1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (LODGING) NO.2448 OF 2008 M/.s Neelam Narayan Bansode Age:43 years, Occ. Service, R/o. Kshitij Apartment, Flat No.C-1, Line Bazar, Khadki (E), Near Sapers Police Chowky, Pune-3. .. Petitioner Versus 1. The State of Maharashtra Through Principle Secretary, Medical Education Dept. Mantralaya, Mumbai-32. 2. Smt. Mangala Suresh Khadse Age:45 years, Occ. Service, R/o. A-203, Rajdeep Co-op. Housing Society, Airoli, Sector-4, New Mumbai- 400 708. 3. Dr. Rahul Rajkumar Javanjal .. Respondents Age: Adult, Occ. Medical Practioner & Chairman, R/o. Shahara Institute, Of Nursing Education, Acluj, Taluka, Malshiras, District Solapur. Mr. U.P. Warunjikar for the petitioner. Mr. R.R. Salvi i/by Mr. S.B. Telgote for the respondent No.2. Mr. M.J. Jamdar for the respondent No.3. Mr. M. D. Naik, Assistant Government Pleader for the State. 2 CORAM: SWATANTER KUMAR, C.J. & DR. D.Y. CHANDRACHUD, J. Judgment Reserved on : 27th February, 2009 Judgment Pronounced on : 17th March, 2009 JUDGMENT (Per Swatanter Kumar, C.J.) Rule. Rule made returnable forthwith. By consent, rule called out and heard. 2. The petitioner claims to be a member registered under the provisions of Maharashtra Nurses Act, 1966 (hereinafter referred to as `the Act') and has averred that the State is responsible for implementing and enforcing the provisions of Maharashtra Nurses Act, 1966 in all concerned establishments. Section 3 of the said Act provides that the State of Maharashtra by notification in the Official Gazette is supposed to establish Maharashtra Nursing Council which is to be constituted in accordance with the provisions of the Act. As per the prescribed constitution, the Council is a body corporate having perpetual succession and a common seal, with right to perform different functions in terms of the Act. The Council is to consist of ex- officio members, elected members and nominated members. The State Government is to nominate four members to the Council, out of 3 whom one shall be a Public Health Nurse and three shall be from amongst the medical practitioners or teachers in nursing colleges and notify in the Official Gazette. The expression, “College” has not been defined in the Act and for that purpose, the petitioner relies upon the Maharashtra Universities Act, 1994 which defines “College” to mean a college conducted by the University, or affiliated to the University. The petitioner further submitted that election for the post of members of the Council was also held, the result of which was declared on 30th May, 2008. Thereafter, by notification dated 24th September, 2008 in terms of section 3(3)(c) of the Act, respondent Nos.2 and 3, amongst others were nominated as members of the Council. Exhibit `B' to the petition is the notification dated 24th September, 2008 issued by the State. Reference is also made to the provisions of the Maharashtra Medical Council Act, 1965, though even that Act does not define the word “College” but the word “medical practitioner” has been defined under section 2(d) which reads as follows: “2(d) “medical practitioner” or “practitioner” means a person who is engaged in the practice of modern scientific medicine in any of its branches including surgery and obstetrics, but not including veterinary medicine or surgery or the Ayurvedic, Unani, Homoeopathic or 4 Biochemic system of medicine; 3. The grievance of the petitioner is that respondent No.2 is working and holding the post of sister tutor in Civil Hospital at Thane which, according to the petitioner, is not a Nursing College and as such Respondent No.2 is not a teacher as contemplated under the provisions of the Act. The Civil Hospital, Thane runs only diploma course. On this premise, the petitioner contended that respondent No.2 is neither a teacher nor the civil hospital is a Nursing College. Thus, respondent No.2 is unqualified and does not possess the essential qualification stated under section 3(3)(c) for being nominated as a Member of the Council. Similarly, respondent No.3 is not a medical practitioner as he is only a Homeopath and such medical science is not covered under the provisions of the Maharashtra Medical Council Act, 1965 and as such the said respondent is, thus, not qualified to be nominated as a member of the Council. Resultantly, it is prayed that the appointment of respondent Nos.2 and 3 be quashed by the court and the Council be directed to function in accordance with law. It is also averred that the affairs of the Council are not being conducted properly. 