Bihar State Council of Ayurvedic and Unani Medicine Vs. State of Bihar
& Ors [2007] Insc 1104 (1 November 2007)
B.N.
Agrawal & P.P. Naolekar
WITH CIVIL
APPEAL NOS. 4644-4645 OF 2003 Dr.Sudhir Kumar Singh & Ors.
Appellants
vs. State of Bihar & Ors. Respondents AND CIVIL APPEAL NO. 4646 OF 2003 Ashok
Kumar & Ors. Appellants vs. State of Bihar & Ors. Respondents P.P. Naolekar,
J.:
1. The
brief facts of the case are that six petitioners in CWJC No. 7253 of 1998
before the Patna High Court who had obtained GAMS (Graduate of Ayurvedic
Medicine and Surgery) degree from the State Faculty of Ayurvedic and Unani
Medicines (for short the Faculty) established under Section 17 of the
Bihar Development of Ayurvedic and Unani Systems of Medicine Act, 1951 (for
short the 1951 Act) were not permitted to appear in the examination
for admission in Post Graduate Course in Ayurved leading to award of Degree of
Doctor of Medicine in Ayurved. It was the case of the petitioners that they had
passed the GAMS examination conducted by the Faculty under the 1951 Act and were
conferred GAMS degree by the Faculty and, thus, they were qualified to appear
in the examination for obtaining the Degree of Doctor of Medicine in Ayurved.
After service of notice, the respondents entered appearance and the State filed
reply wherein the stand taken by the State was that GAMS Degree obtained by the
petitioners in 1997 was not valid and recognized degree because according to
the letter dated 4.7.1998 sent by the Secretary, Central Council of Indian
Medicine (for short CCIM), GAMS course was no longer recognized by
the CCIM. The respondent-CCIM alleged that in accordance with the requirements
of the Indian Medicine Central Council Act, 1970 (for short the 1970
Act), CCIM had prescribed regulations providing for BAMS (Bachelor of Ayurvedic
Medicine and Surgery) course at graduate level and MD(Ay.) course at
post-graduate level, and only the course prescribed by CCIM is to be conducted
by the universities and the prescribed degree can only be awarded by them as
per the 1970 Act. It was also the case of the respondents that after the Bihar
Indigenous Medical Educational Institution (Regulation and Control) Act, 1982
(for short the 1982 Act), the GAMS degree could only be recognized if
it is conferred on the students who had studied from the colleges recognized
under the 1982 Act.
2. On
the pleadings of the parties, the High Court considered the case on the aspect
whether the Faculty under the 1951 Act has unqualified right to grant affiliation
to such institutions or colleges which are not following the BAMS course
prescribed by CCIM through regulations under the 1970 Act and further whether
the provisions of the 1982 Act which seek to regulate institutions imparting
training in Ayurvedic and Unani Systems of Medicine shall cover and regulate
even those institutions which have been granted affiliation by the Faculty. The
High Court held that the system of course for GAMS had come to an end for quite
some time and BAMS course has been followed as per the regulations of CCIM;
hence, only on the basis of a continued entry in the Second Schedule of the
1970 Act which recognized GAMS degree, which is in the view of the High Court
is archaic, no right can be found in the person or institution to ignore the
course validly prescribed by the competent authority-CCIM. The High Court
further held that the 1982 Act aims at curing a rampant evil in concerned
colleges in the State of Bihar and hence the State Government was given control
in the matter of making queries into the standard of educational institutions
teaching Indian system of medicine, and thereafter proceeding for recognition
of the institution under the 1982 Act. It was held that when the petitioners
who obtained GAMS degrees had studied in the educational institutions which
have not followed course prescribed by CCIM, the statutory central authority,
and further when such institutions have been run in total contravention and
violation of the 1982 Act, they are not entitled to for issuance of any writ
from the court.
3.
Another writ petition being CWJC No. 825 of 1998 filed by Pramila Kumari &
Ors. in the Patna High Court challenged the order whereby they had not been
allowed to compete in the selection for appointment to the post of Ayurvedic
Medical Officer on the basis that they were the holders of GAMS degree from the
Bihar State Faculty, which was claimed to be a recognized degree by the CCIM.
The petitioners sought relief that they be permitted to fill up the forms and
to take part in the examination and further for declaration that GAMS degree
granted by the Faculty was equivalent to BAMS degree granted by a recognized
University of the State.
4. The
learned Single Judge differed with the view taken by the court in CWJC No. 7253
of 1998 and held that Faculty has been created under the 1951 Act, much prior
to the promulgation of the 1982 Act, the powers under the 1951 Act of granting
GAMS degree by the Faculty is also recognized under the 1970 Central Act as per
Second Schedule thereof. The court was also concerned with the fate of the
students who had been conferred GAMS degree by a body created under the 1951
Act and the degree has been saved by recognizing it under the 1970 Central Act.
In this view, the matter was directed to be placed before a Division Bench
after necessary orders of Honble the Chief Justice.
