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2005 DIGILAW 514 (MAD)

The State of Tamil Nadu & Another v. C. George

2005-03-24

D.MURUGESAN, MARKANDEY KATJU

body2005
Judgment :- The Chief Justice: This writ appeal has been filed against the impugned order of the learned single Judge dated 23.02.2004. 2. We have heard the learned counsel for the parties and perused the record. 3. The writ petitioner (respondent in this appeal) alleged in his affidavit filed in support of the writ petition that his forefathers were hereditary Siddha Medical Practitioners. Following his predecessors, he also started practising Siddha Medicine along with his father. After his father’s demise in October 1966, the writ petitioner started independent practice. He alleged that he has got more than 30 years of practice to his credit, and his medical practice is essential and indispensable to the people of his village and the surrounding areas. 4. The State of Tamil Nadu has issued notification G.O.Ms.No.2103 dated 17.11.1981 framing Rules for the registration of traditionally trained and/or hereditary practitioners of Indian Medicine in Tamil Nadu. The writ petitioner has alleged that he applied to the Tamil Nadu Board of Indian Medicine in the year 1982 for getting himself registered. Subsequently, the Tamil Nadu Government issued another Government Order in G.O.Ms.No.1172 dated 02.09.1993 revising the earlier G.O.Ms.No.2103 dated 17.11.1981. The said Governmental Order provides for the enlistment of all the applicants who had already applied for registration in the year 1982 under the Rules for the registration of traditionally trained or hereditary practitioners issued in G.O.Ms.No.2103 dated 17.11.1981. 5. It is alleged in paragraph-5 of the affidavit filed in support of the writ petition that pursuant to G.O.Ms.No.1172 dated 02.09.1993 the Tamil Nadu Board of Indian Medicine sent a letter to him under certificate of posting with a letter of consent to be signed by the petitioner during the first week of June 1994. It is further alleged that the petitioner immediately sent the letter of consent duly executed to the Tamil Nadu Board of Indian Medicine with the challan for payment of Rs.250/- paid towards registration charges and other documents which were required. However, the Tamil Nadu Board of Indian Medicine did not send any enlistment certificate or any reply till 20.07.1996. Hence, the writ petitioner sent a legal notice through his counsel dated 10.01.1997 to the 2nd respondent- Tamil Nadu Board of Indian Medicines. 6. However, the Tamil Nadu Board of Indian Medicine did not send any enlistment certificate or any reply till 20.07.1996. Hence, the writ petitioner sent a legal notice through his counsel dated 10.01.1997 to the 2nd respondent- Tamil Nadu Board of Indian Medicines. 6. It is alleged in paragraph – 7 of the petitioner’s affidavit that to his shock and surprise, the 2nd respondent - Tamil Nadu Board of Indian Medicine by order dated 05.03.1997 held that the writ petitioner was not entitled to get the enlistment certificate, since he had applied for enlistment certificate only on 07.06.1994. It is alleged that this order is arbitrary and based on erroneous facts. It is alleged that there is no proper application of mind by the 2nd respondent- Tamil Nadu Board of Indian Medicine. It is alleged that the 2nd respondent - Tamil Nadu Board of Indian Medicine has failed to consider the fact that consent letter forms were sent only to those who had applied for registration in the year 1982, and that he had applied for registration in the year 1982 itself. Hence, it is incorrect to say that he had applied for enlistment only on 07.04.1994. It is alleged that 2nd respondent - Tamil Nadu Board of Indian Medicine has mis-construed the consent letter sent by the writ petitioner on 07.04.1994 as a fresh application for enlistment. It is alleged that the impugned order was passed without giving proper opportunity of hearing. 7. A counter affidavit was filed before the learned single Judge, and we have perused the same. In paragraph – 2 of the counter affidavit it is stated that the petitioner had not applied to the 2nd respondent - Tamil Nadu Board of Indian Medicine in the year 1982, and hence he was not entitled to get enlistment certificate. In paragraph – 4 it is alleged that the letter dated 20.07.1996 stated to be sent by the petitioner was not available with the 2nd respondent - Tamil Nadu Board of Indian Medicine. It is further alleged that the petitioner had not applied to the 2nd respondent - Tamil Nadu Board of Indian Medicine on 07.06.1994, and hence he is not entitled to get enlistment certificate. 8. The learned single Jude has held that the confusion in the case is only due to the fact that the respondents did not maintain their records properly. 8. The learned single Jude has held that the confusion in the case is only due to the fact that the respondents did not maintain their records properly. If the petitioner had not given any application earlier in the year 1982, there was absolutely no possibility of the 2nd respondent - Tamil Nadu Board of Indian Medicine sending a communication for enlisting the petitioner on their own. Hence, the respondents cannot be permitted to take advantage of their own default of not maintaining the records properly and thereby deprive the valuable and statutory right of the petitioner to be enlisted in terms of G.O.Ms.No.1172 dated 02.09.1993. Accordingly, the writ petition was allowed and the impugned order was quashed, and the 2nd respondent - Tamil Nadu Board of Indian Medicine was directed to issue enlistment certificate to the petitioner. 