DELHI PRADESH REGISTERED MEDICAL PRACTITIONERS ETC.versusDELHI ADMN. DIRECTOR OF HEALTH SERVICES AND ORS.

A                  DELHI PRADESH REGISTERED MEDICAL
                           PRACTITIONERS ETC.
                                                                                   -
                                    v.
                   DELHI ADMN. DIRECTOR OF HEALTH
                            SERVICES AND ORS.

B                              OCTOBER 17,1997

                    [G.N. RAY AND G.B. PATTANAIK, JJ.]


          Indian Medicine Central Council Act, 1970 :
c
          Section 17(2) and (3)-Scope of-Medical practice-Hindi Sahitya
    Sammelan Prayag-Award of degrees of 'Ayurved Ratna' and 'Vaid Visharad'-
    N otice issued by Indian Medical Central Council-Notice stating that
    registration obtained by any person on the basis of such degrees would be
D   recognised only upto 1967-Appellants who obtained such degrees after
    coming into force of 1970 Act-Challenge to notice before High Court-
    Dismissal of petitions by High Court-Ground that under the I 970 Act said
    degrees had not been recognised after 1967-Appeal before Supreme Court-·
    Held, protection of section 17(3) was not available to those who obtained
    degrees after commencement of 1970 Act-Appellants held not entitled to
E   protection of section 17(3)-Decision of High Court upheld.
          Policy decision-What constitutes proper education and requisite
    expertise for a medical practitioner-Should be left to proper authority-
    Having requisite knowledge.
         CIVIL APPELATE JURISDICTION: Civil Appeal No. 7441of1997.
F
         From the Judgment and Order dated 2.2.93 of the Delhi High Court in
    C.W.P. No. 2791of1992.
                                         WITH
         Civil Appeal No. 7442/97.
G         O.P. Sharma, Mrs. Sona Khan, Mohd. Sajid, Arun Kaushal, Goodwill
    Indeevar, S.K. Mehta, D. Mehta, Fazlin Anam, Ms. Shobha Verma, R.C. Gubrele,
    Mrs. Sarla Chandra, K.R. Gupta, Vivek Sharma and Ashok Sudan for the
    Appellants.

         P.P. Malhotra, Rajeev Sharma, D.S. Mehta, Diva Singh, Devendra Singh,
H                                      514
   DELHI PRADESH REG. MEDI. PRACT. v. DELHI ADMN. DIR. OF HEALTH SERVICES   5J5
D.K. Garg and Satpal Singh for the Respondents.                                    A
      The following Order of the Court was delivered :

      Leave granted in both the matters. Heard learned counsel for the parties.

      The Propriety and validity of the public notice issued by the Director,      B
Health Services, Delhi Administration indicating that the Indian Medicine
Central Council had recognised Ayurved Ratna and Vaid Visharad degrees
awarded by the Hindi Sahitya Sammalan Paryag. Allahabad only upto 1967
and the certificates of Ayurved Ratna and Vaid Visharada given by the said
organization after 1967 not being recognised under the said Act registration       C
obtained by any person as a medical practitioner on the basis of such degrees
therefore would not be recognised and any person having such qualification
would not be entitled to practice in Delhi are impugned in these appeals. It
was also indicated in the said public notice no Indian University or Board
conducts one year's course for giving the bachelor's degree in Ayurvedic           D
Medicine or through correspondence course no M.D. Degree in Ayurved was
conferred by any university or Board. The public at large was cautioned by
the said public notice published in the newspaper about such position in law.

       The Delhi Pradesh Registered Medical Practitioners' Association moved
a writ petition before the Delhi High Court challenging the validity of the said   E
public notice issued by the Health Services, Delhi Administration. Similar writ
Petition was moved by Dr. Swarup Singh and others challenging the said
public notice. Such writ petitions were dismissed by the Division Bench of
the Delhi High Court by indicating that as in the Indian Medicine Central
Council Act 1970 the said degrees had not been recognised after 1967 and           F
the writ petitioners before the High Court had obtained such degrees from the
said Hindi Sahitya Sammalan prayag long after the said Indian Medicine
Central Council Act, 1970 was enforced they were not entitled to practice on
the basis on the degrees obtained from the said Hindi Sahitya Sammalan
Prayag. Therefore, there was no occasion to interfere with the direction           G
contained in the public notice and the writ petitions were accordingly
dismissed.

      Mr. S.K. Mehta the learned counsel appearing for the appellants in the
appeal arising out of SLP [C] No. 8103 of 1993 has submitted that the Hindi
Sahitya Sammalan Prayag is an old and reputed institution and such institution     H
    516                     SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A had been giving the said degrees of Ayurvedic Ratna and Vaid Visharada from
    a long time and such degrees awarded by the said institution had been
    recognised in various States. Dr. Mehta has further submitted that about the
    qualifications of the Medical Practitioners in various disciplines, namely,
    Homoeopathic, Unani, Ayurvedic etc. both the State Govt. and Central Govt.
B   have competence to legislate because the subject is in the concurrent list.
    Various States have recognised the degrees awarded by the said Hindi Sahitya
    Sammalan and on the basis of such degrees, large number of practitioners in
    the discipline of Ayurved have been registered in various States including
    Delhi and have been successfully practicing in the discipline of Ayurved. The
    writ petitioners also got themselves registered in the State of Delhi and they
c had been practicing as Medical Practitioner in the discipline of Ayurved on
    the strength of such registration. Therefore their registrations could not be
    held as invalid or liable to be cancelled. In this connection. Mr. Mehta has
    submitted that even under the said Act of 1970 there was no bar for the writ
    petitioners or persons similarly circumstanced to get themselves registered
D   and practice in the discipline of Ayurved. He has drawn our attention to the
    provisions of Section 17(3) (a) (b) and (c] of the said Central Act 1970. It is
    appropriate to refer to the said provisions for _appreciating true legal import
    of such provisions.

