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Allahabad High Court · body

2001 DIGILAW 889 (ALL)

RAJIV LOCHAN v. CHIEF MEDICAL OFFICER, ALIGARH

2001-08-31

SUDHIR NARAIN, V.M.SAHAI

body2001
SUDHIR NARAIN, J. ( 1 ) THE petitioner has challenged the order dated August 9, 2001 passed by the Chief Medical officer, Aligarh, restraining him from carrying on medical practice in his clinic. ( 2 ) THE version of the petitioner is that he obtained degree of Ayurved Ratna in the year 1992 from Hindi Sahitya Sammelan, Allahabad. He applied for registration as a Medical Practitioner before the State Ayurved and Unani Medical Board, Bihar (in short the Medical Board Bihar)and was registered by the said Board in the year 1993. He, after obtaining registration from bihar, started medical practice in district Aligarh, Uttar Pradesh. ( 3 ) A complaint was made against the petitioner that he has opened a clinic and is doing medical practice unauthorisedly. The petitioner submitted registration certificate issued by the Bihar medical Board. The said certificate was sent for verification to the Indian Medical Board, Uttar pradesh (in short the U. P. Board ). The U. P. Board informed that the certificate issued by Hindi sahitya Sammelan conferring degree of Ayurved in the year 1992 is not a recognised degree for the purpose of registration as medical practitioner and on the strength of registration certificate issued by the Bihar Medical Board, the petitioner is not entitled to carry on medical practice. He was restrained from doing medical practice in Uttar Pradesh. ( 4 ) THE core question is whether the petitioner is entitled to carry on medical practice on the strength of the registration certificate given by the Bihar Medical Board on the basis of degree of ayurved Ratna given by Hindi Sahitya Sammelan in the year 1992. ( 5 ) THE State of Uttar Pradesh brought the Indian System of Medicine, i. e. , Ayurved or Unani. Tibbi system of medicine within the purview of United Provinces Indian Medicines Act, 1939. The medical practice under the Indian system was further regulated by the Indian Medicines central Council Act, 1970 (Act No. 48 of 1970 ). This Act is a complete Code in the matter of governing the medical practice in Indian medicines including Astang Ayurved, Siddha Ayurved and Unani Tibbi. The Act provides for constitution of a council known as Central Council. It prescribes the qualification for enrolment as medical practitioner. This Act is a complete Code in the matter of governing the medical practice in Indian medicines including Astang Ayurved, Siddha Ayurved and Unani Tibbi. The Act provides for constitution of a council known as Central Council. It prescribes the qualification for enrolment as medical practitioner. Section 2 (h) defines "recognised medical qualification" which means any of the medical qualifications including post-graduate medical qualification, of Indian medicine included in the Second. Third or Fourth schedule of the Act. Sub-section (1) of Section 14 provides that the medical qualification granted by any University. Board or other medical Institution in India which are included in the second Schedule shall be recognised medical qualifications for the purposes of this Act. This clearly indicates that those persons, who have not obtained medical qualifications in the institutions referred to in Second Schedule, shall not be recognised as having obtained medical qualification for the purpose of the Act. Sub-section (2) of Section 17 provides that save as provided in Section 28 no person other than a practitioner of Indian medicine who possesses a recognised medical qualification and is enrolled on a State Register or the Central Register of indian Medicine shall practise Indian medicine in any State. ( 6 ) ENTRY 105 of Second Schedule indicates that the degree of Vaid Visharad and Ayurved Ratna of Hindi Sahitya Sammelan. Prayag, obtained between the period 1931 to 1967 has been recognised. It means that those persons who have obtained degree of Ayurved Ratna or Vaid visharad of Hindi Sahitya Sammelan. Prayag after 1967 are not recognised for the purposes of getting registered as medical practitioner under Section 17 (2) read with Section 17 (1) of 1970 act. ( 7 ) THE learned counsel for the petitioner contended that any person who is registered as medical practitioner by the State under the provisions of law is entitled to practise anywhere in the State. He has referred to Sub-section (3) of Section 17 of the Act which reads as under : "17 (3 ). Nothing contained in subsection (2) shall affect, (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Nothing contained in subsection (2) shall affect, (a ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ; (b) the privileges (including the right to practise 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 practitioner of Indian medicine enrolled on a State Register of Indian Medicine ; (c ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (d ). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . " ( 8 ) THE aforesaid provision indicates that those persons who were already enrolled on State register of Indian Medicine on the date of commencement of the 1970 Act were entitled to practise Indian Medicine. It does not confer power on the persons who obtained medical qualifications after the commencement of the Act. In this respect, objects and reasons have been given by the Committee as under : "clause 17.-- The Committee are of the opinion that the existing rights and privileges of practitioners of Indian medicine should be given adequate safeguards. The Committee, in order to achieve this object, have added three new paragraphs to Sub-clause (3) of the Clause protecting (i) the rights to practise 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 the practitioners of Indian Medicine enrolled on a State register, under any law in force in that State, and City the right to practise in a State of those practitioners who have been practising Indian medicines in that State for not less than five years where no register of Indian medicine was maintained earller. "j. C. R. " the petitioner is not entitled to benefit of this provision as he was registered as medical practitioner after 1970. " ( 9 ) THE second submission of the learned counsel for the petitioner is that the State of Bihar was entitled to grant certificate of registration to anyone who could be considered qualified under the bihar Development of Ayurved and Unani System of Medicine Act, 1951, Section 