Civil Appeal No. 1337 of 2007 With Civil Appeal Nos. 1338/2007, 1339/2007, 1884/2007, Civil Appeal No. of 2008. Case: Ayurvedic Enlisted Doctor's Asson. Vs State of Maharashtra and Anr.. Supreme Court (India)
| Case Number | Civil Appeal No. 1337 of 2007 With Civil Appeal Nos. 1338/2007, 1339/2007, 1884/2007, Civil Appeal No. of 2008 |
| Counsel | S.M. Jhadav, Vishwajit Singh, Sunil Kr. Verma, D.K. Gag, Aparna Jha, Balraj Dewan, M.J. Paul, R.K. Adsure, V.N. Raghupathy, Asha Gopalan Nair, Rakesh Uttamchandra Upadhyay and Niranjana Singh, Advs. |
| Judges | Arijit Pasayat and Mukundakam Sharma, JJ. |
| Issue | Indian Medical Central Council Act, 1970 - Sections 2(1), 14, 17, 17(1), 17(2), 17(3), 17(4), 17(5), 17(6), 17(7), 18, 23 and 29; Bihar Development of Ayurvedic and Unani Systems of Medicine Act, 1951 - Sections 21, 22, 23, 24, 25 and 26; Maharashtra Medical Practitioners Act, 1961 - Sections 33 and 37; Bombay Medical Practitioner's Act, 1938 -... |
| Citation | JT 2009 (5) SC 206 , 2009 (3) SCALE 912 |
| Judgement Date | February 27, 2009 |
| Court | Supreme Court (India) |
Judgment:
Arijit Pasayat, J.
1. Leave granted.
2. In these appeals challenge is to the final judgment of the Bombay High Court dismissing the writ petitions filed by the appellants while granting the limited relief to those writ petitioners who hold degree or diploma in Electropathy or Homeo-Electropathy. Though their writ petitions were dismissed it was made clear that so far as those who hold degree or diploma in Electropathy or Homeo-Electropathy may practice in Electropathy or Electrotherapy without registration as medical practitioners but they would not be entitled to practice as or claim to be medical practitioners, doctors etc and they were also not entitled to use any title, like Dr. or any abbreviations prefixing or suffixing their names which may indicate that they are doctors or medical practitioners. Three categories of persons filed the writ petitioners before the High Court. They are as follows:
(i) The persons who hold either the degree or diploma of Vaidya Visharad or Ayurved Ratna or some other equivalent degree awarded by Hindi Sahitya Sammelan Prayag or Hindi Sahitya Sammelan Allahabad and some other institutions whose degree and diplomas are not recognised in Schedule II of the Indian Medical Central Council Act, 1970
(ii) The persons who claim to be practicising in Ayurved on the basis of long experience
(iii) The persons who claim to hold degrees or diplomas in Electropathy or Homeo-Electropathy.
3. The present appeals relate to the first and second category. The first category relate to Civil Appeal Nos.1337/2007, 1338/2007, 1339/2007, 1884/2007, Civil Appeal arising out of SLP(C) No.19079/2007, Civil Appeal 2769/2007, 2807/2007, 4196/2007, 4982/2007 and the second category relates to Civil Appeal Nos.3543/2008, 4064/2007 and 2810/2007.
4. Stand of the appellants in essence is that they were registered as practitioners under the Bihar Development of Ayurvedic and Unani Systems of Medicine Act, 1951 (in short the Bihar Act') in terms of the Schedule as referred to under Sections 22, 23, 24, 25 and 26. Their names were entered in the register as registered practitioners. Though they did not hold any degree or diploma or certificate of any recognised institution they possess sufficient knowledge and skill requisite for educational practice of medicines, surgery and have acquired certain amount of eminence in the medical science and also fulfill the conditions imposed by the regulations made by the Bihar State Council of Ayurvedic and Unani Medicines (in short the Council'). They were practicising in different places mostly in rural places of Maharashtra. Section 21 of the Bihar Act refers to the maintenance of registers. Section 22 deals with persons entitled to be registered. Under the said provision every person possessing any of the qualifications specified in the Schedule shall subject to the provisions contained in the Bihar Act and on payment of the prescribed fees be entitled to have his name entered in the register subject to such conditions as the Council may impose. Undisputedly, the names of the appellants have been entered in the registers and they have been registered. The Indian Medicine Central Council Act, 1970 (in short the Central Act') was introduced in 1970. Prior to that the Maharashtra Medical Practitioners Act, 1961 (in short the Maharashtra Act') was enacted and was in force. The appellants claim that they belong to the third category as enumerated in the Schedule. The Presidential assent to the Bihar Act was given on 12th September, 1951. Under the Central Act, the Central registers in terms of Section 2(1)(d) has to be maintained. Section 2(1)(j) refers to the State Register. It is submitted that Section 17 of the Central Act is of considerable relevance. Section 17 (1) refers to possession of medical qualifications included in Second, Third and Fourth Schedules for enrolment in the State Register of Indian Medicine. It is pointed out that Section 17(2) refers to recognised medical qualification. With reference to Section 14 of the Central Act, it is submitted that medical qualifications granted by any University, Board or other medical institution which are included in the Second Schedule shall be recognised medical qualifications for the purpose of the Act. Section 23 of the Central Act deals with Central Register and it provides that Central Council shall cause to be maintained in the prescribed manner a register of practitioners in separate parts for each of the system of Indian medicine. It shall contain the names of all persons who are for the time being enrolled on any State Register of Indian Medicine and who possess any of the recognised medical qualifications. It is pointed out that merely because the appellant do not possess the requisite medical qualification that cannot in any way disentitle them from practicising as same would be violative of Article 19(1)(g) of the Constitution of India, 1950 (in short the Constitution'). Under Section 29 of the Central Act, a person whose name is included in the Central Register is entitled as a matter of right to practice in any part of India. Since the names of the appellants find place in the Bihar State Registers they are, as a matter of right, entitled to be included in the Central Register. It is submitted that the restriction imposed under the Central Act from practicing, unless names appear in the Central Register will be violative of Article 14. With reference to Section 33 of the Maharashtra Act, more particularly, the first proviso thereof, it is submitted that the State is empowered to permit any person to practice on certain criteria being fixed. With reference to Section 37 of the Maharashtra Act which has been deleted it is submitted that permission was given to those who were practicising in the rural areas, by deleting the section the permission has been taken out and such deletion is not sustainable in law. Even though Section 37 has been deleted, under the proviso to Section 33 the State Government can yet make a provision for giving permission to persons like the appellants. It is pointed out that the Central Government also felt the need for giving...
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