5. The
judgment of the learned Single Judge in CWJC No. 7253 of 1998 was challenged by
filing LPA No. 451 of 2000 by only one petitioner, namely, Dr. Sudhir Kumar
Singh and other petitioners were impleaded in the case as respondents. Also the
Bihar State Council of Ayuyrvedic and Unani Medicine aggrieved by the judgment
in CWJC No.
7253
of 1998, filed another letters patent appeal which was registered as LPA No.
463 of 2000. CWJC No. 825 of 1998 was placed along with the LPAs before the
Division Bench for decision. The writ petitioners re-asserted their submissions
before the Division Bench that they had completed the course of GAMS degree and
passed examination conducted by the Faculty under the 1951 Act. As per Second
Schedule of the 1970 Act, a central Act, which contains State-wise entries,
entries Nos. 6 to 9A relate to the institutions/universities of Bihar which
recognize GAMS degree under entry No. 6 from 1953 onwards. It was submitted
that as the degree conferred on the writ petitioners is a recognized degree on
the basis of the said entry in the 1970 Act, they were entitled to appear for
entrance test to the post-graduate course and also for consideration for
appointment to the post of Ayurvedic Medical Officers on the basis of GAMS
degree which they were holding.
6. The
Division Bench agreed with the reasoning adopted by the learned Single Judge in
CWJC No 7253 of 1990 and held that under the scheme of the 1970 Act as well as
the Bihar Indigenous Medical Educational Institution (Regulation and Control)
Ordinance, 1981 which was replaced by Bihar Act 20 of 1982, the CCIM was authorised
to prescribe the course of studies in the system of medicine so that the Indian
system of medicine may maintain uniformity and standard of teaching all over
the country, which has been sought to be achieved by the regulations framed
under the 1970 Act. The Division Bench also agreed with the learned Single
Judge that the course of study of GAMS had come to an end and had been replaced
by BAMS course, much before the writ petitioners acquired their GAMS degree.
The Court approved the decision of the learned Single Judge whereby he had come
to the conclusion that the 1982 Act has been enacted to regulate the
indiscriminate opening of indigenous medical institutions in the State by
persons of bodies registered under the Societies Registration Act, 1960 and had
in fact commercialized the system of education in indigenous medicine;
therefore, the institutions which are not recognized by the State under the
1982 Act could not impart the study in Ayurvedic medicine. It was held that the
State authorities under the 1982 Act have rightly taken the follow-up action.
On these findings being arrived at by the Division Bench, no merit was found in
the LPAs and the writ petition, which were dismissed by the Division Bench.
Aggrieved
by the order dated 12.12.2001 passed by the Division Bench in the LPAs and the
WP, the appellants, namely, Bihar State Council of Ayurvedic and Unani Medicine
(in Civil Appeal No.4643/2003), Dr. Sudhir Kumar Singh & Ors. (in Civil
Appeal Nos. 4644-46 of 2003) and Ashok Kumar Singh & Ors. (in Civil Appeal
No. 4646 of 2003) are before us by special leave.
7. It
is an admitted fact before us that the writ petitioners have studied from Ramjee
Prasad, Ram Kumari Devi @ Marni Devi Ayurvedic Medical College & Hospital, Fatuha
and Shrihari Shakuntalayam Ayurvedic Medical College, Muzaffarpur, Bihar. The said colleges were granted affiliation by the
Faculty on 19.8.1995 with retrospective effect from the session commenced in
1992 and they are recognized under the 1951 Act.
8. The
Bihar Development of Ayurvedic and Unani
Systems of Medicine Act, 1951 received the assent of the President on 12.9.1951
and the assent was first published in the Bihar Gazette, Extraordinary, dated
17.10.1951.
This
Act was enacted to provide for the development of the ayurvedic and Unani
systems of medicine, to regulate their teaching and practice, and to control the
sale of indigenous medicinal herbs and drugs in the State of Bihar.
In
exercise of powers under Section 3, the State Government shall, by
notification, constitute a Council to be called the Bihar State Council of Ayurvedic
and Unani Medicines, which shall consist of a President and the Members
mentioned in clauses (a) to (n) of Section 3(1). Under Section 17 of this Act,
the Council shall establish a State Faculty of Ayurvedic and Unani Medicines
for the purposes of the Act which shall consist of a Chairman and the Members
enumerated in clauses (a) to (d) of Section 17(1).
Under
clause (d) of sub-section (2) of Section 17, it shall be the duty of the
Faculty to recognize educational or instructional institutions of the Ayurvedic
and Unani systems of medicine for purposes of affiliation. Under clause (b) of
Section 17(2), the Faculty is authorized to hold examination and grant
certificates to, and confer degrees or diplomas on, persons who shall have
pursued a course of study in the institutions affiliated to the Faculty.
