DR.AMARAGOUDA.L.PATIL v. UNION OF INDIA

Judgment

1. These Writ Petitions are filed by Dr. Amaragouda L. Patil, challenging the appointment of Dr. Anil Khurana (respondent No.3 in W.P. No.15859/2021) as Chairperson of National Commission for Homeopathy, and appointment of Dr. K.R.Janardanan Nair (respondent No.3 in W.P.No.15590/2021) as the President of Medical Assessment and Rating Board of the National Commission for Homeopathy.

2. It is not in dispute that the petitioner was an applicant for both the posts – of the Chairperson of National Commission for Homeopathy, and of President of Medical Assessment and Rating Board of - 5 - NC: 2024:KHC:1486 WP No. 15859 of 2021 C/W WP No. 15590 of 2021 National Commission Homeopathy, notwithstanding his application, the above-mentioned Dr. Khurana and Dr. Nair have been appointed.

3. It is his principal contention that the aforementioned persons are ineligible to be appointed as the Chairperson and the President, and therefore, their appointments are required to be quashed. It is also his further case that he is eligible and consequently, he should be appointed in their place.

4. In order to examine the contentions advanced, it would be necessary to have an overview of the legal provisions governing the petitioner’s claim.

5. The National Commission for Homeopathy Act, 2020 (hereinafter referred to as, “the Act”, for brevity) was enacted for providing a medical education system that improved access to quality and affordable medical education, and to ensure availability of adequate and high quality Homeopathy medical professionals in all parts of - 6 - NC: 2024:KHC:1486 WP No. 15859 of 2021 C/W WP No. 15590 of 2021 the country. The Act mandates the establishment of the constitution of a National Commission for Homeopathy, which is required to consist of a Chairperson, seven ex officio members, and nineteen part-time members.

6. The qualification of the Chairperson is stated in Section 4(2) of the Act, which reads as follows: “4(2) The Chairperson shall be a person of outstanding ability, proven administrative capacity and integrity, possessing a postgraduate degree in Homeopathy from a recognized University and having experience of not less than twenty years in the field of Homeopathy, out of which at least ten years shall be as a leader in the area of healthcare delivery, growth and development of Homeopathy or is education.”

7. An Explanation is also appended to Section 4, which reads as follows- “Explanation – For the purpose of this section and section 19, the term “leader” means the Head of a Department or the Head of an Organisation.”

8. For the purpose of these Writ Petitions, the other sub-sections under Section 4 would not be relevant and are hence, not considered. - 7 - NC: 2024:KHC:1486 WP No. 15859 of 2021 C/W WP No. 15590 of 2021

9. Under Section 18(1) of the Act, the Central Government is required to constitute three Autonomous Boards, one of which is the ‘Medical Assessment and Rating Board for Homeopathy’. This Autonomous Board is required to consist of a President and four Members from the discipline of Homeopathy, and two other members, out of whom one Member shall be from the discipline of Homeopathy and the other Member shall be an accreditation expert. The President of the Autonomous Board, including the aforementioned Board, is required to be appointed on the basis of recommendations made in accordance with the procedure specified in Section 5, by the Search Committee constituted thereunder.

10. Sub-section (2) of Section 19 reads as follows: “(2) The President and Members of Autonomous Boards to be chosen under sub-section (1) shall be persons of outstanding ability, proven administrative capacity and integrity, possessing post- graduate degree in respective disciplines from a recognized University and having experience of not less than fifteen years in respective fields, out of which at least seven years shall be as a leader: Provided that seven years as leader in the case of the President and Member from Homeopathy shall - 8 - NC: 2024:KHC:1486 WP No. 15859 of 2021 C/W WP No. 15590 of 2021 be in the area of health, growth and development of education in Homeopathy.”

11. As could be seen from Section 4 and from Section 18, in order to be eligible appointed as a Chairperson or as a President, as the case may be, a person should have an outstanding ability, proven administrative capacity and integrity, and should also possess a postgraduate degree in Homeopathy from a recognized University as an educational qualification. He should also have experience of not less than 20 years in the field of Homeopathy (in case of the Chairperson of the Commission) and 15 years (in case of the President of the Autonomous Board).