5 4. The petition was contested by all the respondents and separate replies were filed on their behalf. There is no dispute to the fact that in terms of section 3(3)(c) of the Act, the Government is to nominate four members, to be members of the Council, out of whom one shall be Public Health Nurse and three shall be from amongst the medical practitioners or teachers in nursing colleges. This is a statutory requirement and cannot be left to the discretion of any authority. It is a mandatory requirement that the persons nominated to the Council ought to satisfy the pre-requisites imposed and possess qualifications which have been stated in the provisions. Section 2(o) of the Act defines “recognized institutions” to mean any institution recognized or deemed to be recognized for training of nurses in accordance with the Act and the bye-laws. An institution, School or Hospital which is not recognized under the provisions of the Act is not competent to issue certificate or enter the name of any person in any document purporting to show that such person is qualified by reason of his having passed examination or undergone training to the practice as nurse. This restriction is provided under section 25(5) of the Act. Every institution is to be recognized and the 6 Council in terms of section 10 subject to conditions as may be prescribed by or under the provisions of the Act has the power to make rules to specify the instructions for the courses in a recognized institution which is authorised to train nurses as part of its duties and functions. The Bye-laws 2(j)(b) framed by the Council specifies that all the persons who are members of teaching staff and are teaching in nursing colleges/Government hospitals as teachers. Besides this, the State Government had issued a notification on 12th June, 1975 wherein it was specified that the Nursing Schools attached to Government hospitals in the State and running a course of 3.1/2 years General Nursing Training should be called as “Training College of Nursing” and “College of Nursing” or “Institute of Nursing Education”, Bombay. All the concerned institutions were accordingly informed. 5. The averments made by the petitioner, thus, are not factually correct. The nursing institute being run at Thane is a recognized institution and the staff teaching the courses there shall be deemed to be teachers by fiction of law. It is not in dispute that the Civil Hospital, Thane is imparting nursing education as a recognized 7 institution in accordance with the provisions of the Act. Once both these ingredients are satisfied, there cannot be any doubt that respondent No.2 is a qualified person and possesses the essential requirements as stated in the provisions of the Act. 6. As far as Respondent No.3 is concerned, again the challenge raised by the petitioner is misconceived in law. The Legislature in its wisdom opted not to define the expressions `medical practitioner' or `recognised qualification' in the definition clause. However, it only defines or explains the word “recognised institution”. This Act is clearly silent as far as Doctors as medical practitioners are concerned. The learned Counsel appearing for the petitioner relied upon the provisions of the Maharashtra Medical Council Act, 1965 to buttress his submission that the expression “medical practitioner” in that Act means a person who is engaged in the practice of modern scientific medicine in any of its branches including surgery and obstetrics but not including veterinary medicine or surgery or the Ayurvedic, Unani, Homoeopathic or Biochemic system of medicine. According to him, as Homoeopathic practitioner is excluded specifically under the provisions of that Act, Respondent No.3 cannot 8 be said to have possessed a recognised medical qualification and cannot be termed as a medical practitioner as contemplated under the provisions of section 3(3)(c) of the Act. This argument is again founded on incorrect reference to the provisions of law. The Maharashtra Medical Council Act, 1965 would have hardly any application to the facts and circumstances of this case. Respondent No.3 has not claimed to be a Doctor or a registered medical practitioner practicing modern scientific medicine so as to attract the provisions of the Maharashtra Medical Council Act, 1965, he being a Doctor of homoeopathic medicine his qualification, practice and other matters are controlled by the provisions of the Bombay Homoeopathic Practitioners' Act, 1959. Sections 2(14) and (14A) refer to and define, “recognised institution” and “recognised medical qualification”. Section 2(16) defines “registered practitioner” to mean a practitioner whose name is for the time being entered in the register which is prepared and maintained in terms of Section 2(15). The Maharashtra Council of Homoeopathy is established in terms of Section 3 and its functions and duties are clearly spelt out in the provisions of the Act. Section 20 of the Bombay Homoeopathic Practitioners' Act, 