Section 37 of this Act authorizes the Council to establish educational
institutions, prescribe courses of study, etc. subject to the rules as may be
prescribed by the State Government in this behalf. Section 37 clothes the
Council with power to establish its own educational or instructional
institutions for the purpose of conducting courses of Ayurvedic and Unani
systems of medicine. Under Section 54, the Council is authorized to make
regulations subject to the provisions of the Act and the rules made by the
State Government.
9.
Looking into the aforesaid provisions, it is clear to us that the Council
constituted by the State Government under the 1951 Act shall establish a State
Faculty under Section 17 which shall have the authority to recognize
educational or instructional institutions of Ayurvedic and Unani systems of
medicine, to conduct examinations of the persons studying in such affiliated
institutions, and to grant certificates and confer degrees or diplomas.
10.
Under Section 54 of the 1951 Act, the Council has framed regulations called the
Bihar Development of Ayurvedic and Unani Systems of Medicines Regulations,
1959.
Regulation
16 thereof provides for courses of study for the Degree (Graduate of Ayurvedic
Medicine and Surgery) (GAMS).
Thus,
the Faculty established by the Council under the 1951 Act has been authorized
to recognize the educational institutions or instructional institutions of Ayurvedic
and Unani Systems of Medicine and affiliate them to the Faculty. The Faculty is
also authorized to conduct examinations and confer degree of GAMS.
11.
The Indian Medicine Central Council Act, 1970 (Central Act) provides for
constitution of a Central Council of Indian Medicine (CCIM) and the maintenance
of a Central Register of Indian Medicine and for matters connected therewith.
This Act was enacted by the Parliament and came into force on 21.12.1970.
Introduction to this Act reads as under:
To
consider problems relating to the Indian system of medicine and Homoeopathy a
number of Committees were appointed by the Government of India, which had
recommended that a statutory Central Council on the lines of the Medicinal
Council of India for modern system of medicine should be established for the
proper development of these systems of medicine (Ayurveda, Siddha and Unani).
In June, 1966 the Central Council of Health at its 13th meeting, while
discussing the policy on Ayurvedic education, recommended the setting up of a
Central Council for Indian system of medicine to lay down and regulate
standards of education and examinations, qualifications and practice in these
systems. On the basis of the above recommendations the Indian Medicine Central
Council Bill was introduced in the Parliament.
Sections
13A, 13B and 13C with their sub-sections have been substituted by the Indian
Medicine Central Council (Amendment) Act, 2003 (No. 58 of 2003) w.e.f.
7.11.2003, which prescribe for the permission for establishment of new medical
colleges, new courses of study, etc.; non- recognition of medical qualifications
in certain cases; and time for seeking permission of the Central Government for
certain existing or new medical colleges. We shall deal with these Sections in
detail when we take up the submissions of the counsel of the effect of these
Sections on the GAMS degree conferred on the students prior to coming into
force of Amending Act 58 of 2003. Section 14 falling in Chapter III of the 1970
Central Act provides for recognition of the medical qualifications granted by
any university, board or other medical institution in India which are included in the Second
Schedule. The Second Schedule provides for the recognized medical
qualifications, i.e. degrees/diplomas, awarded by the
States/Boards/Faculties/Universities before the constitution of the Central
Council of Indian Medicine.
Under
the 1970 Act, the CCIM is competent to prescribe the minimum standard of
education including curriculam 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.
The Second Schedule prescribes the institutions/colleges and the medical
qualifications which are recognized under the Act for the different States. For
the State of Bihar, item No. 6 of the Second Schedule
reads as under:
---------------------------------------------------------------------------------------------------------
Name of Universities, Board Recognised Medical Abbreviation Remarks or Medical
Institution Qualifications for Registration
---------------------------------------------------------------------------------------------------------
xxx xxx xxx Bihar
6.
State Faculty of Ayurvedic Graduate in Ayurvedic G.A.M.S. From 1953 and Unani
Medicines, Medicine and Surgery onwards.
Patna, Bihar.
xxx xxx
xxx Under the 1970 Act, the State Faculty established under the Bihar
State Council of Ayurvedic and Unani Medicines (appellant in LPA No. 463 of
2000 and appellant in Civil Appeal No. 4643 of 2000) is empowered to confer a
degree of Graduate in Ayurvedic Medicine and Surgery (GAMS) from 1953 onwards.
It is an admitted fact that the 1951 Act has not been repealed by the 1970
Central Act nor it is the submission of any counsel appearing for respective
parties that the provisions of the 1951 Act, in regard to conferment of GAMS
degree, are repugnant to the provisions of the 1970 Act. The Second Schedule in
the 1970 Act itself recognizes the GAMS degree given by the State Faculty of Ayurvedic
and Unani Medicines, Patna, Bihar from 1953 onwards and thus it cannot be said that the
course prescribed by the Faculty for conferment of a degree of GAMS is de-recognised
under the 1970 Act. The 1970 Act read with regulations made thereunder
prescribes course for conferment of a degree of BAMS by a University, whereas
the 1951 Act prescribes course for conferment of a GAMS degree by State
Faculty. Degree conferred by a university and degree conferred by a faculty are
different for which separate courses have been prescribed. The 1951 Act having
not been repealed by the 1970 Act, or till the Second Schedule is not amended
de-recognising the degree of GAMS, the degree of GAMS given by the State
Faculty will remain intact. No amendment has been brought about till today
whereby the degree of GAMS given by the State Faculty is de-recognised under
the 1970 Act. The 1951 State Act with its rules and regulations, is a complete
code for recognizing and granting affiliation to indigenous medical
institutions by the Faculty, provide the course of study in the institutions,
and regulate the functioning of the institutions affiliated to the Faculty. The
Faculty while exercising its powers has to abide by the conditions laid down in
the rules and regulations.
