JUDGMENT
Jawahar Lal Gupta, J.
1. The petitioners have qualified the D.H.M.S. examination conducted by the Council of Homoeopathic System of Medicine, Punjab, during the period from 1987 to 1996. They complain that the Central Council of Homoeopathy is arbitrarily refusing to recognise their qualification. As a result, they are suffering a heavy, recurring and irreparable loss. The petitioners allege that the action of respondent No. 2 – Central Council of Homeopathy is arbitrary, unfair and illegal. They pray that a writ in the nature of Mandamus be issued directing the second respondent to treat the Diploma awarded to them as a recognised qualification so as to entitle them to practice Homoeopathy.
2. The Union of India (Ministry of health and Family Welfare) as also the Council of Homoeopathic System of Medicine, Punjab, support the claim of the petitioners. A written statement has been filed on behalf of the Government of India in which it has been categorically averred that “the DHMS qualification awarded by the Council of Homoeopathic System of . Medicine, Punjab, is a recognised Medical qualification and has been included in the IInd schedule to the Homoeopathy Central Council Act, 1973″. It has been further averred that even the “Central Council of Homoeopathy made a recommendation for inclusion of the DHMS qualification awarded by the respondent No. 3, w.e.f. 1988 onwards by its letter dated 11.09.1998. Since the respondent No. 3 have switched over to the DHMS curriculum prescribed by the Central Council w.e.f. 1984 onwards, the answering respondent considered the recommendation of the respondent No. 2 and decided that since the qualification of DHMS awarded by the respondent No. 3 is included in the Schedule II of the Central Act, there is no need for putting a fresh entry in the schedule and the decision was conveyed to the respondent No. 3”.
3. Despite the categorical averment on behalf of respondent No. 1 and a communication having been sent to it, the Central Council insists on contesting the claim of the petitioners. A written statement has been filed along with which 32 documents have been produced. However, the case in a nutshell as pleaded on behalf of the Central Council is in the following words:-
“By virtue of item No. 30 in Second Schedule the Diploma in Homoeopathy Medicine and Surgery conducted under the Punjab Homoeopathic Practitioners Act, 1965 read with Regulations 1974 stand definitely recognised and it is a recognised medical qualification in terms of Section 2(g) of
the Homoeopathy Central Council Act, 1973. However, the Diploma Course conducted by the Council of Homoeopathic System of Medicine, Punjab, from the year 1983-94 onwards in respect of freshly admitted students which is strictly under the Central Council of Homoeopathy (Diploma Course) D.H.M.S. Regulations, 1983 read with Homoeopathy (Minimum Standards of Education) Regulations, 1983 has not yet been included in the Second Schedule by the Govt. of India. The said qualification is thus not a recognised qualification till it is included in the Second Schedule. The Govt. of India has already issued notification, with regard to various institutions which are conducting Diploma Course under the 1983 Regulations. Some of the notifications have already been attached as Annexures R-3/1A, R-3/1B and R-3/1C. Till the notification like that of R- 3/1 A, R-3/1B and R-3/1C is issued by the Govt. of India in respect of Council of Homoeopathic System of Medicine, Punjab, under Central Council Regulations 1983, cannot be said to be recognised qualification in terms of Section 2(g) of Central Act, 1973. The Writ Petition against Central Council is thus not maintainable. That right from the year 1983-84 onwards the Council of Homoeopathic System of Medicine, Punjab, as well as the answering respondents are doing their level best for inclusion of Diploma Course under the Central Council of Homoeopathy Regulations, 1983 in Second Schedule as has been done in the case of Gujarat, Assam, Maharashtra and Rajasthan. However, till date the Govt. of India has not issued any notification including the Diploma Course under 1983 Regulations in Second Schedule.”
This is the entire case of the second respondent.
4. Learned counsel for the parties have been heard. On behalf of the petitioners it has been urged by Mr. Ashwani Chopra that the D.H.M.S. diploma awarded by the third respondent is a duly recognised qualification. Thus, the action of the second respondent viz. Central Council of Homoeopathy in not recognising the qualification of the petitioners and in not permitting them to practice as Homoeopaths is wholly arbitrary. The counsel contends that the petitioners have been put to a heavy, recurring and irreparable loss. The Council should be made to compensate them for this loss. Mr. R.C. Dimri, appearing for the first respondent, and Mr. Nirmal Singh, appearing for the third respondent, support the contention raised on behalf of the petitioners. However, Mr. Vijay Jindal, Appearing for the second respondent, has contested the claim. Learned counsel has contended that the Diploma awarded by the Council after the promulgation of the Homoeopathy (Diploma Course) D.H.M.S. Regulations, 1983 is required to be freshly recognised by the Central Government by the issue of a notification. Such notifications have in fact been issued in the cases of States like Assam, Gujarat, Maharashtra and Rajasthan. Since none has been issued in case of the
State of Punjab, the present petition deserves to be dismissed.
