S.J. Vazifdar, J.
1. Rule. At the request of the parties, the Writ Petition is heard finally.
2. The petitioner has sought a writ of certiorari to quash a Government Notification dated 20th September, 2012, issued in exercise of powers under section 40(2) of the Maharashtra Nurses Act, 1966 (hereinafter referred to as 'the said Act'). The notification held that the petitioner is not entitled to continue as a Member and President of the Maharashtra Nursing Council and directed his powers, till further orders, to be exercised by the Director, Medical Education and Research.
3. Respondent No.1 is the Deputy Secretary of the Medical Education and Drugs Department, respondent No.2 is the State of Maharashtra through the Secretary, Medical Education and Drugs Department and respondent No.3 is the Registrar of the Maharashtra Nursing Council.
4. The relevant provisions of the Maharashtra Nurses Act, 1966, are as under:-
â2. In this Act, unless the context otherwise requires,-
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(d) âCouncilâ means the Maharashtra Nursing Council constituted or deemed to be constituted under this Act;
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(f) âExecutive Committeeâ means the Executive Committee of the Council constituted under section 11;
(g) âInstitutionâ means any association, which maintains or controls nurses establishment;
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(j) âMemberâ means a Member of the Council;
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(n) âPresidentâ means the President of the Council;
3. (1) The State Government may, by notification in the Official Gazette, constitute a Council, to be called âthe Maharashtra Nursing Councilâ.
(2) The Council shall be a body corporate, having perpetual succession and a common seal, with power to acquire, hold and dispose of property and to contract, and may, by the name aforesaid, sue and be sued.
(3) The Council shall consist of the following members, that is to say:-
(a) ex â officio members:-
(i) the Director of Health Services;
(ii) the Director of Medical Education and Research;
(iii) the Superintendent of Nursing Services, Government of Maharashtra;
(iv) the Assistant Director of Health Services (Nursing);
(v) the Director of Higher Education or his nominee not below the rank of Deputy Director;
(vi) the Superintendent of Nursing Services of the Municipal Corporation of Greater Bombay;
(b) elected members,-
(i) one member, from each of the five Regions, to be elected by nurses registered in the Register under the relevant Region from amongst themselves;
(ii) one member, to be elected by the heads of private and municipal affiliated institutions which are recognised institutions, from amongst themselves;
(iii) five members, to be elected by matrons of affiliated institutions, from amongst themselves;
(iv) one member, from each of the five regions, to be elected by the sister tutors and clinical instructors of the affiliated institutions, from amongst themselves;
(v) one member, to be elected by the members of the Maharashtra Medical Council constituted or deemed to be constituted under the Maharashtra Medical Council Act, 1965; and until such Council comes into existence, by the members of the Medical Council functioning in the State under the Bombay Medical Act, 1912, and the Central Provinces and Berar Medical Registration Act, 1916, from amongst themselves;
(vi) one member, to be elected by the Coordination Committee (by whatever name called) of the local branches in the State of the Indian Medical Association;
(vii) one member, to be elected by the professors and lecturers of the recognized colleges of Nursing including Institutes of Nursing Education in Maharashtra, from amongst themselves;
(viii) one member, to be elected by the Heads (Principals) or recognised colleges of Nursing including Institutes of Nursing Education in Maharashtra, from amongst themselves;
(ix) one member, to be elected by the Trained Nurses Association of India (Maharashtra State Branch), from amongst themselves;
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(4) The President and Vice-President shall be elected by the members from amongst themselves.
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5. (1) Any casual vacancy, previous to the expiry of the term, in the office of the President or Vice-President or of a member elected under clause
(b) of sub-section (3) of section 3, caused by reason of death, resignation, disqualification or disability or any other reason, shall be filled by election:
Provided that, any such vacancy in the office of an elected member occurring within six months prior to the date on which the term of office of all the members expires, shall not be filled.
(2) Any casual vacancy, previous to the expiry of the term, in the office of a member nominated under clause (c) of sub-section (3) of section 3, shall be reported forthwith by the Registrar to the State Government, and shall, as soon as possible thereafter, be filled by the State Government by nomination.
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7. (1) A person shall be disqualified for being elected or nominated as, and for continuing as, a member,-
(a) if he is an un-discharged insolvent;
(b) if he is of unsound mind, and stands so declared by a competent court;
(c) if his name has been removed from the Register or List and has not been reentered therein; or
(d) if he is a whole-time officer or servant of the Council.