12.
The 1951 State Act is consistent with the 1970 Central Act in regard to
granting of the GAMS degree, as the degree granted under the 1951 State Act is
still recognized under the 1970 Central Act. The 1951 State Act and the 1970
Central Act are complementary to each other.
The
Faculty comes under the definition of `medical institution under Section
2(f) of the 1970 Central Act and GAMS degree awarded by the Faculty is a recognised
medical qualification under Section 14 of the 1970 Central Act.
The
Second Schedule of the 1970 Act grants authority to the Faculty to grant GAMS
degree. The High Court has, therefore, clearly committed an error in holding
that after the BAMS degree has been introduced, GAMS degree issued by the
Faculty was de-recognised or not in operation after the 1970 Act came into
force.
13.
The question, however, is whether with the introduction of the Bihar Indigenous
Medical Educational Institution (Regulation and Control) Act, 1982, the
students who have studied in the colleges which were not recognized under the
said 1982 Act could be conferred with GAMS degree by the Faculty, and if such
degrees are conferred what shall be the fate of the degrees conferred on such
students? We would also be required to consider the effect of the Indian
Medicine Central Council (Amendment) Act, 2003, particularly Sections 13A, 13B
and 13C which have been substituted by way of amendment in the 1970 Act and
came into force on 7.11.2003, on the degrees conferred on the students who have
studied in the colleges which have not sought or have not been given permission
as required under Section 13C of the 1970 Act to open the college or continue
the college, by the Central Government.
14. It
is urged by the learned counsel for the appellants that the colleges which are
affiliated to the Faculty under the 1951 Act do not require any approval from
the State Government to start or to continue the educational institution or to
run the courses of study in indigenous system of medicine leading to the
degree, diploma etc., as included in Second Schedule of the 1970 Act, as the
1951 Act is a self-contained code. Whereas, it is the submission of the learned
counsel for the respondents that after the Ordinance of 1981 and the Act of
1982 came into force, all colleges which are affiliated to the Faculty or which
have to be opened after the Ordinance of 1981 and the Act of 1982 came into
force, require permission of the State Government for opening or continuing the
colleges or institution running the colleges, imparting education in indigenous
system of medicine. If any college or the educational institution running the
college continues the educational facility, imparting education in indigenous
system of medicine leading to the degree, diploma etc., as included in the Act
of 1982 without permission, would run the risk to their students of not being
conferred with a recognized degree and penalties provided under the 1982 Act.
The counsel further submits that after the introduction of 1982 Act the power
of the Faculty to grant affiliation is circumscribed by the requirement of the
State Governments permission to open the college imparting education in Ayurvedic
and Unani systems of medicine.
15.
Under the 1951 Act, Section 17 provides for the establishment of the Faculty.
Sub-section (2) of Section 17 provides : it shall be the duty of the Faculty to
prescribe the course of study and curricula for general instructions, or
special refresher courses, in institutions affiliated to the Faculty. By virtue
of clause (d) of sub-section (2) of Section 17, the Faculty is to recognize
educational or instructional institutions of the Ayurvedic and Unani systems of
medicine for purposes of affiliation. The manner in which the affiliation is to
be given is provided in Chapter II of the 1959 Regulations whereunder an application
for affiliation of an institution shall be made to the Registrar, State Council
of Ayurvedic and Unani Medicines, Bihar.
After the application is received for affiliation, the Faculty will scrutinize
the application and if it is satisfied on the basis of the material supplied in
the application or otherwise that the institution proposed to be affiliated has
nearly fulfilled or is likely to fulfill all the conditions imposed by the
Council established under the Act and is likely to run efficiently, it would
depute an Inspector to visit the institution, make inquiry and report back to
the Faculty.
After
the completion of the inquiry and submission of the inspection report, the
Faculty shall give recognition to the institution either permanently or provisionally
for a limited period or may reject it. The decision of the Faculty shall be
communicated to the institution concerned as soon as possible. It is clear from
the aforesaid provisions that the Faculty under the 1951 Act has been empowered
with the power to affiliate institutions which are imparting education in Ayurvedic
and Unani systems of medicine.
16.
