REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  5324 OF 2007

Rajasthan Pradesh V.S. Sardarshahar & Anr.   …. Appellants

Versus

Union of India & Ors.      …. Respondents

WITH  

CIVIL APPEAL NO.  5325 OF 2007

Ayurveda Vikas Chikitasak Sangh, Jodhpur Thr. its Secretary Abdul Vaheed …. Appellant

Versus

Union of India & Ors. ….Respondents  

   WITH  

CIVIL APPEAL NO. 4758/2010 (Arising out of  SLP(C) No.21043/2008)

Central Council of Indian Medicine ….Appellant

Versus  

Ved Prakash Tyagi & Ors. ….Respondents

WITH  

CIVIL APPEAL NO. 4757/2010 (Arising out of  SLP(C) No. 20912/2009)

Delhi Pradesh Registered Medical  Practitioners Association, Delhi ….Appellant

Versus  

Union of India and Ors. ….Respondents  

WITH  

CIVIL APPEAL NO. 4759/2010 (Arising out of  SLP(C) No.3986/2010)

Haryana vaidaya Samiti, Haryana a registered body, thr. Its President ….Appellant

Versus  

State of Haryana & Ors. ….Respondents  

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. Leave granted in SLP (C) Nos. 21043/2008, 20912/2009 and  

3986/2010.   

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In all the aforesaid Civil Appeals, common questions of law are  

involved and, therefore, they are heard together.  Questions involved  

in all these cases are as under:

(i) As  to  whether  persons  who  hold  either  the  degree  or  

diploma of  “Vaidya Visharad” or “Ayurved Ratna” from Hindi  

Sahitya Sammelan Prayag/Allahabad which are not included  

as  recognized  qualification  in  Schedule  II  of  the  Indian  

Medicine Central Council Act, 1970 (hereinafter called as the  

‘Act 1970’) have a right to practice in medical sciences.

(ii) As to whether cut off date i.e. 1967 as per Entry No.105 in  

the Second Schedule of the Act,1970 is arbitrary and thus,  

liable to be quashed.  

(iii) As to whether restriction imposed under the Central Act from  

practicing, unless names appear in the Central Register, is  

violative  of  Article  14  of  the  Constitution  of  India  with  

reference to the State Act.

2. Facts and circumstances giving rise to Civil Appeal Nos.5324-

5325 of 2007 and appeal arising out of SLP(C) No.21043/2008 are  

that  Section  32  of  the  Rajasthan  Indian  Medicine  Act,  1953  

(hereinafter referred to as ‘Act 1953’) provided that persons who had  

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obtained degree of  “Vaidya Visharad” or “Ayurved Ratna” from Hindi  

Sahitya  Sammelan  Prayag  were  recognized  as  having  sufficient  

qualification  for  practicing as Vaidyas  in  Rajasthan and they were  

permitted  to  get  themselves  registered  as  Vaidyas  in  the  register  

maintained under the said Act 1953.  Section 17(2) of the Act 1970  

provided that persons who possessed the qualifications as laid down  

in Second, Third and Fourth Schedule of  the Act 1970  would be  

permitted to practice. Section 17(3) however, carved out an exception  

for  those  Vaidyas  who  had  been  practicing  prior  to  the  

commencement of the Act 1970.  Different provisions of the Act 1970  

were  enforced  throughout  the  country  but  on  different  dates.  In  

Rajasthan, Section 17 came to be enforced w.e.f. 1.10.1976.  One  

Ved Prakash Tyagi filed Writ Petition No.733 of 2000 before the High  

Court of Rajasthan for seeking large number of reliefs including the  

restrain order to those who obtained the degree/certificate of “Vaidya  

Visharad” or “Ayurved Ratna” from Hindi Sahitya Sammelan Prayag  

after 1967 to practice as Vaidyas and further to delete their names  

from the register so maintained under the Act 1953. The High Court  

considered  the  matter  elaborately  and  came  to  the  following  

conclusions:

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(1) Persons  who  did  not  possess  requisite  qualification  

prescribed under Schedule II, III and IV of the Act 1970  

were  not  eligible  to  contest  the  elections  

notwithstanding  they  were  enrolled  in  the  State  

Register  and  were  covered  by  the  exception  clause  

under Section 17(3)(b) and were permitted to practice  

medicines;

(2) Qualification  prescribed  under  the  Act  1953  to  the  

extent  it  was  repugnant  to  the  Act  1970,  would  not  

confer  any  person  a  right  to  practice  or  seeking  

enrolment in the State Register;

(3) Section  17  of  the  Act  1970  came  into  force  in  

Rajasthan w.e.f.  1.10.1976. Thus, a person who has  

acquired  the  diploma/certificate  from  Hindi  Sahitya  

Sammelan Prayag,  subsequent thereto would not be  

eligible to be enrolled in State Register; and  

(4) Any person who acquired such certificate/diploma after  

1.10.1976  would  not  have  any  right  to  practice  or  

participate in election.