21 of the said act specified the persons who were entitled to be registered as medical practitioners. Section 21 of the Act reads as under : "21. Persons who are entitled to have their names entered In the register of registered practitioners : (i) Every Vaidya or Hakim who holds degree, diploma or certificate of any recognized ayurvedic or Unani college or school within the State or a degree in the Ayurvedic or Unani system of Medicines or Surgery or midwifery conferred by any University established by law of india. (ii) Every Vaidya or Hakim who has passed the final examination held by the faculty or by any institution affiliated to the Faculty. (iii) Every Vaidya or Hakim who in the opinion of the Council possesses sufficient knowledge and skill requisite for the sufficient practice of medicine, surgery or midwifery and enjoys a certain amount of eminence in the medical science and who fulfils the conditions Imposed by regulations made by the Council as to length of practice. (iv) Every Vaidya who has passed the Ayurvedacharya examination of the Sanskrit Association, bihar. (v) Every practitioner or class of practitioners whom the Council with the previous approval of the State Government considers fit for registration under this Act. " ( 10 ) THE Bihar State Council of Ayurvedic and Unani Medicines in exercise of powers conferred under Clause (v) of Section 21 of the Act in its meeting held on 18. 9. 1954 had recognised the degree of Vaid Visharad and Ayurved Ratna conferred by the Hindi Sahitya Sammelan, Prayag, as medical qualification for registering the person as a medical practitioner. The meeting was held on 18. 9. 1954 when such degree was valid even under entry No. 105 of Schedule II of Indian medicine Central Council Act, 1970. ( 11 ) A degree of Ayurved Ratna of Hindi Sahltya Sammelan awarded after 1967 is not recognised under the said schedule. The meeting was held on 18. 9. 1954 when such degree was valid even under entry No. 105 of Schedule II of Indian medicine Central Council Act, 1970. ( 11 ) A degree of Ayurved Ratna of Hindi Sahltya Sammelan awarded after 1967 is not recognised under the said schedule. When Bihar State Council In its meeting held on 18. 9. 1954 granted approval, such degree was valid degree. The petitioner has not stated anywhere that the Bihar state Council took any decision after 1970 that such degree shall be recognised as a valid qualification even after enforcement of Act No. 48 of 1970. The petitioner obtained certificate of registration from the Bihar Medical Board in the year 1993 on the strength of degree of Ayurved ratna in the year 1992. ( 12 ) THE Court can always examine regarding validity of the certificate of registration whenever it is challenged by any person or authority. A person, who has obtained certificate of registration on the basis of degree which is not recognised under the provision of the 1970 Act, is not entitled to carry on medical practice. ( 13 ) THERE is another aspect of the matter. The State Government is not entitled to prescribe any medical qualification for registering any name in its register of medical practitioners in contravention of the provisions of Act No. 48 of 1970. Clause (b) of Sub-section (2) of Section 17 of the Act puts a clear bar to enroll any person on State Register who does not possess a recognised medical qualification as prescribed in Second, Third and Fourth Schedule of the Act. ( 14 ) THE matter was considered by a Division Bench of this Court in Ishaq Husain Razvi v. State of U. P. and Ors. , AIR 1993 All 283 , wherein it was held that a person who has possessed a degree of Vaid Visharad or Ayurved Ratna, Allahabad, after the year 1967 is not entitled to be registered as medical practitioner even though he might have been registered as medical practitioner by the Medical Board of Bihar. , AIR 1993 All 283 , wherein it was held that a person who has possessed a degree of Vaid Visharad or Ayurved Ratna, Allahabad, after the year 1967 is not entitled to be registered as medical practitioner even though he might have been registered as medical practitioner by the Medical Board of Bihar. ( 15 ) THE petitioner has placed reliance upon a decision of Punjab and Haryana High Court in criminal Revision No. 1617 of 1984, Phool Singh v. State of Haryana, where the person was prosecuted and convicted under Section 28 of the Drugs and Cosmetics Act, 1940, on the ground that he was carrying on medical practice without obtaining registration certificate. It was found that as he was registered in the State of Bihar as a medical practitioner, he was not liable for conviction under the said provision. This judgment was affirmed by the Apex Court in Criminal appeal No. 389 of 1994. ( 16 ) IN these cases, the Court was not considering regarding validity of registration certificate issued by the Medical Board, Bihar. A person may be entitled to practise at any place if he has obtained a valid certificate of registration in any State but if the certificate of registration has been obtained illegally in violation of provisions of Act No. 48 of 1970, the Court can examine the matter and if it is found that such registration is illegal, it can restrain such person from carrying on medical practice on the strength of illegal certificate of registration. ( 17 ) THE last submission of the learned counsel for the petitioner is that the State is entitled to register any person who according to the provisions of the State Legislation is entitled to be enrolled as medical practitioner. ( 18 ) A State cannot make legislation in contravention of the provisions of Central Act where the matter is in the Concurrent List of Seventh Schedule of the Constitution of India. ( 18 ) A State cannot make legislation in contravention of the provisions of Central Act where the matter is in the Concurrent List of Seventh Schedule of the Constitution of India. Clause (1) of article 254 of the Constitution of India provides that if any provision of law made by Legislature of the State is repugnant to any provisions of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the concurrent list, then, subject to the provisions of Clause (2), the law made by parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void. ( 19 ) THE medical education is contained in item No. 25 in List III of Seventh Schedule. The law made by the Parliament shall prevail over the State Legislature. ( 20 ) IN view of the above, we do not find any merit in the writ petition. It is accordingly dismissed. .