{"id":1179,"date":"2002-11-12T00:00:00","date_gmt":"2002-11-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/all-india-association-of-vs-state-of-tamil-nadu-on-12-november-2002"},"modified":"2018-07-08T22:12:29","modified_gmt":"2018-07-08T16:42:29","slug":"all-india-association-of-vs-state-of-tamil-nadu-on-12-november-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/all-india-association-of-vs-state-of-tamil-nadu-on-12-november-2002","title":{"rendered":"All India Association Of vs State Of Tamil Nadu on 12 November, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
All India Association Of vs State Of Tamil Nadu on 12 November, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDated: 12\/11\/2002\n\nCoram\n\nThe Hon'ble Mr.B.SUBHASHAN REDDY, CHIEF JUSTICE\nAnd\nThe Hon'ble Mr.JUSTICE K.GOVINDARAJAN\n\nW.A.NO.1951 OF 2002\n\n\nAll India Association of\nPrivate Medical Practitioners,\nRegd.No.206\/92, rep.by its\nPresident, Dr.A.M.Vadivelu\n3\/134 Balaji Nagar,\nG.N.T.Road, Puzhal Post,\nChennai.600 066.                        .....     Appellant\n\n-VS-\n\n1.State of Tamil Nadu\n  Rep. by the Secretary to\n  Government, Health Department\n  Fort St.George, Chennai.9\n\n2.State of Tamil Nadu,\n  Rep.by the Secretary to\n  Government, Home Department\n  Fort St.George, Chennai.9\n\n3.The Director General of Police,\n  Chennai.4.                                    .....     Respondents.\n\n        Writ Appeal under Clause 15 of the Letters  Patent,against  the  order\ndated 31.10.2001, passed in W.P.No.19418\/2001 on the file of this court.\n\n!For Appellant :  Mr.M.Muthappan\n\n^For Respondents :  Mr.V.Raghupathi ,\n                   Govertment Pleader\n\n\n:JUDGEMENT\n<\/pre>\n
K.GOVINDARAJAN,J.,
\n                The  above  Writ  Appeal  is directed against the order of the
\nlearned Judge passed in W.P.No.19418\/2001, dated 31.10.2001, under  which  the
\nlearned  Judge has dismissed the writ petition filed by the appellant, seeking
\nto issue a Writ of Mandamus  the  State  of  Tamil  Nadu  to  issue  necessary
\ncertificate  on  complying with the conditions imposed by the learned Judge in
\nthe order dated 8.6.1998 in W.P.No.7402 \/1998 etc., on the basis of  the  data
\nfurnished   already   by   the   members  of  the  petitioner-association  and
\nacknowledged by the respective Collectors of the Districts.\n<\/p>\n
        2.      The appellant claiming that it is  an  association  registered
\nunder  the  Societies  Registration  Act, filed the above writ petition on the
\nbasis that its members are practising in modern  medicine  in  the  respective
\nclinics for  more  than  15 years.  Though they have not secured any Decree or
\nDiploma prescribed by various Universities for qualifying them  as  Registered
\nMedical  Practitioners  in various disciplines, relying on the circular issued
\nby the Government of India dated 8.7.198 6, directing  the  State  Governments
\nand  the Union Territories to enlist the unqualified medical practitioners and
\nto introduce suitable legislation for recognising those practising  in  modern
\nmedicine    without    acquiring    prescribed    Degree   or   Diploma,   the
\npetitioner-Association approached the High Court by filing  writ  petition  in
\nW.P.No.16878\/1993  for  issue  of  a  Writ of Mandamus against the respondents
\ntherein forbearing  them  from  interfering  with  their  practice  in  modern
\nmedicine.   Due  to non filing of the counter by the respondents the said writ
\npetition was allowed.  Subsequently, the petitioner-association approached the
\nHigh Court by filing another writ petition in W.P.No.7402\/1998  etc.,  seeking
