ORDER
A.K. Patnaik, C.J.
1. In these batch of cases, the common question to be decided is whether Laboratory Technicians can run pathological laboratories without engaging the services of a Pathologist having MBBS degree or any higher degree.
2. The relevant facts briefly are that the appellant in W.A. No. 1440/2006 was running Maruti Pathology Laboratory in Panagar. The Chief Medical and Health Officer, Jabalpur, issued an order on 29-6-2002 asking her to close the Maruti Pathology Laboratory failing which action would be taken against her in accordance with law. The appellant filed Writ Petition No. 3721/2002 before the learned Single Judge challenging the order dated 29-6-2002 of the Chief Medical & Health Officer.
3. The respondents/State filed return in W.P. No. 3721/2002 stating inter alia that Smt. Kamla Patel was a student of Arts and had procured Diploma in Medical Laboratory Technology (for short ‘DMLT’) on the basis of which she was running the Maruti Laboratory at Panagar and when Laboratory was inspected by the Chief Medical and Health Officer on 29-6-2002, it was found that there was no qualified doctor or pathologist in the Laboratory. Subsequently, however, since a certificate was issued by Dr. B.M. Agrawal that Smt. Kamla Patel was working as a Lab Technician under his guidance and supervision, the order dated 29-6-2002 issued by the Chief Medical and Health Officer, Jabalpur, was recalled on 5-8-2002. Despite of the aforesaid statement in the return filed by the respondents in W.P. No. 3721/2002 that the order dated 29-6-2002 asking Smt. Kamla Patel to close down the pathology laboratory had been recalled, the learned Single Judge delivered orders on 13-1-2003 directing that the pathology laboratories will be run by the pathologist who is qualified under the Madhya Pradesh Ayurvigyan Parishad Adhiniyam, 1987, and who fulfils the requirement of Sections 13 and 24 of the Adhiniyam, 1987, and no laboratory technician will be allowed to run the laboratory and he/she can only work in the laboratory which is actually run by a qualified pathologist. Aggrieved by the order dated 13-1-2003 of the learned Single Judge in W.P. No. 3721/2002, Smt. Kamla Patel has filed Writ Appeal No. 1440/2006.
4. Pursuant to the order dated 13-1-2003 of the learned Single Judge in W.P. No. 3721/2002, the respondents took action to close down various pathology laboratories run without a pathologist. When the pathology laboratories run by Ramesh Kumar Mishra and four others were similarly ordered to be closed because pathologist had not been engaged by them in their pathology laboratories, they filed W.P. Nos. 15891/2006 and following the order dated 13-1-2003 in Writ Petition No. 3721/2002 Smt. Kamla Patel v. State of M.P. and Ors. the learned Single Judge held in his order dated 13-11-2006 that no laboratory technician shall be allowed to run the laboratory and he can only work in the laboratory which is actually run by a qualified pathologist and as Ramesh Kumar Mishra and four others were not qualified pathologist, they cannot be allowed to run their pathology laboratories even under the supervision of doctors and they can, at best, work in the pathology laboratory which is actually run by a qualified pathologist. Aggrieved by the order dated 13-11-2006 of the learned Single Judge in W.P. No. 15891/2006, Ramesh Kumar Mishra and four others filed Writ Appeal No. 1418/2006.
5. Pursuant to the order dated 13-1-2003 passed by the learned Single Judge in W.P. No. 3721/2002 Smt. Kamla Patel v. State of M.P. and Ors. the respondents took action and closed down other pathology laboratories in the State which were being run without pathologists and Sanjay Singh Chauhan and Smt. Shashi Mishra have filed W.P. No. 13151/2006 and W.P. No. 3332/2007 challenging the action of the respondents in closing down the pathology laboratories which were being run without pathologist.
