1988 Supreme(Raj) 779
RAJASTHAN HIGH COURT AT JAIPUR BENCH
M.B.Sharma, I.S.Israni, JJ.
Rajasthan Pradesh Vaidya Samiti through its Secretary Kalyan Chand Purohit & Ors. - Appellants
Versus
State of Rajasthan and Anr. - Respondents
D.B. Civil Writ Petition No. 1767 of 1986.
Decided On : 23-09-1988
The provisions of a State law relating to registration of practitioners in a particular system of medicine are impliedly superseded by the provisions of a Central law on the same subject, and only qualifications included in the Schedules to the Central Act are recognized for registration and practice.
Headnote:
MEDICAL QUALIFICATIONS - REGISTRATION - AYURVEDIC INDIAN SYSTEM OF MEDICINE - CENTRAL ACT VS STATE ACT - RELEVANCE OF QUALIFICATIONS ACQUIRED AFTER 1967 - INTERPRETATION OF SECTIONS 17, 32, 36 OF CENTRAL ACT AND STATE ACT - APPLICABILITY OF SECTION 61 OF STATE ACT.
Fact of the Case:
The petitioners, who hold medical qualifications in Ayurvedic Indian System of Medicine from Hindi Sahitya Sammelan Prayag acquired after 1967, challenged the deletion of entry 22 from the Regulations framed under Section 48 of the Rajasthan Indian Medicine Act, 1953 (State Act), which recognized their qualifications for registration as Vaidyas in Rajasthan. They argued that the deletion was arbitrary and violated their right to practice. The State contended that the Central Act, the Indian Medical Central Council Act, 1970 (Central Act), superseded the State Act, and only qualifications included in the Second, Third, or Fourth Schedule to the Central Act were recognized for registration and practice.
Finding of the Court:
The Court held that the provisions of the State Act relating to registration of Vaidyas were repugnant to the provisions of the Central Act and were impliedly superseded. The Court interpreted Section 17 of the Central Act, which provides that only medical qualifications included in the Second, Third, or Fourth Schedule to the Central Act are sufficient for enrollment on any State Register of Indian Medicine. The Court found that the qualifications acquired by the petitioners after 1967 were not included in the Schedules to the Central Act and, therefore, they were not entitled to registration or to practice as Vaidyas in Rajasthan.
Issues: 1. Whether the deletion of entry 22 from the Regulations framed under Section 48 of the State Act was arbitrary and violated the petitioners' right to practice. 2. Whether the provisions of the State Act relating to registration of Vaidyas were repugnant to the provisions of the Central Act and were impliedly superseded. 3. Whether the qualifications acquired by the petitioners after 1967 were sufficient for enrollment on the State Register of Indian Medicine and for practicing as Vaidyas in Rajasthan.
Ratio Decidendi: 1. The Court held that the deletion of entry 22 from the Regulations was not arbitrary as it was done to align the State Act with the Central Act. The Court also held that the petitioners' right to practice was not violated as they did not possess the requisite qualifications under the Central Act. 2. The Court held that the provisions of the State Act relating to registration of Vaidyas were repugnant to the provisions of the Central Act and were impliedly superseded. The Court relied on Article 254 of the Constitution of India, which provides that if a State law is repugnant to a Central law, the Central law shall prevail. 3. The Court held that the qualifications acquired by the petitioners after 1967 were not included in the Schedules to the Central Act and, therefore, they were not sufficient for enrollment on the State Register of Indian Medicine or for practicing as Vaidyas in Rajasthan.
Final Decision: The Court dismissed the writ petitions filed by the petitioners, holding that they were not entitled to registration or to practice as Vaidyas in Rajasthan.
JUDGMENT
1. - An identical question of law is involved in these writ petitions and it is as to whether even those who are having medical qualifications which include Ayurvedic qualifications although not included in the Second, Third or Fourth Schedule to the Indian Medical Central Council Act, 1970 (for short, the Central Act), have right to registration in grade 'A' or 'B' or have a right to practice Ayurvedic Indian System of Medicine? Item No. 25 of list III (Concurrent List) deals with Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List-I, vocational and technical training of labour. It will therefore be clear from the perusal of the aforesaid item 25 of List-Ill of the Constitution that the powers of the State Legislature and Parliament are concurrent but in case the Parliament has jurisdiction to legislate in accordance with entries 63, 64, 65 and 66 of List-I, and any legislature has been made by Parliament the power under item 25 of List-Ill shall not be exercised and if exercised it. shall be subject to the powers of the Parliament under List-I. In exercise of the aforesaid powers contained in item No. 25 of List III (Concurrent List), the State Legislature made the Rajasthan Indian Medicine Act, 1953 (for short the State Act). The term 'Board has been defined Under Section 3(1)(i) of the State Act which means the Board of Indian Medicine, Rajasthan established under Section 4. The term 'enlisted' under Section 3(1)(i) used with reference a practitioner means that the name of such practitioner is for the time being entered in a list. In exercise of the powers under Section 48 of the State Act, Regulations were framed by the Board regulating various matters including registration of Vaidyas etc. Prior to be an entry No. 22 in the Regulations/Rules framed in exercise of the powers vested under Section 48 of the State Act under which persons having qualifications either as Vaidya Visharad or Ayurveda Ratna from Hindi Sahitya Sammelan Prayag were recognised for practising as Vaidya in the State of Rajasthan but under the Regulations published in the Rajasthan Gazette Part IV (Ga) dated January 13, 1964, the new Regulations were framed in supersession of all the earlier Regulations in force and, the schedule was not amended but it cannot be said as to which qualification was to be acquired for registration as Vaidya, which was recognised. It can therefore be taken for the purpose of disposal of these writ petitions that under the State Act the qualifications acquired as aforesaid from Hindi Sahitya Sammelan Prayag were recognised for registration as Vaidya in the State of Rajasthan. It was after the Central Act was passed that to make the Regulations to fall in the line with the Central Act a decision was taken to delete item 22 as aforesaid. A decision was taken by the Board to delete item 22, but it does not appear that the same was notified in the official Gazette.
2. In assailing the decision of the Board deleting the above referred entry 22 from Schedule to the Regulations, Mr. Calla, learned Counsel for the petitioner has contended that the deletion could only be by notification under Section 48 of the State Act and therefore some of the persons who acquired the aforesaid qualifications from the Hindi Sahitya Sammelan It may be stated that some of the petitioners and members of the petitioner society in Writ Petition No. 1767/ 1986, acquired one or other of the aforesaid qualifications from the Hindi Sahitya Sammelan Prayag after the year 1967 and not acquired the qualification in between 1931 to 1967. It is also contended that even under the Central Act the aforesaid degrees acquired by the persons from the Hindi Sahitya Simmelan Prayag from 1931 to 1967 have been recognised and find place in Schedule 2 to the Central Act at S. No.105. There is no reason why thereafter i.e. after 1967 a departure has been made and the said quali
Click Here to Read the rest of this document
Back