1959 9 requires preparation and maintenance of a register of homoeopathic practitioners in accordance with the provisions of the Act, professional qualification of person concerned has also to be entered in the register and once his name is entered in the register, he will be issued a certificate of registration in the prescribed form and shall be entitled to practice homoeopathy system of medicine and shall be a medical practitioner in terms of Section 2(16) of the Act. 7. Respondent No.3, who has filed an independent reply, besides denying the averments made against him in the petition, has also annexed his certificate of registration issued by the Medical Council of Homeopathy, Mumbai bearing its certificate number. He has further averred that he is a medical practitioner registered under the Bombay Homeopathic Practitioners' Act, 1959 and, therefore, was entitled to be nominated to the Council. The provisions under the Maharashtra Medical Council Act, 1965 can be safely applied to the facts and circumstances of the present case and even under the common parlance, the expression “medical practitioner” is capable of including within its ambit recognized medical practitioner in all the fields i.e. Homeopath, Ayurved and Unani provided such medical 10 practitioner possesses the requisite certificate which has been issued under the provisions of the respective Acts. There is no occasion for this Court to unnecessarily enlarge or narrow the scope and ambit of the word “medical practitioner”. It should be read and understood as commonly understood as the plain language of the provisions does not indicate any legislative intent to exclude the persons who are otherwise and apparently included in that expression. We have already discussed and held that the expression “medical practitioner” appearing in the Maharashtra Medical Council Act, 1965 has no application to the case of Respondent No.3. It has to be understood in consonance with the combined construction of the provisions of the Maharashtra Nurses Act, 1966 and the Bombay Homoeopathic Practitioners' Act, 1959. 8. The above is the scheme of the Bombay Homoeopathic Practitioners' Act, 1959, Act in furtherance to which Respondent No.3 was issued a certificate of registration being Certificate No. 29159 dated 2nd August 1999, a photocopy of which is annexed as Exhibit “1” to the reply affidavit filed by him. This certificate has been issued under the provisions of the Mumbai Homoeopathic Practitioners' Act, 11 1959 and would continue to be in force unless revoked. There is no occasion for this Court to go behind a public document which has been issued in accordance with law. It is not even the case of the petitioner that the said Respondent does not possess the scheduled qualification in terms of the Bombay Homoeopathic Practitioners' Act, 1959 and as well as the certificate is unjustifiable or illegal. Once a certificate is issued, the said Respondent would be deemed to be a medical practitioner under the Act and thus would satisfy the requirement of Section 3(3)(c) of the Maharashtra Nurses Act, 1966. 9. It will be rather appropriate to apply the principles of contextual interpretation in the facts and circumstances of the present case. In the case of Muddada Chayanna vs Karnam Narayana and another, AIR 1979 SC 1320, it was held that interpretation of statute, contextual or otherwise must further and not frustrate the object of the statute. In other words, the expression “medical practitioner” appearing in the Maharashtra Nurses Act, 1966 should be given a meaning in the context in which it is sought to be applied to achieve the real object of the statute. 10. Reference can also be made to the judgment of the 12 Supreme Court in the case of The Narvan Estates Pvt.Ltd. v. C.I.T. West Bengal, AIR 1977 SC 153 where the Supreme Court held that it cannot be ignored that when an Act does not lay down that a term or expression not defined therein shall have the same meaning as given to it in another Act and the term or expression in the Act has to be understood in the ordinary popular sense. 11. It also needs to be kept in mind that while dealing with the provisions of a statute, the Court would not adopt an approach or give meaning to an expression which would produce unintelligible, absurd, and unreasonable result and would render the legislative intent unworkable or totally irreconcilable with the provisions of the statute or other special Act which would normally prevail over the general Act. (Bhavnagar University vs Palitana Sugar Mill Pvt. Ltd and others, AIR 2003 SC 511). 12. For these reasons, we find no merit in this petition and the same is dismissed. However, rule is discharged. No order as to costs. CHIEF JUSTICE 13 DR. D.Y. CHANDRACHUD, J.