\nto  issue  a  Writ  of  Mandamus  to the State of Tamil Nadu to regularise the
\npractice of unqualified medical practitioners in modern medicine  as  per  the
\ncircular issued  by  the Central Government dated 8.7.1986.  The learned Judge
\nin the order dated 8.3.1992 disposed of the writ petitions permitting them  to
\npractise  in  modern  medicine  in the field in which they have been rendering
\nservices to the public, on their compliance of  the  conditions  mentioned  in
\nparagraph 8 of the said order.\n<\/p>\n
        3.      Stating  that  though they have complied with such conditions,
\nthe Government is not issuing  any  certificates  so  as  to  enable  them  to
\ncontinue  their  practice  in modern medicine without any disturbance from the
\nofficials, the petitioner-association  filed  the  present  writ  petition  in
\nw.P.No.19418\/2001.\n<\/p>\n
        4.      The  learned  Judge  relying on the provisions of various Acts
\nrelating to the subject and also the earlier judgements of this court and  the
\nApex Court, observed that in the earlier proceedings, this court has held that
\nthe  said  circulars are unenforceable in the face of the statutory provisions
\nand so the writ petition filed by the appellant herein cannot be sustained, as
\nthere are no merits in the writ petition.  Hence this Writ Appeal.\n<\/p>\n
        5.      We heard both the learned counsel for the appellant and  Mr.V.
\nRaghupathi, learned Government Pleader appearing for the respondents.\n<\/p>\n
        6.      Before  dealing  with  the facts, we are inclined to deal with
\nthe relevant provisions of law on the subject.   The  Indian  Medical  Council
\nAct,1956 (hereinafter referred to as ‘the Act’) was enacted to provide for the
\nreconstitution  of  the  Medical  Council  of  India, and the maintenance of a
\nMedical Register for India and for matters connected therewith.   In  view  of
\ndefinition  under Section 2(f), modern scientific medicine in all its branches
\nshall mean  as  “medicine”.     Under   Section   2(h)   “recognised   medical
\nqualification”  has  been defined as any of the medical qualification included
\nin the Schedules.  “State Medical Register” has  been  defined  under  section
\n2(k) as a register maintained under any law for the time being in force in any
\nState regulating the registration of practitioners of medicine.  Section-11 of
\nthe  Act  deals  with  the  recognition  of  Medical Qualifications granted by
\nUniversities or Medical Institutions in India for the purposes of the Act.  As
\ncontemplated under Section-15 of the Act, only  the  persons  who  are  having
\nsufficient  qualification  which has been included in the Schedules to the Act
\ncan enrol themselves on any State Medical Register.  Under Section-21, Medical
\nCouncil shall cause to be maintained in the prescribed manner  a  register  of
\nmedical  practitioners to be known as the Indian Medical Register, which shall
\ncontain the names of all the persons who are for the time  being  enrolled  on
\nany  State  Medical  Register  and  who  possess any of the recognised medical
\nqualifications.\n<\/p>\n
        7.      From the above said provisions it is clear  that  the  persons
\nwho  are  possessing recognised medical qualification alone can register their
\nnames as contemplated under the Act and they alone can practise ” medicines”.\n<\/p>\n
        8.      To provide for the registration of  Medical  Practitioners  in
\nthe  State  of Tamilnadu, the State Legislature had enacted an Act ” Tamilnadu
\nMedical Registration Act,1941″.  Under Section-5 of the said Act  of  1914,  a
\nMedical  Council  shall be established for the State of Tamilnadu and the said
\ncouncil as contemplated under Section-10 shall contain a Registrar, who  shall
\nact  as  the Secretary of the Council and the said Registrar has an obligation
\nas contemplated under Section-11 of the said Act 1914 should keep  a  register
\nof medical practitioners and only the persons who have possessed of any of the
\nqualification  described in the Schedules shall be entitled to be listed their
\nnames so as to enable them to  practise  Allopathy  or  any  other  system  of
\nmedicine.  In the proviso to Section-13 the Legislature has given power to the
\nState  Government  permitting the registration of any person who shall furnish
\nto the Registrar proof that he is possessed of a medical  degree,  diploma  or
\ncertificate  of  any  University,  medical  college  or school approved by the
\nCouncil, other than those described  in  the  Schedule  after  consulting  the
\nMedical Council.\n<\/p>\n
        9.      Even  under  this  Act,  unless  the  persons  have prescribed
\nqualification, cannot register their names and legally practise medicine.\n<\/p>\n
        10.     Under the Indian Medical Degrees Act,1916 enacted to  regulate
\nthe  grant  of  titles implying qualifications in western medical science, and
\nthe assumption and use by unqualified persons of such titles.    According  to
\nSection-3 of the Act no person in the States shall confer, grant, or issue, or
\nhold  himself  out as entitled to confer, grant, or issue any degree, diploma,
\nlicence, certificate or other document stating or implying  that  the  holder,
\ngrantee  or  recipient  is  qualified  to  practise  western  medical science.