The Bihar Indigenous Medical Educational
Institution (Regulation and Control) Ordinance, 1981 which provides for
regulation and control of educational institutions of indigenous system of
medicine in the State of Bihar was promulgated on 16th November, 1981. Preamble to the Ordinance reads as
under :- Whereas, the Legislature of the State of Bihar is not in session ;
And,
whereas, the Governor of Bihar is satisfied that inspite of repeated warnings
from Government through Press Notes and Notices unregulated and indiscriminate
opening of Indigenous Medical Educational Institutions in this State by persons
or bodies registered under the Societies Registration Act, 1960 or otherwise
without providing for adequate teaching facilities is hampering the cause of
Indigenous Medical Education and is highly detrimental to the interest of
students, admitted to such institutions after charging heavy capitation fee or
donation and as such the circumstances exist which render it necessary to
prescribe for regulation and control on the opening of College or Institutions
of Indigenous System of Medicine in the State of Bihar;
17.
The Ordinance was later replaced by introduction of the Act, viz., the Bihar Indigneous
Medical Educational Institution (Regulation and Control) Act, 1981 (Act 20 of
1982) which came into force on 21st January, 1982. Section 3 of the Act requires the Governing Body or Organizing
Committee or any body or institution intending to start medical course of study
of indigenous system of medicine, along with requisite information regarding
the study, to apply to the State Government in the Health Department.
18.
Section 5 contemplates that on receipt of an application for permission to open
the medical course of study of indigenous system of medicine, the State
Government would cause the inspection of the body, agency, college or
institution by the Central Council of Indian Medicine (CCIM) or Inspector
appointed by the State Government to see whether the conditions laid down by
the CCIM constituted under Section 3 of the 1970 Act are fulfilled or not.
Section 6 further provides that on completion of the inspection the State
Government in the Health Department will seek permission of the Government of
India and the CCIM of India for granting permission to the starting of the
course of medical studies in indigenous system of medicine by the applicant.
Section 7 postulates that to all private medical colleges and medical
institutions in indigenous system of medicine, preparing or intending to
prepare students for study in indigenous system of medicine leading to degree,
diploma, etc. and which have not been permanently affiliated to any University
in the State of Bihar, the provisions of the 1982 Act shall apply. The 1982 Act
has been made applicable to all private medical colleges and medical
institutions which are not permanently affiliated to any University in the
State of Bihar. By virtue of Section 9, the
institutions which have been functioning without prior permission or approval
of the State Government are required to apply for such permission within a
period of one month from the date of coming into force of the 1982 Act. This
Section prohibits admission of the students in such institutions till the grant
of permission by the Government. It also provides that in case the application
is not moved within the stipulated period or the State Government refuses
permission, they will be deemed to have been established in contravention of
the provisions of the Act. Section 10 provides for penalty and a person
contravening any of the provisions of the Act is made liable for punishment
with a fine which may extend to Rs. 10,000/- and imprisonment for a term which
may extend upto three years. In case of continuing contravention, such person
shall be liable to pay a further fine which may extend to Rs.1,000/- per day
after the date of the first conviction for the period during which he is proved
to have persisted in such contravention. The offence is made non- bailable and
cognizable. As per Section 11, if the application moved for permission to start
medical course of study of indigenous system of medicine either under Section 3
or Section 9 is refused as the institution or college is not found eligible or
does not qualify for permission, it is incumbent on the organizer of such
institution to close it down within a period of three months of refusal of
permission. Section 15 gives authority to the State Government to seize the
accounts of an institution contravening the provisions of the Act. From these
provisions, it is apparent that after introduction of the 1981 Ordinance and
the 1982 Act, the Governing Body or the Organizing Committee or any body or
institution intending to start any course of study in indigenous system of
medicine is required to seek permission of the State Government to open a
private medical college or medical institution for admitting the students to be
conferred with a degree, diploma, etc., as included in the Second Schedule of
the 1970 Act. It is only the Governing Body or the Organising Committee or any
body or institution which has been permanently affiliated to any University in
the State of Bihar is exempted from the provisions of the 1981 Ordinance or the
1982 Act. Institutions already imparting education in indigenous system of
medicine are required to take permission after coming into force of the 1982
Act.
19.
The Act provides for imposition of the fine and imprisonment for any person who
contravenes any of the provisions of the 1981 Ordinance or the 1982 Act. If the
permission is refused, the institution will be closed down.
Section
13 of the Act further authorizes the State Government to authorize any officer
to enter into the premises of the institution contravening the provisions of
the 1981 Ordinance or the 1982 Act for the purposes of inspection and carrying
into effect the provisions of the Ordinance or the Act. Such officer may be
empowered to close down the institution and to lock and seal it. The Act also
provides provision for seizure of the accounts by the State Government of an
institution contravening the provisions of the Ordinance or the Act. The Act
arms the State Government with various powers including the penal powers.
