Full Judgment Text
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PETITIONER:
DELHI PRADESH REGISTERED MEDICAL PRACTITIONERS ETC., SWAROOP
Vs.
RESPONDENT:
DELHI ADMN. DIRECTOR OF HEALTH SERVICES
DATE OF JUDGMENT: 17/10/1997
BENCH:
G.N. RAY, G.B. PATTANAIK
ACT:
HEADNOTE:
JUDGMENT:
THE 17TH DAY OF OCTOBER, 1997
Present:
Hon’ble Mr. Justice G.N.Ray
Hon’ble Mr. Justice G.B.Pattanaik
O.P.Sharma, Sr. Adv., Mrs. Sona Khan, Moh. Sajid Arun
Kaushal, Goodwill Indeevar, S.K.Mehta, D.Mehta, Fazlin Anam,
Ms. Shobha Verma, R.C. Gubrele, Mrs. Sarla Chandra, K.R.
Gupta, Vivek Sharma, and Ashok Sudan, Advs., with him for
the appellants.
P.P.Malhotra, Sr. Adv., Rajeev Sharma, D.S.Mehra, Dive
Singh, Devendra Singh, D.K. Garg, Satpal Singh, Advs with
him for the Respondents.
O R D E R
The following order of the Court was delivered:
AND
CIVIL APPEAL NO. 7442 OF 1997
(Arising out of S.L.P. [c] No. 8103 of 1993
Leave granted in both the matters. Heard learned
counsel for the parties.
The propriety and validity of the public notice issued
by the Director, Health Services, Delhi Administration
indicating that the Indian Medicine Central Council had
recognised Ayurved Ratna and Vaid Visharad degrees awarded
by the Hindi Sahitya Sammalan Paryag, Allahabad only upto
1967 and The certificate of Ayurved Ratna and Vaid visharada
given by the said organization after 1967 not being
recognised under the said Act registration obtained by any
person as a medical practitioner on the basis of such
degrees therefore would not be recognised and any person
having such qualification would not be entitled to practice
in Delhi are impugned in these appeals. It was also
indicated in the said public notice that no Indian
University or Board conducts one year’s course for giving
the bachelor’s degree in Ayurvedic Medicine or through
correspondence course no M.D. Degree in Ayurved was
conferred by any university or Board. The Public at large
was cautioned by the said public notice published in the
newspaper about such position in law.
The Delhi Pradesh Registered Medical Practitioners’
Association moved a writ petition before the Delhi high
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Court Challenging the validity of he said public notice
issued by the Health Services, Delhi Administration.
Similar Writ Petition was moved by Dr. Swarup Singh and
others challenging the said public notice. Such writ
petitions were dismissed by the Division Bench of the Delhi
High Court by indicating that as in the Indian Medicine
Central Council Act 1970 the said degrees had not been
recognised after 1967 and the writ petitioners before the
High Court had obtained such degree from the said Hindi
Sahitya Sammalan Prayag long after the said Indian Medicine
Central Council Act, 1970 was enforced they were not
entitled to practice on the basis of the degrees obtained
from the said Hindi Sahitya Sammalan Prayag. Therefore
there was no occasion to interfere with the direction
contained in the public notice and the writ petitions were
accordingly dismissed.
Mr. S.K. Mehta the learned counsel appearing in the
appellants in the appeal arising out of SLP [C] No. 8103 of
1993 has submitted that the Hindi Sahitya Sammalan Prayag is
an old and reputed institution and such institution had been
giving the said degrees of Ayurvedic Ratna and Vaid
Visharada from a long time and such degrees awarded by the
said institution had been recognised in various states. Dr.
Mehta has further submitted that about the qualifications of
the Medical Practitioners in various disciplines, namely,
Homeopathic, Unani, Ayurvedic etc. both the State Govt. and
Central Govt. have competence to legislate because the
subject is in the concurrent list. Various States have
recognised the degree awarded by the said Hindi Sahitya
Sammalan and on the basis of such degrees, large number of
practitioners in the discipline of Ayurved have been
registered in various States including Delhi and have been
successfully practicing in the discipline of Ayurved. The
writ petitioners also got themselves registered in the State
of Delhi and they had been practicing in the State or Delhi
and they had been practicing as Medical Practitioner in the
discipline of Ayurved on the strength of such registration.
Therefore their registrations could not be held as invalid
or liable to be cancelled. In this connection. Mr. Mehta
has submitted that even under the said act of 1970 there was
no bar for the writ petitioners or persons similarly
circumstanced to get themselves registered and practice in
the discipline of Ayurved. He had drawn out attention to
the provisions of Section 17(3)(a)(b) and [c] of the said
Central Act 1970. it is appropriate to refer to the said
provisions for appreciating true legal import of such
provisions.
17 (3) Nothing contained in sub section (2) shall
affect:-
(a) the right of a practitioner of
Indian medicine enrolled on a State
Register of Indian Medicine to
practice Indian Medicine in any
State merely on the ground that on
the commencement of this Act, he
does not possess a recognised
medical qualification:
(b) the privileges (including the
right to practice any system of
medicine) conferred by or under any
law relating to registration of
practitioners of Indian medicine
for the time being in force in any
State on a practitioners of Indian
medicine enrolled on a State
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Register of Indian Medicine.
