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2014 DIGILAW 1356 (RAJ)

Vaidya Jugal Kishore Talwar v. State of Rajasthan

2014-07-07

M.N.BHANDARI

body2014
Hon'ble BHANDARI, J.—With the consent of parties, writ petition is heard finally. 2. By this writ petition, a challenge is made to the notice at Annexure-13 published in the newspaper so as further notices dated 24.09.2010 & 12.07.2010. The petitioners are claiming right to practice in Ayurveda. They have been debarred by the respondents vide the impugned notices. 3. Learned counsel submits that petitioners have taken qualification in Ayurveda from Hindi Sahitya Sammelan after 1967. The petitioners passed out Vaidya Visharad examination and thus entitled to seek registration for practice in Ayurveda. It has been denied for those who had taken aforesaid qualification after the year 1967. 4. Learned counsel for petitioners has raised three grounds to challenge the impugned notices. The first ground is that in the previous litigation, the issue was finally decided in favour of the petitioners. It is submitted that earlier also the respondents came out with similar arrangements as provided by the impugned notices. A writ petition was filed in the year 1986 however it was dismissed. The matter finally travelled to the Hon'ble Supreme Court where it was remanded back to the Division Bench. The Division Bench thereafter decided the review petition in favour of the petitioners vide its judgment dated 12th April, 1989. After the aforesaid judgment, it was not open for the respondents to issue notice afresh debarring the petitioners to practice. In view of the above, impugned notices deserve to be set aside on this ground alone. 5. Learned counsel further submitted that the Indian Medicine Central Council Act, 1970 (in short “the Act of 1970”) made by the Parliament was beyond its competence. At the relevant time, the subject matter was falling in the State list thus Central Government was incompetent to make legislation. The Central Government is competent to make the legislation only for the subjects falling in the union or in the concurrent list and not in the State list. In view of the above, the Act of 1970 is incompetent and otherwise should not have been pressed against the petitioners. It is moreso when subject matter was brought in the concurrent list in the year 1977. 6. The last issue is in reference to judgment of Hon'ble Supreme Court in the case of Dr. Mukhtiar Chand & Ors. vs. State of Punjab & Ors., reported in (1998) 7 SCC 579 . It is moreso when subject matter was brought in the concurrent list in the year 1977. 6. The last issue is in reference to judgment of Hon'ble Supreme Court in the case of Dr. Mukhtiar Chand & Ors. vs. State of Punjab & Ors., reported in (1998) 7 SCC 579 . He submits that in Paras 47 and 48 of the said judgment, right to practice was recognized in favour of similarly placed Vaidyas. The judgment aforesaid was rendered by three Judges Bench thus would be binding on this court even if judgment later on given by Hon'ble Supreme Court is adverse as it is by two Judges Bench, accordingly case of the petitioners should be governed by the judgment in the case of Dr Mukhtiar Chand (supra). 7. I have considered the submission made by learned counsel for petitioners. 8. Learned counsel for petitioners has raised three grounds to challenge the impugned notices. I am first dealing with the last ground raised by the petitioners in reference to judgment of Hon'ble Apex Court in the case of Dr Mukhtiar Chand (supra). For ready reference, Paras 47 & 48 of the said judgment are quoted hereunder: “47. A harmonious reading of Section 15 of 1956 Act and Section 17 of 1970 Act leads to the conclusion that there is no scope for a person enrolled on the State Register of Indian medicine or Central Register of Indian Medicine to practise modern scientific medicine in any of its branches unless that person is also enrolled on a State Medical Register within the meaning of 1956 Act. 48. The right to practise modern scientific medicine or Indian system of medicine cannot be based on the provisions of the Drugs Rules and declaration made thereunder by State Governments. Indeed, Ms. Indira Jaising has also submitted that the right to practise a system of medicine is derived from the Act under which a medical practitioner is registered. But she has strenuously argued that the right which the holders of degree in integrated courses of Indian medicine are claiming is to have their prescription of allopathic medicine, honored by a pharmacist or the chemist under the Pharmacy Act and the Drugs Act. This argument is too technical to be acceded to because prescribing a drug is a concomitant of the right to practise a system of medicine. This argument is too technical to be acceded to because prescribing a drug is a concomitant of the right to practise a system of medicine. Therefore, in a broader sense the right to prescribe drugs of a system of medicine would be synonymous with the right to practise that system of medicine. In that sense, the right to prescribe allopathic drug cannot be wholly divorced from the claim to practise allopathic medicine.” 9. Perusal of paras quoted above reveals observation regarding right to practice. I am not required to bother myself much on the aforesaid issue because Hon'ble Apex Court decided the issue recently in the case of Rajasthan Pradesh Vaidya Samiti, Sardarshahar & Anr. vs. Union of India & Ors., reported in (2010) 12 SCC 609 . Paras 42 to 48 are quoted hereunder for ready reference: 42. In Mukhtiar Chand (Dr.) vs. State of Punjab this Court examined the issue of delegation of power dealing with the provisions of the Drugs and Cosmetics Act, 1940 wherein various observations have been made regarding registered medical practitioners and certain rules therein had been declared ultra vires by the High Court. However, the issue involved herein had not been raised in that case, though an observation has been made that persons enrolled on the State Register under accepted law who enjoyed the privileges including the privilege to practice in any system of medicine may under certain circumstances also practice other system of medicine. 