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1999 Supreme(All) 242
IN THE HIGH COURT OF ALLAHABAD
Binod Kumar Roy andram Kishore Singh, JJ.
NAWAB KHAN - Appellant
Versus
STATE OF UTTAR PRADESH - Respondents
C. M. W. P. 35128 Of 1996
Decided On : 02/23/1999
A.B.L.GAUR, S.K.JAISWAL
A person who does not possess a certificate of recognized institution is not entitled to practice in any branch of Indian medicines.
Headnote:
INDIAN MEDICINE - REGISTRATION - QUALIFICATION - RECOGNITION OF CERTIFICATE - INDIAN MEDICINE CENTRAL COUNCIL ACT, 1970 (ACT NO. XLIII OF 1970) - SECTION 17(3) - U. P. INDIAN MEDICINE ACT, 1939 (ACT NO. X OF 1939) - SECTION 50 - CONSTITUTION OF INDIA, ARTICLE 14 - ARTICLE 19(1)(B) - A person who does not possess a certificate of recognized institution is not entitled to practice in any branch of Indian medicines.
Fact of the Case:
The petitioner, Nawab Khan, filed a writ petition challenging the interference of the respondents in his right to carry on his private medical practice in Indian medicine. He claimed to have obtained a degree of "ayurved Ratan" from Hindi Sahitya Sammelan, Prayag, and was registered by the Government Ayurvedic and Unani Chikitsa Board under the Bihar development of Ayurvedic and Unani System of Medicines Act, 1951. He argued that the Indian Medicine Central Council Act, 1970, overrides the provisions of the U. P. Indian Medicine Act, 1939, and that the discrimination between him and persons registered under Section 50 of the Act No. 10 of 1939 is violative of Article 14 of the Constitution of India.
Finding of the Court:
The court found that the petitioner's certificate from Hindi Sahitya Sammelan, Prayag, had no recognition under the statute after 1967 for issuing the degree of vaidya visharad and ayurved Ratna. The court held that the petitioner did not have the requisite qualification and competence to practice as a medical practitioner in the Branch of Indian Medicine and that the registration of the petitioner in the State of Bihar did not give any legal validity to the certificate issued to him by Hindi Sahitya Sammelan.
Issues: 1. Whether the petitioner has the requisite qualification and competence to practice as a medical practitioner in the Branch of Indian Medicine? 2. Whether the discrimination between the petitioner and persons registered under Section 50 of the Act No. 10 of 1939 is violative of Article 14 of the Constitution of India?
Ratio Decidendi: 1. The court held that the petitioner's certificate from Hindi Sahitya Sammelan, Prayag, had no recognition under the statute after 1967 for issuing the degree of vaidya visharad and ayurved Ratna. The court held that the petitioner did not have the requisite qualification and competence to practice as a medical practitioner in the Branch of Indian Medicine. 2. The court held that the petitioner's allegation of discrimination was without merit as he did not possess the requisite qualification and competence to practice as a medical practitioner in the Branch of Indian Medicine.
Final Decision: The court dismissed the writ petition, holding that the petitioner was not entitled to practice in any branch of Indian medicines.
( 1 ) THE petitioner Nawab Khan has filed this writ petition with the following prayers :
(i) to issue a writ, direction or order in the nature of mandamus restraining the respondents from interfering in the right of the petitioner to carry on his private medical practice in Indian medicine at district Bulandshahr. (ii) to issue a writ, direction or order in the nature of mandamus restraining the respondents from prohibiting the petitioners to keep the primary instruments of diagnosis of Indian Medicines , namely, Stethoscope, Thermometer, B. P. Instrument, etc. and to provide first aid to the people in immediate requirement of medical care of as a part of practice of Indian Medicine. (iii) to issue any other writ, direction or order as this Honble Court may deem fit and proper in the circumstances of the case. (iv) to award costs of this petition to the petitioner.
( 2 ) THE petitioners case is that he has obtained a degree of "ayurved Ratan" from Hindi Sahitya sammelan, Prayag which is recognised all over the country. The petitioner applied for registration to the Government Ayurvedic and Unani Chikitsa Board under the Bihar development of Ayurvedic and Unani System of Medicines Act, 1951, and was registered by the said Board (Annexure-1 to the writ petition ). The U. P. Indian Medicine Act. 1939. provides for registration of Medical Practitioner and grant of qualified practitioner Certificate under Sections 27 and 30 of the Act. The petitioner alleges that Indian Medicine Central Council Act, 1970 (Act no. XLIII of 1970) was enacted by the Parliament to provide for a constitution of a Central council of Indian Medicines and the maintenance of the Central Register of Indian Medicines and for matters connected therewith. Section 17 (3) of the Act provide that a medical practitioner of Indian Medicines enrolled on a State Register of Indian Medicines, will have right to practice in Indian Medicines in any State and will carry the State privilege. The petitioner alleges that entry 25 of List III of Schedule VII of the Constitution of India provides for registration on legal medical and other professions, Act No. 48 of 1970 is passed by Central Legislature after taking sanction of President of India and, therefore, the provisions of the said Act in so far as they are in consistence with any State Act, enacted prior to it will override the provision of the State Act. The provisions of U, P. Act No. 10 of 1939 in so far as they disentitle the petitioner from practising Indian Medicine in the State of U. P. are, therefore, inconsistent with Section 17 of the act No. LXIII of 1970. The petitioner alleges that there are several medical practitioners who are not qualified at all but are registered under Section 50 of the U. P. Act No. 10 of 1939 on the ground of long experience of practice belonging to indigenous system registered in the year 1963-64. The petitioner alleges that he has a qualification of ayurved Ratna. The discrimination between the petitioner and the persons registered under Section 50 of the Act No. 10 of 1939 is, therefore, without any reasonable basis and is, therefore, violative of Article 14 of the constitution of India. The petitioner alleges that recently in the month of May and June, 1992 respondent Nos. 2 and 3 and the Officer subordinate to them conducted raids on the medical clinics of the petitioner and have warned the petitioner not to carry on medical practice. The respondent No. 3 had started compaign to take action to prosecute each and every medical practitioner of Indian Medicines either registered or unregistered and has threatened the petitioner and other registered medical practitioners to stop their practice otherwise they will be prosecuted. The petitioner keeps tethoscope, Thermometer, B. P. Instrument and other simple and primary instruments of diagnosis. These instruments are also required to disgrace in Indian medicine system--without these instruments it is not possibl
