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2003(2) Supreme 1
SUPREME COURT OF INDIA
(From Calcutta High Court)
S. Rajendra Babu & Ashok Bhan, JJ.
Subhashis Bakshi & Ors. -Appellants
versus
West Bengal Medical Council & Ors. -Respondents
Civil Appeal No. 152 of 1994
Decided on 14-2-2003
Counsel for the Parties :
For the Appearing Parties : R.F. Nariman, B. Sen, Tapas Ray, Sr. Advocates Arunabh Chowdhury, Ms. Avantika Keswani, R.N. Karanjawala, Ms. Manik Karanjawal, G.K. Banerjee, Dilip Sinha, D. Krishnan, D.P. Mohanty, Sinha and Das, Ranjan Mukherjee, L.R. Singh, Amitesh Kumar, Ms. Bharati Anand, Advocates.
Held after case law : Coming back to the case in hand, the Division Bench in the impugned judgment relied upon A.K. Sabhapathy to deny the appellants right to prescribe medicines or to issue sickness or death certificates and held that the appellants do not possess the recognized medical qualification . In the light of the ruling in Dr. Mukhtiar Chand this view of the Division Bench cannot be sustained. Therefore there is no bar to register the name of the appellants in the State Medical Register. Now the only issue for consideration is whether the right to issue prescription or certificates could be treated as a part of right to treat. In Dr. Mukhtiar Chand it was pointed out that "…because prescribing a drug is a concomitant right to practice a system of medicine. Therefore, in a broad sense, the right to prescribe drug of a system of medicine would be synonymous with the right to practice that system of medicine. In that sense, the right to prescribe an allopathic drug cannot be wholly divorced from the claim to practice allopathic medicine." The appellants are validly holding the right to treat certain diseases. So their right to issue prescriptions or certificates cannot be detached from their right to treat. Such right to issue certificates or prescriptions is imbibed in the right to treat. One cannot and shall not be separated from the other. Once the right to treat is recognized, then the right to prescribe medicine or issue necessary certificate flows from it. Or else the right to treat cannot be completely protected. Hence, even assuming for a moment that the 1915 Notification is not there, still the appellants right to prescribe medicine cannot be denied. In that view of the matter, the order of the Division Bench is set aside and that of the learned Single Judge is restored. Therefore, the respondents shall make necessary arrangements to include the names of all the concerned Diploma holders in the State Medical Register for the limited purpose indicated therein within a period of six months from today. The appeal is allowed accordingly. (Paras 12, 13 and 14)
Based on the provided legal document, the key points are:
The right to treat includes the right to issue prescriptions, sickness certificates, and death certificates, provided the individual is recognized as having the competence to treat certain diseases (!) (!) .
The appellants, who possess a recognized diploma and the right to treat, can lawfully have their names entered in the medical register, which allows them to practice their treatment rights, including issuing necessary certificates and prescriptions (!) (!) .
The recognition of the right to treat certain diseases implies an associated right to prescribe medicines and issue certificates, as these are integral to the practice of treatment (!) (!) .
The legal framework, including notifications and statutes, supports the inclusion of diploma holders in the medical register for the limited purpose of treatment-related activities, even if they do not possess full recognized medical qualifications (!) (!) .
The order of the court mandates that authorities must facilitate the registration of all eligible diploma holders in the relevant medical register within a specified timeframe, ensuring their ability to perform treatment functions, including issuing certificates and prescriptions (!) (!) .
The legal interpretation emphasizes that the right to prescribe and issue certificates flows naturally from the right to treat, and these cannot be separated without undermining the protection of the treatment rights (!) (!) .
Any restrictions or notifications that attempt to limit these associated rights are subject to judicial review and must be consistent with the recognized legal principles that uphold the right to treat and related activities (!) (!) .
Please let me know if you need further analysis or specific legal advice regarding this matter.
JUDGMENT
Rajendra Babu, J.-"Thou shall not prescribe, but treat". Does this commandment stand the test of legal scrutiny? This is the stark and simple question to be decided in this case.
The long-winded facts of this case read as follows:
That about 337 persons, including the appellants had completed the diploma course of Community Medical Service in duly recognized institutions in the State of West Bengal and were posted in different parts of the State by the Government of West Bengal. On October 15, 1980 vide Notification No. Health/MA/7076/5M-5/80 the Government of West Bengal made an amendment in the Statute of the State Medical Faculty by introducing Article 6F under Part B, which reads verbatim as under:
"6F: Students who will undergo and complete the requisite course of studies in Medicine/Medical Science (as defined and detailed in the Schedule to this article and hereinafter called as the said Regulations for the Diploma course in Community Medical Services) in Medical Institutions, duly recognized by the State Medical Faculty of West Bengal, shall be admitted into examinations in the subjects laid down in the said regulations and the students passing the examinations shall be granted Diploma with the abbreviation "Dip. C.M.S", by the Governing body of the aforesaid Faculty.
The Governing Body of the aforesaid Faculty shall also maintain a Register of such Diploma holders with a view to regulating, supervising and restricting their practice for the present."
2. The objective of the said Notification, as detailed therein, is as follows:
"1. Objectives:
(i) To provide medical training to a group of personnel to man the Health Centers and Subsidiary Health Centers.
(ii) Emphasis is to be given on comprehensive Health Care of the Community including promotive, preventive and curative aspects.
(iii) A candidate after successfully completing the course of studies will act as a Team Leader of various categories of Field Workers.
(iv) Training in curative medicines is to be imparted in such a way that after completion of training the trainees can treat common diseases among rural population including communicable diseases, malnutritional states, snake bite, insecticidal poisoning etc. Instructions on diseases requiring sophisticated treatment not practicable in Health Centers will be restricted to the barest minimum. However, such candidates should learn to recognize sign and symptoms of more serious diseases requiring special treatment at referral hospitals (e.g., Sub-divisional or District Hospital) so that such patients may be sent early to these institutions.
(v) The training in promotive and preventive aspect of Health Care including Family Planning and Child Care should be undertaken by actual participation in the field work under the supervision of their teachers along with the field workers.
(vi) A substantial part of the training will be conducted in Health Centers where they will reside along with their teacher in each term of their course so that they are exposed to the field condition from the beginning of their course."
3. On 23/6/1987, the Government of West Bengal issued a Corrigendum and the Diploma that was earlier known as Diploma in Medicine for Community Physicians was rechristened as Diploma in Community Medical Service . Apprehending that the re-naming would have a detrimental effect on their rights, the appellants filed W.P. No.7052/89 in the Calcutta High Court. The said Writ Petition was disposed of by the learned Single Judge on the assurance given by the Government Pleader that the State was willing to award the Diploma in Community Medical Service to the successful candidates. It was also assured by the State, in the said petition that it would provide jobs to such candidates in accordance with the stated policy of the Government. The learned Single Judge of the High Court made it clear that t
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