IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH MONDAY, THE 14TH JANUARY 2008 / 24TH POUSHA 1929 WP(C).No. 8041 of 2005(G) ------------------------------------- PETITIONERS: --------------------- 1. T.MANIYAN, GOPALAMANGALATHU, PATHIRICKAL POST OFFICE, PATHANAPURAM, KOLLAM. 2. SAROJINI AMMA K., GOPALAMANGALATHU, PATHIRICKAL POST OFFICE, PATHANAPURAM, KOLLAM. BY ADV. SRI.M.V.BOSE, SRI.VINOD MADHAVAN, SMT.NISHA BOSE. RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE REGISTRAR, TRAVANCORE COCHIN MEDICAL COUNCIL, THIRUVANANTHAPURAM. BY ADV. SRI.N.RAGHURAJ, SC, TCMC. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.8041/2005-G: APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: ENGLISH VERSION OF THE REGISTRATION CERTIFICATE OF THE P.2. DTD. NIL. EXT.P.2: ENGLISH VERSION OF THE REGISTRATION CERTIFICATE OF THE P.1. DTD. NIL. EXT.P.3: COPY OF THE G.O. (RT) 3020/74/HD DTD. 28/12/1974. EXT.P.4: COPY OF THE G.O. (MS) 121/86/H&FWD DTD. 25/06/1986. EXT.P.5: COPY OF THE ORDER OF THE HONOURABLE SUPREME COURT DTD. 29/07/1998 IN CRIMINAL APPEAL NO. 369/1994. EXT.P.6: COPY OF THE REPRESENTATION DTD. 07/05/2002 FROM THE P.2. TO HONOURABLE MINISTER FOR HEALTH, KERALA. EXT.P.7: COPY OF THE REPRESENTATION DTD. 29/12/2003 BEFORE THE HONOURABLE CHIEF MINISTER OF KERALA FROM THE PETITIONERS. EXT.P.8: COPY OF THE LETTER DTD. 25/08/2004 FROM THE PRINCIPAL SECRETARY TO GOVT. TO THE PETITIONERS. EXT.P.9: COPY OF THE REPRESENTATION DTD. 10/09/2004 FROM THE PETITIONER TO THE PRINCIPAL SECRETARY TO GOVERNMENT. EXT.P.10: COPY OF THE ORDER IN CIVIL APPEAL NO. 165/1993 OF THE SUPREME COURT OF INDIA. RESPONDENT'S EXHIBIT: EXT.R2.A: COPY OF THE LETTER DTD. 13/08/2004 FROM THE CENTRAL COUNCIL OF INDIAN MEDICINE. //TRUE COPY// prv. K.M.JOSEPH, J. - - - - - - - - - - - - - - - - - - - - - - - - - WP.(C) No. 8041 of 2005 - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14th day of January, 2008 JUDGMENT Case of the petitioners in brief is as follows: Petitioners are Registered Medical Practitioners having qualification of Ayurveda Ratna Certificate awarded by the Hindi Sahitya Sammelan Prayag, Allahabad, Uttar Pradesh. They are having registration in Bihar (Exts.P1 and P2). They practiced in Bihar for nine years. They are husband and wife. Because of the circumstances, they were compelled to return to Kerala. They continued their practice. They stopped practice when they realised that authorities were against their practice without any fresh registration in the State. Petitioners challenge Ext.P8. They seek a direction to grant registration to them as Medical practitioners in Ayurveda Part A under Section 23(3) of the Travancore Cochin Medical Practitioners Act, 1953. What is stated in Ext.P8 reads as follows: “Inviting attention to the representation cited, I am to inform you that the qualification awarded by Hindi Sahitya Sammelan, Prayag after 1967 is not a recognised qualification as the same has not been included in the Schedules of IMCC Act, 1970. The Hon'ble High Court in the judgment dated 8.1.2003 in Original petition No.27704/2002 categorically WPC. 8041/2005. 2 stated that only those who have requisite qualifications are eligible for practicing medicine. In the light of the above judgment only those persons who are having the qualifications prescribed in the Act alone are entitled to practice medicine in the State.” Section 23(3) of the Travancore-Cochin Medical Practitioners Act being pertinent reads as follows: “The Government may, after consulting the appropriate council, permit the registration of any person who shall furnish to such council proof that he is possessed of a medical degree, diploma or certificate of any University, medical school or college approved by such council other than those mentioned in the Schedule.” According to the petitioners there is discrimination and the petitioners are denied of the benefit of Section 23(3) of the Act, while persons similarly situated as the petitioners are beneficiaries of orders like Ext.P3. By Ext.P3 a person named Richard Joseph has been granted registration. It is seen that the Government accepted the recommendation of the Registrar, Medical Council to permit the Council to grant registration under Part A, though the qualification possessed by him is Ayurveda Ratna certificate awarded by the Hindi Sahitya Sammelan Prayag, Allahabad. Ext.P3 is dated 28.12.1974. Petitioners also relied on Ext.P4 dated 25.6.1986. Ext.P4 is produced to WPC. 8041/2005. 3 show that relaxation as contemplated under the first proviso to Section 38 of the Act was given. Ext.P5 is the order of the Apex Court. Petitioners filed Exts.P6 and P7. 2. I heard learned counsel for the petitioners, the learned Government Pleader and the learned counsel appearing on behalf of the second respondent. 3. Learned counsel for the petitioners would contend that the reason stated in Ext.P8 cannot hold good. It is submitted that Ext.P3 would show that discrimination is practised. Ext.P10 judgment of the Supreme Court is pointed out and it is submitted that the authority under Section 23 (3) of the Act may be directed to exercise its jurisdiction. According to him, having regard to the position of law and on facts, the petitioners are entitled to due consideration of their case and for inclusion of their qualification for the purpose of allowing them to practice. 