12. Both provisions, however, mandate that out of the requisite number of years of experience, they should be a leader for a specified period. The Explanation appended to Section 4 explains the meaning of a “leader” and states that for the purpose of Sections 4 and 19, a “leader” means the Head of a Department or the Head of an Organisation. - 9 - NC: 2024:KHC:1486 WP No. 15859 of 2021 C/W WP No. 15590 of 2021

13. The Explanation, therefore, seeks to explain any ambiguity that may arise as to the true intent of the law makers when they used the expression “leader”. The explanation seeks to convey lawmakers essentially meant that a leader should be a person who had been the Head of the Department or the Head of an Organisation.

14. Thus, in these Writ Petitions, the only question to be considered is: Whether Dr. Anil Khurana and Dr. M.K. Janardhan Nair (respondent No.3 in the Writ Petitions) possessed the necessary qualification to be considered as a “leader” as defined under Section 4 of the Act and as explained in the Explanation appended to Section 4.

15. The Act seeks to explain the meaning of a “leader”, but it does not define the expressions “Head of a Department” or “Head of an Organisation” used in the explanation appended to Section 4 and hence, the present controversy. - 10 - NC: 2024:KHC:1486 WP No. 15859 of 2021 C/W WP No. 15590 of 2021

16. It is to be kept in mind that the National Commission for Homeopathy Act, is essentially an enactment to create a medical education system and to provide adequate high quality Homeopathy professionals in all parts of the Country, and therefore, the term “Head of a Department” or the term “Head of an Organisation” would have to necessarily mean that they should have headed a Department in a Homeopathic Unit or should have headed an Organisation which dealt with Homeopathy or its education.

It is well settled that at the time of enacting the law itself, if the Legislature foresaw that the use of a particular expression would a misunderstanding, misconstruction or an ambiguity, in order to address that issue and ensure that the confusion, if any, stood resolved, the Legislature commonly adopt the legislative device of appending an Explanation to the provision.

18. Viewed from this background, it is clear that the Legislature was aware that the use of the expression - 11 - NC: 2024:KHC:1486 WP No. 15859 of 2021 C/W WP No. 15590 of 2021 “leader” could lead to varied constructions in differing contexts and would probably lead people astray, and therefore, it appended an Explanation which made it clear that a “leader” would mean a person who was either the Head of a Department or the Head of an Organisation.

19. In light of this legal position, all that is required to be examined in these Writ Petitions is as to whether Dr.Anil Khurana (respondent No.3 in W.P. No.15859/2021) and Dr.Janardanan Nair (respondent No. 3 in W.P. No.15590/2021) were either the Head of a Department or the Head of an Organisation, for the period prescribed under Sections 4 and 19 of the Act. If the answer is to be answered in their favour, their appointments would be valid and if the answer was against them, their appointments would be rendered invalid.

20. As already stated, Section 4(2) states that in order to be a Chairperson, a candidate should have at least had an experience of not less than 20 years in the field of Homeopathy and out of these 20 years, he should have - 12 - NC: 2024:KHC:1486 WP No. 15859 of 2021 C/W WP No. 15590 of 2021 been a leader for at least 10 years in the area of Healthcare delivery, growth and development of Homeopathy, or its Education.

21. Thus, in order to be the Chairperson of the National Commission for Homeopathy, a person should have 20 years' experience in the field of Homeopathy and out of these 20 years, he should have been a Head of the Department or the Head of an Organisation in the area of Healthcare delivery, growth and development of Homeopathy or its education.

22. Similarly, in order to be the President of the Autonomous Board, a candidate should have had 15 years' experience in their respective fields, out of which 7 years should have been as a leader. In other words, in order to be a President of an Autonomous Board, the candidate should have at least 15 years' experience in the Medical Assessment and Rating Board for Homeopathy, and out of these 15 years, he/she should have been as the Head of a Department relating to Medical Assessment and Rating - 13 - NC: 2024:KHC:1486 WP No. 15859 of 2021 C/W WP No. 15590 of 2021 Board, or as Head of a Department or an Organisation dealing with the Medical Assessment and Rating, for 7 years.

23. It may be pertinent to state here that it is not in dispute that both Dr. Khurana and Dr. Nair possess the required educational qualifications, but the only dispute is as to whether they had the experience as a leader, as defined under the provisions of the Act and under the Notification.

