Pradesh V.S. Sardarshahar & ANR Vs. U.O.I. & Ors.  INSC 422 (1
SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 5324 OF
2007 Rajasthan Pradesh V.S. Sardarshahar & Anr. .... Appellants Versus
Union of India & Ors. .... Respondents WITH CIVIL APPEAL NO. 5325 OF 2007
Ayurveda Vikas Chikitasak Sangh, Jodhpur Thr. its Secretary Abdul Vaheed ....
Appellant Versus Union of India & Ors. ....Respondents WITH CIVIL APPEAL NO.
4758/2010 (Arising out of SLP(C) No.21043/2008) Central Council of Indian
Medicine ....Appellant Versus Ved Prakash Tyagi & Ors. ....Respondents WITH
CIVIL APPEAL NO. 4757/2010 (Arising out of SLP(C) No. 20912/2009) Delhi Pradesh
Registered Medical Practitioners Association, Delhi ....Appellant Versus Union
of India and Ors. ....Respondents WITH CIVIL APPEAL NO. 4759/2010 (Arising out
of SLP(C) No.3986/2010) Haryana vaidaya Samiti, Haryana a registered body, thr.
Its President ....Appellant Versus State of Haryana & Ors. ....Respondents
granted in SLP (C) Nos. 21043/2008, 20912/2009 and 3986/2010.
2 In all
the aforesaid Civil Appeals, common questions of law are involved and,
therefore, they are heard together. Questions involved in all these cases are
(i) As to
whether persons who hold either the degree or diploma of "Vaidya
Visharad" or "Ayurved Ratna" from Hindi Sahitya Sammelan
Prayag/Allahabad which are not included as recognized qualification in Schedule
II of the Indian Medicine Central Council Act, 1970 (hereinafter called as the
`Act 1970') have a right to practice in medical sciences.
to whether cutoff date i.e. 1967 as per Entry No.105 in the Second Schedule of
the Act,1970 is arbitrary and thus, liable to be quashed.
to whether restriction imposed under the Central Act from practicing, unless
names appear in the Central Register, is violative of Article 14 of the
Constitution of India with reference to the State Act.
and circumstances giving rise to Civil Appeal Nos.5324- 5325 of 2007 and appeal
arising out of SLP(C) No.21043/2008 are that Section 32 of the Rajasthan Indian
Medicine Act, 1953 (hereinafter referred to as `Act 1953') provided that
persons who had 3 obtained degree of "Vaidya Visharad" or
"Ayurved Ratna" from Hindi Sahitya Sammelan Prayag were recognized as
having sufficient qualification for practicing as Vaidyas in Rajasthan and they
were permitted to get themselves registered as Vaidyas in the register maintained
under the said Act 1953. Section 17(2) of the Act 1970 provided that persons
who possessed the qualifications as laid down in Second, Third and Fourth
Schedule of the Act 1970 would be permitted to practice. Section 17(3) however,
carved out an exception for those Vaidyas who had been practicing prior to the
commencement of the Act 1970. Different provisions of the Act 1970 were
enforced throughout the country but on different dates. In Rajasthan, Section
17 came to be enforced w.e.f. 1.10.1976. One Ved Prakash Tyagi filed Writ
Petition No.733 of 2000 before the High Court of Rajasthan for seeking large
number of reliefs including the restrain order to those who obtained the
degree/certificate of "Vaidya Visharad" or "Ayurved Ratna"
from Hindi Sahitya Sammelan Prayag after 1967 to practice as Vaidyas and
further to delete their names from the register so maintained under the Act
1953. The High Court considered the matter elaborately and came to the
Persons who did not possess requisite qualification prescribed under Schedule
II, III and IV of the Act 1970 were not eligible to contest the elections
notwithstanding they were enrolled in the State Register and were covered by
the exception clause under Section 17(3)(b) and were permitted to practice
Qualification prescribed under the Act 1953 to the extent it was repugnant to
the Act 1970, would not confer any person a right to practice or seeking
enrolment in the State Register;
Section 17 of the Act 1970 came into force in Rajasthan w.e.f. 1.10.1976. Thus,
a person who has acquired the diploma/certificate from Hindi Sahitya Sammelan
Prayag, subsequent thereto would not be eligible to be enrolled in State
Register; and (4) Any person who acquired such certificate/diploma after
1.10.1976 would not have any right to practice or participate in election.