\nAccording to Section-5, any contravention of the same shall be punishable with
\na fine.  According to Section-6A, no person shall have any title to his  name,
\ndescription,  letters  or  abbreviations  which  imply that he holds a degree,
\ndiploma, licence or certificate as his qualification to practise any system of
\nmedicine unless such a degree, diploma, licence or certificate was  issued  by
\nan  authority  and  has  been  recognised  by  the  General Council of Medical
\nEducation.\n<\/p>\n
        11.     As stated above,  sufficient  enactments  have  been  made  to
\nprevent  the  persons  from  practising  “medicine”  without  having necessary
\nqualifications and also for registration as contemplated under the above  said
\nAct.\n<\/p>\n
        12.     In  the present case, it is not in dispute that the members of
\nthe Association are not having any such qualification.  They are trying to get
\na certificate only on the basis of their experience in  practising  “medicine”
\nwithout any  such  qualification.   The right to practise any profession or to
\ncarry on any occupation, trade or business is no  doubt  a  fundamental  right
\nguaranteed under  Article  19(1)(g)  of  The Constitution of India.  But, that
\nright is subject  to  any  law  relating  to  the  professional  or  technical
\nqualifications  necessary  for  practising  any  profession or carrying on any
\noccupation or trade or business indicated in Clause-6 of  Article  19  of  the
\nConstitution.  The regulatory measures on the exercise of this right both with
\nregard to standard of professional qualification and professional conduct have
\nbeen  applied keeping in view not only the right of medical practitioners, but
\nalso the right to life and proper health care of persons who need medical care
\nand treatment.  The need of the hour is  better  doctors  than  more  doctors,
\nbetter  health  education  than  more  education, better health care than more
\nhealth care delivery.\n<\/p>\n
        13.     In the decision reported in Poonam Verma  Vs.    Ashwin  Patel
\n(1996  (4)  SCC  332)  it  has been held by the Supreme Court as follows while
\nconsidering the issue whether a person holding Diploma in Homeopathy  Medicine
\nand   Surgery   can   administer   Allopathic   medicine  without  having  any
\nqualification in the same:\n<\/p>\n
        “30.    The scheme of the Act, therefore, indicates that a person gets
\nthe right  to  practise  in  Homeopathy  on  being  registered  as  a  medical
\npractitioner.   The  certificate  of  registration issued to such practitioner
\nrequires him to practise in HOMEOPATHY ONLY as is clear from  the  words  “AND
\nSHALL  PRACTISE  HOMEOPATHY  ONLY”  used in sub-section (12)(a) of Section 20.
