All India Association Of vs State Of Tamil Nadu on 12 November, 2002

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83
Madras High Court
All India Association Of vs State Of Tamil Nadu on 12 November, 2002
       

  

  

 
 
 IN THE HIGH COURT OF JUDICATURE AT MADRAS

Dated: 12/11/2002

Coram

The Hon'ble Mr.B.SUBHASHAN REDDY, CHIEF JUSTICE
And
The Hon'ble Mr.JUSTICE K.GOVINDARAJAN

W.A.NO.1951 OF 2002


All India Association of
Private Medical Practitioners,
Regd.No.206/92, rep.by its
President, Dr.A.M.Vadivelu
3/134 Balaji Nagar,
G.N.T.Road, Puzhal Post,
Chennai.600 066.                        .....     Appellant

-VS-

1.State of Tamil Nadu
  Rep. by the Secretary to
  Government, Health Department
  Fort St.George, Chennai.9

2.State of Tamil Nadu,
  Rep.by the Secretary to
  Government, Home Department
  Fort St.George, Chennai.9

3.The Director General of Police,
  Chennai.4.                                    .....     Respondents.

        Writ Appeal under Clause 15 of the Letters  Patent,against  the  order
dated 31.10.2001, passed in W.P.No.19418/2001 on the file of this court.

!For Appellant :  Mr.M.Muthappan

^For Respondents :  Mr.V.Raghupathi ,
                   Govertment Pleader


:JUDGEMENT

K.GOVINDARAJAN,J.,
The above Writ Appeal is directed against the order of the
learned Judge passed in W.P.No.19418/2001, dated 31.10.2001, under which the
learned Judge has dismissed the writ petition filed by the appellant, seeking
to issue a Writ of Mandamus the State of Tamil Nadu to issue necessary
certificate on complying with the conditions imposed by the learned Judge in
the order dated 8.6.1998 in W.P.No.7402 /1998 etc., on the basis of the data
furnished already by the members of the petitioner-association and
acknowledged by the respective Collectors of the Districts.

2. The appellant claiming that it is an association registered
under the Societies Registration Act, filed the above writ petition on the
basis that its members are practising in modern medicine in the respective
clinics for more than 15 years. Though they have not secured any Decree or
Diploma prescribed by various Universities for qualifying them as Registered
Medical Practitioners in various disciplines, relying on the circular issued
by the Government of India dated 8.7.198 6, directing the State Governments
and the Union Territories to enlist the unqualified medical practitioners and
to introduce suitable legislation for recognising those practising in modern
medicine without acquiring prescribed Degree or Diploma, the
petitioner-Association approached the High Court by filing writ petition in
W.P.No.16878/1993 for issue of a Writ of Mandamus against the respondents
therein forbearing them from interfering with their practice in modern
medicine. Due to non filing of the counter by the respondents the said writ
petition was allowed. Subsequently, the petitioner-association approached the
High Court by filing another writ petition in W.P.No.7402/1998 etc., seeking
to issue a Writ of Mandamus to the State of Tamil Nadu to regularise the
practice of unqualified medical practitioners in modern medicine as per the
circular issued by the Central Government dated 8.7.1986. The learned Judge
in the order dated 8.3.1992 disposed of the writ petitions permitting them to
practise in modern medicine in the field in which they have been rendering
services to the public, on their compliance of the conditions mentioned in
paragraph 8 of the said order.

3. Stating that though they have complied with such conditions,
the Government is not issuing any certificates so as to enable them to
continue their practice in modern medicine without any disturbance from the
officials, the petitioner-association filed the present writ petition in
w.P.No.19418/2001.

4. The learned Judge relying on the provisions of various Acts
relating to the subject and also the earlier judgements of this court and the
Apex Court, observed that in the earlier proceedings, this court has held that
the said circulars are unenforceable in the face of the statutory provisions
and so the writ petition filed by the appellant herein cannot be sustained, as
there are no merits in the writ petition. Hence this Writ Appeal.

5. We heard both the learned counsel for the appellant and Mr.V.
Raghupathi, learned Government Pleader appearing for the respondents.