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3. Hence, Civil Appeal Nos. 5324-25 of 2007 have been filed by  

Vaidya’s  Samiti  and  Chikitasak  Sangh  being  aggrieved  by  the  

judgment and order of the High Court  that  persons who acquired  

qualification from Hindi Sahitya Sammelan after 1.10.1976 were not  

eligible  and  entitled  to  practice.  Appeal  arising  out  of  SLP  (C)  

No.21043 of  2008 has been filed by the Central  Council  of  Indian  

Medicine (hereinafter referred to as ‘CCIM’) challenging the order of  

the High Court to the extent that persons who acquired certificates  

between 1967 and 1.10.1976 have also been permitted to practice.   

4. Appeal arising out of SLP(C) No. 3986 of 2010 has been filed  

by the Haryana Vaidya Samiti against the judgment and order dated  

13.10.2009 passed by the Punjab and Haryana High Court in C.W.P.  

No.  14392  of  2009  holding  that  persons  who  acquired  

certificates/diplomas from Hindi Sahitya Sammelan Prayag after 1967  

are not  entitled  to  practice and it  had upheld the validity  of  Entry  

No.105 in the 4th Column regarding the expression “upto 1967” in the  

Second Schedule of the Act, 1970.

5. Appeal  arising  out  of  SLP(C)  No.  20912  of  2009  has  been  

preferred  by  Delhi  Pradesh  Registered  Medical  Practitioners  

Association being aggrieved by the judgment and order of Delhi High  

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Court dated 19.11.2009 passed in C.W.P. No. 1999 of 1998 wherein  

it  has  been  held  that  unless  a  person  possessed  qualification  as  

required in Schedule II, III and IV to the Act 1970, he is not entitled to  

practice.  

6. In all these cases, learned counsel appearing for the appellants  

namely, Shri S.K.Dholakia, Sr. Advocate and Shri B.D. Sharma have  

submitted that such a restriction imposed on appellants infringes their  

right  to practice under Article 19(1)(g)  of  the Constitution of  India,  

1950. More so, once their names stood enrolled in the State Register,  

they were entitled to practice. More so, they are entitled to continue to  

practice, as an exception has been carved out under Section 17(3) of  

the Act, 1970. Restriction imposed under the Act 1970 from practicing  

unless the names appear in the Central Register is violative of Art.14  

of the Constitution with reference to the statutory provisions of the Act  

1953.  There is no rational for fixing the cut- off date as 1967 in Entry  

No.105 of the Second Schedule to the Act, 1970 and thus liable to be  

quashed.  Hence, the appeals deserve to be allowed.

7. Per contra, Shri R.U. Upadhyay, learned counsel appearing for  

CCIM  submitted  that  a  person  who  does  not  possess  the  

qualifications as  mentioned in Schedule II, III and IV of the Act, 1970  

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is not eligible and entitled to indulge in any kind of medical practice.  

The  Legislature has power to put reasonable restrictions on the right  

to  practice  under  Article  19(1)(g)  of  the  Constitution  by  virtue  of  

Clause (6) of the said provision. Provisions contained in the Act 1953,  

being repugnant to the statutory provisions of Act 1970, will not apply  

by  virtue  of  Art.254  of  the  Constitution.   Cut-off  date  i.e.  1967  

appearing in Entry No.105 of the Second Schedule to the Constitution  

shows  that  certificates  issued  by  the  said  Society  were  not  

recognized after 1967. More so, Article 21 which deals  with the life  

and  liberty  of  persons  has  also  to  be  kept  in  mind  and  the  poor  

people  of  this  country  who  cannot  afford  to  avail  the  facilities  of  

qualified doctors have to be protected from quacks.  Hindi Sahitya  

Sammelan Prayag had not  been recognised for  imparting  medical  

education  after  1967.  Hindi  Sahitya  Sammelan  is  not  a  medical  

institution or university or a board. It is merely a society registered  

under the Registration of Societies Act.  It does not have any affiliated  

colleges. Therefore, such persons cannot be permitted to indulge in  

medical practice. Rajasthan High Court erred observing that persons,  

who  possessed  the  qualifications  from  Hindi  Sahitya  Sammelan  

Prayag upto 1.10.1976 i.e. the date of enforcement of Section 17 of  

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the Act 1970 in Rajasthan, be allowed to practice.  

