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PETITIONER: A. T. ZAMBRE AND OTHERS

       Vs.

RESPONDENT: KARTAR KRISHNA SHASHTRI

DATE OF JUDGMENT17/12/1980

BENCH: KOSHAL, A.D. BENCH: KOSHAL, A.D. ISLAM, BAHARUL (J)

CITATION:  1981 AIR  796            1981 SCR  (2) 398  1981 SCC  (1) 561

ACT:      Constitution of  India 1950,  Art. 14 & The Maharashtra Medical   Practitioners    Act,   1961,   S.   17(5)-Whether unconstitutional.

HEADNOTE:      The  Maharashtra   Medical  Practitioners   Act   1961, contains  provisions  for  registration  and  enlistment  of medical practitioners.  Clause (ii)  of sub-section  (5)  of section 17  of the  Act provides that any person not being a person qualified  for registration under sub-sections (3) or (4)  who   proves  to  the  satisfaction  of  the  Committee appointed under sub-section (6), "that he was on the 4th day of November  1941 regularly  practising the Ayurvedic or the Unani System  of Medicine  in the  Bombay area of the State, but his  name was  not entered  in the  register  maintained under the  Bombay Medical  Practitioners Act, 1938" shall be entitled to  have his name entered in the register on making an application and on payment of the prescribed fee.      The respondent  whose name  was listed  by the Board of Indian Medicine,  Uttar Pradesh in the register of Vaids and Hakims practised  as a  Vaid and  as an  Ayurvedic Doctor in Agra and  Bhopal respectively. He migrated to Bombay in 1962 where he started practice as an Ayurvedic Doctor. He applied for registration  as a medical practitioner to the Committee of the  Medical Board of Unani system of Medicine under sub- section (5)  of section  17 of  the Act. His application was rejected, and  his  appeal  filed  to  the  Board  was  also dismissed.      The High  Court, however, allowed the respondent’s writ petition,  relying   on  its  earlier  decision  in  Rukmani Hoondraj Hingorani  v. The  Appellate  Authority  under  the Maharashtra Medical  Practitioner Act,  1961 (1969)  71 Bom. L.R.  71   (77),  held   section  17(5)   of  the   Act   as unconstitutional and  set aside  the orders  passed  by  the Board.      Dismissing the appeal to this Court, ^      HELD: 1. In Rukmani Hoondraj Hingorani v. The Appellate Authority under  the Maharashtra  Medical Practitioners Act, 1961 (1969)  71 Bom.  L.R. 71(77)  the validity  of  section 18(2)(b)(ii) fell  for consideration and was rightly held to

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be unconstitutional  as it offends the provisions of Article 14. It  was observed  in that  case that  the provision,  by restricting  the   right  of  enlistment  to  those  medical practitioners ’who  have been  regularly practising  on  4th November, 1951  in the  Bombay area  of the  State’  had  no rational nexus  with the object of the Legislature which was to allow  medical practice  by those  less qualified persons who were  too old to choose alternative means of livelihood, and that  while it  was clearly  open to  the Legislature to provide that  a person  must  have  been  practising  for  a certain number  of years,  or from before a particular date, in order  that his  name may  be included  in the  list,  no distinction on  the basis  of the  area in which he had been practising could be made. [400C-H] 399      2. The provisions of section 18(2)(b)(ii) being in pari materia with  subsection (5) of section 17, the observations made in  the above case apply also to this sub-section. This sub-section is,  therefore, violative  of Article  14 of the Constitution. [401G]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 1572 of 1970.      From the  Judgment and  Order dated  8-11-1968  of  the Bombay High Court in S.C.A. No. 2087/68.      M. C.  Bhandare, C.  K. Sucharita  and M. N. Shroff for the Appellant.      Nemo for the Respondent.      The Judgment of the Court was delivered by      KOSHAL J.,  This is  an appeal by special leave against the judgment  dated November  8, 1968 of a Division Bench of the High  Court of Bombay allowing a petition under articles 226 and  227 of the Constitution of India and declaring that sub-s. (5) of s. 17 of the Maharashtra Medical Practitioners Act, 1961  (hereinafter referred  to as  the Act)  is  ultra vires of article 14 of the Constitution of India.      The facts are not in dispute and may be shortly stated. The respondent hails from Uttar Pradesh. In 1940 he obtained the degree  of "Ayurved  Shastri" from  the All India Adarsh Vidwat Parishad,  Kanpur. On  November 12, 1940 his name was listed by  the Board  of Indian  Medicine, Uttar Pradesh, in the register  of Vaids and Hakims. He practised as a Vaid in Agra thereafter  upto 1955  when he migrated to Bhopal where he was  registered as  an Ayurvedic  Doctor by  the  Medical Council of the Government of Bhopal under the Bhopal Medical Practitioners Registration  Act, 1935. He migrated to Bombay in 1962 and started practising there as an Ayurvedic Doctor. However, in  the meantime,  i.e., on  November 23, 1961, the Act came  into force,  except for  Chapter VI  thereof which came into  operation on  November 1,  1966. The respondent’s application for  registration as a medical practitioner made to the  Committee of  the Medical  Board of  Unani System of Medicine under sub-s. (5) of s. 17 of the Act (although none of the  clauses of  that sub-section had anything to do with it) was  rejected and his appeal filed to the Board was also dismissed on September 30, 1964.      Clause (ii)  of the  said sub-s.  (5) with which we are concerned provides  that  any  person  not  being  a  person qualified for  registration under  sub-ss. (3)  or  (4)  who proves to  the satisfaction of the Committee appointed under sub-s. (6)  "that he  was on  the 4th  day of  November 1941 regularly practising  the Ayurvedic  or the  Unani System of

