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PUNJAB & HARYANA HIGH COURT
D.S.Tewatia and D.V.Sehgal JJ.
Sarwan Singh Dardi
Versus
State Of Punjab
Civil Writ Petition No. 2204 of 1986,
Decided On : SEPTEMBER 17, 1986
DRUGS AND COSMETICS ACT - REGISTRATION - AYURVEDIC AND UNANI PRACTITIONERS - NOTIFICATION DECLARING THEM AS PERSONS PRACTISING MODERN SYSTEM OF MEDICINE - VALIDITY - PUNJAB AYURVEDIC AND UNANI PRACTITIONERS ACT, 1963 - S. 2(F) - INDIAN MEDICAL COUNCIL ACT, 1956 - S. 15(2)(B) - INDIAN MEDICINE CENTRAL COUNCIL ACT, 1970 - S. 17(2)(B) - DRUGS AND COSMETICS RULES, 1945 - R. 2(EE)(III).
Fact of the Case:
The petitioner, a registered medical practitioner under the Punjab Ayurvedic and Unani Practitioners Act, 1963, challenged the action of the District Drugs Inspector prohibiting him from keeping allopathic drugs and directing chemists not to issue such drugs to his patients. The petitioner relied on a notification issued by the Punjab Government declaring Vaids/Hakims registered under the 1963 Act as persons practising the Modern System of Medicines for the purpose of the Drugs and Cosmetics Act, 1940.
Finding of the Court:
The Court held that the notification issued by the State Government declaring Vaids/Hakims registered under the 1963 Act as persons practising the Modern System of Medicines was ultra vires the provisions of sub-cl. (iii) of cl. (ee) of R.2 of the Drug Rules and was, therefore, illegal. The Court further held that the petitioner, on the strength of that notification, could not be treated in law as a Registered Medical Practitioner of Modern Scientific System of Medicine and was not entitled to practise Modern Scientific System of Medicine.
Issues: Whether a person possessing qualifications as would entitle him to practise the system of Indian Medicine commonly known as Ashtang Ayurveda, Siddha or Unani Tibb and to be entitled to be brought on the State register or the Central register of Indian Medicine meant for the registration of such medical practitioners, would be entitled to practice Modern System of Medicine.
Ratio Decidendi: 1. The two systems, Modern Scientific Medicine and Indian Medicine, are totally different and independent of each other, and the qualifications requisite for practising the said two systems of medicine, the manner and mode of acquiring them and other related matters have been dealt with by separate legislations. 2. The provisions of the Punjab Ayurvedic and Unani Practitioners Act, 1963, naturally conform to the provisions of the Indian Medicine Central Council Act, 1970. 3. Clause (a) of S.2 of the Medical Council Act, 1956 defines "medicine" as modern scientific medicine in all its branches and includes surgery and obstetrics but does not include veterinary medicine and surgery. 4. Clause (e) of S.2(1) of the Indian Medicine Central Council Act, 1970 defines "Indian Medicine" as meaning the system of Indian Medicine commonly known as Ashtang Ayurveda, Siddha, or Unani Tibb whether supplemented or not by such modern advances as the Central Council may declare by notification from time to time. 5. The Schedules to respective Acts prescribing qualifications of a medical practitioner entitling him to be registered as such do not import qualifications mentioned in the Schedule of either Act i.e. qualifications mentioned in the schedule of 1956 Act do not find a mention in the qualifications mentioned in the Schedule of 1970 Act and vice versa. 6. No person who is not qualified in the system of Modern Medicine and is not registered as such, either in the State Register or the Central Register, is entitled to practise modern system of medicine. Same is the Case regarding right to practise the system of Indian medicine namely, that no person who is not possessed of requisite qualification envisaged in the 1970 Act or a like legislation by a State Legislature and is registered as such is entitled to practise the system of Indian medicine. 7. Sub-cl. (iii) of cl. (ee) of R.2 of the Drug Rules, which defines Registered Medical Practitioner was added for the first time by Government of India notification No. F.1-22/59-D, dt. 9-4-1960. This clause had undergone thereafter only two amendments which were effected by Government of India Standing Order No. 2139, dt. 12-8-1972 (Government of India Notification No. X-11014/12/72-D, dt. 5-6-1972) and it reads : "(ee) Registered Medical Practitioner means a person - (i) holding a qualification granted by an authority specified or notified under S.3 of the Indian Medical Degrees Act, 1916 (7 of 1916), or specified in the Schedules to the Indian Medical Council Act, 1956 (102 of 1956); or (ii) registered or eligible for registration in a medical register of a State meant for the registration of persons practising the modern scientific system of medicine excluding the Homoeopathic system of medicine; or (iii) registered in a medical register, other than a register for the registration of Homoeopathic practitioner, of a State, who although not falling within sub-cl. (i) or sub-cl. (ii) is declared by a general or special order made by the State Government in this behalf as a person practising the modern scientific system of medicine for the purposes of this Act; or x x x x x x x." 8. The expression Registered Medical Practitioner appearing in cl. (ee) of R.2 of the Drug Rules, which it sought to define by that clause, envisages Registered Medical practitioners of modern scientific system of medicine only. 9. Sub-cl. (iii) of cl. (ee) of R.2 of the Drug Rules, in terms whereof notification, annexure-P. 2, had been issued, could not have been intended by the framers of the said Rules to enable the Government to bring within the purview of the expression "Registered Medical Practitioner" the persons holding the qualifications other than those prescribed for the practitioners of the modern scientific system of medicine.
