JUDGMENT [ENTITY], C.J.
1. This writ appeal has been filed against the impugned judgment dated 10.9.2005 by which the learned Single Judge has dismissed [CASE NUMBER]
2. Heard learned counsel for the parties and perused the record.
3. The facts in detail have been set out in the judgment of the learned Single Judge and hence we are not repeating them here except where necessary.
4. The writ petitioners (appellants herein) claimed that they have completed four years Diploma Course in [ENTITY] Medicine (DUM) from an Institute in Saharanpur and passed this examination in 1995 and thereafter they claimed to have registered with the Bharatiya Chikitsa Parishad,UP. .
5. In para 7 of the writ petition it is alleged that the petitioners submitted their forms duly filled with money order receipts vide Annexure P-1 to the writ petition and sent them to respondent No.2, the Registrar, Board of [ENTITY]ic & [ENTITY] Systems of Medicine, New Delhi in May 1999 to get registered under schedule 5, but the respondents are sleeping over the matter and have not passed any orders in favor of the petitioners. Consequently, the petitioners made a representation for grant of registration, but to no avail. The petitioners have alleged that respondent No.2 is duty bound to provide registration certificate to the petitioners as Hakim in [ENTITY] system of medicine as they are eligible and qualified and have completed all the formalities.
6. A counter affidavit was filed on behalf of respondent No.2, Board of [ENTITY]ic & [ENTITY] Systems of Medicine, New Delhi. It is alleged therein that the writ petition filed by the present petitioners is not maintainable as the petitioners have concealed material facts. The case of the petitioners was that they are governed by the East Punjab [ENTITY]ic and [ENTITY] Practitioners Act,1949, which is extended to Delhi and hence they are entitled to registration. However, the respondents have submitted that after the enactment of the [ACT] the petitioners are governed by the said [ACT]. The institution from which the petitioners got diploma is not recognized under the [ACT]
7. It is alleged that the [ACT] the field of Indian medicines and it will prevail over any State Act relating to Indian medicines. Hence, any registration certificate issued by the State Council under the State Act is no longer valid and is liable to be cancelled because it is the [ACT] which is applicable all over the country. It is alleged that the Board which granted diploma to the petitioners is not recognized under the [ACT] The matter has been decided by the Supreme Court vide [PRECEDENT] and hence the petition is liable to be dismissed. It is alleged that the [ACT] prevails over and supercedes the East Punjab [ENTITY]ic and [ENTITY] Practitioners Act,1949, It is denied that the respondents have been sleeping over the matter. The respondents put up the matter before the meeting of the Board under the [ACT] which decided that the diploma held by the petitioners is not recognized by the Central Council under the [ACT] hence the petitioners are not entitled to register themselves as Hakims in Delhi.
8. The respondents considered the petitioners'applications under [SECTION] of the [ACT] and found that the petitioners are not eligible for registration. It is denied that the act of the respondents is arbitrary and illegal.
9.A counter affidavit has also been filed by the Central Council of Indian Medicine and we have perused the same.
10. The main objects of the Central Council under the [ACT] are as follows:-
(a)To prescribe the minimum standards of education in Indian Systems of Medicine, viz. [ENTITY], [ENTITY] and [ENTITY].
(b)To advise the Central Government in matters relating to recognition/withdrawal of medical qualification in Indian Medicine.
(c)To maintain Central Register of Indian Medicine and revise the Central Register from time to time.
(d)To regulate practice in Indian Medicine and to prescribe standards of professional conduct, Etiquette and Code of Ethics to be observed by the practitioners of Indian Medicine.
11. It is alleged in para 4 of the counter affidavit that only the Central Council of Indian Medicine is competent to prescribe the minimum standards of education including curriculum and syllabi as well as other requirements like hospital library, students hostel, staff for college, staff for hospital library, herbal garden, requirements of various departments of colleges etc in Indian Systems of Medicine i.e. [ENTITY], [ENTITY] and [ENTITY] and to regulate practice in Indian Systems of Medicine.
