be appointed on the recommendations of the Search Committee, which is to be constituted under the Chairmanship of the Cabinet Secretary, and in the instant case the Search Committee was constituted under the Chairmanship of the Cabinet Secretary, and comprised of experts in the relevant field, which after scrutinizing all the documents regarding qualification found the respondent no.5 eligible to be appointed as Chairperson, which cannot be faulted with.

10. It has also been argued by Mr. Sharma on behalf of the respondent no.1 that a candidate having a higher qualification is eligible to be considered for appointment to a post where a lower qualification is fixed as the requisite qualification. In this regard, the decision of the Coordinate Bench of this Court dated 26.05.2016 in W.P.(C) 8089/2015, GNCTD v. Monika Sharma, Jyoti K.K. & Ors. v. Kerala Public Service Commission & Ors.[(2010) 15 SCC 596], Chadrakala Trivedi v. State of Rajasthan &Ors.[(2012) 13 SCC 129], Parvaiz Ahmad Parry v. State of Jammu and Kashmir & Ors. decided on 06.11.2015 in C.A.No.13668/2015 and judgment of Punjab and Haryana High Court in W.P.(C)451/2008 Manjit Singh v. State of Punjab & Ors. have been cited. It is thus the submission of Mr. Sharma that the respondent no.5 has a Ph.D degree, which is a higher qualification than the qualification mentioned in Section 4(2) of the NCISM Act, 2020, in the same line which Signature Not Verified Digiltally Signed By:SREERAM L Signing Date:06.06.2025 15:13:36 W.P.(C.) Nos.9382/2021& 9455/2021 has been considered by the eminent experts constituting the Search Committee and, therefore, appointment of respondent no.5 as Chairperson of the Commission is valid being in accordance with law. -SUBMISSIONS ON BEHALF OF THE RESPONDENT NO. 5- SH.VAIDYA JAYANT YESHWANT DEOPUJARI - 11. Mr. Arun Bharadwaj, learned Senior Counsel representing the respondent no.5, has vehemently opposed the petitions and has argued that the petitions are ill-motivated in the garb of PIL, which have been filed as a tool of vengeance however, the petitioners have failed to demonstrate their locus to file the instant PIL.

12. Relying upon the judgment in the case of Janta Dal v. H.S. Chowdhary [(1992) 4 SCC 305], it has been argued that the petitioners lack the locus standi and in Janta Dal (supra), by stating that the Hon‟ble Supreme Court has, in the said judgment, observed that it is needless to emphasize that the requirement of locus standi of a party to a litigation is mandatory because the legal capacity of the party to any litigation, whether in private or public action, in relation to any specific remedy sought for has to be primarily ascertained at the threshold.

13. He has further stated that the petitioners have raised service dispute in the garb of PIL however, it is a settled law as laid down by Hon‟ble Supreme Court in Dr. Duryodhan Sahu v. Jaitendra Kumar Mishra [AIR 1999 SC 114], Dattaraj Natthuji Thaware v. State of Maharashtra [AIR 2005 SC 540] and Neetu (supra), that in service matters PIL is not maintainable and, therefore, the instant petitions also deserve to be dismissed at the threshold. Signature Not Verified Digiltally Signed By:SREERAM L Signing Date:06.06.2025 15:13:36 W.P.(C.) Nos.9382/2021& 9455/2021