7. Mr. Rajendra Tiwari, learned Senior Counsel appearing for the appellant(s) in W.A. No. 1440/2006 and W.A. No. 1418/2006 and Mr. A.P. Singh, learned Counsel appearing for the petitioner(s) in W.P. No. 13151/2006 and W.P. No. 3332/2007, submitted that under Article 19(1)(g) of the Constitution, the appellant(s)/petitioner(s) had fundamental rights to practice any profession, or to carry on any occupation, trade or business and that restrictions on such fundament right can be imposed by the State by law under Article 19(6) of the Constitution and such restrictions include prescribing the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business. They submitted that under the Madhya Pradesh Sah Chikitsiya Parishad Adhiniyam, 2000, (for short ‘the Adhiniyam, 2000’) laboratory technicians have been included amongst the paramedical personnel. They submitted that those who are running pathology laboratories, have also been registered as paramedical practitioners under the Adhiniyam, 2000 and, therefore, they can carry on the profession or occupation or business to run pathology laboratories.
8. Mr. Sanjay K. Agrawal, learned Deputy Advocate General appearing for the respondents/State and Smt. Indira Nair, learned Senior Counsel appearing for the Indian Medical Council respectively, on the other hand, submitted that under the Adhiniyam, 1987, laboratory technicians are not registered as medical practitioners. They submitted that the definition of ‘paramedical’ in Section 2 (b) of the Adhiniyam, 2000 would show that the paramedical personnel can only help in the practice of medicine and they cannot themselves practice medicine. They submitted that the word ‘medicine’ is wide enough to include the pathology and, therefore, laboratory technicians can assist only a pathologist and cannot practice pathology as such. They further submitted that under Section 15 of the Indian Medical Council Act, 1956 (for short ‘the Act’), only those persons possessing qualifications in the Schedules to the Act can be enrolled on any State Medical Register. They referred to the provisions of Sections 11, 12, 13 and 14 of the Adhiniyam, 1987 to show the manner in which a person possessing recognized medical qualification is registered in the State Medical Register. They referred to the provision of Section 21 of the Adhiniyam, 1987, which states that save as provided in the Act or the Indian Medical Council Act, 1956, no person shall practice or hold himself out, whether directly or indirectly as practicing medicine within the State. They also referred to Section 24 of the Adhiniyam, 1987, which provides that if any person whose name is not enrolled on the State Medical Register practices as a Registered Medical Practitioner, he shall be punishable with rigorous imprisonment for a term which may extend to three years and with fine which may extend to five thousand rupees.
9. We have considered the aforesaid submissions of the learned Counsel for the parties and we find that under Article 19(1)(g) of the Constitution every citizen has the freedom to carry on any occupation, profession, trade or business. Clause (6) of Article 19 of the Constitution states that nothing in sub-clause (g) of Clause (1) of Article 19 shall prevent the State from making any law imposing in the interests of the general public, reasonable restrictions on the exercise of the right conferred by sub-clause (1)(g) of Article 19 of the Constitution and in particular nothing is in sub-clause (6) of Article 19 will prevent the State from making any law relating to the professional or technical qualifications necessary for practicing any profession or carrying on any occupation, trade or business.
10. The Acts which have been made by the State of Madhya Pradesh laying down the professional and technical education necessary for the practice of medicine and the practice of any paramedical subject are the Adhiniyam, 1987 and the Adhiniyam, 2000. Since the learned Counsel for the appellant(s)/petitioner(s) have relied on the Adhiniyam, 2000, we may first deal with the relevant provisions of Adhiniyam, 2000.
11. Section 2(b)(i) of the Adhiniyam, 2000 is quoted hereinbelow:
Section 2(b) “Paramedical” means any personnel qualified in paramedical subject and who helps in teaching or practice of-
(i) medicine within the meaning of Clause (i) of Section 2 of the Indian Medical Council Act, 1956.