Civil Appeal Nos. 5324-25 of 2007 have been filed by Vaidya's Samiti and
Chikitasak Sangh being aggrieved by the judgment and order of the High Court
that persons who acquired qualification from Hindi Sahitya Sammelan after
1.10.1976 were not eligible and entitled to practice. Appeal arising out of SLP
(C) No.21043 of 2008 has been filed by the Central Council of Indian Medicine
(hereinafter referred to as `CCIM') challenging the order of the High Court to
the extent that persons who acquired certificates between 1967 and 1.10.1976
have also been permitted to practice.
arising out of SLP(C) No. 3986 of 2010 has been filed by the Haryana Vaidya
Samiti against the judgment and order dated 13.10.2009 passed by the Punjab and
Haryana High Court in C.W.P.
of 2009 holding that persons who acquired certificates/diplomas from Hindi
Sahitya Sammelan Prayag after 1967 are not entitled to practice and it had
upheld the validity of Entry No.105 in the 4th Column regarding the expression
"upto 1967" in the Second Schedule of the Act, 1970.
arising out of SLP(C) No. 20912 of 2009 has been preferred by Delhi Pradesh
Registered Medical Practitioners Association being aggrieved by the judgment
and order of Delhi High 6 Court dated 19.11.2009 passed in C.W.P. No. 1999 of
1998 wherein it has been held that unless a person possessed qualification as
required in Schedule II, III and IV to the Act 1970, he is not entitled to
6. In all
these cases, learned counsel appearing for the appellants namely, Shri
S.K.Dholakia, Sr. Advocate and Shri B.D. Sharma have submitted that such a
restriction imposed on appellants infringes their right to practice under
Article 19(1)(g) of the Constitution of India, 1950. More so, once their names
stood enrolled in the State Register, they were entitled to practice. More so,
they are entitled to continue to practice, as an exception has been carved out
under Section 17(3) of the Act, 1970. Restriction imposed under the Act 1970
from practicing unless the names appear in the Central Register is violative of
Art.14 of the Constitution with reference to the statutory provisions of the
Act 1953. There is no rational for fixing the cut- off date as 1967 in Entry
No.105 of the Second Schedule to the Act, 1970 and thus liable to be quashed.
Hence, the appeals deserve to be allowed.
contra, Shri R.U. Upadhyay, learned counsel appearing for CCIM submitted that a
person who does not possess the qualifications as mentioned in Schedule II, III
and IV of the Act, 1970 7 is not eligible and entitled to indulge in any kind
of medical practice.
Legislature has power to put reasonable restrictions on the right to practice
under Article 19(1)(g) of the Constitution by virtue of Clause (6) of the said
provision. Provisions contained in the Act 1953, being repugnant to the
statutory provisions of Act 1970, will not apply by virtue of Art.254 of the
Constitution. Cut-off date i.e. 1967 appearing in Entry No.105 of the Second
Schedule to the Constitution shows that certificates issued by the said Society
were not recognized after 1967. More so, Article 21 which deals with the life
and liberty of persons has also to be kept in mind and the poor people of this
country who cannot afford to avail the facilities of qualified doctors have to
be protected from quacks. Hindi Sahitya Sammelan Prayag had not been recognised
for imparting medical education after 1967. Hindi Sahitya Sammelan is not a
medical institution or university or a board. It is merely a society registered
under the Registration of Societies Act. It does not have any affiliated
colleges. Therefore, such persons cannot be permitted to indulge in medical practice.