Although the colleges were opened in the year 1992 without the authority or the
permission of the State Government as required under the Act, no steps have
been taken by the State of Bihar, and the students admitted in the two
institutions which were affiliated with the Faculty were conferred with the
GAMS Degree. After reading the provisions of the Act, it is apparent to us that
the 1982 Act is supplementary to the 1951 Act. The 1951 Act although provides
for the inspection of the institutions which have to be affiliated to the
Faculty, does not lay down that the conditions laid down by the CCIM are to be
followed and adhered to. That has been provided under the 1982 Act. So the
colleges or the institutions which want to impart education in the indigenous
system of medicine have not only to follow the conditions laid down by the
Faculty or the Council under the 1951 Act, but also under the 1982 Act. The
college or the institution after the Act came into force cannot continue
without the permission of the State Government as contemplated in the 1982 Act.
20. We
have examined the provisions of the 1982 Act.
The
counsel for the State or the University could not point out as to what shall
happen to the degrees given to the students who studied in the colleges which
have been affiliated with the Faculty but without permission under the 1982
Act. We do not find any provision in the 1982 Act which takes away the degree
already granted to the students conferred by the Faculty, recognized under the
1951 Act, and is being accepted to be a recognized degree under the 1970 Act.
Therefore, by virtue of introduction of the 1982 Act, it cannot be said that
the degrees conferred on the students who have studied in the colleges which
have not been granted permission by the State Government as required under the
1982 Act, will be ipso facto illegal and could not be given effect to. However,
we make it clear that any body, agency, college or institution which has not
sought permission from the State Government would not be granted affiliation by
the Faculty under the 1951 Act and the State Government shall take appropriate
steps under the 1982 Act if any body, agency, college or institution is/are
functioning without the permission of the State Government as required under
the 1982 Act.
21. It
is then contended by the learned counsel for the State that after the coming
into force of the Indian Medicine Central Council (Amendment) Act, 2003 (for
short the Amending Act) on 7th November, 2003, if any medical college
established on or before the commencement of the Amending Act does not seek
permission of the Central Government within the period of three years from the
said commencement, the medical qualification granted to any student of such
medical college shall not be deemed to be a recognized medical qualification
for the purposes of the 1970 Act. It is submitted that the two colleges from
where the appellant-students were educated having not sought permission from
the Central Government under the 1970 Act, the GAMS degree conferred on them
shall not be a recognized medical qualification for the purposes of the 1970
Act, as a result whereof they are not eligible for admission for higher course
of study or for employment on the basis of the GAMS degree conferred on them which
is not a recognized medical qualification. For this proposition, the learned
counsel for the State has relied upon the provisions of Sections 13A, 13B and
13C which have been introduced by Amending Act of 2003. For a better
understanding of the contentions, the relevant portions of the Sections are
reproduced hereunder:
13A.
Permission for establishment of new medical college, new course of study, etc.—
(1)
Notwithstanding anything contained in this Act or any other law for the time
being in force,--
(a) no
person shall establish a medical college; or
(b) no
medical college shall—
(i)
open a new or higher course of study or training, including a post-graduate
course of study or training, which would enable a student of such course or
training to qualify himself for the award of any recognised medical
qualification; or
(ii) increase
its admission capacity in any course of study or training including a
post-graduate course of study or training, except with the previous permission
of the Central Government obtained in accordance with the provisions of this
section.
Explanation
1.--For the
purposes of this section, "person" includes any University or a
trust, but does not include the Central Government.
Explanation
2.--For the
purposes of this section, "admission capacity", in relation to any
course of study or training, including post-graduate course of study or
training, in a medical college, means the maximum number of students as may be
fixed by the Central Government from time to time for being admitted to such
course or training. xxx xxx xxx
13B.
Non-recognition of medical qualifications in certain cases.—
(1)
Where any medical college is established without the previous permission of the
Central Government in accordance with the provisions of section 13A, medical
qualification granted to any student of such medical college shall not be
deemed to be a recognised medical qualification for the purposes of this Act.
(2)
Where any medical college opens a new or higher course of study or training
including a post-graduate course of study or training without the previous
permission of the Central Government in accordance with the provisions of
section 13A, medical qualification granted to any student of such medical
college on the basis of such study or training shall not be deemed to be a recognised
medical qualification for the purposes of this Act.
(3)
Where any medical college increases its admission capacity in any course of
study or training without the previous permission of the Central Government in
accordance with the provisions of section 13A, medical qualification granted to
any student of such medical college on the basis of the increase in its
admission capacity shall not be deemed to be a recognised medical qualification
for the purposes of this Act.
13C.
Time for seeking permission for certain existing medical colleges.—
(1) If
any person has established a medical college or any medical college has opened
a new or higher course of study or training or increased the admission capacity
on or before the commencement of the Indian Medicine Central Council
(Amendment) Act, 2003, such person or medical college, as the case may be,
shall seek, within a period of three years from the said commencement,
permission of the Central Government in accordance with the provisions of
section 13A.
(2) If
any person or medical college, as the case may be, fails to seek permission
under sub- section (1), the provisions of section 13B shall apply, so far as
may be, as if permission of the Central Government under section 13A has been
refused.