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Medicine in  the Bombay  area of the State, but his name was not entered  in the  register maintained  under  the  Bombay Medical 400 Practitioners Act,  1938" shall be entitled to have his name entered in  the register  on making  an application  on  the prescribed form,  on payment  of  a  fee  of  Rs.  10/-  and production of  such documents  as may  be prescribed  by the rules.  The   expression  "Bombay   area  of  the  State  of Maharashtra" is  defined in sub-s. (6) of s. 3 of the Bombay General Clauses  Act to  mean "the  area  of  the  State  of Maharashtra excluding  the Vidarbha region and the Hyderabad area of that State."      A contention  was raised  before the  High Court on the strength of  Rukmani Hoondraj  Hingorani  v.  The  Appellate Authority under  the Maharashtra  Medical Practitioners Act, 1961 that  sub-s. (5)  of s.  17 of  the Act  fell  foul  of article 14  of the  Constitution, and  that  contention  was accepted.  We   may  usefully   refer   to   the   following observations made in the decision just above cited:           "Confining  our  attention,  however,  to  medical      practitioners practising  in the  Bombay  area  of  the      State, we find it difficult to appreciate why the right      of enlistment  should have been restricted to those who      were regularly practising on 4th November 1951, ‘in the      Bombay area  of the  State’. Since  the object  of  the      Legislature was to allow medical practice by those less      qualified  persons   who  were   too  old   to   choose      alternative means of livelihood, it was clearly open to      the Legislature to provide that a person must have been      practising for  a certain  number  of  years,  or  from      before a particular date, in order that his name may be      included  in   the  list.  It  was  thus  open  to  the      Legislature to  provide that,  out of  unregistered and      unlisted medical  practitioners who  were practising in      the Bombay  area of  the State,  only  those  would  be      entitled to  have their  names included in the list who      were  practising  regularly  from  before  the  4th  of      November, 1951.  It is,  however, not  possible to find      any rational  basis  for  the  provision  that  medical      practitioners in the Bombay area of the State, in order      to be  entitled to  enlistment, must not only have been      practising regularly  from 4th November, 1951, but must      have been practising on that day ‘in the Bombay area of      the State’.  The provision  that medical  practitioners      must have  been practising on 4th November, 1951 in the      Bombay area of the State has no rational nexus with the      object of  the Legislature  which was  to  ensure  that      medical practitioners, who were not fully qualified but      who  were  too  old  to  choose  alternative  means  of      livelihood, should not be deprived of their practice. 401           In order  to illustrate  the discriminatory nature      of the provision contained in s. 18(2)(b)(ii), we shall      take imaginary  instances of  five persons who were all      practising in  the Bombay area of the State at the time      of their  applications under  s. 18 (i.e., on or before      31st March, 1965) and who were not already enlisted and      were not entitled to registration under the Act. Let us      suppose  that   one  of   them,   A,   was   practising      continuously in  Bombay City from 1950 to 1963, when he      applied under  s. 18 of the Act. Since on 4th November,      1951 he was practising regularly ’in the Bombay area of      the State’,  he is  clearly entitled  to have  his name      included in  the list. Let us take another person B who

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    practised in Poona from 1950 to 1954 and in Bombay City      from 1954  to 1963  when he  applied under s. 18. He is      also entitled  to enlistment because Poona falls in the      Bombay area of the State. We may then take the instance      of C  who practised  in Nagpur from 1950 to 1954 and in      Bombay City from 1954 to 1963. He would not be entitled      to have  his name  included in the list, because on 4th      November, 1951  he was  regularly practising  in Nagpur      which, though  situated in Maharashtra, is not included      in the  Bombay area of the State. We will next take the      instance of  D who  practised in Baroda, then a part of      the Bombay  State, from  1950 to 1954 and thereafter in      Bombay City  from 1954 to 1963. He is also not entitled      to enlistment,  since Baroda  in out  side the State of      Maharashtra. Similar  would be  the position of another      person E  who practised in Bhopal from 1950 to 1954 and      then in  Bombay City  from 1954  to 1963.  No  rational      explanation can  be given of why A and B should receive      the said  concession from the Legislature and should be      able to  continue their  practice and  why C,  D and  E      should  not   receive  the  concession  and  should  be      deprived of their practice."      We find  ourselves in  complete  agreement  with  these observations which  were made in relation to sub-clause (ii) of clause  (b) of  sub-s. (2)  of s.  18  of  the  Act.  The provisions of  that sub-clause  being in  pari materia  with sub-s. (5)  of s.  17 of  the Act,  they apply fully to that sub-section which  must therefor  be held to be violative of article 14  of the  Constitution.  Accordingly  we  have  no hesitation in  upholding the  impugned judgment  and dismiss this appeal, but with no order as to costs as the respondent has not appeared before us to contest it. N.V.K.                                     Appeal dismissed. 402