14. Mr. Bharadwaj has further argued that the respondent no.5 is an Ayurvedic Doctor having more than 36 years of experience in the field of Indian System of Medicine and that he has been member of the erstwhile CCIM, which was the apex statutory body to administer the profession and management of education in AYUSH system of medicine in the country. He has also stated that the respondent no.5 has served as elected President of the erstwhile CCIM, and thereafter, he was appointed as Chairman on the Board of Governors of the said body. His submission further is that the respondent no.5 completed BAMS course, which is a full-time degree course, from Nagpur University in the year 1984 and thereafter got himself enrolled with Maharashtra Council of Indian Medicine in 1984 and started practice as an Ayurvedic Practitioner. Emphasis has been laid by Mr. Bharadwaj to the fact that the respondent no.5 also holds a Ph.D degree (Doctor of Philosophy) in Kayachikitsa, which was conferred to him in the year 1999 by the University of Pune. His submission further is that the respondent no.5 was admitted to the Ph.D. program by the Pune University under Rule 6 of the “Rules for Admission to Degree of Doctor of Philosophy (Ph.D.)” framed by the Pune University vide circular bearing no.286 of 1983-84, which reads as under:- “6. Notwithstanding the above rules, in the professional Faculties of Medicine, Ayurvedic Medicine, Engineering and Law a candidate may be admitted directly to the Ph.D. programme subject to the condition that he/she successfully gives Pre-Ph.D. seminar within 2 years of his/her Ph.D. registration. If his/her performance at the Pre-Ph.D. seminar is considered unsatisfactory by the Ph.D. committee in the subject concerned, his/her Ph.D. registration shall be cancelled” Signature Not Verified Digiltally Signed By:SREERAM L Signing Date:06.06.2025 15:13:36 W.P.(C.) Nos.9382/2021& 9455/2021

15. It has also been pointed out that the respondent no.5 registered himself for Ph.D. degree after completing the entire process i.e. pre-Ph.D. seminar, doctoral research under the supervision of a Guide, submission of Ph.D. thesis and defending the thesis successfully and thereafter, Pune University awarded the Ph.D. degree to him in Kayachikitsa. He thus submits that Ph.D. is a higher qualification than a post-graduate degree, and the same can also be obtained after completing graduation in a particular stream.

16. It is the further submission of Mr. Bharadwaj that neither the provisions contained in Section 4(2) of the NCISM Act, 2020 nor the advertisement issued for the post in question exclude or disqualify the holder of Ph.D. degree or a degree higher than the post graduate degree i.e. M.D. and, accordingly, it cannot be said that the respondent no.5 lacks the requisite qualification for appointment to the post in question.

17. It has further been argued by learned counsel representing the respondent no.5 that the appointment of the respondent no.5 was made on the recommendations of a Search Committee comprising of Experts in the field and, therefore, as laid down by the Hon‟ble Supreme Court in The University of Mysore& Anr. V. C.D.Govinda Rao & Anr. [AIR 1965 SC 491] and Basavaiah (Dr.) v. Dr. H.L.Ramesh [(2010) 8 SCC 372] the opinion of experts cannot be subjected to judicial scrutiny by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India.

18. Referring to the judgment of Hon‟ble Supreme Court in Jyoti K.K.(supra) it has been urged by Mr. Bharadwaj that it has been held therein that if a person acquires a higher qualification, such qualification would presuppose the acquisition of the lower qualification and that a degree holder Signature Not Verified Digiltally Signed By:SREERAM L Signing Date:06.06.2025 15:13:36 W.P.(C.) Nos.9382/2021& 9455/2021 would be eligible to apply for a post where minimum qualification prescribed is diploma and in such a situation, in case, the rules do not per se disqualify holder of a higher qualification, it would be appropriate to hold those with higher qualification would be eligible. Reference in this regard has also been made to the judgment of the Punjab and Haryana High Court in Manjit Singh v. State of Punjab [CWP No.451/2008]. Mr. Bharadwaj has also stated that the respondent no.5 was an Executive Director in Shivayu Ayurved Limited Nagpur, which is an Ayurvedic drug manufacturing company having corporate identity number CIN:U51397 MH2009 PLC 195443, which was incorporated under the Companies Act 1956, since it is an inception on

