JUDGMENT
Sudhir Narain, J.
1. The petitioners have challenged the vires of Sections 8 and 9 of U. P. Indian Medical Institutions (Acquisition and Miscellaneous Provisions) Act. 1982. They are running Ayurvedic Educational Institutions. They have enrolled students in their institutions for imparting Ayurvedic systems of medicine. They also award degrees and diplomas.
2. In the year 1982, the State Legislature passed U. P. Indian Medical Institutions (Acquisition and Miscellaneous Provisions) Act. 1982 thereinafter referred to as 1982 Act). This Act was enacted to provide for the acquisition and
Management of non-Government institutions mentioned in the Schedule of the Act imparting instructions in Ayurvedic and Unani-Tibbi Systems of Medicine and also to regulate other non-Government institutions imparting instructions in Ayurvedic and Unani-Tibbi Systems of Medicine, Yogtheraphy and Naturopathy. The names of the petitioners’ institutions do not find place in the Schedule of the said Act. The petitioners have no grievance regarding the acquisition of those institutions referred to in the said Schedule. The grievance of the petitioners relate to Sections 8 and 9 of 1982 Act.
3. Section 8 provides that no person shall open or organise, maintain any institution providing instructions in Ayurvedic and Unani-Tibbi Systems of Medicines or to admit any students for imparting such education except when such person is authorised by the Central Government or the State Government. Section 9 of the Act is an exception to Section 8 of the Act inasmuch as it permits the students to continue studies who have already been enrolled to pass the examination from a lower class to higher class by way of promotion during a period of five years from the appointed date and after the said period of five years the provisions of Section 8 have been made applicable mutatis mutandis. Sections 8 and 9 read as under :
“8. Restriction on opening of new institutions.–Subject to the provisions of Section 9, no person other than a person authorised by the Central Government or the State Government shall, on or after the appointed day-
(a) open, organise, maintain, manage or cause to be opened. organised, maintained or managed any institution professing to undertake, conduct, provide or offer any instruction in Ayurvedic and Unani-Tibbi Systems of Medicine ;
(b) admit or offer admission on payment of fee or without such payment to any course of instruction in such system of medicine ;
(c) receive any donation, subscription or fee (by whatever name called) in respect of any institution imparting instruction in such system of medicine ;
(d) make any arrangement or hold out that arrangements have been made for lecture, coaching or tuition or experiments in any laboratory with a view to imparting instruction in such system of medicine.
9. Restriction on admission of student.–A medical institution imparting instruction in Ayurvedic and Unani-Tibbi System of Medicine established before the appointed day may admit students enrolled in such institution on the appointed day from a lower class to higher class by way of promotion during a period of five years from the appointed day, and after the said period of five years, the provisions of Section 8 shall mutatis mutandis apply to every such institution.”
4. The Parliament passed Indian Medical Council Act, 1956 (hereinafter referred to as 1956 Act) providing for Constitution of Central Medical Council of India and provide for conditions for recognition of medical qualifications. Section 3 of the Act provides for Constitution of Medical Council of India. Section 10A provides for grant of permission for establishment of new Medical College, new course of study etc. Section 11 provides for recognition of medical qualifications granted by the Universities or Medical Institutions in India. Section 12 deals with the medical qualifications granted by medical institutions outside India which are included in Second Schedule. The institutions which are included in the Schedules to the Act have been recognised for the purpose of recognition of the degrees and certificates awarded by such institutions.
5. The contention of the petitioners is that the State Legislature was not competent to enact the law which was covered under the Union List. The
submission is that only Parliament could enact the law providing for imparting education in Ayurvedic and Unani-Tibbi Systems and such legislation can be made under Entry 66 of Union List of VII Schedule which reads as under :
“66. Co-ordination and determination of standards in institutions for higher education or research in scientific and technical institutions.”
6. Shri Yatindra Singh, learned Additional Advocate General, submitted that 1982 Act was enacted under Entry 25 of concurrent List III of VII Schedule which reads as under :
“Education, including technical education, medical education and Universities, subject to the provisions of Entries 63, 64, 65 and 66 of List I ; vocational and technical braining of labour.”
