Subhasis
Bakshi & Ors Vs. West
Bengal Medical Council
& Ors [2003] Insc 84 (14 February 2003)
S. Rajendra
Babu & Shivaraj V. Patil Rajendra Babu, J. :
"Thou
shall not prescribe, but treat". Does this commandment stand the test of
legal scrutiny? This is the stark and simple question to be decided in this
case.
The
long-winded facts of this case read as follows:
That
about 337 persons, including the appellants had completed the diploma course of
Community Medical Service in duly recognized institutions in the State of West Bengal and were posted in different parts
of the State by the Government of West Bengal. On October 15, 1980 vide Notification No. Health/MA/7076/5M-5/80 the Government
of West Bengal made an amendment in the Statute of the State Medical Faculty by
introducing Article 6F under Part B, which reads verbatim as under:
"6F:
Students who will undergo and complete the requisite course of studies in
Medicine/Medical Science (as defined and detailed in the Schedule to this
article and hereinafter called as the said Regulations for the Diploma course
in Community Medical Services) in Medical Institutions, duly recognized by the
State Medical Faculty of West Bengal, shall be admitted into examinations in
the subjects laid down in the said regulations and the students passing the
examinations shall be granted Diploma with the abbreviation "Dip. C.M.S",
by the Governing body of the aforesaid Faculty.
The
Governing Body of the aforesaid Faculty shall also maintain a Register of such
Diploma holders with a view to regulating, supervising and restricting their
practice for the present." The objective of the said Notification, as
detailed therein, is as follows:
"I.
Objectives:
i). To
provide medical training to a group of personnel to man the Health Centers and Subsidiary Health Centers.
ii).
Emphasis is to be given on comprehensive Health Care of the Community including
promotive, preventive and curative aspects.
iii).
A candidate after successfully completing the course of studies will act as a
Team Leader of various categories of Field Workers.
iv).
Training in curative medicines is to be imparted in such a way that after
completion of training the trainees can treat common diseases among rural
population including communicable diseases, malnutritional states, snake bite,
insecticidal poisoning etc. Instructions on diseases requiring sophisticated
treatment not practicable in Health Centers will be restricted to the barest
minimum. However, such candidates should learn to recognize sign and symptoms
of more serious diseases requiring special treatment at referral hospitals
(e.g., Sub-divisional or District Hospital) so that such patients may be sent early to these
institutions.
v).
The training in promotive and preventive aspect of Health Care including Family
Planning and Child Care should be undertaken by actual participation in the
field work under the supervision of their teachers along with the field
workers.
vi). A
substantial part of the training will be conducted in Health Centers where they
will reside along with their teacher in each term of their course so that they
are exposed to the field condition from the beginning of their course." On
23/6/1987, the Government of West Bengal
issued a Corrigendum and the Diploma that was earlier known as 'Diploma in
Medicine for Community Physicians' was rechristened as 'Diploma in Community
Medical Service.' Apprehending that the re-naming would have a detrimental
effect on their rights, the appellants filed W.P. No.7052/89 in the Calcutta
High Court. The said Writ Petition was disposed of by the learned Single Judge
on the assurance given by the Government Pleader that the State was willing to
award the 'Diploma in Community Medical Service' to the successful candidates.
It was also assured by the State, in the said petition that it would provide
jobs to such candidates in accordance with the stated policy of the Government.
The learned Single Judge of the High Court made it clear that the Diploma
Holders will not have the right to private practice and that part of the order
was not challenged by the appellants at all and entry in the register is only
for the right to prescribe medicines and issue certificates.
Aggrieved
by the order of the learned Single Judge, the appellants preferred an appeal
before the Division Bench of Calcutta High Court. The Division Bench assured
that the change in the nomenclature would not affect the Appellants right. The
Division Bench reiterated that "the persons holding the Diploma and
employed to man the Health Centers and Subsidiary Health Centers would be competent to treat common
diseases among rural population including communicable disease, malnutritional
states, snake bite, insecticidal poisoning etc". The Division Bench also
mentioned the stated Government policy on providing jobs to such Diploma
holders. Upon this the High Court opined that in the light of the
clarifications made by and on behalf of the State Medical Faculty and the
State, there should be no reason for the appellants to entertain any kind of
apprehension with regard to their being able to perform functions and duties
which they as are entitled to do under the Regulations as amended vide
notification dated October 10, 1980. Pertaining to the registration of names in
the Register of Diploma holders, the High Court stated that the Register shall
be prepared and will be maintained in accordance with and in terms of the
Statute 6F and that necessary formalities in that regard will be completed on
or before March 31,
1990.
This
judgment of the High Court was not complied with by the State.
Contempt
Application was filed on September
7, 1990 in the High
Court. By the time, on November
21, 1990 Director of
Health Services, West
Bengal vide Order No.