Rajasthan High Court erred observing that persons, who possessed the
qualifications from Hindi Sahitya Sammelan Prayag upto 1.10.1976 i.e. the date
of enforcement of Section 17 of 8 the Act 1970 in Rajasthan, be allowed to
have considered the rival submissions made by learned counsel for the parties
and perused the record.
Admittedly, in none of these cases, the Hindi Sahitya Sammelan Prayag/Allahabad
has been impleaded as party. There is nothing on record to show that the
persons who have acquired such certificates from the said societies possess any
other academic qualification i.e. as to whether they have passed matriculation
or intermediate or they possess any other qualification to make them eligible
to apply for such certificate.
is no document on record disclosing as what was the institution/school where
such persons had got admission, imparted education, attended the classes and
practicals in laboratories and what was its duration. A bald statement in all
these cases that persons possess certificates from Hindi Sahitya Sammelan has
been made. Study of medical sciences require attendance in the classes and a
proper technical training under competent faculty as they play an important
role in maintaining the public health. None of the learned counsel appearing
for the appellants is able to point out as to which University/Board, the
educational institution where they were 9 imparted medical education had been
affiliated and as to whether such schools had ever been accorded recognition by
the competent Statutory Authorities.
11. It is
settled proposition of law that a party has to plead the case and
produce/adduce sufficient evidence to substantiate his submissions made in the
petition and in case the pleadings are not complete, the Court is under no
obligation to entertain the pleas. In 2181, this Court has observed as under:-
"In our opinion, when a point, which is ostensibly a point of law is
required to be substantiated by facts, the party raising the point, if he is
the writ petitioner, must plead and prove such facts by evidence which must
appear from the writ petition and if he is the respondent, from the counter
facts are not pleaded or the evidence in support of such facts is not annexed
to the writ petition or the counter-affidavit, as the case may be, the Court
will not entertain the point. There is a distinction between a hearing under
the Code of Civil Procedure and a writ petition or a counter-affidavit. While
in a pleading, i.e. a plaint or written statement, the facts and not the
evidence are required to be pleaded. In a writ petition or in the counter
affidavit, not only the facts but also the evidence in proof of such facts have
to be pleaded and annexed to it."
Similar view has been reiterated in M/s. Larsen & Toubro 10 Chandra Prakash
Pandey & Ors. , AIR 2001 SC 1298.
SC 1684, this Court observed as under:- "The findings in the absence of
necessary pleadings and supporting evidence cannot be sustained in law."
Similar view has been reiterated in Vithal N. Shetti & Anr. & Ors.,
(2005) 8 SCC 252.
absence of any pleadings made by the appellants, it is difficult to say that
any of such persons possessed any qualification making them eligible even to
apply for such certificates from Hindi Sahitya Sammelan Prayag.
1978 SC 344, this Court held that `recognition' means that the school has been
recognized or acknowledged by the appropriate authority under the Statute and
`affiliation' means that the students of that school are eligible to appear in
the examination. Therefore, purpose of affiliation is only to prepare and
present the students for public examination, recognition of a private school is
for the other purposes mentioned under the Statute and unless the school is
recognized by the appropriate authority, the school cannot be amenable to any
other provision of the Statute applicable in this regard.
17. In Re
: The Kerala Education Bill, 1957 AIR 1958 SC 956;
SCC 481, this Court held that it is always open to the State or the Statutory
Authority to lay down conditions for recognition of an educational institution
namely, that the institution must have particular amount of funds or properties
or number of students or standard of education and so on and so forth and it is
also permissible for the Legislature to make a law prescribing conditions for
such recognition, however, such a law should be constitutional and should not
infringe 12 any Fundamental Right of the minorities etc. Recognition is a
Court has persistently deprecated the practice of an educational institution
admitting the students and to allow them to appear in the examinations without
having requisite recognition and affiliation. This kind of infraction of law
has been treated as of very high magnitude and of serious nature. Students of a
un-recognised institution cannot legally be entitled to appear in any examination
conducted by any government, university or board. (Vide Minor SC 458).