7. Section 8 does not debar any institution to impart instructions in Ayurvedic and Unani-Tibbi Systems of Medicine but the only restriction is that it cannot do so unless such institutions or persons have been authorised by the Central Government or the State Government. The petitioners cannot have any grievance on imposing restrictions to open or maintain such institutions without being granted any recognition by the Central Government inasmuch as the recognition of the Central Government is required under Section 10A of Indian Medical Council Act, 1956. This Act is covered by Entry 66 of the Union List of VIIth Schedule. The Institutions of the petitioners are not covered either in the Ist or IInd Schedule of 1956 Act. The institutions run by the petitioners are also not recognised by the Medical Council of India. The students who obtain degrees/diplomas from the petitioners’ institutions shall not be entitled to get themselves registered as Medical Practitioners.
8. The contention of the learned counsel for the petitioner is that the State Government has no power to legislate in regard to the matter covered by Entry 66 of Union List by relying upon the Entry 25 of concurrent list. Reliance has been placed upon Gujarat University and another v. Sri Krishna and others, AIR 1963 SC 703, wherein it was held that the University had no power to impose Gujarat or Hindi or both as exclusive media of instruction and examination under the provisions of Gujarat University Act. The use of the expression “subject to” in item No. 11 of List II of the VIIth Schedule indicates that legislation in respect of excluded matter cannot be undertaken by the State Legislatures. If there is Union legislation in respect of co-ordination and determination of standards under Entry No. 66 that would have paramountcy over the State Law by virtue of first part of Article 254(1), even if that power be not exercised by the Union Parliament, the relevant legislative entries being in the exclusive list, the State Law trenching upon the Union field would still be invalid.
9. A Division Bench of this Court in Young Doctors Association, Allahabad v. State of U. P. and another, 1983 ALJ 889, considered the scope and power of the State Legislature to enact law and issue notifications under Entry No. 25 of List No. III in respect of educational matters considering the powers of the Parliament also to legislate on the same subject under Entry No. 66 of List I. The State Government issued notification laying down eligibility qualifications which provided that no candidate shall be eligible for admission to post-graduate degree or diploma course who has obtained less than 55% and 52% respectively. The Court upheld the validity of the notification holding that the expression “subject to” does not exclude the competence of the State Legislature for all purposes and in all contexts. The exclusion is only to the extent that the State Legislation might seem “to wipe out or appreciably abridge” the central field. The State Legislature may supplement the eligibility rule. This decision was upheld by the Apex Court in Ambesh Kumar v. Principal L.E.R.M. Medical College, Meerut and others, AIR 1987 SC 400, laying clown that the State Government can. In exercise of its executive power, make an order relating to the mattes referred to in Entry No. 25 of the Concurrent List in
absence of any law made by the State Legislature. The only condition is that it does not encroach upon or infringe the power of Central Government as well as Parliament provided under Entry 66 of List I.
10. In Osmania University Teachers Association v. State of Andhra Pradesh and another, AIR 1987 SC 2034, the validity of Andhra Pradesh Commissionerate of Higher Education Act, enacted by State Legislature, was challenged. This Act was held contrary to the University Grants Commission Act, 1956. The Supreme Court held that the power of the State under Entry 25 of List III cannot cover the same subject-matter when the Central Legislation had already covered the matter which has been enacted by the State Legislature. The Court held “both the enactments, however, deal with the same subject-matter. Both deal with the co-ordination and determination of excellence In the standard of teaching and examination in the University. Here and there some of the words and sentences used in the Commissionerate Act may be different from those used in the U. G. C. Act but nevertheless they convey the same meaning”.