4. Per contra, it is pointed out by Sri.N.Raghuraj, learned counsel for the second petitioner and also learned Government Pleader that there is no merit in the contention taken by the petitioners. Sri. N.Raghuraj would point out that whatever may have been the position prior to 1976 after the coming into force of the Indian Medicine Central Council Act, 1970, it is not open to any person to practice Indian system of medicine WPC. 8041/2005. 4 unless he is possessed of a qualification, which is a recognised medical qualification. Recognised medical qualification is a qualification which is included Schedules 2, 3 and 4. Sections 17(2)(b) and and 17(3)(b) are extracted under: “17. Rights of persons possessing qualifications included in Second, Third and Fourth Schedules to be enrolled.- xxx xxx xxx (2) Save as provided in Sec.28, 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- xxx xxx xxx (b) shall practise Indian Medicine in any State; (3) Nothing contained in sub-section(2) shall affect, xxx xxx xxx (b) the privileges (including the right to practice 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;” He would submit that Ext.P3 is in the year 1974 and such a benefit which WPC. 8041/2005. 5 was given in 1974 cannot be extended to the petitioners after 1976. 5. Learned counsel for the petitioners then would point out that the petitioners can draw support from Section 17(3) of the Act of 1970. According to him, Section 17(3)(b) will come to their rescue. According to him Section 23(3) of the Act can be treated as a privilege and this privilege is preserved and therefore the discretionary power under Section 23(3) can be exercised notwithstanding the coming into force of the Central Act. 6. Admittedly the petitioners did not have any of the qualifications, which are recognised qualifications under the Central Act. Entry 25 of List III of the Seventh schedule of the Constitution deals with the subject Education, including technical education and medical education. Entry 26 of the said list reads as legal, medical and other professions. Therefore the subject of medical profession is comprehended within List III of Seventh Schedule and therefore it comes under the concurrent list. Article 254 reads as follows: “254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States.- (1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in WPC. 8041/2005. 6 the Concurrent List, then, subject to the provisions of clause (2), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void.” It would appear that whatever may have been the position prior to 1976, after the advent of the Central Act already referred to, there is a clear embargo against any person practicing system of medicine in question unless he is possessed of a recognised qualification. The exceptions which are carved out are found in Clause (a), (b) and (c) of Section 17(3). Petitioners press into service Clause (b) of Section 17(3). I am of the view that the said provision cannot be availed of by the petitioners. Section 17(3) (b) contemplates privileges in favour of a person who is enrolled in a State Register. It is difficult for me to accept the case that Section 23(3) of the State Act is to be treated as a privilege which is conferred on a person who is enrolled in the State register. Admittedly the petitioner is not enrolled in the Kerala State register. Even assuming for a moment that the petitioners are to be treated as enrolled in another State register, I would think that Section 23(3) cannot be treated as a privilege conferred on a practitioner enrolled in another State. Section 23(3) only confers a discretion on the WPC. 8041/2005. 7 State in consultation with the appropriate council to allow a person without the qualifications which are included in the schedule to get registration on the conditions mentioned in Section 17(3)(b). That requires in turn the existence of proof before the council that requires approval by such council (in this case State council) that the person is possessed of a medical education, which is approved by such Council other than scheduled qualifications. It is also not irrelevant to note as pointed out by the counsel for the second respondent that by Ext.R2(a) the Central Medical Council has taken note of the practice of granting registration to the holders of Vaidya Visharad and Ayurved Ratna qualifications awarded by Hindi Sahitya Sammelan Prayag after 1967and has frowned upon its practice. Ayurveda Ratna qualification awarded by Hindi Sahitya Sammelan, Prayag upto 1967 alone is the recognised qualification. In the facts and circumstances, which are detailed above. I would not take exception to Ext.P8 order. Accordingly it is not liable to be interfered with. The Original Petition fails and it is dismissed. (K.M. JOSEPH, JUDGE) sb WPC. 8041/2005. 8