(2) If any member absents himself from three consecutive meetings of the Council, without leave of the Council or without such reasons as may, in the opinion of the Council be sufficient, the Council may declare his seat vacant, and take steps to fill the vacancy.
(3) If any member becomes or is found to be, subject to any of the disqualifications mentioned in sub-section (1), the Council shall submit a report to the State Government, and the State Government shall, if satisfied that the member is disqualified, declare his seat vacant.
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40. (1) â¦.......
(2) Notwithstanding anything contained in this Act, or in the rules made there under, if at any time it appears to the State Government that the Council or any other authority empowered to exercise any of the powers or to perform any of the duties or functions under this Act, has not been validly constituted or appointed, the State Government may cause any of such powers, duties or functions to be exercised or performed by such persons, in such manner and for such period not exceeding six months and subject to such conditions, as it may think fit.â
5. In the year 1997, the petitioner joined the District General Hospital, Thane, a Government hospital.
According to the petitioner, he was employed as a Master tutor-cum-Principal of the Institute of Nursing Education and Paramedical Science at Asian Institute of Medical Sciences Hospital, Dombivli (hereinafter referred to as âINEPS, Dombivliâ) from 13th July, 2004 to 31st December, 2010, on deputation from the State Government.
6. The general elections of the Council were conducted in the year 2008. Respondent No.2, who was appointed as the Returning Officer, published the final electoral roll for the general election for the âsister-tutor and clinical instructor constituenciesâ along with other constituencies. The petitioner's name admittedly appeared as a voter from INEPS, Dombivli in this constituency..
The petitioner was elected as a member of the Maharashtra Nursing Council from the constituency referred to in section 3(3) (b)(iv) of the Act i.e. âsister tutors and clinical instructors of the affiliated institutionsâ and as the President of the Council.
7. From 1st January, 2011 to 30th June, 2011, the petitioner continued with the District General Hospital, Thane, but was granted education leave.
On 30th June, 2011, the petitioner opted for voluntary retirement. He claims to have been employed once again with INEPS, Dombivli as a Master-tutor-cum-principal with effect from 1st July, 2011. The petitioner also contends that he has been assigned additional charge of Vice-President with effect from 1st July, 2011, for ANM, GNM, PG, BSc and MSc Nursing Programme. This aspect is strongly denied by the respondents.
His claim in this regard is disputed. We will refer to the contentions in this regard later.
8 (A). The State Government issued a show cause notice dated 3rd August, 2012. The notice stated that the petitioner was elected on the Maharashtra Nursing Council in the year 2008 from the said constituency of sister-tutors and clinical instructors of affiliated institutions of the Maharashtra Nursing Council; that he was eligible to contest the election because he was employed as a sister-tutor (Class-3) at the District General Hospital, Thane, at that time; that he had voluntarily retired from Government service with effect from 30th June, 2011; that he was not eligible to continue on the post of Member of the said Council with effect from the date of his retirement and, therefore, was not eligible to continue as the President of the said Council. The petitioner was, therefore, directed to explain why his powers, functions and duties as Member and President of the Council ought not to be assigned to any person for six months by the State Government in exercise of powers under section 40(2) of the said Act.
(B). By a letter dated 9th August, 2012, the petitioner replied to the show cause notice. He, inter-alia, contended that he had contested the election, not on the basis of being a Master-tutor at the District Civil Hospital, Thane, but as a Master-tutor of INEPS, Dombivli and that he continued to teach at the latter institution as a Master-tutor even as on date. Therefore, his resignation from the District Civil Hospital, Thane, did not affect his election either as a Member or as the President of the Council. He further contended that the exercise of power under section 40(2) was invalid.
9. The State Government, by the impugned Notification dated 20th September, 2012, referred to the above facts, including that the petitioner had voluntarily retired from Government service with effect from 30th June, 2011. The Notification stated that the Government was satisfied that the petitioner had not worked as a tutor anywhere else since then and was, therefore, not eligible to continue as a Member of the said Council since the said date and that he was, accordingly, not eligible to continue as a President of the Council from that date. Accordingly, the State Government, in exercise of the powers under section 40(2) directed that the powers, duties and functions as a Member as well as the President of the Council would, till further orders or for six months be exercised / performed by the Director, Medical Education and Research, Mumbai, subject to certain conditions.