22.
For the purposes of the 1970 Act, `Indian medicine is a system of Indian
medicine commonly known as Ashtang Ayurveda, Siddha or Unani Tibb. Section
2(ea) of the 1970 Act defines `medical college to mean a college of Indian
medicine where a person undergoes a course of study or training which will
qualify him for the award of a recognized medical qualification. Section 13A(1)
prohibits any person to establish a medical college; and a medical college to
open a new or higher course of study or training including a post-graduate
course of study or training, which would enable the students of that medical
college for the award of any recognised medical qualification or to increase
its admission capacity except with the previous permission of the Central
Government obtained in accordance with the provisions of Section 13A.
Sub-sections (2), (3), (4), (5), (6), (7), (8) and (9) of Section 13A lay down
the manner in which the Central Government is to be approached for establishment
of a new medical college or for opening of a new higher course of study or
increasing admission capacity and how it would be dealt with. Section 13B
postulates that where any medical college is established or an established
medical college opens a new higher course of study or training or where any
medical college increases its admission capacity in any course of study or
training without the permission of the Central Government, the medical
qualification granted to any student of such medical college or the higher
course of study or training or admission in the increased capacity in any
course of study, would not be a recognized medical qualification for the
purposes of the Act. Section 13C, however, provides a breathing time to the
medical colleges which have been established on or before the commencement of
the Amending Act of 2003 without the permission of the Central Government to
get such permission within a period of three years from the commencement of the
Act. Therefore, the colleges or the institutions which have not obtained the
permission of the Central Government may do so within a period of three years
from the commencement of the Act to save the medical qualification conferred on
the students of such medical colleges from the rigour of Section 13B of the
1970 Act. However, as per sub-section (2) of Section 13C, if any person or
medical college fails to seek permission within three years of commencement of
the Act, qualification granted to any student of such medical institution shall
not be a recognised medical qualification and it shall be deemed that
permission to open or start a new course or increase strength of students was
refused by the Central Government. Medical colleges opened on or before the
coming into force of the Amending Act of 2003 are necessarily required to take
permission within three years to save the recognized medical qualification of
the students. On their failure, the medical qualification conferred on the
students shall come to naught. Under Section 13A, a person who establishes a
medical college or a medical college opens a new higher course of study or
increases the admission capacity is required to move an application for
permission of the Central Government. For obtaining permission as required
under Section 13A, every person or medical college is required to submit a
scheme in such form with requisite fee, containing such particulars as provided
under sub- section (3) of Section 13A. The Central Government on receipt of
such application may require the applicant to submit such other particulars as
may be considered necessary. The Central Government after considering the
scheme and recommendations of the Central Council and after obtaining such
other particulars as felt necessary, may approve the scheme with such conditions
which are considered necessary. The Central Government may also disapprove the
scheme. Sub-section (6) of Section 13A provides that where within a period of
one year from the date of submission of scheme to the Central Government, no
order is communicated by the Central Government to a person or medical college,
such scheme shall be deemed to have been approved by the Central Government in
the form in which it was submitted. From the aforesaid provisions, it is
apparent that an application seeking permission for opening a medical college
has to be moved by a person which also includes the university or a trust or a
medical college or those which are already running the medical college when the
Amending Act came into force. Section 13A nowhere provides that the students
who have studied in the medical colleges would be eligible to seek permission
of the Central Government under that Section. Section 13A or Section 13B or
Section 13C nowhere contemplates moving of an application by the students to
take steps under Section 13A. In such a situation, the question arises what
shall happen to the degrees conferred on the students who have studied in the
medical colleges established prior to the commencement of the Amending Act
where the Governing Body or Organising Committee or any body or institution
does not take any step for seeking permission of the Central Government and the
period prescribed under Section 13C of three years has expired or where the
institution has been closed down immediately after the commencement of the
Amending Act of 2003 and, therefore, no body is interested in seeking
permission of the Central Government.
23.
The provisions of Sections 13A, 13B and 13C of the 1970 Act as introduced by
the Amending Act of 2003, if given retrospective operation, the medical
qualification acquired from the study in the medical colleges which have been
opened prior to the commencement of the Amending Act of 2003 and conferred
medical qualification on the students who studied in such medical colleges, the
degrees so conferred in the absence of the permission of the Central Government
would be non est though there is no fault on the part of the students who have
studied in the institutions which are recognized and affiliated to the Faculty
under the 1951 Act.
24. In
our opinion, where the legislature has used words in an Act which if generally
construed, must lead to palpable injustice and consequences revolting to the
mind of any reasonable man, the court will always endeavour to place on such
words a reasonable limitation, on the ground that the legislature could not
have intended such consequence to ensue, unless the express language in the Act
or binding authority prevents such limitation being interpolated into the Act.