9. Before dealing with the facts of this case, it may be mentioned that in our country, like in other countries, since ancient times medicine has been practiced and a medical system has been evolved. We had renowned medical practitioners like Sushrut and Charak who are internationally known. In fact, no society can get along without medical practitioners. In every society some people fall sick and get diseases, thus requiring medical treatment. In our country, the Siddha, Ayurveda and Unani systems were evolved, which were traditionally indigenous systems of our country. Medical practitioners of these systems would often pass all their medical knowledge to their children or disciples and often this knowledge was kept secret from others. Thus, this knowledge was passed on from generation to generation, but it was only given to the children or the devoted disciples and kept secret from others. Many of the treatments in our indigenous medical systems are very effective and there is no reason why we should not utilize the wisdom of our ancestors. 10. In our opinion, we should encourage indigenous systems of medicines, though with scientific discrimination and after experimentation. However, it is also important that quackery should be suppressed, because it is also true that quackery is widely prevalent in our country, as poor people often cannot afford the fees of qualified doctors. Hence, a balance has to be maintained. For this purpose, Parliament in its wisdom enacted the Indian Medicine Central Council Act, 1970. Chapter III of the said Act deals with recognition of Medical Qualifications. Hence, a balance has to be maintained. For this purpose, Parliament in its wisdom enacted the Indian Medicine Central Council Act, 1970. Chapter III of the said Act deals with recognition of Medical Qualifications. Section 17(2) states that save as provided in Section 28, no person other than a practitioner of Indian medicine who possesses a recognized medical qualification and is enrolled on a State Register or the Central Register of Indian Medicine shall hold office as Vaid, Siddha, Hakim or physician or any other office (by whatever designation called) in government or in any institution maintained by a local or other authority; shall practice Indian medicine in any State; shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed or authenticated by a duly qualified medical practitioner. However, sub-section (3) of Section 17 states that nothing contained in sub-section (2) shall affect:- Clause (a):- …… Clause (b):- …… Clause (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, on such commencement, he has been practising Indian medicine for not less than five years. 11. It is not disputed that on the commencement of the Indian Medicine Central Council Act, 1970 the Tamil Nadu State did not maintain a State Register of Indian Medicine. Hence, Clause (c) of sub-section (3) of Section 17 will apply to persons who were practising Indian medicine for not less than 5 years on the commencement of the Act. Obviously, the purpose of enacting clause (c) of sub-section (3) of Section 17 is that there are a lot of practitioners of Indian medicine (whether called Vaid, Siddha or Hakim) who have no recognized medical degree or certificate at all, but who have been practising Indian medicine on the basis of the knowledge transmitted to them by their father or Guru in the traditional way. If this medical knowledge, which has been coming down to us over centuries in the manner mentioned above, is suppressed, the whole nation will be a loser, as we will lose the accumulated wisdom of centuries or thousands of years in the medical field. If this medical knowledge, which has been coming down to us over centuries in the manner mentioned above, is suppressed, the whole nation will be a loser, as we will lose the accumulated wisdom of centuries or thousands of years in the medical field. Hence, Parliament in its wisdom enabled such persons, who though without any proper medical degree or certificate have been practising Siddha, Ayurveda and Unani medicine, which they learnt from their fathers or Guru, so that our traditional indigenous system may not be lost. 12. Under Clause (c) of sub-section (3) of Section 17 of the Indian Medicine Central Council Act, 1970 all that has to be proved by a person is that he was practising Indian medicine for not less than 5 years on the commencement of the Indian Medicine Central Council Act, 1970. In fact, it is not even necessary for him to be enlisted in any register which the State Government may prescribe, as there is no such requirement in Section 17(3) of the Indian Medicine Central Council Act, 1970. No doubt, the State Government may provide for a register of such practitioners of Indian medicine for its own convenience, but, a person who comes within the purview of Clause (c) of sub-section (3) of Section 17 of the Indian Medicine Central Council Act, 1970 cannot be prohibited from practising Indian medicine merely because he is not enlisted in the register maintained by the State Government. There is no requirement in Clause (c) of sub-section (3) of Section 17 of the Indian Medicine Central Council Act, 1970 that a person who comes within the ambit of the said provision must also register himself in some register maintained by the State Government. 13. For the reasons stated above, we find no merit in this writ appeal. We uphold the impugned order of the learned single Judge, though for reasons other than that given in the said order. Accordingly, the writ appeal is dismissed. No costs. Consequently, connected miscellaneous petition is also dismissed.