8. We have  considered  the  rival  submissions  made by learned  

counsel for the parties and perused the record.  

9. Admittedly,  in  none  of  these  cases,  the  Hindi  Sahitya  

Sammelan Prayag/Allahabad has been impleaded as party. There is  

nothing on record to show that the persons who have acquired such  

certificates  from  the  said  societies  possess  any  other  academic  

qualification  i.e.  as  to  whether  they  have  passed  matriculation  or  

intermediate or they possess any other qualification to make them  

eligible to apply for such certificate.    

10. There is no document  on record disclosing as what  was the  

institution/school  where such persons had got  admission,  imparted  

education,  attended the classes and practicals  in  laboratories  and  

what  was  its  duration.   A  bald  statement  in  all  these  cases  that  

persons possess certificates from Hindi Sahitya Sammelan has been  

made.  Study of medical sciences require attendance in the  classes  

and a proper technical training under competent faculty as they play  

an  important  role  in  maintaining  the  public  health.   None  of  the  

learned counsel appearing for the appellants is able to point out as to  

which University/Board, the educational institution where they were  

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imparted medical  education had been affiliated and as to  whether  

such schools had ever been accorded recognition by the competent  

Statutory Authorities.

11. It is settled proposition of law that  a party has  to plead the  

case  and  produce/adduce   sufficient  evidence  to  substantiate  his  

submissions made in the petition and in case the pleadings are not  

complete, the Court is under no obligation to entertain the pleas. In  

Bharat Singh & Ors. Vs.  State of Haryana & Ors., AIR 1988 SC  

2181, this Court has observed as under:-  

"In  our opinion, when a point, which  is  ostensibly  a  point  of  law  is  required  to  be  substantiated  by  facts,  the  party raising  the  point,  if he is  the  writ petitioner,  must  plead  and  prove   such facts   by evidence which  must appear from the  writ  petition  and  if  he  is  the respondent,  from the counter  affidavit.  If the facts are not pleaded or the evidence in  support  of  such facts  is  not  annexed to  the  writ  petition  or  the  counter-affidavit,  as  the  case may be, the Court will not entertain the  point. There is a distinction between a hearing  under the Code of Civil Procedure and a writ  petition  or  a  counter-affidavit.  While  in  a  pleading, i.e. a plaint or written statement, the  facts and not the evidence are required to be  pleaded.  In a writ petition or   in the   counter  affidavit,  not  only  the  facts  but  also  the  evidence  in  proof  of  such  facts  have  to  be  pleaded and annexed to it."          

12. Similar  view has been reiterated in  M/s.  Larsen &  Toubro  

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Ltd.   & Ors.  Vs.   State  of  Gujarat  & Ors.,  AIR 1998 SC 1608;  

National  Building Construction Corporation Vs. S. Raghunathan  

& Ors., AIR  1998  SC 2779;  Ram Narain  Arora  Vs. Asha Rani  &  

Ors.,  (1999) 1  SCC 141;  Smt Chitra Kumari  etc. Vs. Union  of  

India & Ors., AIR 2001  SC 1237;  and  State  of U.P. & Ors.   Vs.  

Chandra Prakash Pandey & Ors. , AIR 2001 SC 1298.               

13. In   M/s. Atul   Castings   Ltd.   Vs. Bawa  Gurvachan  Singh,  

AIR 2001 SC 1684, this  Court observed as under:-      

"The findings in the absence of necessary  pleadings and supporting evidence cannot  be  sustained in law."                         

14. Similar view has  been reiterated in  Vithal N. Shetti  &  Anr.  

Vs.  Prakash  N. Rudrakar & Ors., (2003) 1 SCC 18; Devasahayam  

(Dead) by L.Rs. Vs. P. Savithramma & Ors., (2005) 7 SCC 653;  

and Sait Nagjee Purushottam & Co. Ltd. Vs. Vimalabai Prabhulal  

& Ors., (2005) 8 SCC 252.