In construing an Act, a construction ought not be put that would work
injustice, or even hardship or inconvenience, unless it is clear that such was
the intention of the legislature. It is also settled that where the language of
the legislature admits of two constructions and if construction in one way
would lead to obvious injustice, the courts act upon the view that such a
result could not have been intended, unless the intention had been manifested
in express words. Out of the two interpretations, that language of the statute
should be preferred to that interpretation which would frustrate it.
It is
a cardinal rule governing the interpretation of the statutes that when the
language of the legislature admits of two constructions, the court should not
adopt the construction which would lead to an absurdity or obvious injustice.
It is equally well settled that within two constructions that alternative is to
be chosen which would be consistent with the smooth working of the system which
the statute purported to be regulating and that alternative is to be rejected
which will introduce uncertainty, friction or confusion with the working of the
system. [See Collector of Customs v. Digvijaysinhji Spinning & Weaving
Mills Ltd. (1962) 1 SCR 896, at page 899 and His Holiness Kesvananda Bharati v.
State of Kerala, AIR 1973 SC 1461].
25.
The court must always lean to the interpretation which is a reasonable one, and
discard the literal interpretation which does not fit in with the scheme of the
Act under consideration.
26. In
series of judgments of this Court, these exceptional situations have been
provided for. In Narashimaha Murthy v. Susheelabai, (1996) 3 SCC 644 (at page
647), it was held that:
The
purpose of law is to prevent brooding sense of injustice. It is not the words
of the law but the spirit and eternal sense of it that makes the law meaningful.
In the case of American Home Products Corporation v. Mac Laboratories Pvt. Ltd.
and Another, AIR 1986 SC 137 (at page 166, para 66), it was held that:
.. It is a well-known principle of interpretation of statutes that a
construction should not be put upon a statutory provision which would lead to
manifest absurdity or futility, palpable injustice, or absurd inconvenience or
anomaly. Further, in the case of State of Punjab v. Sat Ram Das, AIR 1959
Punj. 497, the Punjab High Court held that:
To
avoid absurdity or incongruity, grammatical and ordinary sense of the words
can, in certain circumstances, be avoided.
27.
The amendment brought about in the Indian Medicine Central Council Act, 1970,
in 2003 by introduction of Sections 13A, 13B and 13C are the provisions for
continuance of the institution which has not obtained prior permission of the
Central Government and, therefore, time limit of three years has been provided
under Section 13C to regularize the institutions affairs as required under
the Act by seeking permission of the Central Government. Insertion of Section
13A in the 1970 Central Act in the year 2003 has regulated the opening of an
indigenous medical college. The non-obstante clause clearly indicates that a
medical institution cannot be established except with the prior permission of
the Central Government. Under Section 13B, any medical qualification granted by
the colleges established without the prior permission of the Central Government
is not a recognized medical qualification. The reasonable reading of Section 13C(1)
puts the existing colleges at par with the new colleges as both of them are
required to seek permission within three years from the commencement of the Amending
Act. The phrase on or before has made it clear that the existing
colleges are also required to seek permission and there is no exemption.
Section 13C(2) further provides that the medical qualification granted by
existing colleges whose establishment has not been recognized by the Central
Government, the medical qualification would not be a recognized qualification.
Similar requirement is to be fulfilled by the new medical colleges opened,
i.e., to seek permission of the Central Government for the medical
qualification to be recognized qualification. Thus, new colleges or existing
colleges cannot any more grant a recognized qualification without the sanction
of the Central Government. Section 13C(2) does not say that the effect of
non-permission by the Central Government to the existing colleges after the
Amending Act came into force would render the medical qualifications already
granted by the existing colleges before the insertion of Sections 13A, 13B and
13C in 2003, un-recognised. The whole spectrum of the amendment brought about
by introducing Sections 13A, 13B and 13C indicates that it has an application
from the date they have been introduced by an amendment in the 1970 Central
Act. The effect of the amendment brought about is clear to us that all the
medical colleges which are in existence or the medical colleges which have to
be established should compulsorily seek permission of the Central Government
within the period provided and on failure to get the permission of the Central
Government the medical qualification granted to any student of such medical
college shall not be a recognized medical qualification for the purposes of the
1970 Act. The established colleges are also required to seek permission of the
Central Government for the medical qualification to be recognized medical
qualification but it would not mean that the already conferred medical
qualification of the students studied in such previously established medical
colleges would not be a recognised medical qualification under the 1970 Act.
28. On
a reasonable construction of these Sections, we hold that the provisions of
Section 13B whereby the qualification granted to any student of a medical
college would not be deemed to be a recognized medical qualification would not
apply. When a degree has been legally conferred on the students prior to the
commencement of the Amending Act of 2003, it shall be treated as a recognized
degree although the medical college has not sought permission of the Central
Government within a period of three years from the commencement of the Amending
Act of 2003.
29.
For the reasons aforesaid, the appeals are allowed.
The
judgment of the High Court is set aside and we hold that the GAMS degree
conferred on the appellant-students shall be treated as a recognized degree for
the purposes of taking admission to the higher courses of study and also for
the purposes of employment.
30.
There shall be no order as to costs.
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