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PETITIONER: DELHI PRADESH REGISTERED MEDICAL PRACTITIONERS ETC., SWAROOP

       Vs.

RESPONDENT: DELHI ADMN. DIRECTOR OF HEALTH SERVICES

DATE OF JUDGMENT:       17/10/1997

BENCH: G.N. RAY, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                THE 17TH DAY OF OCTOBER, 1997 Present:                 Hon’ble Mr. Justice G.N.Ray                 Hon’ble Mr. Justice G.B.Pattanaik O.P.Sharma, Sr.  Adv.,  Mrs.  Sona  Khan,  Moh.  Sajid  Arun Kaushal, Goodwill Indeevar, S.K.Mehta, D.Mehta, Fazlin Anam, Ms. Shobha  Verma, R.C.  Gubrele, Mrs.  Sarla Chandra,  K.R. Gupta, Vivek  Sharma, and  Ashok Sudan,  Advs., with him for the appellants. P.P.Malhotra,  Sr.  Adv.,  Rajeev  Sharma,  D.S.Mehra,  Dive Singh, Devendra  Singh, D.K.  Garg, Satpal  Singh, Advs with him for the Respondents.                          O R D E R      The following order of the Court was delivered:                             AND                CIVIL APPEAL NO. 7442 OF 1997         (Arising out of S.L.P. [c] No. 8103 of 1993      Leave granted  in both  the  matters.    Heard  learned counsel for the parties.      The propriety  and validity of the public notice issued by  the  Director,  Health  Services,  Delhi  Administration indicating that  the Indian  Medicine  Central  Council  had recognised Ayurved  Ratna and  Vaid Visharad degrees awarded by the  Hindi Sahitya  Sammalan Paryag,  Allahabad only upto 1967 and The certificate of Ayurved Ratna and Vaid visharada given  by   the  said  organization  after  1967  not  being recognised under  the said  Act registration obtained by any person as  a medical  practitioner  on  the  basis  of  such degrees therefore  would not  be recognised  and any  person having such  qualification would not be entitled to practice in Delhi  are impugned  in  these  appeals.    It  was  also indicated  in   the  said   public  notice  that  no  Indian University or  Board conducts  one year’s  course for giving the bachelor’s  degree  in  Ayurvedic  Medicine  or  through correspondence  course   no  M.D.   Degree  in  Ayurved  was conferred by  any university  or Board.  The Public at large was cautioned  by the  said public  notice published  in the newspaper about such position in law.      The Delhi  Pradesh  Registered  Medical  Practitioners’ Association moved  a writ  petition before  the  Delhi  high

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Court Challenging  the validity  of he  said  public  notice issued  by   the  Health   Services,  Delhi  Administration. Similar Writ  Petition was  moved by  Dr. Swarup  Singh  and others challenging  the  said  public  notice.    Such  writ petitions were  dismissed by the Division Bench of the Delhi High Court  by indicating  that as  in the  Indian  Medicine Central Council  Act 1970  the said  degrees  had  not  been recognised after  1967 and  the writ  petitioners before the High Court  had obtained  such degree  from the  said  Hindi Sahitya Sammalan  Prayag long after the said Indian Medicine Central  Council  Act,  1970  was  enforced  they  were  not entitled to  practice on  the basis  of the degrees obtained from the  said Hindi  Sahitya Sammalan  Prayag.    Therefore there was  no  occasion  to  interfere  with  the  direction contained in  the public  notice and the writ petitions were accordingly dismissed.      Mr. S.K.  Mehta the  learned counsel  appearing in  the appellants in  the appeal arising out of SLP [C] No. 8103 of 1993 has submitted that the Hindi Sahitya Sammalan Prayag is an old and reputed institution and such institution had been giving  the   said  degrees  of  Ayurvedic  Ratna  and  Vaid Visharada from  a long  time and such degrees awarded by the said institution had been recognised in various states.  Dr. Mehta has further submitted that about the qualifications of the Medical  Practitioners in  various disciplines,  namely, Homeopathic, Unani,  Ayurvedic etc. both the State Govt. and Central Govt.  have  competence  to  legislate  because  the subject is  in the  concurrent list.   Various  States  have recognised the  degree awarded  by the  said  Hindi  Sahitya Sammalan and  on the  basis of such degrees, large number of practitioners  in   the  discipline  of  Ayurved  have  been registered in  various States  including Delhi and have been successfully practicing  in the  discipline of Ayurved.  The writ petitioners also got themselves registered in the State of Delhi  and they had been practicing in the State or Delhi and they  had been practicing as Medical Practitioner in the discipline of  Ayurved on the strength of such registration. Therefore their  registrations could  not be held as invalid or liable  to be  cancelled.   In this connection. Mr. Mehta has submitted that even under the said act of 1970 there was no  bar  for  the  writ  petitioners  or  persons  similarly circumstanced to  get themselves  registered and practice in the discipline  of Ayurved.   He  had drawn out attention to the provisions  of Section  17(3)(a)(b) and  [c] of the said Central Act  1970.   it is  appropriate to refer to the said provisions  for  appreciating  true  legal  import  of  such provisions.      17 (3)  Nothing contained  in  sub  section  (2)  shall affect:-      (a) the  right of a practitioner of      Indian medicine enrolled on a State      Register  of   Indian  Medicine  to      practice  Indian  Medicine  in  any      State merely  on the ground that on      the commencement  of this  Act,  he      does  not   possess  a   recognised      medical qualification:      (b) the  privileges (including  the      right to  practice  any  system  of      medicine) conferred by or under any      law  relating  to  registration  of      practitioners  of  Indian  medicine      for the  time being in force in any      State on  a practitioners of Indian      medicine  enrolled   on   a   State

