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TMI Blog2007 (5) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... ent organizations. Such qualifications had been laid down by the State Act. If by reason of the Central Act, a higher qualification has been laid down, the same, in our opinion, would prima facie be presumed to have been enacted in the interest of the general public. We have noticed, that it has been conceded before us and, in our opinion, rightly so, that the provisions contained in Section 30 of the Central Act constitute a reasonable restriction within the meaning of the first part of Article 19(6) of the Constitution of India and the fundamental rights under Article 19(1)(g) thereof. Veterinary services in terms of the Central Act is in two parts (1) veterinary services and (2) minor veterinary services. What would be the minor veterinary services has been laid down by reason of a notification issued by the respective State Governments in exercise of their power under clause (b) of Section 30 of the Central Act. Once such a notification has been issued, indisputably, those who are not otherwise entitled to resort to veterinary practices within the meaning of the Central Act can be asked to perform the jobs of minor veterinary services. A distinction exists between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay do so. Thus, the writ petition and the civil appeal are dismissed. - S. B. Sinha And Markandey Katju, JJ. JUDGMENT S. B. Sinha, J. 1. Leave granted in S.L.P. 2. Constitutionality and/ or applicability of the provisions of Section 30 of the Indian Veterinary Council Act, 1984 (for short the Central Act ) is in question herein. 3. Before, however, embarking on the questions involved, we may at the outset notice that the Civil Appeal arising out of S.L.P.(Civil) No. 11880 of 2006 arises out of a judgment and order dated 26.04.2006 passed by a Division Bench of the High Court of Judicature at Bombay in Civil Writ Petition No. 4619 of 1997 whereby and whereunder the writ petition filed by the appellant herein in regard to the applicability of Section 30 of the Central Act was dismissed. In the said writ petition, the following prayers were made: (a) the declaration that the non-graduate Veterinary Practitioners who are registered under the Maharashtra Veterinary Practitioners Act, 1971 (for short to be referred as the State Veterinary Act ) are eligible to practice Veterinary medicine in the same manner and on such conditions as they were prior to comi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e effect that the matter may be regulated in those States by Parliamentary Act. Pursuant to or in furtherance of the said resolution, Parliament enacted the Central Act being Act No. 52 of 1984. It came into force with effect from 18th August, 1984. It was enacted with a view to regulate veterinary practice and to provide, for that purpose, for the establishment of a Veterinary Council of India and State Veterinary Councils and the maintenance of registers of the veterinary practitioners and for matters connected therewith. 6. We may hereafter notice some of the provisions of the Central Act. 7. Sections 2(e), 2(f) and 2(g) of the Central Act read as under: (e) recognised veterinary qualification means any of the veterinary qualifications included in the First Schedule or the Second Schedule; (f) register means a register maintained under this Act; (g) registered veterinary practitioner means a person whose name is for the time being duly registered in a register; 8. Section 3 provides for the establishment of the Central Council and the State Councils. 9. Sections 15, 22, 23, 30 and 67 of the Central Act read as under: 15. (1) The veterinary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extends. (2) It shall be the duty of the Secretary of the Council to keep the Indian veterinary practitioners register in accordance with the provisions of this Act and of any orders made by the Council, and from time to time to revise the register and publish it in the Gazette of India or in such other manner as may be provided by regulations. (3) Such register shall be deemed to be a public document within the meaning of the Indian Evidence Act, 1872, and may be proved by a copy published in the Gazette of India. (4) Each State Veterinary Council shall furnish to the Council six printed copies of the State veterinary register as soon as may be after the 1st day of April of each year and each State Veterinary Council shall inform the Council without delay of all additions, and other amendments in the State veterinary register made from time to time. 30. Right of persons who are enrolled on the Indian veterinary practitioners register.