3 Jun 2010

Hindi Sahitya Sammelan certificate holders cannot practice medicine: Supreme Court

In a recent decision the Supreme Court has declared that "a person who acquired the certificate, degree or diploma from Hindi Sahitya Sammelan Prayag after 1967 is not eligible to indulge in any kind of a medical practice." The Supreme Court noted that in terms of the prevailing rules, the certificates issued by Hindi Sahitya Sammelan Prayag after the year 1967 lost their recognition and thus only those persons who held the certificates prior to this cut-off date were entitled to be recognised. 

Holding that recognition of institutions was one of the essential conditions before the holder of the degree could be allowed to practice in the field of medicine, the Supreme Court noted its earlier decisions to declare the position of law in the following terms;
35. In Pramod Kumar Vs. U.P. Secondary Education Services Commission & Ors. (2008) 7 SCC 153, this Court held that recognised degree can only be awarded by University constituted/established under the provisions of University Grants Commission Act or Rule or any State Act or Parliament Act. No University can be established by a private management without any statutory backing. Similar reasons apply to Hindi Sahitya Sammelan also, as it is only a society duly registered under the Societies Registration Act. The competence to grant medical degree under any provisions of law is therefore, wanting.
36. In Delhi Pradesh Registered Medical Practitioners Vs. Delhi Admn. Director of Health Services & Ors., AIR 1998 SC 67, this Court held that unless a person possess the qualifications prescribed in Schedule II, III and IV of the Act, 1970, does not have a right to practice and the Central Legislation will proceed over State Act if there is any repugnancy between the two.
37. In Dr. Mukhtiar Chand & Ors. Vs. State of Punjab & Ors. AIR 1999 SC 468, this Court examined the issue of delegation of power dealing with the provisions of the Drugs and Cosmetics Act, 1940 wherein various observations have been made regarding registered medical practitioners and certain rules therein had been declared ultra vires by the High Court. However, the issue involved herein had not been raised in that case, though an observation has been made that persons enrolled on the State register under accepted law who enjoyed the privileges including the privilege to practice in any system of medicine may under certain circumstances also practice other system of medicine. In the said case, the issue was confined to the rights of those persons who were otherwise entitled to prescribe all medicines under the Drugs and Cosmetics Act, 1940 and the issue involved herein i.e. as to whether a person having no qualification as prescribed under the provisions of Act 1970 can be held to be qualified and entitled to practice Indian medicines, was not involved in Dr. Mukhtiar Chand (supra).
38. This Court in SLP (C) No. 22124 of 2002, Vaid Brij Bhushan Sharma Vs. Board of Ayur & Unani Systems, Med. & Anr. decided on 2.12.2002 also re-iterated the view that issue involved in Dr. Mukhtiar Chand (supra) was quite different and persons possessing such certificates were not entitled to practice. The Court held as under:-
“We are of the considered view that the judgment of the three Judge Bench reported in Dr. Mukhtiar Chand and Others case (supra) is totally different on principles as also the basis of claim therein, from the one relevant and necessary so far as the case on hand is concerned. The right of the petitioner therein to continue to practice as registered medical practitioner was not claimed on the basis of a degree of Vaid Visharad and Ayurved Rattan awarded by Hindi Sahitya Sammelan, Prayag as in this case, before us. The efficacy of this very degree to entitle the holders thereof to continue to practice as medical practitioner by virtue of the saving clause and protection under Section 17(3) of the Indian Medicine Central Council Act, 1970, had come up for decision in the earlier case and with particular reference to the provisions of Section 14 of the Indian Medical Central Council Act, 1970, read with the provisions contained in the schedule thereto it has been held that only such of those degrees issued between 1931 and 1967 were alone recognized for the purposes and not the one obtained by the petitioner in the year 1974, long after the coming into force of Section 14 on 15.8.1971 in the whole of the country. In the light of the above principles which directly applied to the case of the petitioner we find no merit in this petition and the same is dismissed.”
39. In Udai Singh Dagar & Ors. Vs. Union of India & Ors. (2007) 10 SCC 306 while dealing with a similar issue, this Court has held as under:-
“We, therefore, are of the opinion that even in the matter of laying down of qualification by a statute, the restriction imposed as envisaged under second part of Clause (6) of Article 19 of the Constitution of India must be construed being in consonance with the interest of the general public. The tests laid down, in our opinion, stand satisfied. We may, however, notice that Clause (6) of Article 19 of the Constitution of India stands on a higher footing vis-√†-vis Clause (5) thereof. (vide State of Madras v. V.G. Row AIR 1952 SC 196).”
40. In Civil Appeal No. 1337 of 2007, Ayurvedic Enlisted Doctor’s Assn. Mumbai Vs. State of Maharashtra & Anr. decided on 27.2.2009, this Court considered the issue involved herein at length and came to the conclusion as under:-
“So far as the claim that once the name is included in the register of a particular State is a right to practice in any part of the country is not tenable on the face of Section 29 of the Central Act. The right to practice is restricted in the sense that only if the name finds place in the Central Register then the question of practicing in any part of the country arises. The conditions under Section 23 of the Central Act are cumulative. Since the appellants undisputedly do not possess recognized medical qualifications as defined in Section 2(1)(h) their names cannot be included in the Central Register. As a consequence, they cannot practice in any part of India in terms of Section 29 because of non-inclusion of their names in the Central Register. Section 17(3A) of the Maharashtra Act refers to Section 23 of the Central Act relating to Central Register. Section 17(1) relates to the register for the State. In any event, it is for the State to see that there is need for having qualification in terms of Second and fourth Schedule. The claim of the appellants is that they have a right to practice in any part of the country. In terms of Article 19(6) of the Constitution, reasonable restriction can always be put on the exercise of right under Article 19(g).” 
41. This Court further came to the conclusion that unless the person possesses the qualification as prescribed in Schedule II , III and IV of the Act, 1970, he cannot claim any right to practice in medical science and mere registration in any State register is of no consequence.
42. In view of the above, it is evident that right to practice under Article 19(1)(g) of the Constitution is not absolute. By virtue of the provisions of Clause (6) to Article 19 reasonable restrictions can be imposed. The Court has a duty to strike a balance between the right of a Vaidya to practice, particularly, when he does not possess the requisite qualification and the right of a “little Indian” guaranteed under Article 21 of the Constitution which includes the protection and safeguarding the health and life of a public at large from mal-medical treatment. An unqualified, unregistered and unauthorized medical practitioner possessing no valid qualification, degree or diploma cannot be permitted to exploit the poor Indians on the basis of a certificate granted by an institution without any enrolment of students or imparting any education or having any affiliation or recognition and that too without knowing the basic qualification of the candidates. 
Have a look at the decision.

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