10. Mr. Sakhare's contention that once a person is validly elected as a Member under section 3(3)(b)(iv), he continues to remain a Member even after ceasing to belong to the said constituency viz. sister-tutors and clinical instructors of the affiliated institutions is not well founded. Section 3(3) opens with the words: âThe Council shall consist of the following Membersâ. These words are not restricted to the persons referred to therein being Members on the date of the nomination, appointment or election. The words âshall consist of,â indicate that the Council must consist of the members referred to in section 3(3) when it was constituted and must continue to consist of such members referred to therein. If, therefore, a person ceases to be a Member of the Council, it would follow that the Council does not with effect from that date, consist of Members referred to in section 3. If a person elected from the constituency referred to in section 3(3)(b)(iv) ceases to be a sister tutor and clinical instructor, he ceases to be qualified to continue to be a Member and consequently a President or Vice-President of the Council.
11. This is also clear from section 3(3)(b)(iv) which provides for the election of a Member for each of the five regions from the said constituencies âfrom amongst themselvesâ. If a person ceases to be a Member, he also ceases to fall within the ambit of the words âfrom amongst themselvesâ. If a person is not a sister-tutor and a clinical instructor, he cannot be elected as a Member for such a person would not fall within the ambit of the phrase âfrom amongst themselvesâ. The words âfrom amongst themselvesâ clearly indicate that the elected member must himself be a sister-tutor and technical instructor. As we observed earlier, the Council is bound to consist of the members referred to in section 3(3) not merely on the date of the election or formation of the Council, but throughout. If a person ceases to be a member at any time, so far as that member is concerned, the Council cannot be said to consist of the members referred to in section 3(3).
12. This interpretation is consistent with the legislative intent to provide representatives on the Council to the various constituencies referred to in sub-clauses (i) to (ix) of clause (b) of section 3(3). A specified number of members is to be elected from each of the constituencies referred to in section 3(3) (b) (i) to (ix). A view to the contrary would defeat the legislative intent. If accepted, it could leave the relevant constituency unrepresented if the elected member ceases to belong to the constituency. Thus, in the petitioner's case, if he ceased to be a sister-tutor and clinical instructor but continued to be a member, the constituency would remain unrepresented or, in any event, would not be effectively represented.
Mr. Sakhare's submission that even if the petitioner did not continue as a master-tutor after 30th June, 2012, he would continue to be a member and the President of the Council is, therefore, rejected.
13. Mr. Sakhare then contended that assuming this to be so, a person can be held to have been disqualified, inter-alia, for continuing as a member only in the circumstances stipulated in section 7(1).
14. The conditions mentioned in section 7(1) do not apply to the petitioner's case. That, however, is not the end of the matter. The petitioner's case falls within section 5. It falls within the ambit of the words âor any other reasonâ in sub-section (1) of section 5. These words are preceded with the words âdeath, resignation, disqualification or disabilityâ. They cannot be read ejusdemgeneris. It is difficult to read the words âany other reasonâ ejusdemgeneris qua death. The words âany other reasonâ, therefore, would include cases other than those that preceded them. A person ceasing to be a Member of the Council would be one such case.
15. Mr. Sakhare then relied upon section 4(3) to contend that the President and Vice-President are entitled to hold office from the date of their election up to the date on which their term of office as a Member expires irrespective of any subsequent developments.
Section 4(3) reads as under:-
â4. â¦......
(3) Save as otherwise provided by the Act, the President and the Vice-President shall hold office from the date of his election up to the date on which his term of office as a member expires.â
16. The submission is not well founded. Section 4 (3) opens with the words: âSave as otherwise provided by this Actâ. The office of the President and Vice-President are co-terminus with the term of their office as a Member. If we are correct in what we have held earlier, section 4(3) would not support this contention. We have held that if a person ceases to belong to the constituency from which he was elected a member, he would cease to be a member. If a President ceases to be a member, he simultaneously ceases to be the President of the Council. We have earlier held that the Council must not only be constituted of persons entitled to be appointed, nominated or elected at the time of its formation, but even thereafter and that if a person ceases to be a Member, a casual vacancy arises qua him / his membership in the Council of Members. Thus, if the petitioner ceased to be a master-tutor-cuminstructor, section 4(3) would not come to his aid in protecting his President ship of the Council.