\nApart from the right  to  practice,  other  rights  which  become  immediately
\navailable  to a person on registration of his name are indicated in Section 28
\nwhich,  inter  alia,  includes  right  to  treat  patients  according  to  the
\nHomeopathic system of medicine.\n<\/p>\n
        31.     Right to practise in Allopathic system of medicine as also the
\nright  to  practise  in  Ayurvedic or Unani system of medicine is regulated by
\nseparate independent Central and local Acts.  Indian Medical Council Act, 1956
\ndeals, inter alia, with  the  registration  of  persons  possessing  requisite
\nqualifications   as   medical   practitioner  in  Allopathic  system  as  also
\nrecognition of medical qualifications  and  examinations  by  Universities  or
\nMedical Institutions in India.\n<\/p>\n
        .\n<\/p>\n
        .\n<\/p>\n
        38.   But  merely  because  the anatomy and Physiology are similar, it
\ndoes not mean that a person having studied one system of medicine can claim to
\ntreat the patient by drugs of another system which he might not have studiedat
\nany stage.  No doubt, study of Physiology and Anatomy is common in all systems
\nof medicines and the students belonging to different systems of medicines  may
\nbe taught Physiology and Anatomy together, but so far as the study of drugs is
\nconcerned, the Pharmacology of all systems is entirely different.\n<\/p>\n
        .\n<\/p>\n
        .\n<\/p>\n
        41.     Since  the  law,  under which respondent-1 was registered as a
\nmedical practitioner, required him to practise  in  HOMEOPATHY  ONLY,  he  was
\nunder a statutory duty not to enter the field of any other system of medicines
\nas,  admittedly,he  was  not  qualified  in the other system, Allopathy, to be
\nprecise.  He  trespassed  into  a  prohibited  field  and  was  liable  to  be
\nprosecuted under  Section  15(3) of the Indian Medical Council Act, 1956.  His
\nconduct amounted to an actionable negligence particularly as the duty of  care
\nindicated by  this  Court in Dr.  Laxman Joshi case WAS BREACHED BY HIM ON ALL
\nTHE THREE COUNTS INDICATED THEREIN.”\n<\/p>\n
        14.     While deciding  the  correctness  of  the  Act  of  the  State
\nGovernment prescribing different admission criteria by contemplating different
\nminimum  qualifying  marks  for  special category candidates seeking admission
\nunder the reserved category in medical courses, the  Constitutional  Bench  of
\nthe Apex Court  in  Dr.Preeti  Srivastava  VS.    State  of M.  P.(1999 (7)SCC\n<\/p>\n
120)observed that for proper education it would necessarily have in  its  fold\n<\/p>\n
(i)the  taught,  (ii)the  teacher,  (iii)the  text  and  also  (iv)training as
\npractical training is required to be imparted to students pursuing the  course
\nof postgraduate  medical  education.    The  qualification  of the teachers is
\ndetermined  by  the  Medical  Council  of  India  by  prescribing  the   basic
\nqualifications for   admission   of  the  students.    While  considering  the
\nimportance of training, it is further observed that training to be imparted to
\nthe students has a direct nexus with the infrastructural facilities  like  the
\nnumber of beds of patients to be attended to by postgraduate medical students,
\nproviding  appropriate  infrastructure  for surgical training etc., also would
\nform part of education and such facilities for giving such practical  training
\nto the  taught also would be an important part of medical education.  It is of
\ncourse true that not only the eligibility of students for admission to medical
\ncourses but also the quality of students  seeking  to  get  medical  education
\nespecially postgraduate medical education with a view to turning out efficient
\nmedical  practitioners for serving the suffering humanity would all be covered
\nby the term ” education”.\n<\/p>\n
        15.     The Government of  Punjab  State  issued  notifications  under
\nClause(iii)of  Rule  2(ee)of the Drugs and Cosmetics Rules, 1945 which defines
\n“registered medical  practitioner”.     Under   such   notification   notified
\nvaids\/hakims  claim  right to prescribe allopathic drugs covered by the Indian
\nDrugs and Cosmetics Act, 1940.  A Division Bench of Punjab& Haryana High Court
\nheld that such a notification was ultra vires of the said provisions.    While
\nconsidering  the  said  issue,  in the decisions reported in Dr.Mukhtiar Chand
\nVs.State of Punjab (1998(7) SCC 579) the Apex Court held as follows:\n<\/p>\n
                “47.    A harmonious reading of Section 15 of the 1956 Act and
\nSection 17 of the 1970 Act leads to the conclusion that there is no scope  for
\na  person  enrolled  on  the  State Register of Indian Medicine or the Central
\nRegister of Indian Medicine to practise modern scientific medicine in  any  of
\nits  branches  unless that person is also enrolled on a State Medical Register
\nwithin the meaning of the 1956 Act.\n<\/p>\n
        48.  The right to practise modern or Indian system of medicine  cannot