02.09.2009 till 01.06.2021. It is stated further that the respondent no.5 was head of Research & Development (R&D) and Formulation Development (F&D) department of the said organization, and hence he was in a leadership position for more than 11 years. Various other submissions have been made highlighting the achievements of the respondent no.5 in the field of Ayurveda, and it has been contended for these reasons that the writ petition ought to be dismissed. -SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.2- NATIONAL COMMISSION FOR INDIAN SYSTEM OF MEDICINE-

19. Ms. Archana Dave, learned ASG representing the respondent no.2 has reiterated the submissions made on behalf of the respondent nos.1 and 5 and has argued that for all the aforesaid reasons the writ petitions deserve to be dismissed as it cannot be said that the respondent no.5, in any manner, lacks the requisite qualification in terms of the provisions contained in Section 4(2) Signature Not Verified Digiltally Signed By:SREERAM L Signing Date:06.06.2025 15:13:36 W.P.(C.) Nos.9382/2021& 9455/2021 of NCISM Act, 2020 and the advertisement issued for appointment to the post in question. She, thus, has also prayed that the writ petitions be dismissed. -ISSUES-

20. Based on the competing arguments advanced by learned counsels representing the respective parties and the pleadings available on record, the following issues emerge for our consideration and decision: (a) Whether the question of locus needs to be gone into in a petition filed under Article 226 of the Constitution of India where prayer is made for issuance of a writ of Quo warranto? (b) What is the scope of Writ of Quo Warranto and what are the parameters consideration of which is required to be made by a Writ Court for issuing the said Writ. (c) As to whether the respondent No.5 fulfils the requisite qualification statutorily laid down for appointment to the post of Chairperson of the Commission under Section 4(2) of the NCISM Act, 2020. -ANALYSIS- ISSUE (a) & (b) 21. Before adverting to the issue of locus of the petitioners in these PIL petitions, we may discuss the nature of Quo Warranto proceedings. Quo warranto literally means “by what authority”, and it can be issued to the holder of a public office. Writ of Quo Warranto, in fact, also calls upon the holder of a public office to show the Court as to under what authority he holds the said office and, in case, it is found by the Court that the holder has no authority to hold the office, the writ of Quo Warranto can be issued effecting Signature Not Verified Digiltally Signed By:SREERAM L Signing Date:06.06.2025 15:13:36 W.P.(C.) Nos.9382/2021& 9455/2021 his ouster from such public office. Article 226 of the Constitution of India vests the High Court power to issue certain writs, including the writs in the nature of Quo Warranto.

22. The most celebrated case where the legal contours circumscribing the Quo Warranto proceedings have been discussed by the Hon‟ble Supreme Court is The University of Mysore (supra). The said judgment was rendered by a Constitution Bench comprising of five judges of the Supreme Court, wherein it has been inter alia held that proceedings of Quo Warranto affords a judicial remedy in which any person holding 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. It has further been held by the said Constitution Bench that if in such a judicial scrutiny, a finding is arrived at that the holder of the office has no valid title to it, the writ of Quo Warranto can be issued for ousting him from the office. Paragraph 6 of The University of Mysore (supra) is relevant to be referred at this juncture, which runs as under:- “6. The judgment of the High Court does not indicate that the attention of the High Court was drawn to the technical nature of the writ of quo warranto which was claimed by the respondent in the present proceedings, and the conditions which had to be satisfied before a writ could issue in such proceedings. As Halsbury has observed [Halsbury's laws of England, 3rd Edn. Vol., II, p. 145] : “An information in the nature of a quo warranto took the place of the obsolate writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise might be determined.” Signature Not Verified Digiltally Signed By:SREERAM L Signing Date:06.06.2025 15:13:36 W.P.(C.) Nos.9382/2021& 9455/2021 Broadly stated, the quo warranto proceeding affords a judicial enquiry in which any person holding 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; if the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. In other words, the procedure of quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointments to public offices against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right. It would thus be seen that if these proceedings are adopted subject to the conditions recognised in that behalf, they tend to protect the public from usurpers of public office; in some cases, persons, not entitled to public office may be allowed to occupy them and to continue to hold them as a result of the connivance of the executive or with its active help, and in such cases, if the jurisdiction of the courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia, that the office in question is a public office and is held by usurper without legal authority, and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not.” It is true that with the development of jurisprudence surrounding PIL in

