Judgment

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-section (5) of Section 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.

2. 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 up to 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 Nov. 1, 1966. The respondents application for registration as a medical practitioner made to the Committee of the Medical Board of Unani system of Medicine under sub-section (5) of Section 17 of the Act (although none of the clauses of that subsection had anything to do with it) was rejected and his appeal filed to the Board was also dismissed on September 30. 1964.

3. Clause (ii) of the said sub-sec. (5) with which we are concerned provides that any person not being a person qualified for registration under sub-section (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 1951 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 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 subsection (6) of Section 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."

4. 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, (1969) 71 Bom LR 71 at p. 77 that sub-section (5) of Section 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 prac