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    Register of Indian Medicine.      (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 a  such commencement he has been      practicing Indian Medicine for less      than five years.      It has  been contended by Mr. Mehta that although a bar has been imposed under Section 17(2) to practice in India in the discipline  of  Ayrveda  if  the  practitioner  did  not possess the qualifications enumerated in the schedules under the Indian  Medicine Central  Council  Act,  1970  but  sub- section (3) of Section 17 has carved out an exception to the provisions  of  Section  17(2)  of  the  said  Act.    if  a practitioner in  the discipline  of Ayurveda is enrolled and registered as  a medical practitioner in any state in India, or such  practitioner was already in the field practicing in Ayurveda or  such person  had a  right to  be enrolled then, such person  was protected and his rights or privileges as a medical practitioner cannot be affected because according to Mr. Mehta  Clause (b)  of  sub-section  (3)  of  Section  17 protects the  privilege including  the right to practice any system of  medicine conference  the right  to  practice  any system of medicine conferred by or under any law relating to the registration of practitioners of Indian Medicine for the time being  enforced if in any State  practitioner of Indian Medicine is  enrolled on  a State  register.   Mr. Mehta Has submitted that  as the  concerned  practitioners  have  been registered  as   the  practitioners  in  the  discipline  of Ayurveda, they  have right to practice in such discipline as registered medical  practitioners  and  privileges  which  a registered practitioner  has have  been  protected  by  sub- section (3)  of Section  17. Therefore,  notwithstanding non recognition of the said degrees conferred by the said Prayag Hindi Sahitya  Sammalan after 1967, the right to practice as registered medical practitioner and consequential privileges of a  registered practitioner  cannot be  taken away.    The public notice,  therefore was  misconceived and  illegal and the Delhi High Court has failed to appreciate the true legal import of  sub section (3) of Section 17 of the said Act and has erroneously  held  that  the  writ  petitioner  are  not entitled to  practice in Delhi because of the bar imposed by the Indian Medicine Central Act, 1970 for not possessing the requisite qualification as enumerated in the said Act.      We are,  however, unable  to accept  such contention of Mr. Mehta,  sub-section (3)  of Section  17  of  the  Indian Medicine Central Act, 1970, in our view, only envisages that where before  the enactment  of  the  said  Indian  Medicine Central Act,  1970 on  the basis  of requisite qualification which was  then recognised,  a person got himself registered as medical  practitioner  in  the  disciplines  contemplated under the  said Act or in the absence of any requirement for registration such  person had been practicing for five years or intended  to be  registered and  was also  entitled to be registered, the  right of  such person  to practice  in  the concerned  discipline   including  the   privileges   of   a registered medical  practitioner stood protected even though such practitioner  did not  posses  requisite  qualification under the  said Act  of 1970.  It may be indicated that such view of  ours is  reflected from  the  objects  and  reasons indicated for  introducing sub-section  (3) of Section 17 in the act.  In the objects and reasons, it was mentioned:-      ’the committee  are of  the opinion

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    that  the   existing   rights   and      privileges  of   practitioners   of      Indian  medicine  should  be  given      adequate safeguards.  The Committee      in order  to  achieve  the  object,      have added  three new paragraphs to      sub-section  (3)   of  the   Clause      protecting  (I)   the   rights   to      practice of  those practitioners of      Indian medicine  who may not, under      the proposed legislation, possess a      recognised qualification subject to      the condition that they are already      enrolled on  a  State  register  of      Indian  medicine  on  the  date  of      commencement of  this Act, (ii) the      privileges conferred on enrolled on      a State  Register, under any law in      force in  that State, and (iii) the      right to  practice in  a  State  of      those practitioners  who have  been      practicing Indian  medicine in that      State for  not less than five years      where   no   register   of   Indian      medicine was maintained earlier.      As it  is not  the case  of any of the writ petitioners that they  had acquired  the degree in between 1957 and 1970 or on  the date of enforcement of provisions of Section 7(2) of the  said Act  and got  themselves registered or acquired right to  be registered, there is no question of getting the protection under  Sub-Section (3)  of Section 17 of the said Act.   it is  to be  stated  here  that  there  is  also  no challenge as  to the  validity of the said Central Act, 1970 The decision  of the  Delhi High  Court therefore  cannot be assailed by  the appellants.   We  may indicate here that it has been  submitted by  Mr. Mehta  and also by Ms. Sona Khan appearing  in  the  appeal  arising  out  of  special  leave petition No.  6167 of 1993 that proper consideration had not been given to the standard of education imparted by the said Hindi Sahitya  Sammalan Prayag and expertise acquired by the holders  of  the  aforesaid  degrees  awarded  by  the  said institution.   In any  event, when proper medical facilities have not  been made  available to  a large  number of poorer sections  of   the  society,   then  ban   imposed  to   the practitioners like  the writ  petitioners  rendering  useful service to the needy and poor people was wholly unjustified. It  is  not  necessary  for  this  Court  to  consider  such submissions because  the same remains in the realm of policy decision of other constitutional functionaries.  We may also indicate here  that what  constitutes proper  education  and requisite expertise  for a  practitioner in Indian Medicine, must be  left  to  the  proper  authority  having  requisite knowledge in the subject.  As the decision of the Delhi High Court is  justified on  the face  of legal  position flowing from the  said Central Act of 1970, we do not think that any interference by  this Court  is called  for.   These  appals therefore are dismissed without any order as to costs.