Thus, in Section 2(b) of the Adhiniyam, 2000, ‘paramedical’ has been defined to mean any personnel qualified in paramedical subject and who helps in teaching or practice of medicine within the meaning of Clause (i) of Section 2 of the Act. Section 2(c) defines ‘paramedical subject’ to mean a subject mentioned in the schedule to the Adhiniyam, 2000 and one of the subjects mentioned in the schedule to the Adhiniyam, 2000 is laboratory technician (various types). The Adhiniyam, 2000 has made elaborate provisions regarding recognition of paramedical qualifications and registration of paramedical practitioners. Section 44(1) of the Adhiniyam, 2000 states that save as provided in the Adhiniyam, 2000, no person shall practice or hold himself out, whether directly or indirectly as practicing habitually for personal gain as a paramedical practitioner within the State. Section 44(2) of the Adhiniyam, 2000 provides that any person who contravenes the provisions of Sub-section (1) shall be punishable with imprisonment which may extend to six months or with fine which may extend to five thousand rupees or with both. Considering the aforesaid provisions of the Adhiniyam, 2000, unless a laboratory technician is registered as a paramedical practitioner in accordance with the provisions of the Adhiniyam, 2000, he cannot practice or hold himself out whether directly or indirectly as practicing habitually for personal gain as a paramedical practitioners within the State.
11. The next question to be decided is whether the laboratory technician, who is a registered as a paramedical practitioner, in accordance with the provisions of the Adhiniyam, 2000 can run a pathology laboratory. Section 2(b) of the Adhiniyam, 2000 defines paramedical personnel to mean that a person qualified in paramedical subjects and who helps in practice of medicine within the meaning of Clause (i) of Section 2 of the Act. Clause (f) of Section 2 of the Act is quoted hereinbelow:
Section 2. Definitions.- In this Act, unless the context otherwise requires, *** *** *** *** *** *** (f) medicine' means modern scientific medicine in all its branches and includes surgery and obstetrics, but does not include veterinary medicine and surgery.
Thus, ‘medicine’ as defined in Section 2(f) of the Act, means modern scientific medicine in all its branches. Obviously, pathology being a branch of modern scientific medicine will come within the meaning of medicine as defined in Section 2(f) of the Act. Sub-section (2) of Section 15 of the Act states that save as provided in Section 25, no person other than a medical practitioner enrolled on a State Medical Register shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be signed or authenticated by a duly qualified medical practitioner. Section 25 of the Act deals with registration of medical practitioners in the State Medical Register.
12. The State Medical Register is prepared and maintained under the Adhiniyam, 1987 and provides for compulsory registration of all medical practitioners in the State of Madhya Pradesh. Section 21 of the Adhiniyam, 1987 states that save as provided in this Act or the Indian Medical Council Act, 1956, no person shall practice or hold himself out, whether directly or indirectly as practicing medicine within the State. Since we have held that pathology is a branch of medicine a person who is not registered in the State Medical Register as a medical practitioner, cannot practice in pathology and cannot sign any certificate or report relating to pathology.
13. The aforesaid analysis of the provisions of the law prescribing the profession or technical qualifications necessary for the practice of medicine and the law prescribing the qualifications for running a pathology laboratory would show that laboratory technicians registered as a paramedical practitioner under the Adhiniyam, 2000, cannot sign or authenticate any pathological test/report or certificate and he can only assist the pathologist registered in the State Medical Register as a medical practitioner in carrying out the technical tests in the pathology laboratory. In other words, a laboratory technician registered as a paramedical practitioner under the Adhiniyam, 2000 can only assist the pathologist in the technical tests in a pathology laboratory in the State of Madhya Pradesh, but he cannot sign or authenticate any certificate or test report relating to pathology and such certificate or test report can only be signed and authenticated by a pathologist having the required qualification such as MBBS, MD or other degrees as mentioned in the Act, 1956, and also registered as a Medical Practitioner in the State Medical Register under the Adhiniyam, 1987.
14. The impugned order dated 13-1 -2003 of the learned Single Judge in Writ Petition No. 3821/2002 and the impugned order dated 13-11-2006 of the learned Single Judge in W.P. No. 15891/2006 are accordingly modified and the Writ Appeal No. 1440/2006, Writ Appeal No. 1418/2006, Writ Petition No. 13151/2006 and Writ Petition No. 3332/2007 are allowed to the extent indicated above. The State/respondents will now act as per the law laid down in this judgment. Considering the facts and circumstances of the case, the parties shall bear their own costs.