15. In  absence  of  any  pleadings  made  by  the  appellants,  it  is  

difficult to say that any of such persons possessed any qualification  

making them eligible even to apply for such certificates from Hindi  

Sahitya Sammelan Prayag.   

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16. In  The Principal  & Ors.  Vs.  The Presiding Officer  & Ors.  

AIR 1978 SC 344, this Court held that ‘recognition’ means that the  

school  has  been  recognized  or  acknowledged  by  the  appropriate  

authority under the Statute and ‘affiliation’ means  that the students of  

that  school  are  eligible  to  appear  in  the  examination.  Therefore,  

purpose of affiliation is only to prepare and present the students for  

public  examination,  recognition of  a private school  is for  the other  

purposes  mentioned  under  the  Statute  and  unless  the  school  is  

recognized  by  the  appropriate  authority,  the  school  cannot  be  

amenable  to  any  other  provision  of  the  Statute  applicable  in  this  

regard.

17. In  Re : The Kerala Education Bill,  1957 AIR 1958 SC 956;  

and  T.M.A Pai Foundation & Ors. Vs.  State of Karnataka & Ors.  

(2002) 8 SCC 481, this Court held that it is always open to the State  

or the Statutory Authority to lay down conditions for recognition of an  

educational institution namely, that the institution must have particular  

amount of funds or properties or number of students or standard of  

education and so on and so forth and it is also permissible for the  

Legislature to make a law prescribing conditions for such recognition,  

however, such a law should be constitutional and should not infringe  

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any  Fundamental  Right  of  the  minorities  etc.   Recognition  is  a  

Governmental function.

18. This  Court  has  persistently  deprecated  the  practice  of  an  

educational  institution admitting the students  and to  allow them to  

appear in the examinations without having requisite recognition and  

affiliation. This kind of infraction of law has been treated as of very  

high magnitude  and of serious nature. Students of a un-recognised  

institution  cannot  legally  be  entitled  to  appear  in  any examination  

conducted  by  any  government,  university  or  board.  (Vide   Minor  

Sunil Oraon Thr. Guardian & Ors. Vs. C.B.S.E. & Ors. AIR 2007  

SC 458).

19. Similarly, recognition must be there with the school to make it  

subject  to  the  provisions  of  the  Act.  Recognition  signifies  an  

admission or an acknowledgement of something existing before. To  

recognize is to take cognizance of a fact. It implies an overt act on the  

part of the person taking such cognizance. (Vide T.V.V. Narasimham  

& Ors. Vs. State of Orissa, AIR 1963 SC 1227).

20. In  State  of  Tamil  Nadu  &  Ors.  Vs.  St.  Joseph  Teachers  

Training  Institute  & Anr. (1991)  3  SCC 87,  this  Court  held  that  

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students of un-recognised institutions are not entitled to appear in any  

public examination held by the Government and it is not permissible  

for the Court to grant relief on humanitarian grounds contrary to law  

to the person who claim to have passed any examination from such  

institutions.    

In view of the above, it is evident that any institution which is  

not  recognised  cannot  impart  an  education  and  students  thereof  

cannot appear in the examination held by the government, university  

or Board.  

21. As per Entry 66 of List  I  to the 7th Schedule of the Constitution,  

the Parliament is competent to make laws for determining standards  

of  institution  for  higher  education  or  research  and  scientific  and  

technical  institutions.   Such  powers  are  also  available  with  the  

Parliament  in view of Entries 25 and 26 of List III as it includes the  

medical education.  However, in view of Entry 6 of List II, the State  

Legislature is competent to make laws pertaining to public health and  

sanitation, i.e. hospitals and dispensaries.   Section 2(1)(h) of the Act  

1970  provides  “recognised  medical  qualification”  as  any  of  the  

medical qualifications included in the II, III or IV Schedule to that Act.  

Section 14 of the Act 1970 provides a procedure for recognition of  

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medical  qualifications  provided  in  medical  institutions  in  India  and  

Section 17 provides for entitlement/eligibility of persons possessing  

qualifications  included  in  II,  III  and  IV  Schedule  to  the  Act  to  be  

enrolled for practice.  So far as the II  Schedule to the Act 1970 is  

concerned, the relevant entries read as under:-

105 Hindi Sahitya Sammelan, Prayag

Vaidya Visharad

Ayurved-Ratana

……….

………..