17. The petitioner may well continue to be on the Register of Nurses maintained under section 17 of the Act. That, however, is entirely different from his being entitled to be a Member of the Council.
18. Mr. Sakhare contended that Section 40(2) entitles the State Government to exercise the powers qua the Council itself and not any individual Member of the Council. As far as individual Members are concerned, if they incur any disqualification, whether under section 5 or section 7, the vacancy must be filled in, in the manner prescribed therein. For instance, under section 5, the vacancy is to be filled in by election. If on account of such vacancy the Council itself cannot function then the State Government can exercise powers under section 40(2). He further contended that section 40(2) would operate only if the Council was not initially validly constituted or an authority was not initially validly appointed and does not apply to any subsequent invalidity.
19. It is not necessary for us to express a final opinion in this regard. In view of what we have held earlier, if the petitioner, after his voluntary retirement with effect from 30th June, 2011, did not continue to function as a Master-tutor, he would not be entitled to function as a Member or as the President. We appreciate that the action has been purported to be taken under section 40(2) and not under section 5. If, however, he incurred the disqualification even on account of the provisions of section 5, we would not be inclined to exercise our discretion in the petitioner's favour in exercise of powers under Article 226.
20. The next question, therefore, is whether the petitioner, after having opted for voluntary retirement on 30th June, 2011, worked as a Master-tutor with INEPS, Dombivli, as alleged by him. This question of fact is seriously disputed, each side relying upon different documents we will now refer to.
21. It was not contended that INEPS, Dombivli is not an affiliated college. It was, however, contended firstly that the petitioner after seeking voluntary retirement did not work as a Master-tutor and that in any event, he could not occupy two posts viz. that of a Master-tutor and lecturer/Principal/Vice-Principal, simultaneously.
22. (A) The petitioner firstly relied upon a certificate dated 12th July, 2012, issued by Shirodkar Hospital Trust's Institute of Nursing Education and Paramedical Sciences at Asian Institute of Medical Sciences (INEPS) to the effect that he was employed as a Master-tutor-cum-principal at the institute from 13th July, 2004 to 31st December, 2010 on deputation from State Government and thereafter from 1st July, 2011 to date. The certificate states that in the second phase, he was assigned additional charge of Vice Principal's post with effect from 1st July, 2011 for ANM, GNM, PBBSc and MSc Nursing Programme all of which were recognized including by the State Government and MUHS.
(B) He also relies upon a letter dated 1st July, 2011, from INEPS, Dombivli, stating that the petitioner was appointed as a Master tutor- cum-Lecturer on the terms and conditions mentioned therein. This was stated to be pursuant to an interview and a discussion between the petitioner and the said institute.
(C) Thirdly, he relied upon a TDS certificate for the period 1st April, 2011 to 31st March, 2012, issued by INEPS, Dombivli, stating that the petitioner's designation was âMaster-tutor-cum-lecturerâ.
23. (A). The respondents, on the other hand firstly contend that it was not permissible for a person to hold two posts at the same time.
(B) Secondly, in support of their contention that the petitioner's appointment as a Master-tutor-cum-lecturer is false, they relied upon the following documents executed by the petitioner and the said INEPS.
(i) The respondents firstly relied upon a letter of appointment dated 28th November, 2011, issued by INEPS to the petitioner. The same refers to an interview conducted by the staff selection committee on 28th November, 2011 with regard to his application as a âLecturerâ in the institute. The letter further appointed the petitioner as a âLecturerâ in the said institute with effect from 28th November, 2011, on the terms and conditions mentioned therein.
The letter of appointment does not state that the petitioner was appointed as a Master-tutor. It merely appoints him as a Lecturer. The appointment also is only with effect from 28th November, 2011 and not from 1st November, 2011, as alleged by the petitioner.
(ii) The respondents then rely upon an affidavit dated 28th November, 2011, executed by the petitioner stating:
â1. I am working as a full time teacher as (designation) Lecturer in the subject of Medical Surgical Nursing at Medical College / PG Institute of Nursing Education and Paramedical Sciences, AIMS Hospital, Dombivili.â [emphasis supplied]
Thus, at the relevant time, the petitioner also declared that he was appointed by INEPS, Dombivli, as a full-time teacher and was designated a Lecturer. He does not mention anything about his having been appointed as a Master-tutor.