Similarly, recognition must be there with the school to make it subject to the
provisions of the Act. Recognition signifies an admission or an acknowledgement
of something existing before. To recognize is to take cognizance of a fact. It
implies an overt act on the part of the person taking such cognizance. (Vide
T.V.V. Narasimham Training Institute & Anr. (1991) 3 SCC 87, this Court
held that 13 students of un-recognised institutions are not entitled to appear
in any public examination held by the Government and it is not permissible for
the Court to grant relief on humanitarian grounds contrary to law to the person
who claim to have passed any examination from such institutions.
of the above, it is evident that any institution which is not recognised cannot
impart an education and students thereof cannot appear in the examination held
by the government, university or Board.
per Entry 66 of List I to the 7th Schedule of the Constitution, the Parliament
is competent to make laws for determining standards of institution for higher
education or research and scientific and technical institutions. Such powers
are also available with the Parliament in view of Entries 25 and 26 of List III
as it includes the medical education. However, in view of Entry 6 of List II,
the State Legislature is competent to make laws pertaining to public health and
sanitation, i.e. hospitals and dispensaries. Section 2(1)(h) of the Act 1970
provides "recognised medical qualification" as any of the medical
qualifications included in the II, III or IV Schedule to that Act.
14 of the Act 1970 provides a procedure for recognition of 14 medical
qualifications provided in medical institutions in India and Section 17
provides for entitlement/eligibility of persons possessing qualifications
included in II, III and IV Schedule to the Act to be enrolled for practice. So
far as the II Schedule to the Act 1970 is concerned, the relevant entries read
as under:- 105 Hindi Sahitya Vaidya Visharad .......... From 1931 Sammelan,
Prayag to 1967 ........... From 1931 Ayurved-Ratana to 1967
Section 14(2) of the Act 1970 provides that any University or Board/Medical
Institution if wants to impart medical education and has not been included in
the Second Schedule, may apply to the Central Government for recognition of its
medical qualification and to include in Second Schedule. If such an application
is made, the Central Government is empowered to make necessary amendment as and
when required in the Second Schedule, after considering the application.
a Division Bench of the Allahabad High Court has considered the issue at length
and came to the conclusion that the 15 Hindi Sahitya Sammelan Allahabad/Prayag
were only registered societies and not educational institutions. The said
societies had no business to impart education in medical sciences. Hindi
Sahitya Sammelan, Allahabad was a fake institution whereas Hindi Sahitya
Sammelan, Prayag was recognised only from 1931 to 1967.
AWC 1783, a Division Bench of the Allahabad High Court has held that a
degree/certificate/diploma from Hindi Sahitya Sammelan, Prayag acquired after
1967 was not recognised and those who obtained the same subsequent to 1967 were
not entitled to practice medicines.
UPLBEC 1063, a Division Bench of the Allahabad High Court considered the matter
at length alongwith statutory provisions of the Act, 1970 and came to the
conclusion that Hindi Sahitya Sammelan, Allahabad had never been empowered to
issue such certificates/degrees. However, certificates issued by the Hindi
Sahitya Sammelan, Prayag were recognised during the period of 1931 to 1967.
Thus, any such certificate subsequent thereto could not entitle a person to
64, a Division Bench of the Bombay High Court held that Hindi Sahitya Sammelan,
Prayag was not a recognised university/Board and thus could not award degree,
diploma or certificate.