6. Before dealing with the facts, we are inclined to deal with
the relevant provisions of law on the subject. The Indian Medical Council
Act,1956 (hereinafter referred to as ‘the Act’) was enacted to provide for the
reconstitution of the Medical Council of India, and the maintenance of a
Medical Register for India and for matters connected therewith. In view of
definition under Section 2(f), modern scientific medicine in all its branches
shall mean as “medicine”. Under Section 2(h) “recognised medical
qualification” has been defined as any of the medical qualification included
in the Schedules. “State Medical Register” has been defined under section
2(k) as a register maintained under any law for the time being in force in any
State regulating the registration of practitioners of medicine. Section-11 of
the Act deals with the recognition of Medical Qualifications granted by
Universities or Medical Institutions in India for the purposes of the Act. As
contemplated under Section-15 of the Act, only the persons who are having
sufficient qualification which has been included in the Schedules to the Act
can enrol themselves on any State Medical Register. Under Section-21, Medical
Council shall cause to be maintained in the prescribed manner a register of
medical practitioners to be known as the Indian Medical Register, which shall
contain the names of all the persons who are for the time being enrolled on
any State Medical Register and who possess any of the recognised medical
qualifications.

7. From the above said provisions it is clear that the persons
who are possessing recognised medical qualification alone can register their
names as contemplated under the Act and they alone can practise ” medicines”.

8. To provide for the registration of Medical Practitioners in
the State of Tamilnadu, the State Legislature had enacted an Act ” Tamilnadu
Medical Registration Act,1941″. Under Section-5 of the said Act of 1914, a
Medical Council shall be established for the State of Tamilnadu and the said
council as contemplated under Section-10 shall contain a Registrar, who shall
act as the Secretary of the Council and the said Registrar has an obligation
as contemplated under Section-11 of the said Act 1914 should keep a register
of medical practitioners and only the persons who have possessed of any of the
qualification described in the Schedules shall be entitled to be listed their
names so as to enable them to practise Allopathy or any other system of
medicine. In the proviso to Section-13 the Legislature has given power to the
State Government permitting the registration of any person who shall furnish
to the Registrar proof that he is possessed of a medical degree, diploma or
certificate of any University, medical college or school approved by the
Council, other than those described in the Schedule after consulting the
Medical Council.

9. Even under this Act, unless the persons have prescribed
qualification, cannot register their names and legally practise medicine.

10. Under the Indian Medical Degrees Act,1916 enacted to regulate
the grant of titles implying qualifications in western medical science, and
the assumption and use by unqualified persons of such titles. According to
Section-3 of the Act no person in the States shall confer, grant, or issue, or
hold himself out as entitled to confer, grant, or issue any degree, diploma,
licence, certificate or other document stating or implying that the holder,
grantee or recipient is qualified to practise western medical science.
According to Section-5, any contravention of the same shall be punishable with
a fine. According to Section-6A, no person shall have any title to his name,
description, letters or abbreviations which imply that he holds a degree,
diploma, licence or certificate as his qualification to practise any system of
medicine unless such a degree, diploma, licence or certificate was issued by
an authority and has been recognised by the General Council of Medical
Education.

11. As stated above, sufficient enactments have been made to
prevent the persons from practising “medicine” without having necessary
qualifications and also for registration as contemplated under the above said
Act.

12. In the present case, it is not in dispute that the members of
the Association are not having any such qualification. They are trying to get
a certificate only on the basis of their experience in practising “medicine”
without any such qualification. The right to practise any profession or to
carry on any occupation, trade or business is no doubt a fundamental right
guaranteed under Article 19(1)(g) of The Constitution of India. But, that
right is subject to any law relating to the professional or technical
qualifications necessary for practising any profession or carrying on any
occupation or trade or business indicated in Clause-6 of Article 19 of the
Constitution. The regulatory measures on the exercise of this right both with
regard to standard of professional qualification and professional conduct have
been applied keeping in view not only the right of medical practitioners, but
also the right to life and proper health care of persons who need medical care
and treatment. The need of the hour is better doctors than more doctors,
better health education than more education, better health care than more
health care delivery.

