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2012 DIGILAW 1054 (PNJ)

Balkar Singh v. Union of India

2012-08-08

R.P.NAGRATH, SURYA KANT

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JUDGMENT SURYA KANT, J. (1). The petitioner assails constitutional validity of the Indian Medicine Central Council Act, 1970 especially its Chapter III and Second Schedule, the same being violative of Article 19(1)(G) of the Constitution. He also seeks quashing of the orders dated 10.04.2007, 21.08.2007, 31.08.2007 and 17.04.2009 (Annexures P8, P9, P10 & P14, respectively) being violative of provisions of the Bihar Development of Ayurvedic and Unani Systems of Medicines Act, 1951 and the Punjab Ayurvedic and Unani Practitioners Act, 1963. (2) The petitioner is said to have passed his Matriculation from Hindi Sahitya Sammelan, Allahabad in the year 1980, followed by “Ayurveda Ratna” from the same Institute in the year 1982 though the Degree was statedly issued on 5th April, 1985. The petitioner got himself registered as a Vaidya with the State Council of Ayurvedic and Unani Medicines, Bihar in the year 1984. The petitioner thereafter is said to have passed BAMS (Ayurvedacharya) examination from Varanasy Sanskrit Vishwavidhyalaya and a Degree dated 14.07.1992 (Annexure P4) has been issued to this effect. (3) The petitioner applied to the State Council of Ayurvedic and Unani Medicines, Bihar for change of address in his Registration Certificate and his request was accepted vide letter dated 20.01.1996 wherein his address of village Tewar, Tehsil Kharar, District Ropar (Punjab) was mentioned. (4) The petitioner and his wife, as it appears from the averments made in the writ petition, started running some Clinic-cum-Nursing Home in Tehsil Kharar (Punjab) without obtaining any registration from the Board of Ayurvedic and Unani System of Medicine, Punjab. (5) A complaint dated 31st October, 2006 made by one Sadhu Singh of village Jakkar Majra, District Mohali containing serious allegations of Practicing Modern System of Medicine and causing death of an infant, led to a raid conducted at the clinic of the petitioner by team of doctors deputed by Civil Surgeon, SAS Nagar Mohali. A fact- finding enquiry was conducted and it appears that the same has culminated into criminal prosecution of the petitioner and his wife. (6) The petitioner protested against initiation of aforesaid proceedings and pleaded that he was a registered practitioner duly authorized by Bihar Council. He served the Civil Surgeon, Mohali and other Authorities of the State of Punjab with a legal notice to ‘recognise’ the qualifications possessed by him. (6) The petitioner protested against initiation of aforesaid proceedings and pleaded that he was a registered practitioner duly authorized by Bihar Council. He served the Civil Surgeon, Mohali and other Authorities of the State of Punjab with a legal notice to ‘recognise’ the qualifications possessed by him. The petitioner then approached this Court in CWP No.7745 of 2008 which was disposed of on 09.05.2008 (Annexure P12) with a direction to the Authorities to take a decision on his legal notice by passing a speaking order. Pursuant thereto, the Civil Surgeon, SAS Nagar Mohali passed the impugned order dated 17.04.2009 (Annexure P14). (7) The petitioner challenged the above-stated speaking order before this Court in CWP No.8507 of 2009 which he withdrew on 22.03.2011 with liberty to file a fresh one challenging the vires of Constitutional amendment. (8) The relentless petitioner has again approached this Court. We have heard his learned counsel and gone through the record. (9) The petitioner’s first contention is that the 1970 Act ultra vires the Constitution as it has been enacted by Parliament without possessing legislative power at the relevant time. It is contended that Entry-25 in List III – Concurrent List has been incorporated w.e.f. 03rd January, 1977 which alone enables the Parliament to enact law on Education, including…. Medical Education. The impugned Act was, however, enacted in the year 1970 when no such power vested with the Parliament. (10) The argument, in our considered view, is wholly misconceived for variety of reasons. The petitioner has not pointed out any specific Entry in List II – State List which was in existence at any point of time empowering the State Legislature to enact laws on the subject in issue. In our considered view, the Entry-26 in List-III – Concurrent List comprising “Legal, Medical and other Professions” was sufficient enough to clothe Parliament with the power to enact the 1970 Act. Assuming there was no Entry like Entry 25 in the Union or Concurrent List prior to 1977, still the competence of Parliament to make such law in exercise of its residuary powers under Article 248 of the Constitution, is inarguable. (11) The Parliament could also enact the subject law in the year 1970 even on the strength of Entry 66 of List I – Union List. (12) The first contention of the petitioner thus has no legal basis and hence rejected. (11) The Parliament could also enact the subject law in the year 1970 even on the strength of Entry 66 of List I – Union List. (12) The first contention of the petitioner thus has no legal basis and hence rejected. (13) The petitioner’s second contention based upon the provisions of Punjab Ayurvedic and Unani Practitioners Act, 1963 is also totally misplaced. Section 15(1) of the Act says that “every person possessing any of the qualifications specified in Schedule I shall, subject to the provisions of this Act and on payment of such fees as may be prescribed in this behalf, be entitled to have his name entered in Part I of the Register subject to such conditions as may be prescribed…” (14) Schedule I of the 1963 Act reads as follow:- “SCHEDULE I [See sections 15 and 31] 1. Degree or Diploma of any Ayurvedic or Unani College recognized by the Faculty (with at least four years course) within Punjab or outside it, or a degree in the Ayurvedic System or Unani System of Medicine of any University established by law in India…” 2. xxxx xxxx xxxx 3. xxxx xxxx xxxx (15) It would thus be seen that a person must possess the qualifications specified in Schedule I for his registration as an Ayurvedic Medical practitioner with the Punjab Council. Only that Degree or Diploma of an Ayurvedic or Unani College which is at least of four-years’ duration and is recognized within Punjab or outside it or a Degree in the Ayurveda/Unani System of Medicine of any University established by any law in India, is acknowledged by Schedule I of the 1963 Act. (16) The Degree in “Ayurveda Ratna” obtained from Hindi Sahitya Sammelan after the year 1967 or the BAMS Degree obtained from Varanasy Sanskrit Vishwavidhyalaya are neither recognized under the Second Schedule of the 1970 Central Act nor under the 1963 Punjab Act. The petitioner, therefore, has no claim whatsoever to claim right to practice medicine on the basis of afore-stated unrecognized Degrees. (17) The issue is no longer res integra. This Court has already turned down similar claim firstly in Dr.Swaran Singh Dardi v. State of Punjab AIR 1981 P&H 87 and again in Mohamad Azam v. State of Haryana 1994 (2) SCT 621 (DB). (17) The issue is no longer res integra. This Court has already turned down similar claim firstly in Dr.Swaran Singh Dardi v. State of Punjab AIR 1981 P&H 87 and again in Mohamad Azam v. State of Haryana 1994 (2) SCT 621 (DB). The controversy has been finally set at rest by the Hon’ble Supreme Court rejecting a similar claim in Rajasthan Pradesh V.S. Sardarshahar and Anr. v. Union of India & Ors. AIR 2010 SC 2221 . (18) For the reasons afore-stated, we do not find any merit in this writ petition which is accordingly dismissed. (19) No costs. Dasti.