Allahabad High Court considered the issue of validity of certificates issued by
Hindi Sahitya Sammelan, Prayag and came to the conclusion that the said
institution had absolutely no authority to confer any degree or diploma of
"Vaidya Visharad" and "Ayurved- Ratna" after 1967 and any
person who has acquired such certificate after 1967 was not entitled to
practice at all.
judgment of the Allahabad High Court in Umakant Tiwari (supra) was set aside by
this Court and the matter was remanded to the High Court to decide afresh in
Civil Appeal No.1453/2004 vide judgment and order dated 25th May, 2007, for the
reason that matter had initially been decided by the High Court in 2003 without
giving opportunity of hearing to Hindi Sahitya Sammelan Allahabad/Prayag.
remand, Hindi Sahitya Sammelan Allahabad/Prayag were given notices and were
directed to file the counter affidavits. The Court, after hearing all the
parties concerned, including Hindi Sahitya Sammelan Prayag, vide judgment and
order dated 23.10.2009, dismissed the writ petition.
far as the question of validity of the cut-off date "1967 in Entry
No.105" to Schedule II is concerned, the High Court observed as under:
a bare reading of the aforesaid provisions of Act, 1970, it will be seen that
only degrees/certificates granted by the Hindi Sahitya Sammelan, Prayag between
1931 to 1967 alone have been held to be recognised medical qualification for
the purposes of Section 14 conferring a right to practice upon the holder of
the degree under Act, 1970.
regard to challenge to the words "upto 1967", the only ground raised
for contending that the cut off date is arbitrary and violative of Article 14
of the Constitution of India, is that no reasons have been disclosed. In
support thereof, it is stated that the course/curriculum which was there prior
to 1967 continues even thereafter for the purposes of examinations held by the
Hindi Sahitya Sammelan and, no change has been introduced in the course after
counter affidavit filed on behalf of Central Council of Indian Medicine, it is
apparently clear that the words "upto 1967" have been provided in the
Second Schedule of Act, 1970 with reference to the information 18 supplied by
the State Government. Such prescription of 1967 in these circumstances, cannot
be termed to be arbitrary, more so when in the facts of the case a power was
conferred upon the institution, namely, Hindi Sahitya Sammelan, Prayag to make
an application under Section 14(2) of Act, 1970 for amendment in the Schedule and
for the degrees granted subsequent to 1967 also being included therein. The
Hindi Sahitya Sammelan has deliberately avoided to make such an application.
of such inaction, it has further avoided the directions referable to Sections
18 to 22 of Act, 1970 which would have been otherwise become applicable.
Court may record that it does not lie in the mouth of Hindi Sahitya Sammelan to
challenge the cut off date mentioned in the Schedule as arbitrary, inasmuch as
the said provisions itself provided an opportunity to get the Schedule amended
by inclusion the degrees/certificates offered by the institution, i.e. Hindi
Sahitya Sammelan, Prayag subsequent to 1967.
reasons disclosed by the State-respondent for fixation of year 1967 as the cut
off year, for recognising the degrees, i.e. supply of information by the State
Government has also not been disputed by Hindi Sahitya Sammelan nor any facts
for questioning the aforesaid disclosure made by the State Government has been
brought on record of the present writ petition."
Division Bench of the Bombay High Court while considering the writ Petition No.
7648 of 2000 (Ayurvedic Enlisted Doctor's 19 cut-off date, i.e. upto 1967 vide
judgment and order dated 22.12.2006, recorded the following finding:
is pointed out on behalf of the State that under the prevailing relevant rules
upto 1967, the degrees of Vaidya Visharad and Ayurved Ratna were recognised by
Uttar Pradesh Government and its Council. After that it lost the recognition.
Therefore, these degrees conferred by Hindi Sahitya Sammelan, Prayag till 1967
only were recognised as medical qualifications under the Central Act but after
that the recognition to these degrees was refused."
from the above, it is evident that under the then prevailing rules, certificates
issued by the Hindi Sahitya Sammelan Prayag remained recognised only upto 1967.