13. In the decision reported in Poonam Verma Vs. Ashwin Patel
(1996 (4) SCC 332) it has been held by the Supreme Court as follows while
considering the issue whether a person holding Diploma in Homeopathy Medicine
and Surgery can administer Allopathic medicine without having any
qualification in the same:

“30. The scheme of the Act, therefore, indicates that a person gets
the right to practise in Homeopathy on being registered as a medical
practitioner. The certificate of registration issued to such practitioner
requires him to practise in HOMEOPATHY ONLY as is clear from the words “AND
SHALL PRACTISE HOMEOPATHY ONLY” used in sub-section (12)(a) of Section 20.
Apart from the right to practice, other rights which become immediately
available to a person on registration of his name are indicated in Section 28
which, inter alia, includes right to treat patients according to the
Homeopathic system of medicine.

31. Right to practise in Allopathic system of medicine as also the
right to practise in Ayurvedic or Unani system of medicine is regulated by
separate independent Central and local Acts. Indian Medical Council Act, 1956
deals, inter alia, with the registration of persons possessing requisite
qualifications as medical practitioner in Allopathic system as also
recognition of medical qualifications and examinations by Universities or
Medical Institutions in India.

.

.

38. But merely because the anatomy and Physiology are similar, it
does not mean that a person having studied one system of medicine can claim to
treat the patient by drugs of another system which he might not have studiedat
any stage. No doubt, study of Physiology and Anatomy is common in all systems
of medicines and the students belonging to different systems of medicines may
be taught Physiology and Anatomy together, but so far as the study of drugs is
concerned, the Pharmacology of all systems is entirely different.

.

.

41. Since the law, under which respondent-1 was registered as a
medical practitioner, required him to practise in HOMEOPATHY ONLY, he was
under a statutory duty not to enter the field of any other system of medicines
as, admittedly,he was not qualified in the other system, Allopathy, to be
precise. He trespassed into a prohibited field and was liable to be
prosecuted under Section 15(3) of the Indian Medical Council Act, 1956. His
conduct amounted to an actionable negligence particularly as the duty of care
indicated by this Court in Dr. Laxman Joshi case WAS BREACHED BY HIM ON ALL
THE THREE COUNTS INDICATED THEREIN.”

14. While deciding the correctness of the Act of the State
Government prescribing different admission criteria by contemplating different
minimum qualifying marks for special category candidates seeking admission
under the reserved category in medical courses, the Constitutional Bench of
the Apex Court in Dr.Preeti Srivastava VS. State of M. P.(1999 (7)SCC

120)observed that for proper education it would necessarily have in its fold

(i)the taught, (ii)the teacher, (iii)the text and also (iv)training as
practical training is required to be imparted to students pursuing the course
of postgraduate medical education. The qualification of the teachers is
determined by the Medical Council of India by prescribing the basic
qualifications for admission of the students. While considering the
importance of training, it is further observed that training to be imparted to
the students has a direct nexus with the infrastructural facilities like the
number of beds of patients to be attended to by postgraduate medical students,
providing appropriate infrastructure for surgical training etc., also would
form part of education and such facilities for giving such practical training
to the taught also would be an important part of medical education. It is of
course true that not only the eligibility of students for admission to medical
courses but also the quality of students seeking to get medical education
especially postgraduate medical education with a view to turning out efficient
medical practitioners for serving the suffering humanity would all be covered
by the term ” education”.

15. The Government of Punjab State issued notifications under
Clause(iii)of Rule 2(ee)of the Drugs and Cosmetics Rules, 1945 which defines
“registered medical practitioner”. Under such notification notified
vaids/hakims claim right to prescribe allopathic drugs covered by the Indian
Drugs and Cosmetics Act, 1940. A Division Bench of Punjab& Haryana High Court
held that such a notification was ultra vires of the said provisions. While
considering the said issue, in the decisions reported in Dr.Mukhtiar Chand
Vs.State of Punjab (1998(7) SCC 579) the Apex Court held as follows:

“47. A harmonious reading of Section 15 of the 1956 Act and
Section 17 of the 1970 Act leads to the conclusion that there is no scope for
a person enrolled on the State Register of Indian Medicine or the Central
Register of Indian Medicine to practise modern scientific medicine in any of
its branches unless that person is also enrolled on a State Medical Register
within the meaning of the 1956 Act.