From  1931  to 1967 From  1931  to 1967

22. Section 14(2) of the Act 1970 provides that any University or  

Board/Medical  Institution  if  wants  to  impart  medical  education  and  

has not  been included in the Second Schedule,  may apply to the  

Central Government for recognition of its medical qualification and to  

include in Second  Schedule.   If  such an application is made, the  

Central Government is empowered to make  necessary amendment  

as and when required in the Second Schedule, after considering the  

application.  

23. In UmaKant Tiwari & Ors. Vs. State of U.P. & Ors. (2003) 4  

AWC  3016,  a  Division  Bench  of  the  Allahabad  High  Court  has  

considered the issue at length and came to the conclusion that the  

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Hindi  Sahitya  Sammelan  Allahabad/Prayag  were  only  registered  

societies and not educational institutions. The said societies had no  

business  to  impart  education  in  medical  sciences.   Hindi  Sahitya  

Sammelan, Allahabad was a fake institution whereas Hindi Sahitya  

Sammelan, Prayag was recognised only from 1931 to 1967.  

24. In  Dr. Vijay Kumar Gupta & Ors.  Vs.  State of U.P. & Ors.  

(1999) AWC 1783, a Division Bench  of the Allahabad High Court has  

held that a degree/certificate/diploma from Hindi Sahitya Sammelan,  

Prayag  acquired  after  1967  was  not  recognised  and  those  who  

obtained the same subsequent to 1967 were not entitled to practice  

medicines.  

25. In  Dr. Vijay Kumar Gupta & Ors.  Vs.  State of U.P. & Ors.  

(1999) 2  UPLBEC 1063,  a Division Bench of  the Allahabad High  

Court considered the matter at length alongwith statutory provisions  

of  the  Act,  1970  and  came  to  the  conclusion  that  Hindi  Sahitya  

Sammelan,  Allahabad  had  never  been  empowered  to  issue  such  

certificates/degrees. However, certificates issued by the Hindi Sahitya  

Sammelan,  Prayag  were  recognised  during  the  period  of  1931  to  

1967.  Thus, any such certificate subsequent thereto could not entitle  

a person to practice medicine.  

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26. In  Virender Lal Vaishya Vs.  Union of India & Ors. 2003 (2)  

Mah.LJ 64,  a Division Bench of  the Bombay High Court  held that  

Hindi  Sahitya  Sammelan,  Prayag  was  not  a  recognised  

university/Board  and  thus  could  not  award  degree,  diploma  or  

certificate.  

27. In Charan Singh & Ors. Vs. State of U.P. & Ors. AIR 2004 All.  

373,  the  Allahabad  High  Court  considered  the  issue  of  validity  of  

certificates issued by Hindi Sahitya Sammelan, Prayag and came to  

the conclusion that the said institution had absolutely no authority to  

confer  any degree or  diploma of  “Vaidya Visharad”  and “Ayurved-

Ratna” after 1967 and any person who has acquired such certificate  

after 1967 was not entitled to practice at all.   

28. The judgment of the Allahabad High Court in Umakant Tiwari  

(supra) was set aside by this Court and the matter was remanded to  

the High Court to decide afresh in Civil  Appeal No.1453/2004 vide  

judgment and order dated 25th May, 2007, for the reason that matter  

had initially been decided by the High Court in 2003 without giving  

opportunity of hearing to Hindi Sahitya Sammelan Allahabad/Prayag.  

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29. After remand, Hindi Sahitya Sammelan Allahabad/Prayag were  

given notices  and were  directed  to  file  the  counter  affidavits.  The  

Court, after hearing all the parties concerned, including Hindi Sahitya  

Sammelan  Prayag,  vide  judgment  and  order  dated  23.10.2009,  

dismissed the writ petition.   

30. So far as the question of validity of the cut-off date  “1967 in  

Entry No.105” to Schedule II is concerned, the High Court observed  

as under:

“From a bare reading of the aforesaid provisions of Act,  1970, it will be seen that only degrees/certificates granted  by the Hindi Sahitya Sammelan, Prayag between 1931 to  1967  alone  have  been  held  to  be  recognised  medical  qualification for the purposes of Section 14 conferring a  right  to practice upon the holder of the degree under Act,  1970.

With regard to challenge to the words “upto 1967”,  the only ground raised for contending that the cut off date  is arbitrary and violative of Article 14 of the Constitution of  India, is that no reasons have been disclosed. In support  thereof, it is stated that the course/curriculum which was  there  prior  to  1967  continues  even  thereafter  for  the  purposes  of  examinations  held  by  the  Hindi  Sahitya  Sammelan and,  no change has been introduced in the  course after 1967.