12. In para 4 of the counter affidavit it is stated that the Central Council has prescribed the following courses at undergraduate level of 5-1/2 years duration in [ENTITY]a, [ENTITY] and [ENTITY] of Medicine:-
(i) [ENTITY] (BAMS) : Bachelor of [ENTITY]ic Medicine & Surgery. (ii) [ENTITY] Bachelor of [ENTITY] Medicine & Surgery. (iii) [ENTITY] Bachelor of [ENTITY] & Surgery.
Similarly, the Central Council has prescribed the following Postgraduate Courses of three years duration each which are as follows:-
(i) [ENTITY] - MD (Ay) (ii) [ENTITY]-e-tib - MD ([ENTITY]) (iii) [ENTITY] - MD ([ENTITY])
13. It is alleged that the Central Council has not prescribed any other course in under graduate and post graduate level except as mentioned above. No Diploma Course had been prescribed nor any such Diploma Course could be awarded after the establishment of the Central Council. No other course (except above) other than that prescribed by the Central Council of Indian Medicine can be conducted by any University or Institution. All degrees/diplomas have to be conferred/awarded only by a statutory body constituted by State or [ACT], as per the provisions of the [ACT].
14. [SECTION] of the [ACT] states:-
17. Rights of persons possessing qualifications included in Second, Third and Fourth Schedules to be enrolled.
(1) Subject to the other provisions contained in this Act, any medical qualification included in the [SECTION] shall be sufficient qualification for enrolment on any State Register of Indian Medicine.
(2) Save as provided in [SECTION], no person other than a practitioner of Indian medicine' who possesses a recognised medical qualification and is enrolled on a State Register or the Central Register of Indian Medicine
(a) shall hold office as Vaid, [ENTITY], Hakim or physician or any other office (by whatever designation called) in Government or in any institution maintained by a local or other authority;
(b) shall practise Indian medicine in any State;
(c) 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;
(d) shall be entitled to give evidence at any inquest or in any court of law as an expert under [SECTION] of the [ACT], on any matter relating to Indian medicine.
(3) Nothing contained in sub-section (2) shall affect,
(a) the right of a practitioner of Indian medicine enrolled on a State Register of Indian Medicine to practise Indian medicine in any State merely on the ground that, on the commencement of this Act, he does not possess a recognised medical qualification.
(b) the privileges (including the right to practise any system of medicine) conferred by or under any law relating to registration of practitioners of Indian medicine for the time being in force in any State on a practitioner of Indian medicine enrolled on a State Register of Indian Medicine;
(c) the right of a person to practise Indian medicine in a State in which, on the commencement of this Act, a State Register of Indian Medicine is not maintained if, on such commencement, he has been practicing Indian medicine for not less than five years;
(d) the rights conferred by or under the [ACT] (including the right to practise medicine as defined in [SECTION] of the said Act), on persons possessing any qualifications included in the Schedules to the said Act.
(4) Any person who acts in contravention of any provision of sub-section (2) shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
15. The Central Council is the apex body constituted under the [ACT] to regulate and maintain uniformity in the education of Indian systems of medicine. In our opinion it prevails over the provisions of the State Acts in view of [SECTION] of the [ACT]. The Central Council has with the sanction of the Government of India prescribed 5-1/2 years degree in [ENTITY]a called [ENTITY] (BAMS), in [ENTITY] as 'Kamil-e-Tibbo- Jarahat (BUMS) and in [ENTITY] as '[ENTITY] (BSMS)'. Hence, it is clear that only persons holding a medical qualification included in [SECTION]s are eligible for registration and practice of Indian Systems of Medicine and are entitled to avail the benefits of [SECTION] of the [ACT].
16. It is alleged by respondent No.3 that the four year Diploma in [ENTITY] Medicine from any institute in U.P or from any other State is not a recognized qualification and the holders of such a bogus qualification are not eligible for being registered on the State Register of Indian Medicine or for practicing Indian Medicine. The diploma course has not been included in the [SECTION] of the [ACT] The registration of the petitioners with the Board of Indian Medicine, Luck now (U.P) is improper and illegal. The petitioners are neither qualified nor eligible for grant of registration as [ENTITY] in [ENTITY] system of medicine.