HPH/10 'S-3-90/1512 issued Job Description of Community Health Service
Officers. While hearing the Contempt Application on November 23, 1990 the High Court accepted the assurance given by the
Secretary to the Government in Department of Family Welfare in the presence of
Secretary of the Medical Faculty and the State Medical Council that the
Government would issue fresh instructions to the Job Description of Community
Health Officers.
These
fresh instructions, were assured, would be issued in accordance with the
earlier judgment of the Bench. On December 10, 1990 the aforementioned description was
partially modified vide Order No. HPH/10-'S-3-90/1629. By virtue of this Order,
the Diploma Holders were allowed to treat common diseases among rural
population as provided in the sub-clause (iv) of the objectives to the Notification
dated October 15, 1980 and it was also mentioned that item
No 17 in the Notice issued under No 1512 dated November 21, 1990 was treated as omitted.
Another
Order No HPH/10-'S-3-90/1630 was issued on the same day which says that the
Diploma Holders were "not permitted to issue Death Certificate, Sickness
Certificate or Medical Fitness Certificates required for Court cases" and
also directed that the treatment advice and prescription made by them were to
be counter signed by the BMO or the MO-in-charge. While on March 6, 1991
vide Memo No. HPH/10-'S-3/90/222 the Order No HPH/10-'S-3-90/1630 dated December 10, 1990 was cancelled. By Order dated May
7, 1991 the High Court disposed of the contempt proceeding by making the
direction to the Government that they would maintain a register of the Diploma
Holders in terms of the Article 6F of the original Notification. It is also
clarified by the High Court in the Order that the "Registration by the
State Medical Faculty will authorize the Community Health Service Officers to
continue to discharge their duties as specified in the duty chart in the Health
Centers/Subsidiary Health Centers as long as they are in service." Upon
this high note, the first round of litigation before the Calcutta High Court was
concluded.
At
this juncture, by virtue of the order of the High Court, the appellants had
obtained the right to treat common diseases among rural population including
communicable diseases, malnutritional states, snake bites, insecticidal
poisoning etc. But their grievance is that the consequential right of issuing
certificates of sickness or death, prescriptions etc. was taken away by
Notification No. HPH/10- 'S-3-90/1630 dated November 21, 1990. It is also the case of the appellants that item no 17 of
the said notification was cancelled. Challenging the denial of 'consequential
rights to treat' such as right to issue prescription or certificates of
sickness or death, the second round litigation was initiated.
The
appellants anchored their case on a Notification No. 1076-Medical dated May 17,
1915 issued by the then Financial Department, Government of Bengal. The
relevant portion of the said Notification is extracted hereunder:
"In
exercise of the power conferred by clause (1) of Section 18 of the Bengal Medical
Act, 1914 (Bengal Act, VI of 1914) and on the recommendation of the Bengal
council of Medical Registration, the Governor in Council is pleased to direct
that a title, certificate of qualification, Diploma or license granted by the
Governing Body of the State Medical Faculty, to any person shall subject to the
provisions referred to in the said Clause entitled the holder of such title,
certificate of qualifications, Diploma or License to have his name entered in
the Register of Registered practitioners maintained under Section 15 of the
said Act." By virtue of this Notification read with Sections 15 and 18 of
the Bengal Medical Act, 1914, the appellants argues that they are entitled to
enter their names in the Register of Registered Practitioners maintained by the
Bengal Council of Medical Practitioners. Urging this a Writ Petition was filed
before the learned Single Judge of Calcutta High Court. The Petition was
allowed in favour of these appellants, subject to the condition that they are
not allowed to pursue Private Practice and making it clear that their only
right is to prescribe medicines and issue certificates and this part of the
order became final.
Aggrieved
by this order of the learned Single Judge of the High Court, the Bengal Medical
Council preferred an appeal before the Division Bench of Calcutta High Court.
The Division Bench allowed the appeal and set-aside the decision of the learned
Single Judge. There are two main reasons given by the Division Bench to vacate
the Writ. They are –
(1).
"The sine qua non for the application and operation of Section 18 are-
(a) satisfaction
of the Council that any particular qualification is sufficient guarantee for
the requisite knowledge or skill for efficient medical practice,
(b) report
to that effect by the Council to the Government, and
(c) direction
by the Government, on acceptance of such report, by notification in the
Official Gazette.
We do
not think that in 1915, the Council could in any way be satisfied as to the
quality or merit of a course or qualification introduced in 1980 and could
report its satisfaction by some sort of divine prescience or foresight. Not do
we think that the Government could by a Notification recognize or approve a
course or certificate or qualification in futuro or in vacuo, in respect of a
course or certificate which was not in existence at the date of
Notification."
(2).
Relying on A.K Sabhapathy v. State of Kerala, AIR 1992 SC 1310 it was found
that 'a person can practice in allopathic system of medicine in a state or in
the country only if he possesses a recognized medical qualification' and since
the appellants doesn't possesses the required qualification, it was held that
their names could not be included in the Medical Register. Thus this appeal by
special leave.