24. The applications that were required to be filed for the above-mentioned posts contained a specific column relating to the details of experience of the applicant as the Head of a Department / Head of an Organisation.

25. Dr.Anil Khurana, who has been appointed as the Chairperson of National Commission for Homeopathy, in his application, in the column relating to the experience as Head of the Department /Head of an organization, has stated as follows: - 14 - NC: 2024:KHC:1486 WP No. 15859 of 2021 C/W WP No. 15590 of 2021 “Please specify details of experience as Head of the Department/Head of an organization: Sl. No. Nature of experience a) Monitored Scheme Essential Medicine Hospital Dispensaries b) Monitored supervised research studies relating Fundamental and Basic research Designation and Institute of work Officer Duty Special (OSD), Department of AYUSH, under MoHFW Asstt. Director, Deputy Director, CCRH Hqrs., Technical Head c) Monitored progress technical works of CCRUM as Director General In-charge Director General In- charge, CCRUM Hqurs. From To Feb. 2003 May, 2004 2008 2019 August 2017 April 2018 d) Monitoring supervising technical projects of the CCRH Director General, CCRH July 2019 Till

26. As could be seen from the application of Dr.Anil Khurana, for the period 2003 to 2019, he was working as an Officer on Special duty in the Department of AYUSH, under the Ministry of Health and Family Welfare, and thereafter, as an Assistant Director, Deputy Director, CCRH Head Quarters. A plain reading of the said designations held by Dr.Anil Khurana makes it clear that - 15 - NC: 2024:KHC:1486 WP No. 15859 of 2021 C/W WP No. 15590 of 2021 he was neither the Head of a Department nor the Head of an Organisation from the year 2003-2019.

27. An argument was, however, advanced by the learned counsel for Dr.Anil Khurana that he was a ‘Technical Head’ between 2008 to 2019 and this would indicate that he was the Head of the entire Technical Department and was, thus, entitled to count this period as him being a leader. She placed strong reliance on the ‘Organisational Set up’ described the Central Council for Research Homoeopathy, to contend that the Organisation is headed by the DRDO and had two Units, i.e., a Technical Unit and an Administrative Unit, and the Deputy Director of Homeopathy was in charge of various Departments and therefore, this would essentially mean Dr.Anil Khurana the Head of more than one Department, simultaneously.

28. In my view, this argument cannot be accepted. A Deputy Director, by its very nomenclature, would indicate that he is a Deputy to a Director and it is the Director who - 16 - NC: 2024:KHC:1486 WP No. 15859 of 2021 C/W WP No. 15590 of 2021 would be the Head of a Unit. The true test for considering a person to be a leader, as contemplated under the Act, is to see whether he was the person who was ultimately responsible for running the Department and everybody else would be reportable or answerable to him. If a person who holds the post of a Deputy Director is to report to a Director or a Director General, it is obvious that said person would not be the Head of a Department. It is, therefore, clear that for this particular period i.e., from 2003 to 2019, the petitioner cannot be construed to be the Head of a Department.

29. It is only in respect of the period when Dr.Anil Khurana worked as the Director General (in-charge) from August 2017 to April 2018 and as the Director General from July 2019 to till 2021, can he be considered as a leader, as envisaged under the provisions of the Act. This would indicate that Dr.Anil Khurana was holding leadership only for a period of about four years and therefore, did not satisfy the requirement of Section 4, which required - 17 - NC: 2024:KHC:1486 WP No. 15859 of 2021 C/W WP No. 15590 of 2021 Dr.Anil Khurana to be a leader for at least 10 years as the Head of a Department or 10 years as the Head of an Organisation.

30. It is, thus, clear that Dr.Anil Khurana did not possess the requisite experience as a leader to be appointed as the Chairperson.