From the counter affidavit filed on behalf of Central  Council of Indian Medicine, it is apparently clear that the  words  “upto  1967”  have  been  provided  in  the  Second  Schedule of Act, 1970 with reference to the information  

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supplied by the State Government. Such prescription of  1967  in  these  circumstances,  cannot  be  termed  to  be  arbitrary, more so when in the facts of the case a power  was conferred upon the institution, namely, Hindi Sahitya  Sammelan, Prayag to make an application under Section  14(2) of Act, 1970 for amendment in the Schedule and for  the  degrees  granted  subsequent  to  1967  also  being  included  therein.  The  Hindi  Sahitya  Sammelan  has  deliberately  avoided  to  make  such  an  application.  Because  of  such  inaction,  it  has  further  avoided  the  directions  referable  to  Sections  18  to  22  of  Act,  1970  which  would have been otherwise  become applicable.  This Court may record that it does not lie in the mouth of  Hindi  Sahitya  Sammelan  to  challenge  the  cut  off  date  mentioned in the Schedule as arbitrary, inasmuch as the  said provisions itself  provided an opportunity to get  the  Schedule amended by inclusion the degrees/certificates  offered  by  the  institution,  i.e.  Hindi  Sahitya  Sammelan,  Prayag subsequent to 1967.

The reasons disclosed by the State-respondent for  fixation of year 1967 as the cut off  year, for recognising  the  degrees,  i.e.  supply  of  information  by  the  State  Government  has  also  not  been  disputed  by  Hindi  Sahitya Sammelan nor any facts for questioning the  aforesaid disclosure made by the State Government  has been brought on record of the present writ petition.”  (Emphasis added)

31. A Division Bench of the Bombay High Court while considering  

the  writ  Petition  No.  7648  of  2000  (Ayurvedic  Enlisted Doctor’s  

Association, Bombay Vs. The State of Maharashtra & Anr.) on the  

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cut-off  date,  i.e.  upto  1967  vide  judgment  and  order  dated  

22.12.2006, recorded the following finding:

“It  is  pointed out  on behalf  of  the State that  under  the  prevailing relevant rules upto 1967, the degrees of Vaidya  Visharad and Ayurved Ratna were recognised by Uttar  Pradesh Government and its Council. After that it lost the  recognition. Therefore, these degrees conferred by Hindi  Sahitya Sammelan, Prayag till 1967 only were recognised  as medical qualifications under the Central Act but after  that  the  recognition  to  these  degrees  was  refused.”  (Emphasis added)

32. Thus, from the above, it is evident that under the then prevailing  

rules,  certificates  issued  by  the  Hindi  Sahitya  Sammelan  Prayag  

remained  recognised  only  upto  1967.  The  Authorities  under  the  

Statute,  on the report  submitted by the State of  U.P. had taken a  

decision not to recognise the said courses any further.  The Society  

for  the  reasons  best  known  to  it  never  made  an  attempt  to  get  

recognition after fulfilling the legal requirements and getting the Entry  

No.105 in Second Schedule of the Act, 1970, modified.

33. In such a fact-situation, even by stretch of imagination, the said  

cut-off date cannot be termed as arbitrary. In fact it is not the cut-off  

date fixed by the Statutory Authorities, rather it  indicates that such  

“courses” or certificates had not been recognised after 1967.

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34.  After remand, in  Umakant Tiwari  (supra) the Allahabad High  

Court has recorded the following findings of fact:-

“Shri Jeevan Prakash Sharma, learned counsel for Hindi  Sahitya  Sammelan  has  fairly  stated  that  Hindi  Sahitya  Sammelan does not grant affiliation to any institution for  imparting  education  in  medical  courses.   Hindi  Sahitya  Sammelan in fact only conducts written examination for  the purposes of awarding the said degrees.  Any person,  who is successful in the written examination so held by  the  Hindi  Sahitya  Sammelan  is  awarded  the  degree,  irrespective of the fact as to whether he was enrolled as a  regular student in any institution or not.