43. In the said case, the issue was confined to the rights of those persons who were otherwise entitled to prescribe all medicines under the Drugs and Cosmetics Act, 1940 and the issue involved herein i.e. as to whether a person having no qualification as prescribed under the provisions of Act 1970 can be held to be qualified and entitled to practise Indian medicines, was not involved in Dr. Mukhtiar Chand. 44. This Court in Vaid Brij Bhushan Sharma vs. Board of Ayurvedic & Unani Systems also re-iterated the view that the issue involved in Dr. Mukhtiar Chand was quite different and persons possessing such certificates were not entitled to practice. The Court held as under:- “3. We are of the considered view that the judgment of the three Judges Bench reported in Dr. Mukhtiar Chand was quite different and persons possessing such certificates were not entitled to practice. The Court held as under:- “3. We are of the considered view that the judgment of the three Judges Bench reported in Dr. Mukhtiar Chand case is totally different on principles as also the basis of claim therein, from the one relevant and necessary so far as the case on hand is concerned. The right of the petitioner therein to continue to practise as a registered medical practitioner was not claimed on the basis of a degree of Vaidya Visharad and Ayurved Rattan awarded by Hindi Sahitya Sammelan, Prayag as in this case, before us. The efficacy of this very degree to entitle the holders thereof to continue to practice as medical practitioner by virtue of the saving clause and protection under Section 17(3) of the Indian Medicine Central Council Act, 1970, had come up for decision in the earlier case and with particular reference to the provisions of Section 14 of the Indian Medical Central Council Act, 1970, read with the provisions contained in the Schedules thereto it has been held that only such of those degrees issued between 1931 and 1967 were alone recognized for the purposes and not the one obtained by the petitioner in the year 1974, long after the coming into force of Section 14 on 15.8.1971 in the whole of the country. In the light of the above principles which directly applied to the case of the petitioner we find no merit in this petition and the same is dismissed.” 45. In Udai Singh Dagar vs. Union of India while dealing with a similar issue, this Court has held as under:- “We, therefore, are of the opinion that even in the matter of laying down of qualification by a statute, the restriction imposed as envisaged under second part of Clause (6) of Article 19 of the Constitution of India must be construed being in consonance with the interest of the general public. The tests laid down, in our opinion, stand satisfied. We may, however, notice that Clause (6) of Article 19 of the Constitution of India stands on a higher footing vis-à-vis Clause (5) thereof. 46. In Ayurvedic Enlisted Doctor’s Assn. Mumbai vs. State of Maharashtra this Court considered the issue involved herein at length and came to the conclusion as under:- “16. We may, however, notice that Clause (6) of Article 19 of the Constitution of India stands on a higher footing vis-à-vis Clause (5) thereof. 46. In Ayurvedic Enlisted Doctor’s Assn. Mumbai vs. State of Maharashtra this Court considered the issue involved herein at length and came to the conclusion as under:- “16. So far as the claim that once the name is included in the register of a particular State there is a right to practice in any part of the country is not tenable on the face of Section 29 of the Central Act. The right to practice is restricted in the sense that only if the name finds place in the Central Register then the question of practicing in any part of the country arises. The conditions under Section 23 of the Central Act are cumulative. Since the appellants undisputedly do not possess recognized medical qualifications as defined in Section 2(1)(h) their names cannot be included in the Central Register. As a consequence, they cannot practice in any part of India in terms of Section 29 because of non-inclusion of their names in the Central Register. Section 17(3A) of the Maharashtra Act refers to Section 23 of the Central Act relating to Central Register. Section 17(1) relates to the register for the State. In any event, it is for the State to see that there is need for having qualification in terms of Second and Fourth Schedules. The claim of the appellants is that they have a right to practice in any part of the country. In terms of Article 19(6) of the Constitution, reasonable restriction can always be put on the exercise of right under Article 19(1)(g).” 47. This Court further came to the conclusion that unless a person possesses the qualifications as prescribed in Schedules II, III and IV of the Act, 1970, he cannot claim any right to practice in medical science and mere registration in any State Register is of no consequence. 48. In view of the above, it is evident that right to practice under Article 19(1)(g) of the Constitution is not absolute. By virtue of the provisions of Clause (6) to Article 19 reasonable restrictions can be imposed. 