31. In the case of Dr.K.R. Janardanan Nair (who was appointed as the President of the Autonomous Board), the details of his experience as Head of the Department was stated as follows – “Experience as head of the Department/head of an organization:- Sl. No. Nature of experience Designation and Institute of work From To a) Clinical Practice b) Clinical Research Management & Administration c) Clinical Research Senior Consultant, Sleeva Mar Medicity, Palai, Kottayam CCRH & National Homoeopathy Research Institute in Mental Health CCRH & NHRIMH, Kottyam 2019 2021 2007 2019 1987 2019 - 18 - NC: 2024:KHC:1486 WP No. 15859 of 2021 C/W WP No. 15590 of 2021 d) Clinical Practice Private Homoeopathy Clinic 1980 1987 “Experience as head of the Department/head of an organization:- Nature of experience Designation and Institute of work From To Officer charge In- Officer CRIH, Kottayam In-charge,

30.04.2012 30.04.2018 Sl. No.

2. Principal Principal Kottayam NHRIMH,

01.05.2018 01.05.2019 Experience (Administration):- Sl. Administration No. a) Co-ordinator- Clinical Research Collaborative Research Designation and Institute of work Clinical officer and Assistant Director New CCRH, Delhi & NHRIMH, Kottayam From To 2007 2010 2010 2019 Major Accomplishment s Submitted Projects development of NHRIMH, Kottyam. Worked Coordinator various Clinical Collaborative Research Projects undertaken by CCRH. b) Technical In- Assistant 2010 2012 Coordinating all IPD OPD, - 19 - NC: 2024:KHC:1486 WP No. 15859 of 2021 C/W WP No. 15590 of 2021 Charge Director (H) In- & c) Officer Charge Assistant Director (H) & Principal Proving Clinical Drug Research activities NHRIMG under Deputy Director In-charge. 2012 2019 Administrative, Research Academic developmental activities were proposed Principal Officer Charge.

32. As could be seen from the above, Dr.K.R.Janardanan Nair was a Senior Consultant from 2019 to 2021 and he had Clinical Research Management and Administration experience from 2007 to 2019, by his work at the CCRH in the National Homeopathy Research Institute, in Mental Health, and he was engaged in Clinical Research from 1987 to 2019, and from 1980 to 1987, he had experience in Clinical Practice.

33. In the column for experience, Dr.K.R.Janardanan Nair stated that he was a Research Officer and Assistant Director at CCRH, New Delhi & NHRIMN, Kottayam from - 20 - NC: 2024:KHC:1486 WP No. 15859 of 2021 C/W WP No. 15590 of 2021 2007 to 2010 and he was, thereafter, an Assistant Director from 2010 to 2012, and an Officer In-charge and Assistant Director and Principal from 2012 to 2019. It is clear from the above that Dr.K.R.Janardanan Nair was an Officer In- chargeand the Assistant Director and Principal from 2012- 2019, which would indicate that he was a Principal for 7 years. Since by virtue of being the Principal, he was the Head of an Organisation, it is clear that he possessed the necessary qualifications to be considered as a leader for the purposes of the Act.

34. Learned counsel for Dr.Anil Khurana, however, sought to contend that a textual interpretation of the expression used in the Explanation ought not to be adopted and a purposive interpretation was necessary. She sought to highlight the fact that though the designation of respondent No.3 indicated that Dr.Anil Khurana was the Deputy Director, the fact remained that he headed the entire set of Technical Departments and was responsible for the running of the Department - 21 - NC: 2024:KHC:1486 WP No. 15859 of 2021 C/W WP No. 15590 of 2021 completely, and thereby, by adopting the principles of purposive interpretation, it was necessary to hold that Dr.Anil Khurana possessed the requisite experience as a leader.

35. She also averred that the authorities, after obtaining an opinion in this regard, had come to the conclusion that the positions that Dr.Anil Khurana held did constitute leadership roles and since they were satisfied about the leadership roles, this Court ought not to entertain the plea in this regard.

36. The learned counsel for the petitioner, however, relied upon the Memorandum of Association, the Rules and Regulations, and the Bye-laws that had been framed by the Central Council for Research in Homeopathy to contend that the Bye-laws did not prescribe any such organizational setup and therefore, the argument that Dr.Anil Khurana was the Head of a Department cannot be accepted. - 22 - NC: 2024:KHC:1486 WP No. 15859 of 2021 C/W WP No. 15590 of 2021

37. A reading of the Association and the Bye-laws indicates the delegation of powers and the schedule of powers that are vested in the Director General and in the Officer declared as the Head of the Office. Nowhere in these Bye-laws does it indicate that an Officer on Special duty or an Assistant Director, Deputy Director or Technical Head is declared to be the Head of the Office.