No application was ever made by the Hindi Sahitya  Sammelan,  Allahabad/Prayag  to  get  its  medical  qualifications  i.e.  Vaidya  Visharad  and  Ayurved  Ratna  recognized and included in the Second Schedule.  They  have not represented in exercise of powers under Section  14(2)  of  Act,  1970  before  the  Central  Government  for  inclusion of the said qualifications in the Second Schedule  at  any  point  of  time  in  respect  of  degrees/certificates  granted subsequent to 1967.  This has led a very peculiar  situation.   By  not  getting  their  medical  qualifications  approved/recognised  under  Second  Schedule  of  Act,  1970,  the  Hindi  Sahitya  Sammelan  has  successfully  evaded  any  inspection/any  direction  of  the  Central  Council of India qua medical qualification granted by it for  years together and therefore on one hand not only it did  not  represent  the  Government  for  inclusion  of  medical  qualification even after publication of schedule as early as  in the year 1971 till date i.e. nearly 38 years, it has also  successfully  evaded  inspection  by  the  Government/Central Council, for issuance of directions for  maintenance of standard of education, curriculum etc.  At  the same time it alleges that its qualification be treated to  be valid by the Central Council of Indian Medicine for the  purpose of permitting practice of medicine.  Despite being  aware  of  the  total  prohibition  qua  grant  of  medical  

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qualification  as  per  the  Act  of  Parliament  namely,  Act  No.48 of 1970 and despite there being a provision to get  its medical qualifications recognized and included in the  Second Schedule, no effort has been made by the Hindi  Sahitya Sammelan for the purpose….

Hindi  Sahitya  Sammelan  has  fairly  stated  that  it  does  not  affiliate  or  recognise  any  institution  and  it  exercises  absolutely  no  control  on  the  teaching  in  the  subject  of  medicine  qua  degrees  of   Vaidya  Visharad  and Ayurved Ratana, nor it is necessary for a candidate  to  appear  in  the  examination  conducted  by  the  Hindi  Sahitya Sammelan to have been admitted as a regular  student in any institution imparting education in the field of  medicine.   The  Hindi  Sahitya  Sammelan  holds  written  examination only for awarding the degree.  In the opinion  of the Court such grant  of degree without any practical  teaching, cannot be approved of and it is for this reason  that the Central Government has come out with Central  Act laying down the norms in detail  for education being  imparted in the field of medicine.”

35. In  Pramod Kumar Vs. U.P. Secondary Education Services  

Commission  &  Ors. (2008)  7  SCC  153,  this  Court  held  that  

recognised  degree  can  only  be  awarded  by  University  

constituted/established  under  the  provisions  of  University  Grants  

Commission  Act  or  Rule or  any State  Act  or  Parliament  Act.   No  

University can be established by a private management without any  

statutory backing.  Similar reasons apply to Hindi Sahitya Sammelan  

also,  as  it  is  only  a  society  duly  registered  under  the  Societies  

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Registration Act.  The competence to grant medical degree under any  

provisions of law is therefore, wanting.

36. In Delhi Pradesh Registered Medical Practitioners Vs. Delhi  

Admn. Director of Health Services & Ors., AIR 1998 SC 67, this  

Court  held that unless a person possess the qualifications prescribed  

in Schedule II, III and IV of the Act, 1970, does not have a right to  

practice  and the Central  Legislation  will  proceed over  State  Act  if  

there is any repugnancy between the two.

37. In Dr. Mukhtiar Chand & Ors. Vs. State of Punjab & Ors. AIR  

1999 SC 468, 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.  In the said case, the issue was confined to the  

rights of those persons who were otherwise entitled to prescribe all  

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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 practice Indian medicines, was not involved  

in Dr. Mukhtiar Chand (supra).

38. This Court in SLP (C) No. 22124 of 2002,  Vaid Brij Bhushan  

Sharma Vs. Board of Ayur & Unani Systems, Med. & Anr. decided  

on  2.12.2002  also  re-iterated  the  view  that  issue  involved  in  Dr.  

Mukhtiar Chand (supra) was quite different and persons possessing  

such  certificates  were  not  entitled  to  practice.  The  Court  held  as  

under:-

“We are of the considered view that the judgment of the  three Judge Bench reported in Dr. Mukhtiar Chand and  Others  case (supra)  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 practice as  registered  medical  practitioner  was  not  claimed  on  the  basis of a degree of Vaid 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 schedule  thereto it has been held that only such of those degrees  

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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.”  

39. In Udai Singh Dagar & Ors. Vs. Union of India & Ors. (2007)  

10 SCC 306 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. (vide State of Madras v. V.G. Row  AIR 1952 SC 196).”

40. In Civil Appeal No. 1337 of 2007, Ayurvedic Enlisted Doctor’s  

Assn.  Mumbai  Vs.  State  of  Maharashtra  &  Anr. decided  on  

27.2.2009, this Court considered the issue involved herein at length  

and came  to the conclusion as under:-

“So  far  as  the  claim  that  once  the  name is  included  in  the  register of a particular State 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  

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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 Schedule. 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(g).”  