The Authorities under the Statute, on the report submitted by the State of U.P.
had taken a decision not to recognise the said courses any further. The Society
for the reasons best known to it never made an attempt to get recognition after
fulfilling the legal requirements and getting the Entry No.105 in Second
Schedule of the Act, 1970, modified.
such a fact-situation, even by stretch of imagination, the said cut-off date
cannot be termed as arbitrary. In fact it is not the cut-off date fixed by the
Statutory Authorities, rather it indicates that such "courses" or
certificates had not been recognised after 1967.
remand, in Umakant Tiwari (supra) the Allahabad High Court has recorded the
following findings of fact:- "Shri Jeevan Prakash Sharma, learned counsel
for Hindi Sahitya Sammelan has fairly stated that Hindi Sahitya Sammelan does
not grant affiliation to any institution for imparting education in medical
courses. Hindi Sahitya Sammelan in fact only conducts written examination for
the purposes of awarding the said degrees. Any person, who is successful in the
written examination so held by the Hindi Sahitya Sammelan is awarded the
degree, irrespective of the fact as to whether he was enrolled as a regular
student in any institution or not.
application was ever made by the Hindi Sahitya Sammelan, Allahabad/Prayag to
get its medical qualifications i.e. Vaidya Visharad and Ayurved Ratna recognized
and included in the Second Schedule. They have not represented in exercise of
powers under Section 14(2) of Act, 1970 before the Central Government for
inclusion of the said qualifications in the Second Schedule at any point of
time in respect of degrees/certificates granted subsequent to 1967. This has
led a very peculiar situation. By not getting their medical qualifications
approved/recognised under Second Schedule of Act, 1970, the Hindi Sahitya
Sammelan has successfully evaded any inspection/any direction of the Central
Council of India qua medical qualification granted by it for years together and
therefore on one hand not only it did not represent the Government for
inclusion of medical qualification even after publication of schedule as early
as in the year 1971 till date i.e. nearly 38 years, it has also successfully
evaded inspection by the Government/Central Council, for issuance of directions
for maintenance of standard of education, curriculum etc. At the same time it
alleges that its qualification be treated to be valid by the Central Council of
Indian Medicine for the purpose of permitting practice of medicine. Despite
being aware of the total prohibition qua grant of medical 21 qualification as
per the Act of Parliament namely, Act No.48 of 1970 and despite there being a
provision to get its medical qualifications recognized and included in the
Second Schedule, no effort has been made by the Hindi Sahitya Sammelan for the
Sahitya Sammelan has fairly stated that it does not affiliate or recognise any
institution and it exercises absolutely no control on the teaching in the
subject of medicine qua degrees of Vaidya Visharad and Ayurved Ratana, nor it
is necessary for a candidate to appear in the examination conducted by the
Hindi Sahitya Sammelan to have been admitted as a regular student in any
institution imparting education in the field of medicine. The Hindi Sahitya
Sammelan holds written examination only for awarding the degree. In the opinion
of the Court such grant of degree without any practical teaching, cannot be
approved of and it is for this reason that the Central Government has come out
with Central Act laying down the norms in detail for education being imparted
in the field of medicine."
& Ors. (2008) 7 SCC 153, this Court held that recognised degree can only be
awarded by University constituted/established under the provisions of
University Grants Commission Act or Rule or any State Act or Parliament Act. No
University can be established by a private management without any statutory
backing. Similar reasons apply to Hindi Sahitya Sammelan also, as it is only a
society duly registered under the Societies 22 Registration Act. The competence
to grant medical degree under any provisions of law is therefore, wanting.
Director of Health Services & Ors., AIR 1998 SC 67, this Court held that
unless a person possess the qualifications prescribed in Schedule II, III and
IV of the Act, 1970, does not have a right to practice and the Central
Legislation will proceed over State Act if there is any repugnancy between the
468, this Court examined the issue of delegation of power dealing with the
provisions of the Drugs
and Cosmetics Act, 1940 wherein various observations
have been made regarding registered medical practitioners and certain rules
therein had been declared ultra vires by the High Court. However, the issue
involved herein had not been raised in that case, though an observation has
been made that persons enrolled on the State register under accepted law who
enjoyed the privileges including the privilege to practice in any system of
medicine may under certain circumstances also practice other system of
medicine. In the said case, the issue was confined to the rights of those
persons who were otherwise entitled to prescribe all 23 medicines under the Drugs
and Cosmetics Act, 1940 and the issue involved herein
i.e. as to whether a person having no qualification as prescribed under the
provisions of Act 1970 can be held to be qualified and entitled to practice
Indian medicines, was not involved in Dr. Mukhtiar Chand (supra).