Final Decision: The petition was dismissed in limine with no order as to costs.
D.S.TEWATIA, J.
1. The petitioner, Dr. Sarwan Singh, has impugned in the present writ petition the action of respondent 4 the District Drugs Inspector, Hoshiarpur, who had prohibited him from keeping in his possession any allopathic drug for administration to the patients and who had further directed the chemists not to issue allopathic medicines to such patients as had been prescribed or were to be prescribed such medicines by the petitioner.
2. The case set up in the petition by the petitioner is that he is a Registered Medical Practitioner and had been so registered with the Board of Ayurvedic and Unani Systems of Medicines, Punjab, respondent 3, vide registration certificate annexure-P. 1, that by notification dt. 29-10-1967, annexure-P. 2, issued under sub-cl. (iii) of cl. (ee) of R.2 of the Drugs and Cosmetics Rules, 1945 (for short to be referred as the Drug Rules ) made under the provisions of the Drugs and Cosmetics Act, 1940, hereinafter referred to as the Drug Act , the Government of Punjab has declared all Vaids end Hakims who had been registered under the East Punjab Ayurvedic and Unani Practitioners Act, 1949, the Pepsu Ayurvedic and Unani Practitioners Act, 2008 Bk. and the Punjab Ayurvedic and Unani Practitioners Act, 1963, as persons practising the Modern System of Medicines for the purpose of Drugs and Cosmetics Act, 1940, in the State of Punjab; and that the petitioner having been registered under the Ayurvedic and Unani end Indian System of Medicines and Surgery, was in view of the notification Annexure-P. 2, entitled to practise Modern System of Medicines.
3. In the written statement filed on behalf of respondents 1, 2 and 4, it has been inter alia asserted that the petitioner was not entitled to practise Modern System of Medicines on the strength of his registration certificate issued to him under the Punjab Ayurvedic and Unani Practitioners Act, 1963 (hereinafter to be referred as the 1963 Act). His registration as Medical Practitioner under the 1963 Act entitles him only to practise the Indian System of Medicine and not the Modem System of Medicine. He is, therefore, not entitled to keep allopathic drugs or to prescribe such drugs to his patients. He can keep and prescribe only Ayurvedic, Siddha or Unani drugs.
4. Whether a person possessing such qualification as would entitled him to practise the system of Indian Medicine commonly known as Ashtang Ayurveda, Siddha or Unani Tibb and to be entitled to be brought on the State register or the Central register of Indian Medicine meant for the registration of such medical practitioners, would be entitled to practice Modern System of Medicine, is the question of law of some significance that has been raised in the present writ petition.
5. The two systems i.e. System of Modern and Scientific Medicine and the System of Indian Medicine are totally different and independent of each other, and the qualifications requisite for practising the said two systems of medicine, the manner and mode of acquiring them and other related matters have been dealt with by separate legislations. There are Central Acts, such as the Indian Medical Degrees Act, 1916 and the Indian Medical Council Act, 1956 concerning the system of Modern Scientific medicine and the Indian Medicine Central Council Act, 1970 dealing with the system of Indian medicine. So far as the State of Punjab is concerned, there was the East Punjab Ayurvedic and Unani Practitioners Act, 1949 and the Pepsu Ayurvedic and Unani Practitioners Act 2008 Bk., both substituted by Punjab Ayurvedic and Unani Practitioners Act, 1963.
6. Clause (f) of S.2 of the Medical Council Act, 1956 (hereinafter to be referred as the 1956 Act) defines "medicine" as modern scientific medicine in all its branches and includes surgery and obstetrics but does not include veterinary medicine and surgery. Clause (h) defines "recognised medical qualification" as being of any medical qualifications included in the Schedules. Clause (k)
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