17. It is further alleged that on the strength of the registration with the Bharatiya Chikitsa Parishad, U.P. the petitioners cannot practice in Delhi which is a different state. By virtue of [SECTION] of the [ACT] those persons enrolled on the Central Register of Indian Medicine shall be entitled according to their qualifications to practice Indian Medicine in any part of India. The petitioners are not enrolled on the Central Register of Indian Medicine and therefore they are not eligible to practice in any part of India. The provisions of East Punjab [ENTITY]ic & [ENTITY] Practitioners Act, 1949 stand superseded by the [ACT] as held by [PRECEDENT], and [PRECEDENT]
18. In [PRECEDENT] the Supreme Court observed that in case of conflict between Central and State Acts, the [ACT] will prevail. It is alleged that the petitioners are trying to take advantage of interim orders dated 23.8.1995 and 24.10.1997 passed by the High Court of Allahabad in [CASE NUMBER] and [CASE NUMBER] which were filed by unqualified practitioners and the Central Council was deliberately not made a party, thereby misleading the High Court to obtain the aforesaid directions. At any event, an interim order cannot be regarded as a precedent.
19. The Registrar of Indian Board of Medicine, U.P, Lucknow has simply complied with the above interim orders of the High Court and has given registration to the petitioners with the endorsement 'Registered under the Order passed by the Hon'ble High Court' at the bottom of the Diploma Certificate, vide Annexure P-3 of the rejoinder filed by the petitioners. It is alleged that the diploma or certificate issued by the National [ENTITY] Medical College, Saharanpur is illegal and it had no power to award such a diploma.
20. In our opinion, there is no merit in this appeal. After the enactment of the [ACT] this Act regulates education and medical practice in Indian systems of medicine. The State Acts have consequently been superseded by this Act and in our opinion are no longer operative in view of [SECTION] of the [ACT] as the field is occupied by the [ACT], which is an exhaustive code regarding Indian systems of Medicine. Hence the [ACT] will prevail over State Acts, vide [PRECEDENT] (para 15)
21. Hence, in our opinion, the petitioners are holding unrecognized qualifications from illegally running institutions, but some how they managed to get themselves registered in U.P. State under ex-parte interim orders of the Allahabad High Court. After getting such registrations they submitted before the Allahabad High Court that since the petitioners have been registered the petition has become infructuous .
22. In our opinion, on dismissal of the writ petitions before the Allahabad High Court the interim orders also got vacated and hence the registrations granted under such interim orders became invalid.
23. In our opinion in view of [SECTION] of the [ACT] those persons registered in the Central Registeir can practice in any part of India. [SECTION] of the [ACT] provides exceptions in case of those persons who had enrolled before 1.10.1976 i.e. the date of enforcement of the Act. [SECTION] of the Act provides exceptions to those persons who were already practicing Indian medicine for five years before the commencement of the Act i.e. 1976 in a State at that time. Except for the above, there is no other exception and a person must possess the recognized medical qualification under the [ACT] to practise Indian Medicine. The petitioners'case did not fall under the exception enumerated in [SECTION] and hence they cannot practice Indian medicine.
24. The present case is squarely covered by the decision of the Supreme Court in [PRECEDENT].
25. For the reasons given above, there is no merit in this appeal and it is dismissed. In our opinion, the institutions like the National [ENTITY] Medical College, Saharanpur are illegally run institutions which are producing quacks in large numbers, thus endangering the health of the public. No one is entitled to practice Indian medicine on the basis of bogus qualifications issued by such unrecognized institutions/ bogus institutions. The precious lives of innocent susceptible public will be endangered if this is permitted.
26. The Central Government has informed the Registrars of all State Boards/Councils by its letter dated 13.4.1979 not to grant registration to those persons whose qualifications are not included in the schedules of the [ACT]
27. In view of [SECTION] of the [ACT] only those persons registered in the Central Register can practice Indian Medicine in any part of India. [SECTION] of the Act provides the exception in case of those persons who were practicing Indian Medicine for at least five years before the commencement of the Act and it is not the petitioners'case that they are covered by this exception.
28. The appeal is therefore dismissed with the direction to the Government of National Capital Territory of Delhi to ensure that persons holding bogus degrees not recognized by the [ACT] are not allowed to do practice in Indian Medicine in Delhi and strong action shall be taken against them, if they do so. Let the Registrar General of this Court send a copy each of this judgment to the Chief Secretary, and Medical Secretary of the Delhi Government as well as to the Commissioner of Police, Delhi.