Court in SLP (C) No. 22124 of 2002, Vaid Brij Bhushan on 2.12.2002 also
re-iterated the view that issue involved in Dr. Mukhtiar Chand (supra) was
quite different and persons possessing such certificates were not entitled to
practice. The Court held as under:- "We are of the considered view that
the judgment of the three Judge Bench reported in Dr. Mukhtiar Chand and Others
case (supra) is totally different on principles as also the basis of claim
therein, from the one relevant and necessary so far as the case on hand is concerned.
The right of the petitioner therein to continue to practice as registered
medical practitioner was not claimed on the basis of a degree of Vaid Visharad
and Ayurved Rattan awarded by Hindi Sahitya Sammelan, Prayag as in this case,
before us. The efficacy of this very degree to entitle the holders thereof to
continue to practice as medical practitioner by virtue of the saving clause and
protection under Section 17(3) of the Indian Medicine Central Council Act,
1970, had come up for decision in the earlier case and with particular
reference to the provisions of Section 14 of the Indian Medical Central Council
Act, 1970, read with the provisions contained in the schedule thereto it has
been held that only such of those degrees 24 issued between 1931 and 1967 were
alone recognized for the purposes and not the one obtained by the petitioner in
the year 1974, long after the coming into force of Section 14 on 15.8.1971 in
the whole of the country. In the light of the above principles which directly
applied to the case of the petitioner we find no merit in this petition and the
same is dismissed."
306 while dealing with a similar issue, this Court has held as under:-
"We, therefore, are of the opinion that even in the matter of laying down
of qualification by a statute, the restriction imposed as envisaged under
second part of Clause (6) of Article 19 of the Constitution of India must be
construed being in consonance with the interest of the general public. The
tests laid down, in our opinion, stand satisfied.
however, notice that Clause (6) of Article 19 of the Constitution of India stands
on a higher footing vis-`vis Clause (5) thereof. (vide State of Madras v. V.G.
Row AIR 1952 SC 196)."
Civil Appeal No. 1337 of 2007, Ayurvedic Enlisted Doctor's 27.2.2009, this
Court considered the issue involved herein at length and came to the conclusion
as under:- "So far as the claim that once the name is included in the
register of a particular State is a right to practice in any part of the country
is not tenable on the face of Section 29 of the Central Act. The right to
practice is restricted in the sense that 25 only if the name finds place in the
Central Register then the question of practicing in any part of the country
arises. The conditions under Section 23 of the Central Act are cumulative.
appellants undisputedly do not possess recognized medical qualifications as
defined in Section 2(1)(h) their names cannot be included in the Central
Register. As a consequence, they cannot practice in any part of India in terms
of Section 29 because of non-inclusion of their names in the Central Register.
17(3A) of the Maharashtra Act refers to Section 23 of the Central Act relating
to Central Register. Section 17(1) relates to the register for the State. In
any event, it is for the State to see that there is need for having
qualification in terms of Second and fourth Schedule. The claim of the
appellants is that they have a right to practice in any part of the country. In
terms of Article 19(6) of the Constitution, reasonable restriction can always
be put on the exercise of right under Article 19(g)."