(c) the right of a person to
practice Indian Medicine in a State
in which, on the commencement of
this Act, a state register of
Indian Medicine is not maintained
if a such commencement he has been
practicing Indian Medicine for less
than five years.
It has been contended by Mr. Mehta that although a bar
has been imposed under Section 17(2) to practice in India in
the discipline of Ayrveda if the practitioner did not
possess the qualifications enumerated in the schedules under
the Indian Medicine Central Council Act, 1970 but sub-
section (3) of Section 17 has carved out an exception to the
provisions of Section 17(2) of the said Act. if a
practitioner in the discipline of Ayurveda is enrolled and
registered as a medical practitioner in any state in India,
or such practitioner was already in the field practicing in
Ayurveda or such person had a right to be enrolled then,
such person was protected and his rights or privileges as a
medical practitioner cannot be affected because according to
Mr. Mehta Clause (b) of sub-section (3) of Section 17
protects the privilege including the right to practice any
system of medicine conference the right to practice any
system of medicine conferred by or under any law relating to
the registration of practitioners of Indian Medicine for the
time being enforced if in any State practitioner of Indian
Medicine is enrolled on a State register. Mr. Mehta Has
submitted that as the concerned practitioners have been
registered as the practitioners in the discipline of
Ayurveda, they have right to practice in such discipline as
registered medical practitioners and privileges which a
registered practitioner has have been protected by sub-
section (3) of Section 17. Therefore, notwithstanding non
recognition of the said degrees conferred by the said Prayag
Hindi Sahitya Sammalan after 1967, the right to practice as
registered medical practitioner and consequential privileges
of a registered practitioner cannot be taken away. The
public notice, therefore was misconceived and illegal and
the Delhi High Court has failed to appreciate the true legal
import of sub section (3) of Section 17 of the said Act and
has erroneously held that the writ petitioner are not
entitled to practice in Delhi because of the bar imposed by
the Indian Medicine Central Act, 1970 for not possessing the
requisite qualification as enumerated in the said Act.
We are, however, unable to accept such contention of
Mr. Mehta, sub-section (3) of Section 17 of the Indian
Medicine Central Act, 1970, in our view, only envisages that
where before the enactment of the said Indian Medicine
Central Act, 1970 on the basis of requisite qualification
which was then recognised, a person got himself registered
as medical practitioner in the disciplines contemplated
under the said Act or in the absence of any requirement for
registration such person had been practicing for five years
or intended to be registered and was also entitled to be
registered, the right of such person to practice in the
concerned discipline including the privileges of a
registered medical practitioner stood protected even though
such practitioner did not posses requisite qualification
under the said Act of 1970. It may be indicated that such
view of ours is reflected from the objects and reasons
indicated for introducing sub-section (3) of Section 17 in
the act. In the objects and reasons, it was mentioned:-
’the committee are of the opinion
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that the existing rights and
privileges of practitioners of
Indian medicine should be given
adequate safeguards. The Committee
in order to achieve the object,
have added three new paragraphs to
sub-section (3) of the Clause
protecting (I) the rights to
practice of those practitioners of
Indian medicine who may not, under
the proposed legislation, possess a
recognised qualification subject to
the condition that they are already
enrolled on a State register of
Indian medicine on the date of
commencement of this Act, (ii) the
privileges conferred on enrolled on
a State Register, under any law in
force in that State, and (iii) the
right to practice in a State of
those practitioners who have been
practicing Indian medicine in that
State for not less than five years
where no register of Indian
medicine was maintained earlier.
As it is not the case of any of the writ petitioners
that they had acquired the degree in between 1957 and 1970
or on the date of enforcement of provisions of Section 7(2)
of the said Act and got themselves registered or acquired
right to be registered, there is no question of getting the
protection under Sub-Section (3) of Section 17 of the said
Act. it is to be stated here that there is also no
challenge as to the validity of the said Central Act, 1970
The decision of the Delhi High Court therefore cannot be
assailed by the appellants. We may indicate here that it
has been submitted by Mr. Mehta and also by Ms. Sona Khan
appearing in the appeal arising out of special leave
petition No. 6167 of 1993 that proper consideration had not
been given to the standard of education imparted by the said
Hindi Sahitya Sammalan Prayag and expertise acquired by the
holders of the aforesaid degrees awarded by the said
institution. In any event, when proper medical facilities
have not been made available to a large number of poorer
sections of the society, then ban imposed to the
practitioners like the writ petitioners rendering useful
service to the needy and poor people was wholly unjustified.
It is not necessary for this Court to consider such
submissions because the same remains in the realm of policy
decision of other constitutional functionaries. We may also
indicate here that what constitutes proper education and
requisite expertise for a practitioner in Indian Medicine,
must be left to the proper authority having requisite
knowledge in the subject. As the decision of the Delhi High
Court is justified on the face of legal position flowing
from the said Central Act of 1970, we do not think that any
interference by this Court is called for. These appals
therefore are dismissed without any order as to costs.