48. In view of the above, it is evident that right to practice under Article 19(1)(g) of the Constitution is not absolute. By virtue of the provisions of Clause (6) to Article 19 reasonable restrictions can be imposed. The Court has a duty to strike a balance between the right of a Vaidya to practice, particularly, when he does not possess the requisite qualification and the right of a “little Indian” guaranteed under Article 21 of the Constitution which includes the protection and safeguarding the health and life of a public at large from mal-medical treatment. An unqualified, unregistered and unauthorized medical practitioner possessing no valid qualification, degree or diploma cannot be permitted to exploit the poor Indians on the basis of a certificate granted by an institution without any enrolment of students or imparting any education or having any affiliation or recognition and that too without knowing the basic qualification of the candidates.” 10. Perusal of Para 42 quoted above shows reference of the earlier judgment of Hon'ble Apex Court in the case of Dr Mukhtiar Chand (supra). It is categorically held that judgment was not in reference to the controversy raised therein but mainly to examine the issue of delegation of power in dealing with the provisions of the Drugs and Cosmetics Act, 1940. In the background aforesaid, the judgment in the case of Dr Mukhtiar Chand (supra) was clarified in a recent judgment and has not been applied in reference to the issue raised herein. The judgment in the case of Rajasthan Pradesh Vaidya Samiti (supra) is in reference to the Act of 1970 and thus binding on this court. It is also relevant to refer that even prior to judgment in the case of Dr Mukhtiar Chand (supra), Hon'ble Supreme Court had decided the very same issue as has been raised by learned counsel for petitioners herein in the case of Delhi Pradesh Registered Medical Practitioners vs. Director of Health, Delhi Admn. Services & Ors., reported in (1997) 11 SCC 687 = RLW 1998(1) SC 40. Therein, right to practice was not recognized in favour of those who had taken the qualification of Ayurveda Ratna and Vaid Visharad from Hindi Sahitya Sammelan, Prayag after the year 1967. It seems that judgment aforesaid was not brought to the notice of Hon'ble Apex Court in the case of Dr Mukhtiar Chand (supra). Therein, right to practice was not recognized in favour of those who had taken the qualification of Ayurveda Ratna and Vaid Visharad from Hindi Sahitya Sammelan, Prayag after the year 1967. It seems that judgment aforesaid was not brought to the notice of Hon'ble Apex Court in the case of Dr Mukhtiar Chand (supra). The judgment in the case of Delhi Pradesh Registered Medical Practitioners (supra) seems to be first judgment on the issue and lays down the law on the subject matter. In view of the discussion aforesaid, I am unable to apply the judgment in the case of Dr Mukhtiar Chand (supra) as the issue involved therein was different than raised subsequently and even prior to it in the case of Rajasthan Pradesh Vaidya Samiti (supra) and in the case of Delhi Pradesh Registered Medical Practitioners (supra) respectively. 11. The last argument of the learned counsel for petitioners is thus rejected summarily and it is held that what is binding on this court is the judgment of Hon'ble Apex in the case of Delhi Pradesh Registered Medical Practitioners (supra) and the case of Rajasthan Pradesh Vaidya Samiti (supra) which categorically held that any candidate obtained qualification from Hindi Sahitya Sammelan, Prayag after the year 1967 is not entitled to practice in Ayurveda. 12. The question now comes as to whether petitioners would be entitled to practice in Ayurveda in the light of Division Bench judgment rendered in the case of Rajasthan Pradesh Vaidya Samiti (supra). The issue needs not to be discussed elaborately because the subsequent judgment of Hon'ble Apex Court in the year 2010 is again in the case of Rajasthan Pradesh Vaidya Samiti (supra) thus binding on the present matter. Even if the Division Bench judgment is on the same subject, what will prevail is the judgment of Hon'ble Supreme Court and not the Division Bench judgment of this court as the issue involved in both the cases was one and same. Accordingly, I am unable to accept the argument of the learned counsel for petitioners to apply the judgment of Division Bench of this court rendered in the year 1969. 13. The second ground raised by learned counsel for petitioners is in regard to competence of the Parliament to enact law on a subject matter falling in the State List. It is alternatively argued that enactment of Parliament should not be applied to the petitioners. 13. The second ground raised by learned counsel for petitioners is in regard to competence of the Parliament to enact law on a subject matter falling in the State List. It is alternatively argued that enactment of Parliament should not be applied to the petitioners. I find no challenge to the Act made by Central Govt. and even no prayer has been made to the aforesaid effect. Till the challenge is made to the legislation, presumption remains for its constitu-tional validity. The argument of the learned counsel for petitioners that even if the central legislation is not challenged, it should not be pressed against the petitioners is not only hollow but half-hearted argument. If the petitioner was of the view that Parliament was not competent to make law on the subject then none had prevented the petitioner to challenge it before the Division Bench of this court. In absence of challenge to the legislation, it cannot be held that while keeping legislation to be intact, it should not be pressed against the petitioner. In view of the discussion made above, I am unable to accept any of the arguments raised by learned counsel for petitioner. 14. The writ petition so as stay application are accordingly dismissed. It dismisses the second stay application also.