-- No person, other than a registered veterinary practitioner, shall-- (a) hold office as veterinary physician or surgeon or any other like office (by whatever name called) in Government or in any institution maintained by a l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistration Officer or the Registrar, as the case may be, of his possession of a qualification entitling him for registration. (2) The State Government may, after consulting the Registration Officer or the Council, as the case may be, permit the registration of any person who has been actually conducting veterinary practice in the State of Bombay since a date prior to the 1st day of January 1944, notwithstanding the fact that he may not be possessing qualifications entitling him to have his name entered in the register. (3) Every person for the time being registered with the veterinary Council of any other State in India under any law for the registration of veterinary practitioners in force in such State shall, if reciprocity of registration has been arranged with such Council, be entitled to be registered under this Act, on making an application in that behalf, on payment of a fee of ₹ 15 and on his informing the Registration Officer or the Registrar, as the case may be, of the date of his registration under the said law and on giving a correct description of his qualifications with the dates on which they were granted. (4) Any person who has been convicted of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ractitioners of the State and maintained in such form as may be directed. The register is to contain the name, address and qualification of every person registered thereunder together with the date on which such qualification was acquired. 13. Sub-sections (1) and (2) of Section 18 of the 1971 Act read as under: 18 (1) Subject to the provisions of this Act, every person shall, if he holds any of the qualifications included in the Schedule, be entitled on application to be registered, on payment of such fee as may be provided by regulations and on giving evidence to the satisfaction of the Registration Officer or the Registrar as the case may be, of his possession of a qualification entitling him for registration. (2) The State Government may, after consulting the Registration Officer or the Council, as the case may be, permit the registration of any person who has been actually conducting veterinary practice in the State of Maharashtra on such conditions as may be provided for by regulations made for this purpose, notwithstanding the fact that he may not be possessing qualifications entitling him to have his name entered in the register. 14. Section 23 of the 1971 Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Veterinary Science G.B.V.C. 24. Nagpur Veterinary College Two-year Diploma Certificate *** 16. The State of Maharashtra in exercise of its power conferred upon it under Sub-section (1) of Section 38 read with Sub-section (2) of Section 18 of the 1971 Act made regulations known as The Maharashtra Veterinary Practitioners (Conditions for registration of persons actually conducting veterinary practice) Regulations 1981 (for short the 1981 Regulations ). Regulation 3 reads as under: 3 (I) The conditions on which the registration of any person under sub-section (2) of section 18 of the Act may be permitted shall be as follows, namely: (a) the said person shall possess a certificate of completion of practical and theoretical training course:- (i) prescribed by any Government functioning in the Bombay area. Hyderabad area of Vidarbha region before the formation of the State of Maharashtra and who is actually conducting practice in the State of Maharashtra, since then: or (ii) Prescribed or recognized by the Government of Maharashtra from time to time, after the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also in the civil appeal arising out of the SLP is that having regard to the provisions of Section 67 of the Central Act, the provisions of Section 6 of the General Clauses Act having been made applicable, the rights and liabilities accrued prior to coming into force of the Central Act must be held to be saved. 22. The contention of the Union of India and the respective State Governments, on the other hand, is that keeping in view the number of veterinary colleges which have been opened in the states, the services of a large number of degree holders can be utilized therefor and in fact thousands of such degree holders are still unemployed. In any event, the State can, for maintaining better standard in profession, lay down qualification which need not satisfy the test of public importance particularly in view of the fact that the Parliament or the States by making suitable enactments can always lay down the qualifications for carrying on any profession. 23. Section 6 of the General Clauses Act, it was urged, would have no application in a situation of this nature inasmuch as the very fact that the Central Act intended to bring about a new situation, the same would ipso fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been set aside as a result whereof 25,000 certificate holders who could not get themselves also became entitled to the reliefs therefor. 