23. our country, the strict rule of locus has been relaxed. However, even for filing a PIL, locus of unscrupulous petitioners can be challenged, and an indulgence by the High Court in a PIL filed for extraneous purposes or mala fide reasons can also be denied. However, insofar as the writ of Quo Warranto is concerned, as has been held by the Hon‟ble Supreme Court in Rajesh Awasthi v. Nand Lal Jaiswal & Ors. [(2013) 1 SCC 501] a writ of Quo Warranto lies when the appointment is made contrary to the statutory provisions. Signature Not Verified Digiltally Signed By:SREERAM L Signing Date:06.06.2025 15:13:36 W.P.(C.) Nos.9382/2021& 9455/2021

24. In Rajesh Awasthi (supra) Hon‟ble Supreme Court reiterated the legal principle held in Mor Modern Cooperative Transport Society v. Financial Commissioner & Secretary to Govt. of Haryana & Anr. [(2002) 6 SCC 269], wherein it was held that a writ of Quo Warranto can be issued when an appointment is contrary to the statutory provisions. Rajesh Awasthi (supra) also notices the judgment of Hon‟ble Supreme Court in case of B.Srinivasa Reddy v. Karnataka Urban Water Supply & Drainage Board Employees Association [(2006) 11 SCC 731], where the legal position that jurisdiction of the High Court to issue a writ of Quo Warranto is limited which can only be issued if the appointment is contrary to the statutory rules, was reiterated.

25. The aforesaid legal position was also expressed in Hari Bansh Lal v. Sahodar Prasad Maht & Ors.[(2010) 9 SCC 655]. Para 19 and 20 of the judgment in Rajesh Awasthi (supra) are extracted hereinbelow:- “19. A writ of quo warranto will lie when the appointment is made contrary to the statutory provisions. This Court in Mor Modern Coop. Transport Society Ltd. v. Govt. of Haryana [(2002) 6 SCC 269] held that a writ of quo warranto can be issued when appointment is contrary to the statutory provisions. In B. Srinivasa Reddy [(2006) 11 SCC 731 (2) : (2007) 1 SCC (L&S) 548 (2)] , this Court has reiterated the legal position that the jurisdiction of the High Court to issue a writ of quo warranto is limited to one which can only be issued if the appointment is contrary to the statutory rules. The said position has been reiterated by this Court in Hari Bansh Lal [(2010) 9 SCC 655 : (2010) 2 SCC (L&S) 771] wherein this Court has held that for the issuance of writ of quo warranto, the High Court has to satisfy itself that the appointment is contrary to the statutory rules.

20. We are of the view that the principle laid down by this Court in the abovementioned judgment squarely applies to the facts of this case. The appointment of the appellant, in our considered view, is in Signature Not Verified Digiltally Signed By:SREERAM L Signing Date:06.06.2025 15:13:36 W.P.(C.) Nos.9382/2021& 9455/2021 clear violation of sub-section (5) of Section 85 of the Act. Consequently, he has no authority to hold the Post of Chairperson of the U.P. State Electricity Regulatory Commission.”

26. In Rajesh Awasthi (supra), Deepak Misra, J (as his lordship then was) concurring with the opinion expressed by Radhakrishnan, J (as his lordship then was) has discussed the nature of writ of Quo Warranto relying upon the judgment of Hon‟ble the Supreme Court in B.R.Kapur v. State of T.N. & Anr.[(2001) 7 SCC 231] and The University of Mysore (supra). Para 29 and 30 of the decision in Rajesh Awasthi (supra), wherein B.R.Kapur (supra) and The University of Mysore (supra) have been discussed are extracted hereinbelow:-