E         17(3) Nothing contained in sub section (2) shall affect :-


            (a)   the right of a practitioner of Indian medicine enrolled on a State
                  Register of Indian Medicine to practice Indian Medicine in any
                  State merely on the ground that, on the commencement of this
                  Act, he does not possess a recognised medical qualification :
F
            (b)   the privileges (including the right to practice any system of
                  medicine) conferred by or under any law relating to registration
                  of practitioners of Indian medicine for the time being in force
                  in any State on a practitioner of Indian medicine enrolled on a
G                 State Register of Indian Medicine;


            (c) · the right of a person to practice Indian Medicine in a State in
                  which, on the commencement of this Act, a state register of
                  Indian Medicine is not maintained if a such commencement he
H                 has been practicing Indian Medicine for less than five years.
   DELHI PRADESH REG. MEDI. PRACT. v. DELHI ADMN. DIR. OF HEALTH SERVICES   517
       It has been contended by Mr. Mehta that although a bar has been             A
imposed under Section 17(2) to practice in India in the discipline of Ayurveda
if the practitioner did not possess the qualifications enumerated in the
schedules under the Indian Medicine Central Council Act, 1970 but sub-
section (3) of Section 17 has carved out an exception to the provisions of
Section 17(2) for the said Act. If a practitioner in the discipline of Ayurveda    B
is enrolled and registered as a medical practitioner in any state in India , or
such practitioner was already in the field practicing in Ayurveda or such
person had a right to be enrolled then, such person was protected and his
rights or privileges as a medical practitioner cannot be affected because
according to Mr. Mehta Clause (b) of sub-section (3) of Section 17 protects
the privileges including the right to practice any system of medicine conferred    C
by or under any law relating to the registration of practitioners of Indian
Medicine for the time being enforced if in any State a practitioner of Indian
Medicine is enrolled on a State register. Mr. Mehta has submitted that as the
concerned practitioners have been registered as the practitioners in the
discipline or Ayurveda, they have right to practice in such discipline       as D
registered medical practitioners and privileges which a registered practitioner
has have been protected by sub-section (3) of Section 17. Therefore,
notwithstanding non recognition of the said degrees conferred by the said
Prayag Hindi Sahitya Sammalan after 1967, the right to practice as registered
medical practitioner and consequential privileges of a registered practitioner     E
cannot be taken away. The public notice, therefore was misconceived and
illegal and the Delhi High Court has failed to appreciate the true legal import
of sub section (3) of Section 17 of the said Act and has erroneously held that
the writ petitioner are not entitled to practice in Delhi because of the bar
imposed by the Indian Medicine Central Act, 1970 for not possessing the
requisite qualification as enumerated in the said Act.                             F
      We are, however, unable to accept such contention of Mr. Mehta, 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         G
disciplines contemplated under the said Act or in the absence of any
requirement for 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              H
                                                                                          -~---

    518                       SUPREME COURT REPORTS [1997] SUPP. 4 S.C.R.

A 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. In
    the objects and reasons, it was mentioned :


B                'the committee are of the opinion that the existing rights and
            privileges of practitioners oflndian Medicine should be given adequate
            safeguards. The Committee in order to achieve the object, have added
            three new paragraphs to sub-section (3) of the Clause protecting (I)
            the rights to practice of those practitioners of Indian medicine who
            may not, under the proposed legislation, possess a recognised
c           qualification subject to the condition that they are already enrolled on
            a State register of Indian medicine on the date of Commencement of
            this Act, (ii) the privileges conferred on the practitioners of Indian
            medicine enrolled on a State Register, under any law in force in that
            State, and (iii) the right to practice in a State of those practitioner who
D           have been practicing Indian medicine in that State for not less than
            five years where no register of Indian medicine was maintained earlier.'


    As it is not the case of any of the writ petitioners that they had acquired the
    degree in between 1957 and 1970 or on the date of enforcement of provisions
E   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. It is to be stated here that there
    is also no challenge as to the validity of the said Central Act, 1970. The
    decision of the Delhi High Court therefore cannot be assailed by the appellants.
F   We may indicate here that it has been submitted by Mr. Mehta and also by
    Ms. Sona Khan appearing in the appeal arising out of special leave petition
    No. 6167 of 1993 that proper consideration had not been given to the standard
    of education imparted by the said Hindi Sahitya Sammalan Prayag and expertise
    acquired by the holders of the aforesaid degrees awarded by the said
    institution. In any event, when proper medical facilities have not been made
G   available to a large number of poorer sections of the society, the ban imposed
    to the practitione:·s like the writ petitioners rendering useful service to the
    needy and poor people was wholly unjustified. It is not necessary for this
    Court to consider such submissions because the same remains in the realm
    of policy decision of other constitutional functionaries. We may also indicate
H   here that what constitutes proper education and requisite expertise for a
   DELHI PRADESH REG. MEDI. PRACT. v. DELHI ADMN. DIR. OF HEALTH SERVICES   519

practitioner in Indian Medicine, must be left to the proper authority having A
requisite knowledge in the subject. As the decision of the Delhi High Court
is justified on the face of legal position flowing from the said Central Act of
1970, we do not think that any interference by this Court is called for. These
appeals therefore are dismissed without any order as to costs.,

T.N.A.                                                    Appeals dismissed B