5. The Homoeopathy Central Council Act, 1973 was promulgated to “provide for the constitution of a Central Council of Homoeopathy and the maintenance of a Central Registrar of Homeopathy and for matters connected therewith”. Chapter-II of the Act deals with the constitution of the Central Council. Chapter-ill provides for the Recognition of Medical Qualifications. The provision contained in Section 13 is relevant. It reads as follows:-
“13. Recognition of medical qualifications granted by certain medical institutions in India. –
(1) The medical qualifications granted by any University, Board or other medical institution in India which are included in the Second Schedule shall be recognised medical qualifications for the purposes of this Act.
(2) Any University, Board or other medical institution in India which grants a medical qualification not included in the Second Schedule may apply to the Central Government to have any such qualification recognized, and the Central Government, after consulting the Central Council, may, by notification in the Official Gazette, amend the Second Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in the last column of the Second Schedule against such medical qualification only when granted after a specified date.”
6. Section 32 empowers the Central Government to make Rules to carry out the purposes of the Act. Section 33 empowers the Central Council to frame Regulations with the “previous sanction of the Central Government.”
7. On a perusal of the provision contained in Section 13, it is clear that the medical qualifications granted by different institutions in India which are included in the Second Schedule have to be treated as “recognised medical qualifications for the purposes of this Act”. The amendment of the Schedule is required only when a new qualification has to be added to the Schedule. Even this power vests with the Central Government. The Council has only to be consulted.
8. It is the admitted position that the qualification of D.H.M.S. awarded by the Council of Homoeopathy System of Medicine, Punjab (respondent No. 3 here) in included at item No. 30 in the Second Schedule to the Act. Thus, any one who acquires this qualification is to be treated as possessing a recognised medical qualification for the purposes of the Act.
9. It is the admitted position that the present petitioners have qualified the D.H.M.S. examination conducted by the third respondent. This qualification having been included in the Second Schedule, it cannot be said that the petitioners are not possessing a recognised medical qualification.
10. Mr. Jindal contends that the Regulations having been framed in the year 1983 the Course content etc.
were changed. As a result, a new Diploma is being awarded under the provisions of the Homoeopathy (Diploma Course) D.H.M.S. Regulations, 1983. This being so, a fresh recognition by the Central Government was needed. Such recognitions have been granted to various Courses in the States of Assam, Rajasthan, Gujarat and Maharashtra. A similar notification should have been issued even in the case of State of Punjab.
11. We are unable to accept this contention. It is the admitted position that the third respondent continues to conduct the D.H.M.S. Course and award the Diploma at the end thereof. This D.H.M.S. Course has been duly recognised by its inclusion in the Second Schedule of the Act. The mere change in Course content cannot mean that a fresh recognition is necessary. This is all the more so as it has not been suggested on behalf of the respondents that the third respondent is not following the prescribed Regulations while awarding the Diploma. Still further, on a perusal of the notifications issued by the Central Government in cases of the aforesaid four States it appears that the additional Courses had been introduced which required recognition. Therefore, in respect of the four States fresh notifications were issued. Otherwise, the Diploma granted by the third respondent having already been recognised, there was no need for the issue of a fresh recognition by the Central Government. This is all the more so in view of the fact that the Central Government had actually written a specific letter to the Central Council in pursuance to its letter daied September 11, 1998. A copy of the letter dated February 8, 1999 issued by the Government of India has been produced by the petitioners as Annexure P-7 with the Writ Petition. In this letter it has been specifically observed that the “DHMS Diploma awarded by Council of Homoeopathic System of Medicine already stands included in the IInd Schedule of HCC Act, 1973 at S.No. 30 and hence the Government does not fee! it necessary to issue another notification with same nomenclature.”
12. Despite the position having been clarified by the Central Govt. in clear and unequivocal terms, the Council has continued to insist upon the issue of a fresh notification. Why? It is difficult to imagine.
13. There is another aspect of the matter. The Regulations framed by the Central Council are a piece of subordinate legislation. These have to conform to the provisions of the Act. Section 13 of the Act unequivocally provides that the qualifications included in the Second Schedule shall be treated as “the recognised medical qualifications for the purposes of this Act”. Admittedly the qualification possessed by the petitioners is included in the Second Schedule. That being so, a mere change in the Course content or curriculum could not mean that a recognised qualification would be converted into an unrecognised one. If the contention as raised on behalf of the Central Council is accepted, the result would be that every time there is a minor change in the Course content of one or the other
Subject, the persons qualifying the Course would be rendered as totally unqualified. This cannot be the intent of the Regulations or the Statute. The inclusion of a Degree or Diploma awarded by an Institute in the Second Schedule puts a seal of recognition. It is not removed till there is an express exclusion from the Schedule.
14. In the present case, the action of the Council in refusing to recognise the qualification of the petitioners was totally arbitrary and unfair. As a result, persons who had passed as far back as the year 1987 have virtually remained unemployed. In fact, all the petitioners have suffered an unjustifiable harassment at the hands of the respondent-Council. Its action was to-tally arbitrary and unfair.
15. No other point has been raised.
16. In view of the above, the writ petition is allowed. It is declared that the petitioners possess the qualification recognised under the Homoeopathy Central Council Act, 1973. The respondents shall treat them as such. Necessary action shall be taken and the Central Council shall notify this fact to all concerned. The petitioners shall also be entitled to their costs which are assessed at Rs. 10,000/-. The costs shall be payable by the second respondent only.
17. Petition allowed.