11. In State of Tamil Nadu and another v. Adhiyaman Educational and Research Institute and others, (1995) 4 SCC 104, it was held that the State Legislature cannot lay down standards and requirements higher than those prescribed by the Central Act for technical institution and cannot deny situations/seats to the applicants on the ground that they do not fulfil such higher standards/requirements. It was emphasised that in case of repugnancy in the, legislation made by the Parliament and the State Legislatures which arises in the case of legislation on a subject in List III, the law made by Parliament, whether passed before or after the law passed by the State Legislature, shall prevail and to that extent the law made by the Legislature of the State will be void. This view was followed by Rajasthan High Court in R. S. Mina and others v. State of Rajasthan and others, AIR 1997 Raj 35, wherein it was found that the Ordinance issued by Rajasthan University regarding entry in second professional course was in direct conflict with the Regulations framed by the Central Council of Indian Medicine and such Ordinance was held invalid.
12. Much reliance has been placed upon the decision of the Apex Court in Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust v. State of Tamil Nadu and others, (1996) 3 SCC 15, wherein requirement to obtain permission from the State Government for opening of Medical College under proviso to sub-section (5) of Section 5 of the Medical University Act, 1987 enacted by Tamil Nadu State Assembly was” held repugnant to Section 10A of Indian Medical Council (Amendment) Act, 1993 which dealt with establishment of new Medical College or opening of higher course of study or training and prescribed that this could be done only with the previous permission of the Central Government obtained in accordance with the provisions of the said Section. The argument raised therein, that it was possible that both the provisions can be compiled with and there was no repugnancy, was repelled with the following observation :
“It cannot, therefore, be said that the test of two legislations containing contradictory provisions is the only criterion of repugnancy. Repugnancy may arise between two enactments even though obedience to each of them is possible without disobeying the other if a competent Legislature with a superior efficacy expressly or implledly evinces by its legislation an intention to cover the whole field. The contention of Shri Sanghi that there is no repugnancy between the proviso to Section 5 (5) of the Medical University Act and Section 10A of the Indian Medical Council Act because both can be complied with, cannot, therefore, be accepted. What has to be seen is whether in enacting Section 10A of the Indian Medical Council Act, Parliament has evinced an intention to cover the whole field relating to establishment of new medical colleges in the country.”
13. An analysis of various decisions referred to above make it clear that the State Legislature cannot enact law under the concurrent list where the Parliament has already passed legislation covering the same field. The repugnancy in the enactment may arise when the State Legislature covers the same field though at times it may not lay down a contrary provision under the enactment. Section 10A of the Medical Council Act, 1956 provides that notwithstanding anything contained in the Act or any other law for the time being in force, no person shall establish a medical college ; or no medical college shall open a new or higher course of study. The relevant part of Section 10A reads as under :
“10A. Permission for establishment of new medical college, new course of study, etc. –(1) Notwithstanding anything contained in this Act or any other law for the time being in force :
(a) no person shall establish a medical college ; or
(b) no medical college shall :
(i) open a new or higher course of study or training (including a post-graduate course of study or training) which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification ; or
(ii) Increase its admission capacity in any course of study or training (Including a post-graduate course of study or training).”
14. Section 8 of the 1982 Act provides that no person other than a person authorised by the Central Government or State Government shall on or after the appointed date open, organise, maintain, manage or cause to open, organise, maintain or manage any institution providing to undertake conduct, provide or offer any instruction in Ayurvedic and Unani-Tibbi Systems of Medicine. The State Government covers the same field which is covered by the provisions of the Indian Medical Council Act, 1956. The State Government cannot authorise an institution to open any Medical College. It will be in contravention of the provisions of Section 10A of the Act.
15. Learned Additional Advocate General submitted that the President of India had granted assent to the U. P. Indian Medical Institutions (Acquisition and Miscellaneous Provisions) Act, 1982 on 7.4.1982. Clause (2) of Article 254 of the Constitution of India provides that where a law made by the Legislature of a State with respect to one of the matters enumerated’ in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State. This was explained by the Supreme Court in State of Tamil Nadu v. Adhiniyam Educational and Research Institute and others (supra) as follows :
“In case of repugnancy in the legislation made by Parliament and the State Legislatures which arises in the case of legislations on a subject in List III, the law made by Parliament whether passed before or after the law passed by the State Legislature shall prevail and to that extent, the law made by the Legislature of a State will be void. Where, however, the law made by the Legislature of a State is repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, the law made by the Legislature of the State shall, if it has received the assent of the President, prevail in that State. However, this does not prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State.”