\nbe  based on the provisions of the Drugs Rules and declaration made thereunder
\nby State Governments.  Indeed, Ms.Indira Jaising has also submitted  that  the
\nright  to  practise a system of medicine is derived from the Act under which a
\nmedical practitioner is registered.  But she has strenuously argued  that  the
\nright  which  the holders of a degree in integrated courses of Indian medicine
\nare claiming is to have their prescription of allopathic medicine honoured  by
\na pharmacist  or  a  chemist  under  the Pharmacy Act and the Drugs Act.  This
\nargument is too technical to be acceded to because prescribing  a  drug  is  a
\nconcomitant of  the  right  to practise a system of medicine.  Therefore, in a
\nbroader sense, the right to prescribe drugs of a system of medicine  would  be
\nsynonymous with the right to practise that system of medicine.  In that sense,
\nthe  right  to prescribe an allopathic drug cannot be wholly divorced from the
\nclaim to practise allopathic medicine.”\n<\/p>\n
        16.     Moreover, similar writ petitions were filed in this  court  in
\nW.  P.No.18186  of  1991 etc., batch were dismissed on 31.12.1996.  In another
\nW.P.No.14042\/91, the Private Medical Practitioners Association of India, Tamil
\nNadu Branch sought to issue a Writ of Mandamus directing the  State  of  Tamil
\nNadu  to  forthwith implement the directions of the Government of India issued
\nin the proceedings dated 8.7.1986 which is also the  subject  matter  in  this
\nwrit petition.  The said Writ Petition was dismissed on 6.11.1995 and the same
\nwas  confirmed  by  the  Division Bench in W.A.No.1384\/1995 in the order dated
\n21.8.1998.  For the same relief 17 individuals filed another Writ Petition  in
\nW.P.No.522\/2000  and  the same learned Judge dismissed the said writ petitions
\nin an elaborate order dated 21.01.2000.  The  Mo  dern  Medical  Practitioners
\nAssociation  of  India  initiated  another  Writ  Petition in W.P.No.2572\/2000
\nseeking to issue a writ of Mandamus directing the State Government to register
\nthe names of the members of the petitioner association in  the  State  Medical
\nRegister  maintained  by  the  State  as  per  the provisions of the Drugs and
\nCosmetics Rules, 1945.  The learned Judge rejected the said contention.\n<\/p>\n
        17.     We are not able to understand in spite of  specific  statutory
\nprovisions,  as  to how the Union of India had issued such directions contrary
\nto the statutory provisions  and  the  judgements  of  the  Apex  Court.    No
\nprovision  is  pointed  out  to show that the Government is empowered to issue
\nsuch circular and so it is not  open  to  the  Government  to  suppliment  the
\nprovisions  of the Act and Rules made thereunder by executive orders which has
\nthe effect of nullifying or modifying the statutory provisions.    So  far  as
\ncirculars  issued by the Government are concerned, they represent merely their
\nunderstanding of the statutory provisions and they are not  binding  upon  the
\ncourts as such circulars cannot compete with statutory provisions.\n<\/p>\n
        18.   The  circular  which is sought to be implemented cannot have any
\nlegal force and this court  is  not  inclined  to  direct  the  Government  to
\nimplement such  circulars  as  it  is  unenforceable in law.  But for the said
\ncircular, the members of the association cannot insist the State Government to
\nissue certificate to  enable  them  to  practise  ”  Medicine”.    Though  the
\nappellant  had  relied  on  the  judgement of the learned single Judge made in
\nW.P.No.7402\/98 etc., batch dated 15.6.98 the said  order  was  passed  by  the
\nlearned  single Judge without even going into the question regarding the power
\nof the Union Government to issue such a circular contrary to law on the  issue
\nand so the appellant cannot take advantage of the said judgement to claim that
\nthe State Government should permit the members of the appellant association to
\npractise in medicine though they are not having any qualification to do so.\n<\/p>\n
        19.     In  view of the above discussion, we do not find any reason to
\ninterfere with the order of the learned single Judge.  Hence, the Writ  Appeal
\nis dismissed.  No costs.\n<\/p>\n
Index:Yes.\n<\/p>\n
Internet:Yes.\n<\/p>\n
mp.\n<\/p>\n
To\n<\/p>\n
1.The Secretary to Government,
\nHealth Department
\nGovernment of Tamilnadu
\nFort St.George, Chennai.9<\/p>\n
2.The Secretary to Government,
\nHome Department
\nGovernment of Tamilnadu
\nFort St.George, Chennai.9<\/p>\n
3.The Director General of Police,
\nChennai.4.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-1179","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nAll India Association Of vs State Of Tamil Nadu on 12 November, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/all-india-association-of-vs-state-of-tamil-nadu-on-12-november-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"All India Association Of vs State Of Tamil Nadu on 12 November, 2002 - 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