48. The right to practise modern or Indian system of medicine cannot
be based on the provisions of the Drugs Rules and declaration made thereunder
by State Governments. Indeed, Ms.Indira Jaising has also submitted that the
right to practise a system of medicine is derived from the Act under which a
medical practitioner is registered. But she has strenuously argued that the
right which the holders of a degree in integrated courses of Indian medicine
are claiming is to have their prescription of allopathic medicine honoured by
a pharmacist or a chemist under the Pharmacy Act and the Drugs Act. This
argument is too technical to be acceded to because prescribing a drug is a
concomitant of the right to practise a system of medicine. Therefore, in a
broader sense, the right to prescribe drugs of a system of medicine would be
synonymous with the right to practise that system of medicine. In that sense,
the right to prescribe an allopathic drug cannot be wholly divorced from the
claim to practise allopathic medicine.”

16. Moreover, similar writ petitions were filed in this court in
W. P.No.18186 of 1991 etc., batch were dismissed on 31.12.1996. In another
W.P.No.14042/91, the Private Medical Practitioners Association of India, Tamil
Nadu Branch sought to issue a Writ of Mandamus directing the State of Tamil
Nadu to forthwith implement the directions of the Government of India issued
in the proceedings dated 8.7.1986 which is also the subject matter in this
writ petition. The said Writ Petition was dismissed on 6.11.1995 and the same
was confirmed by the Division Bench in W.A.No.1384/1995 in the order dated
21.8.1998. For the same relief 17 individuals filed another Writ Petition in
W.P.No.522/2000 and the same learned Judge dismissed the said writ petitions
in an elaborate order dated 21.01.2000. The Mo dern Medical Practitioners
Association of India initiated another Writ Petition in W.P.No.2572/2000
seeking to issue a writ of Mandamus directing the State Government to register
the names of the members of the petitioner association in the State Medical
Register maintained by the State as per the provisions of the Drugs and
Cosmetics Rules, 1945. The learned Judge rejected the said contention.

17. We are not able to understand in spite of specific statutory
provisions, as to how the Union of India had issued such directions contrary
to the statutory provisions and the judgements of the Apex Court. No
provision is pointed out to show that the Government is empowered to issue
such circular and so it is not open to the Government to suppliment the
provisions of the Act and Rules made thereunder by executive orders which has
the effect of nullifying or modifying the statutory provisions. So far as
circulars issued by the Government are concerned, they represent merely their
understanding of the statutory provisions and they are not binding upon the
courts as such circulars cannot compete with statutory provisions.

18. The circular which is sought to be implemented cannot have any
legal force and this court is not inclined to direct the Government to
implement such circulars as it is unenforceable in law. But for the said
circular, the members of the association cannot insist the State Government to
issue certificate to enable them to practise ” Medicine”. Though the
appellant had relied on the judgement of the learned single Judge made in
W.P.No.7402/98 etc., batch dated 15.6.98 the said order was passed by the
learned single Judge without even going into the question regarding the power
of the Union Government to issue such a circular contrary to law on the issue
and so the appellant cannot take advantage of the said judgement to claim that
the State Government should permit the members of the appellant association to
practise in medicine though they are not having any qualification to do so.

19. In view of the above discussion, we do not find any reason to
interfere with the order of the learned single Judge. Hence, the Writ Appeal
is dismissed. No costs.

Index:Yes.

Internet:Yes.

mp.

To

1.The Secretary to Government,
Health Department
Government of Tamilnadu
Fort St.George, Chennai.9

2.The Secretary to Government,
Home Department
Government of Tamilnadu
Fort St.George, Chennai.9

3.The Director General of Police,
Chennai.4.

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