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2014 DIGILAW 1986 (DEL)

Md. Ashfaque Ansari v. Union of India

2014-07-25

G.ROHINI, RAJIV SAHAI ENDLAW

body2014
JUDGMENT : C.M. No. 11734/2014 (exemptions) 1. Allowed subject to just exceptions. LPA No. 483/2014 2. This intra-court appeal impugns the order dated 28th May, 2014 of the learned Single Judge of dismissal of CM No. 7376/2014 for interim relief in W.P.(C) No. 3622/2014 preferred by the appellant. 3. The appellant preferred the writ petition, from which this appeal arises, impugning the order dated 1st May, 2014 of Delhi Bhartiya Chikitsa Parishad, Department of Health & Family Welfare of the Government of NCT of Delhi refusing to register the appellant/writ petitioner as a practitioner of Indian Medicine, for the reason of the Graduate in Ayurvedic Medicine & Surgery (GAMS) qualification obtained by the appellant/writ petitioner from the State Faculty of Ayurveda & Unani Medicine, Patna being not recognized by the Central Council of Indian Medicine. Mandamus is also claimed to so register the appellant/writ petitioner. Along with the writ petition, the application aforesaid for interim relief for a direction for grant of temporary registration to the appellant/writ petitioner during the pendency of the writ petition was also filed. 4. The writ petition and the application for interim relief came up first before the learned Single Judge on 28th May, 2014 when though notice of the writ petition was issued but considering the fact that the appellant/writ petitioner till date has not been practising, the interim relief in the mandatory form as sought was declined. 5. The counsel for the appellant/writ petitioner has contended that the appellant/writ petitioner, owing to the refusal of temporary registration is unable to practice his profession for which he has qualified and unable to earn a livelihood, causing great hardship to him. 6. We are however of the view that grant of the interim relief as sought by the appellant/writ petitioner would amount to allowing the writ petition itself. The respondent Delhi Bhartiya Chikitsa Parishad which is the Body empowered to register the qualified persons of Indian Medicine so as to entitle them to practice in Indian Medicine having held the appellant/writ petitioner to be not having the requisite qualification and thus not eligible to be registered, till the said decision of the Body duly empowered to consider applications for registration is set aside, it would not be proper to direct issuance of a temporary registration/license to practice medicine to the appellant/writ petitioner. It cannot of course be lost sight of that upon the appellant/writ petitioner being so granted temporary registration, he would be entitled in law to mete out medical treatment to persons suffering from various ailments and if it were to be ultimately found that the appellant/writ petitioner does not have the necessary qualification to practice in the said field, in the interregnum irreparable harm and injury may be done to the patients who may visit/consult the appellant/writ petitioner for their treatment. The Supreme Court in Dayanand Vedic Vidhalaya Sanchalak Samiti v. Education Inspector, Greater Bombay AIR 2008 SC 577 , in similar situation held that in such petitions, there is no scope for grant of any interim order and that there is no provision for grant of ad hoc approval (to teachers in that case) and either approval is granted or rejected and there can be no half measures and deprecated and set aside the interim order granted by the High Court. Similarly, in Union of India v. Modiluft Ltd. (2003) 6 SCC 65 , where the challenge in the writ petition was to the refusal to issue “NOC”, it was held that direction for issuance of such NOC can be issued only after the Court comes to the conclusion that the refusal to issue the same was bad, and not by an interim order. Yet again in Super Cassettes Industries Ltd. v. Music Broadcast Pvt. Ltd. (2012) 5 SCC 488 , the Supreme Court cautioned that interim relief granting the final relief should be given after exercise of great caution and in rare and exceptional cases. 7. We therefore do not find any error in the discretion exercised by the learned Single Judge in refusing to grant interim relief sought. 8. The appeal is dismissed. However, it is open to the appellant/writ petitioner to make a request before the learned Single Judge for expeditious disposal of the writ petition.