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DR. SMT. ARADHANA SHARMA & OTHERS versus UNION OF INDIA & OTHERS

High Court of Judicature at Allahabad

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Dr. Smt. Aradhana Sharma & Others v. Union Of India & Others - WRIT - C No. 16106 of 2007 [2007] RD-AH 5578 (29 March 2007)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.29

Civil Misc. Writ Petition No. 16106 of 2007

Dr. (Smt.) Aradhana Sharma & Anr.

Vs.

Union of India & Others

*********

Hon. Anjani Kumar, J

Hon. Dilip Gupta, J.

This petition has been filed for a direction upon the respondents not to interfere with the peaceful practice of the petitioners in Ayurved and Unani medicines.

The averments made in the writ petition indicate that the petitioners had obtained degree of Vaidya and Vaidya Visharad from Hindi Sahitya Sammellan, Prayag and had also got themselves registered with Rajkiya Ayurvedic and Unani Chikitsa Parishad, Bihar. It is on the basis of the aforesaid that the petitioners claim that they are entitled to practice anywhere throughout India. They further contend that on the basis of their experience, they have also right to practice.

The primary question that arises for consideration in the present petition is whether the certificates of Vaid Visharad examination and Aurvedic Ratna examination obtained from the Hindi Sahitya Sammelan, Allahabad in 1987 and 1989 respectively can be treated as valid certificates which would enable the petitioner to practice as Vaid.

The Supreme Court in Delhi Pradesh Registered Medical Practitioners Vs. Delhi Administration Director of Health Services & Ors., JT 1998 (4) SC 395 has held that the degrees of Ayurved Ratn and Vaid Visharad conferred by Hindi Sahitya Sammelan, Prayag are recognised only if they have been awarded up to 1967 and not thereafter. The Court further held :

"............Sub-Section(3) of Section 17 of the Indian Medicine Central Act, 1970, in our view, only envisages that where before the enactment of the said Indian Medicine Central Act, 1970 on the basis of requisite qualification which was then recognised, a person got himself registered as medical practitioner in the disciplines contemplated under the said Act or in the absence of any requirement or registration such person had been practicing for five years or intended to be registered and was also entitled to be registered, the right of such person to practice in the concerned discipline including the privileges of a registered medical practitioner stood protected even though such practitioner did not possess requisite qualification under the said Act of 1970. It may be indicated that such view of ours is reflected from the objects and reasons indicated for introducing sub-section (3) of Section 17 in the Act................

As it is not the case of any of the writ petitioners that had acquired the degree in between 1957 and 1970 or on the date of enforcement of provisions of Section 17(2) of the said Act and got themselves registered or acquired right to be registered, there is no question of getting the protection under sub-section (3) of Section 17 of the said Act."

A Division Bench of this Court in Uma Kant Tiwari & Ors. Vs. State of U.P. & Ors., 2003 (4) AWC 3016 held that as the Degree of Vaidya Visharad and Auyrved Ratna given by the Hindi Sahitya Sammelan, Prayag, Allahabad after 1967 have not been recognised by the Central Council of Indian Medicine under the provisions of the Indian Medicine Central Council Act, 1970, persons cannot claim the right of practice on the basis of these degrees.

A similar view was taken by a Division Bench of this Court in Vijai Kumar Gupta & Ors. Vs. State of U.P. & Ors., (1999) 2 UPLBEC 1063 by holding that a degree from Hindi Sahitya Sammelan after 1967 was not recognised and hence those who obtained the same are not entitled to practice Indian medicine.

The Indian Medicine Central Council Act, 1970 came into force on 21st December, 1970. Section 17 of the Central Act provides (1) that subject to other provisions contained in the Act any qualification included in the Second, Third or Fourth Schedule shall be sufficient qualification for enrollment on any State Register of Indian Medicine, and no person other than practitioner of India medicine, save as provided in Section 28, who possessed recognized medical qualification and is enrolled in the State Register or Central Register for Indian Medicine (a) shall hold office as Vaid, Siddha, Hakim or physician or any other office in Government or in any institution maintained by a local or other authority, and shall practice Indian medicine in any State.

With the enforcement of Indian Medicine Central Council Act 1970, only those persons who hold qualifications prescribed and included under Second, Third and Fourth Schedule can be enrolled in any State Register. The emphasis in the Central Act is on qualifications, without which no one can have knowledge to practice Indian Medicine. A conspectus of the provisions of the Act, which provides for recognition of medical qualifications and Central register of India Medicine, and the object and reasons of the Act demonstrate that the Parliament insisted to regulate the standard of education and the registration of only those persons who have valid qualification. The provisions of the Central Act over rides the provisions of all the legislation enacted by the State Government. Even if the U.P. Indian Medicine Act, 1939 is taken to be the existing law, the provisions of Central Act of 1970 over ride the State Act. The provisions of registration under section 50 (2) of the State Act, thus save only those persons who hold valid qualification in the schedule provided under Central Act are entitled to be enrolled in the State register or Central register of Indian Medicine or practice Indian medicine in any State. Since the petitioners do not have any qualification they are not entitled to practice Indian Medicine even if they are registered in the State register maintained under U.P. Indian Medicine Act, 1939. The experience cannot be a substitute to a proper qualification. Unless a person holds adequate knowledge of a system of medicine any experience gained by him, is not of any benefit. A person who has no qualifications at all cannot be allowed to practice, as he becomes a potential danger to public health.

A combined reading of the Indian Medicine Act, 1939, U.P. Indian Medicine Institutions (Miscellaneous and Provisions) Act, 1982 and the Indian Medicine Central Council Act, 1970 shows that only those medical practitioners who hold qualification from the Institutions detailed in the Second Schedule of the Central Act, 1970 and from the Colleges given in the Schedule under U.P. Act of 1939, and U.P. Act, 1982 can be registered after 1970, with the Board of Indian Medicine U.P. and only these qualified persons are entitled to practice in Indian Medicine in the State of U.P.

In Dr. Mukhtiar Chand Vs. State of Punjab (1998) 7 SCC 579; Medical Council of India Vs. State of Rajasthan AIR 1996 SC 2073; Subhashis Bakshi and other Vs. West Bengal Medical Council (2003) 9 SCC 269, the Supreme Court has recognized the right to practice medicine of only those persons, who are qualified and are registered on the Indian Medical Register or on any State Medical Register. In Dr. Mehboob Alam Vs. State of U.P. (2002) Cr. LJ 1218, this Court has held that a person qualified and registered in any branch of medicine cannot practice any other branch. A Division Bench of this Court in Special Appeal No.320 of 2004, Dr. Ravindra Kumar Goel & others Vs. State of U.P. and others, decided on 27.4.2004 has upheld the directions dated 28.1.2004 in contempt petition No.820 of 2002, and has insisted upon the qualifications to practice medicine in the State.

The right to health included under Article 21 of Constitution of India is to be balanced with the right to practice medicine under Article 19 (1) (g) of Constitution of India and is subject to reasonable restrictions under Article 19 (6). Only those persons who hold valid and recognized medical qualifications and are registered under the existing legislation can be allowed to practice medicine in the State.

The writ petition is, consequently, dismissed.

Date: 29.3.2007

GS


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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