38. Furthermore, in the Annexure to the Bye-laws, the Authority empowered to impose penalties in respect of Group-A, B and C posts is conferred either on the President, the Governing Body or the Director General of the Institution. In respect of Group-C and D employees, the Project Heads are conferred with the powers to impose penalties. The power to impose a penalty is not conferred on any post which is designated as a Technical Head. It is, therefore, clear that Dr.Anil Khurana, by virtue of his assertion that he was the Technical Head, cannot be considered as the Head of a Department. - 23 - NC: 2024:KHC:1486 WP No. 15859 of 2021 C/W WP No. 15590 of 2021

39. Reliance placed on the organizational appended to the annual report would really be of no significance in light of the fact that the Memorandum of Association and Rules, Regulations and Bye-laws have been framed in respect of Central Council for Research in Homeopathy, New Delhi and they do not indicate that there exists any post called as the Technical Head.

40. The argument that a specific opinion was secured by the Search Committee regarding the eligibility of Dr.Anil Khurana and an opinion was also rendered that Dr.Anil Khurana had the requisite experience of ten years equivalent to that of the Head of a Department and this opinion was required to be accepted, does not merit acceptance.

41. It is no doubt true that in the original records that were produced, is a communication dated

06.05.2021, which indicates that a clarification was sought regarding the eligibility of Dr.Anil Khurana and the Scrutiny Committee examined the application of Dr.Anil - 24 - NC: 2024:KHC:1486 WP No. 15859 of 2021 C/W WP No. 15590 of 2021 Khurana and observed that he may be eligible, subject to submission and verification of documents of experience as the Head of a Department, from the competent Authority, Cadre Clearance, and a Certificate of not having major / minor penalties against him.

42. It is also stated therein that the Secretary to the Government of India had gotten the matter examined in the Ministry of AYUSH and after verifying the documents of experience, it was confirmed that Dr.Anil Khurana possessed the requisite experience of 10 years equivalent to the Head of a Department and therefore, fulfilled the eligibility requirements forsaid post.

43. In my view, the opinion of the Ministry of AYUSH or the opinion of the Scrutiny Committee to the effect that Dr.Anil Khurana had 10 years’ experience equivalent to the Head of a Department would be of no solace and it would really be of no significance, since they are mere opinions and are not based on a Bye-law or a Regulation. - 25 - NC: 2024:KHC:1486 WP No. 15859 of 2021 C/W WP No. 15590 of 2021

44. As already stated above, the statutory provision clearly stipulates that a leader means the Head of a Department or the Head of an Organisation. Since the provision is clear and explicit, an opinion to the effect that the post held by Dr.Anil Khurana was equivalent to that of the Head of a Department cannot be accepted. Whether Dr.Anil Khurana was either the Head of a Department or the Head of an Organisation, is all that would have to be determined with reference to the posts that he, himself, admitted holding during his 20 years of experience in the field of Homeopathy.

45. The mere opinion of the Ministry of AYUSH that he held a post which was equivalent to that of the Head of a Department, cannot really translate into the fact that Dr.Anil Khurana had actually been the Head of a Department or the Head of an Organisation.

46. It may also be pertinent to note here that even according to the opinion secured, Dr.Anil Khurana was stated to have held the equivalent posts of the Head of a - 26 - NC: 2024:KHC:1486 WP No. 15859 of 2021 C/W WP No. 15590 of 2021 Department or as the Head of an Organisation and on this basis, it is opined by the Scrutiny Committee that he may be eligible.

47. In my view, such opinions or inferences of the Ministry or the Scrutiny Committee cannot satisfy the clear and specific requirement of the law that a person, in order to be appointed as the Chairperson, would have to necessarily be the Head of a Department or the Head of an Organisation. Since, indisputably, Dr.Anil Khurana was not the Head of a Department or the Head of an Organisation for 10 years. The mere opinion that he was holding an equivalent post cannot be accepted as having satisfied the statutory requirement.

48. Learned counsel for respondent No.3 sought to place reliance on judgments of Basavaiah1, Sajeesh Babu K.2, Dalpat Abasaheb Solunke3 and National Institute of