(iii) The respondents also rely upon a letter dated 17th May, 2012, addressed by INEPS to the petitioner which states as follows:-
âThis is reference to your interview and discussion you had with us on 13th May, 2012, with regard to your application as a âProfessor cum Vice principalâ in this institute. We are pleased to appoint you as a âProfessor cum Vice principalâ in our Institute of Nursing Education and Paramedical Sciences with effect from 17th May, 2012, on the following terms and conditions:-â
Thus, even with effect from 17th May, 2012, the petitioner was not appointed as a Master-tutor. It is not the petitioner's case that he responded to the letter stating that he was also appointed as a Master-tutor.
(iv) The respondents then rely upon two electoral rolls of the Maharashtra University of Health Sciences, Nashik. Both are final electoral rolls of the Board of Studies â Election 2012 in the Allied Health Sciences Faculty. The first is in respect of group of undergraduate subjects and the second is for the group of post graduate subjects in nursing subjects. In both the electoral rolls, the petitioner's designation is shown as a lecturer and the post is shown as the Head of Department.
Here again, there is no mention of the petitioner being a Master-tutor.
(C). It is also pertinent to note that in the reply dated 9th August, 2012 to the show cause notice, the petitioner contended in paragraph (ii) that he contested the election on the basis that he was a Master-tutor at the INEPS, Dombivli and that he continued to teach there as a Master-tutor even as on the date of the reply. In other words, he did not either disclose or contend that he worked in that institute as a Master-tutor-cum-lecturer. This certainly is not decisive of the matter, but together with the other facts, it would be necessary for him to clarify precisely in what capacity he was appointed at INEPS, Dombivli.
24. There is, therefore, to say the least, considerable uncertainty regarding the petitioner's case of having been appointed as a Master-tutor-cum-lecturer after his voluntary retirement. He does not contend that the documents relied upon by the respondents are fabricated or false. Even assuming that there is some explanation for the petitioner not having been described as a Master-tutor in these documents, it is difficult in a writ petition to resolve this controversy. The documents relied upon by the respondents throw considerable doubt about the petitioner's claim of having been appointed as a Master-tutor. The documents to which he is a party indicate the contrary. The onus is, therefore, upon him to establish otherwise.
Further, it is important to note that INEPS has itself not filed an affidavit in this regard. In view of this controversy on facts, it was essential for INEPS to explain the inconsistencies in the various documents to which it was a party.
25. We are, however, not inclined to dismiss the Writ Petition on the ground that it involves disputed questions of fact thereby relegating the petitioner to filing a suit.
The impugned notification dated 20th September, 2012, indeed holds that the petitioner had not been working as a Master tutor anywhere after he took voluntary retirement from the Government service from 30th June, 2011. The notification, however, does not furnish any reasons for this presumption/finding. It is important to note that the show-cause notice merely proceeded on the basis that the petitioner had voluntarily retired from Government service with effect from 30th June, 2011, and that he was, therefore, not eligible to continue on the post of Member of the Council from that date. In his reply, the petitioner had categorically stated that he worked as a Master-tutor. The petitioner, therefore, contended that his having taken voluntary retirement from Government service by itself did not make any difference.
We are informed that the petitioner's present tenure expires next year. The impugned action, however, would have an effect on the petitioner's rights as a Member of the Council even in future. It is necessary, therefore, for the Government to consider the case afresh, after taking into consideration the rival contentions regarding the question whether the petitioner, after seeking voluntary retirement from the Government service from 30th June, 2011, worked as a master-tutor at INEPS, Dombivli. The Government, however, shall be entitled to take action under any of the provisions of the Act and will not be restricted to section 40(2).
26. In the circumstances, the Writ Petition is disposed of by the following order:
(i) The impugned notification dated 3rd August, 2012, is quashed and set aside.
(ii) The Government shall take a fresh decision whether under Section 40(2) or under Section 5 or under any other provisions after affording all the necessary parties, an opportunity of being heard and producing further documents on the question as to whether the petitioner worked as a Master-tutor after he sought voluntary retirement with effect from 30th June, 2011.
(iii) The decision shall be taken on or before 31st March, 2013.
(iv) In the facts and circumstances of the case, however, till the decision, the arrangement under the impugned notification shall continue but without prejudice to the petitioner's rights and contentions in the event of the fresh decision being in his favour.
There shall be no order as to cots.