The
only relief, which these appellants are seeking, is the protection of their
'consequential rights to treat' such as issuing prescriptions or sickness or
death certificates. As a matter of fact the respondents do not dispute the
validity of Notification No. Health/MA/7076/5M-5/80 dated October 15, 1980. It is by virtue of this
Notification that the appellants were having the right to treat. Now the only
question for consideration is whether the Appellants, who are having the right
to treat could issue prescription or sickness or death certificates? In this
context it is worthwhile to discuss Dr. Mukhtiar Chand v. State of Punjab, (1998) 7 SCC 579. In this case the
validity of Notifications issued by State Governments of Punjab and Rajasthan,
under Rule 2(ee)(iii) of the Drugs and Cosmetics Rules, 1945 whereby the
Governments declaring some vaids/ hakims as persons practicing modern medicines
were challenged. Upholding the validity of the Notifications and the said Rule,
this Court held that, for the purpose of Drugs Act "what is required is
not the qualification in modern scientific system of medicine but a declaration
by a State Government that a person is practicing modern scientific system and
that he is registered in a Medical Register of the State". In Dr. Mukhtiar
Chand, this Court also clarifies that there could be two registers for medical
practitioners i.e, Indian Medical Register and State Medical Register. As far
as the State Medical Registers are concerned the concerned State Government
according to the rules will determine the required qualification. While
recognizing the rights of vaids or hakims to prescribe allopathic medicines,
this Court also took into account of the fact that qualified allopathic doctors
were not available in rural areas and the persons like vaids / hakims are
catering to the medical needs of residents in such areas. Hence the provision
which allows them to practice modern medicine was found in the public interest.
In this context Dr. Mukhtiar Chand holds that "It is thus possible that in
any State, the law relating to registration of practitioners of modern
scientific medicine may enable a person to be enrolled on the basis of the
qualifications other than the 'recognized medical qualification' which is a
prerequisite only for being enrolled on the Indian Medical Register but not for
registration in a State Medical Register. Even under the 1956 Act, 'recognized
medical qualification' is sufficient for that purpose. That does not mean that
it is indispensably essential.
Persons
holding 'recognized medical qualification' cannot be denied registration in any
State Medical Register. But the same cannot be insisted for registration in a
State Medical Register. However, a person registered in a State Medical
Register cannot be enrolled on the Indian Medical Register unless he possesses
'recognized medical qualification'. This follows from a combined reading of
Sections 15(1), 21(1) and 23. So by virtue of such qualifications as prescribed
in a State Act and on being registered in a State Medical Register, a person
will be entitled to practice allopathic medicine under Section 15(2)(b) of the
1956 Act." Based on this reasoning this Court partially overruled A.K Sabhapathy,
which earlier ruled that a person could practice allopathic medicine only if he
possess a recognized medical qualification. In Medical Council of India & Another v. State of Rajasthan
and Anr, (1996) 7 SCC 731 (2 judges), it was observed that "It would thus
be clear that the basic qualification of MBBS as a primary qualification is a
precondition for a candidate for being registered in the State Medical Register
maintained by the State Board". Identical view expressed in the decision
in A.K Sabhapathy on the same point having been overruled, this view in Medical
Council of India vs. State of Rajasthan
[supra] also stands impliedly overruled.
Coming
back to the case in hand, the Division Bench in the impugned judgment relied
upon A.K Sabhapathy to deny the appellants' right to prescribe medicines or to
issue sickness or death certificates and held that the appellants do not
possess the 'recognized medical qualification'. In the light of the ruling in
Dr. Mukhtiar Chand this view of the Division Bench cannot be sustained.
Therefore
there is no bar to register the name of the appellants in the State Medical
Register.
Now
the only issue for consideration is whether the right to issue prescription or
certificates could be treated as a part of right to treat. In Dr. Mukhtiar Chand
it was pointed out that "because prescribing a drug is a concomitant right
to practice a system of medicine. Therefore, in a broad sense, the right to
prescribe drug of a system of medicine would be synonymous with the right to
practice that system of medicine. In that sense, the right to prescribe an
allopathic drug cannot be wholly divorced from the claim to practice allopathic
medicine." The appellants are validly holding the right to treat certain
diseases.
So
their right to issue prescriptions or certificates cannot be detached from
their right to treat. Such right to issue certificates or prescriptions is
imbibed in the right to treat. One cannot and shall not be separated from the
other. Once the right to treat is recognized, then the right to prescribe
medicine or issue necessary certificate flows from it. Or else the right to
treat cannot be completely protected. Hence, even assuming for a moment that
the 1915 Notification is not there, still the appellants' right to prescribe
medicine cannot be denied. In that view of the matter, the order of the
Division Bench is set aside and that of the learned Single Judge is restored.
Therefore,
the respondents shall make necessary arrangements to include the names of all
the concerned Diploma holders in the State Medical Register for the limited purpose
indicated therein within a period of six months from today.
The
appeal is allowed accordingly.
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