Court further came to the conclusion that unless the person possesses the
qualification as prescribed in Schedule II , III and IV of the Act, 1970, he
cannot claim any right to practice in medical science and mere registration in
any State register is of no consequence.
view of the above, it is evident that right to practice under Article 19(1)(g)
of the Constitution is not absolute. By virtue of the provisions of Clause (6)
to Article 19 reasonable restrictions can be imposed. The Court has a duty to
strike a balance between the right of a Vaidya to practice, particularly, when
he does not possess the requisite qualification and the right of a "little
Indian" guaranteed under Article 21 of the Constitution which includes the
protection and 26 safeguarding the health and life of a public at large from
mal-medical treatment. An unqualified, unregistered and unauthorized medical
practitioner possessing no valid qualification, degree or diploma cannot be
permitted to exploit the poor Indians on the basis of a certificate granted by
an institution without any enrolment of students or imparting any education or
having any affiliation or recognition and that too without knowing the basic
qualification of the candidates.
of entertaining the issue of validity of Entry No.105 to the Second Schedule to
the Act 1970 i.e. "to 1967" does not arise as it is not a cut-off
date fixed by the Statutory Authority rather a date, after which the
qualification in question was not recognised. Hindi Sahitya Sammelan itself
admitted that the Society was not imparting any education. It had no affiliated
colleges. It merely conducts the test. The Society never submitted any
application after 1967 before the Statutory Authority to accord recognition and
modify the Entry No.105 to Part I of Schedule II to the Act 1970.
to the effect that 1953 Act conferred privileges upon the Vaidyas in
exceptional circumstances to practice and any restriction to practice unless
the names are entered in the Central Register is arbitrary and violative of
statutory provisions of the State 27 Act, are preposterous for the reason that
such privileges, if are repugnant to the provisions of Act 1970, cannot be
availed by operation of the provisions contained in Article 254 of the
Constitution. Thus, such a restriction can be held violative of equality clause
enshrined in Article 14 of the Constitution.
the cost of repetition, it may be pertinent to mention here that in view of the
above, we have reached to the following inescapable conclusions :- (I) Hindi
Sahitya Sammelan is neither a University/Deemed University nor an Educational
(II) It is
a Society registered under the Societies Registration Act.
is not an educational institution imparting education in any subject inasmuch
as the Ayurveda or any other branch of medical field.
school/college imparting education in any subject is affiliated to it. Nor
Hindi Sahitya Sammelan is affiliated to any University/Board.
Sahitya Sammelan has got no recognition from the Statutory Authority after
1967. No attempt had ever been made by the Society to get recognition as
required under Section 14 of the Act, 1970 and further did not seek
modification of entry No. 105 in II Schedule to the Act, 1970.
Hindi Sahitya Sammelan only conducts examinations without verifying as to
whether the candidate has some 28 elementary/basic education or has attended
classes in Ayurveda in any recognized college.
After commencement of Act, 1970, a person not possessing the qualification
prescribed in Schedule II, III & IV to the Act, 1970 is not entitled to
Mere inclusion of name of a person in the State Register maintained under the
State Act is not enough making him eligible to practice.
right to practice under Article 19(1)(g) of the Constitution is not absolute
and thus subject to reasonable restrictions as provided under Article 19(6) of
Restriction on practice without possessing the requisite qualification
prescribed in Schedule II, III & IV to the Act, 1970 is not violative of Article
14 or ultra vires to any of the provisions of the State Act.
instant cases have to be determined strictly in consonance with the law laid
down by this Court referred to hereinabove and, particularly, in Ayurvedic
Enlisted Doctor's Assn. (supra). The observation made by the Rajasthan High
Court to the extent that persons who possessed the certificate upto 1.10.1976
i.e. the date on which the provisions of Section 17 had been enforced in the
State of Rajasthan is not in consonance with the law laid down by this Court in
29 the above referred cases. Therefore, that observation is liable to be set
view of the above, Civil Appeal arising out of SLP (C) No. 21043 of 2008 is
allowed and it is held that a person who acquired the certificate, degree or
diploma from Hindi Sahitya Sammelan Prayag after 1967 is not eligible to
indulge in any kind of a medical practice. All other Civil Appeals are
dismissed. No costs.
.........................................J. (Dr. B.S. CHAUHAN)