16. The provisions authorising the State Government will hold valid till Section 10A was inserted in the Indian Medical Council Act, 1956 by the Indian Medical Council (Amendment) Act, 1993 (Central Act No. 31 of 1993). After the enforcement of the said provision, the State Government is not entitled to authorise any person to open a Medical College and take such other steps which is covered by Section 10A of the Central Act. In Thirumuruga Kirupananda Variyar Thavathiru Sundara Swamigal Medical Educational and Charitable Trust case (supra), it was held that the State of Tamil Nadu had no power to authorise or refuse any person in respect of establishment of Medical College under the provisions of Section 5 of the Medical Universities Act.
17. The next submission of the learned counsel for the petitioner is that under Section 9, the State Government has permitted medical institutions imparting instructions in Ayurvedic or Unani-Tibbi Systems of Medicine to admit students enrolled In such institutions on the appointed date from a lower class to higher class by way of promotion during the period of 5 years from the appointed date and after the said period of 5 years, the provisions of Section 8 shall mutatis mutandis apply to every institution. It is urged that some of the students may fall in the examination and the period of 5 years fixed is arbitrary. This question is hypothetical. The writ petition is pending since the year, 1985. The Act came into force in the year, 1982. The petitioners have not shown that any of their students could not be promoted to higher classes in their institutions within the period of 5 years as they failed in examination and such students were deprived of any right of promotion.
18. The petitioners have further challenged the validity of Section 10 of 1982 Act which provides that nothing in Section 8 or Section 9 shall affect the right of any minority referred to in Article 30 of the Constitution to establish and administer any educational institution of their choice for imparting instructions in Ayurvedic or Unani-Tibbi Systems of Medicine or Naturopathy or Yog Theraphy. The petitioners are not claiming that they belong to minority institutions. The question in the present writ petition relating to rights of minority does not require any consideration.
19. The last submission of the learned counsel for the petitioner is that every student has a fundamental right to receive education. The requirement to obtain any permission from the Central Government or the State Government by any institution affects the rights of the students to receive education from any institution of his choice. Reliance has been placed upon the decision Unni Krishnan, J. P. and others v. State of Andhra Pradesh and others, JT 1993 (1) SC 474, wherein the Court emphasised that the citizens of this country have a fundamental right to education. This right flows from Article 21. It was further cautioned that this right is not absolute right. Its content and parameters have to be determined in the light of Articles 45 and 41. The petitioners in this case have not shown that what rights to receive education have been impaired. On the other hand, the students who come to receive education in the institution must be aware that if they receive instructions in an institution which is not recognised and the degree which is awarded has no value either for the purpose of practice or obtaining service under the Government or any institution under the Government, their entire education will have no meaning. They will feel frustrated if they find that they are not entitled to practise.
20. The recognition to an institution is granted with a view to ensure that it properly imparts instructions on the guidelines which are prescribed by the Medical Council of India. The students who receive education in such Institutions, after getting the degree/diploma are entitled to practise and serve the society.
21. In view of the above. It is declared that the provisions of Section 8 of U. P. Indian Medical Institutions (Acquisition and Miscellaneous Provisions) Act, 1982 in regard to conferring power on the State Government to authorise any person to open, organise or maintain any Medical College so far as it is in
contravention of Section 10A of Indian Medical Council Act, 1956 is ultra vires and invalid. In respect of other provisions under Sections 8 and 9 of the Act is valid. The petitioners having not obtained permission from the Central Government or from the State Government prior to 1993, they are not entitled to run the institutions except after obtaining the permission from the Central Government as provided under the Indian Medical Council Act, 1956.
22. The writ petition is accordingly dismissed with the directions and
observations made above.