41. This  Court  further  came  to  the  conclusion  that  unless  the  

person possesses the qualification as prescribed in Schedule 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.

42. 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  

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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.

Question of entertaining the issue of validity of Entry No.105 to  

the Second Schedule to the Act 1970 i.e. “to 1967” does not arise as  

it is not a cut-off date fixed by the Statutory Authority rather a date,  

after  which the qualification in  question was not  recognised.  Hindi  

Sahitya Sammelan itself admitted that the Society was not imparting  

any education. It  had no affiliated colleges. It  merely conducts the  

test. The Society never submitted any application after 1967 before  

the Statutory  Authority to  accord recognition and modify  the Entry  

No.105 to Part I of Schedule II to the Act 1970.  

Submissions  to  the  effect  that  1953  Act  conferred  privileges  

upon the Vaidyas in exceptional circumstances to practice and any  

restriction to practice unless the names are entered in the Central  

Register is arbitrary and violative of statutory provisions of the State  

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Act,  are  preposterous  for  the  reason  that  such  privileges,  if  are  

repugnant  to  the  provisions  of  Act  1970,  cannot  be  availed  by  

operation  of  the  provisions  contained  in  Article  254  of  the  

Constitution.  Thus,  such  a  restriction  can  not  be  held  violative  of  

equality clause enshrined in Article 14 of the Constitution.   

43. At the cost of repetition, it may be pertinent to mention here that  

in  view of the above, we have reached to the following inescapable  

conclusions :-

 (I) Hindi Sahitya Sammelan is neither a University/Deemed  

University nor an Educational Board.    (II) It is a Society registered under the Societies Registration  

Act.   (III) It is not an educational institution imparting education in  

any  subject  inasmuch  as  the  Ayurveda  or  any  other  branch of medical field.   

(IV) No school/college imparting education in any subject is  affiliated to it.  Nor Hindi Sahitya Sammelan is affiliated to  any University/Board.

  (V) Hindi Sahitya Sammelan has got no recognition from the  

Statutory Authority after 1967.  No attempt had ever been  made by the Society to get recognition as required under  Section  14  of  the  Act,  1970  and  further  did  not  seek  modification of entry No. 105 in II  Schedule to the Act,  1970.

  (VI) Hindi  Sahitya  Sammelan  only  conducts  examinations  

without verifying as to whether the candidate has some  

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elementary/basic  education  or  has  attended  classes  in  Ayurveda in any recognized college.

  (VII) After  commencement  of  Act,  1970,  a  person  not  

possessing the qualification prescribed in Schedule II, III  & IV to the Act, 1970 is not entitled to practice.

  (VIII) Mere inclusion of name of a person in the State Register  

maintained under the State Act is not enough making him  eligible to practice.

  (IX) The  right  to  practice  under  Article  19(1)(g)  of  the  

Constitution  is  not  absolute  and  thus  subject  to  reasonable restrictions as provided under Article 19(6) of  the Constitution.   

(X) Restriction  on practice  without  possessing  the requisite  qualification prescribed in Schedule II, III & IV to the Act,  1970 is not violative of Article 14 or ultra vires to any of  the provisions of the State Act.    

44. The instant cases have to be determined strictly in consonance  

with  the law laid down by this  Court  referred to hereinabove and,  

particularly,  in  Ayurvedic  Enlisted  Doctor’s  Assn. (supra).  The  

observation  made by the  Rajasthan High Court  to  the extent  that  

persons who possessed the certificate upto 1.10.1976 i.e. the date on  

which the provisions of Section 17 had been enforced in the State of  

Rajasthan is not in consonance with the law laid down by this Court in  

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the above referred cases. Therefore, that observation is liable to be  

set aside.  

45. In view of the above, Civil  Appeal arising out of SLP (C) No.  

21043 of 2008 is allowed and it is held that a person who acquired  

the  certificate,  degree  or  diploma  from  Hindi  Sahitya  Sammelan  

Prayag after 1967 is not eligible to indulge in any kind of a medical  

practice.   All other Civil Appeals are dismissed. No costs.   

…………………………………..J. (Dr. B.S. CHAUHAN)

        …………………………………..J. (SWATANTER KUMAR)

New Delhi, June 1, 2010

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