27. The submission of the learned Solicitor General appearing on behalf of the Union of India, the Additional Solicitor General appearing on behalf of the Veterinary Council of India and Mr. Shekhar Naphade, learned senior counsel appearing on behalf of the State of Maharashtra, on the other hand, is that Section 6 of the General Clauses Act would be attracted only when no different intention appears in the new Act. It was pointed out that there exists a distinction between a simple repeal and repeal of an Act substituted by another. If the new Act provides for something which is wholly different from the purview of the repealed act, evidently, a different intention would appear. 28. Article 19 of the Constitution of India provides for protection of certain rights regarding freedom of speech, etc. Sub-clause (g) of clause (1) of Article 19 of the Constitution of India confers a fundamental right to protect any profession or to carry on any occupation, trade or business. Clause (6) of Article 19 reads as under: 19. Protection of certai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... veterinary service was primarily the responsibility of the Zilla Parishads and Panchayat Samities, as specified in Section 100 (1)(a) of the Maharashtra Zilla Parishads and Panchayat Samities Act, 1961. 100. (1) (a) It shall be the duty of a Zilla Parishad so far as the district fund at its disposal will allow, to make reasonable provision within the District with respect to all or any of the subjects enumerated in the First Schedule as amended from time to time under sub-section (2) (in this Act referred to as the District List ) and to execute or maintain works or development schemes in the District relating to any such subjects. 33. Item No. 14 of the First Schedule and Item Nos. 9 and 10 of the Second Schedule appended to the said Act read as under: First Schedule 14. Veterinary aid (excluding District Veterinary Hospitals but including veterinary dispensaries, veterinary aid centres and village veterinary chests). Second Schedule (9) Village Veterinary Chests. (10) Veterinary Aid Centres. 34. It is somewhat interesting to note that even in terms of the 1953 Act, there was no provision for allowing a diploma holder to practice. 35. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g regard to international conventions and covenants, the plea of the petitioners to continue old practices, cannot be sustained. 38. Similar is the position in the State of Rajasthan as from its counter affidavit, it would appear that the number of veterinary doctors are sufficient to provide for the veterinary services in the State and many degree holders are still unemployed. 39. 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. We may, however, notice that Clause (6) of Article 19 of the Constitution of India stands on a higher footing vis-`-vis Clause (5) thereof. We say so in view of the celebrated decision of this Court in State of Madras v. V.G. Row [(1952) SCR 597] wherein it was stated: 15. It is important in this context to bear in mind that the test of reasonableness, wherever prescribed, should be applied to each individual statute impugned, and no abstract standard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said law whether they have direct relation with the creation of the monopoly or not. In our opinion, the said expression should be construed to mean the law relating to the monopoly in its absolutely essential features. If a law is passed creating a State monopoly, the Court should enquire what are the provisions of the said law which are basically and essentially necessary for creating the State monopoly. It is only those essential and basic provisions which are protected by the latter part of Article 19(6). If there are other provisions made by the Act which are subsidiary, incidental or helpful to the operation of the monopoly, they do not fall under the first part of Article 19(6). ... the amendment (First Amendment) clearly indicates that State monopoly in respect of any trade or business must be presumed to be reasonable and in the interests of general public, so far as Article 19(1)(g) is concerned. 43. The position of law has since been consistently reiterated in M/s. Orient Paper and Industries Ltd. and another etc. v. State of Orissa and others [AIR 1991 SC 672], State of Tamil Nadu and Ors. v. L. Abu Kavur Bai and Ors. [AIR 1984 SC 326], Tinsukhia Electric Supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s position in mind, if we read Section 17(3)(b), it becomes clear that the privileges which include the right to practise any system of medicine conferred by or under any law relating to registration of practitioners of Indian medicine for the time being in force in any State on a practitioner of Indian medicine enrolled on a State Register of Indian Medicine, are not affected by the prohibition contained in sub-section (2) of Section 17. 46. In regard to the applicability of Clause (6) of Article 19 of the Constitution of India, it was stated: 48. The right to practise modern scientific medicine or Indian system of medicine cannot be based on the provisions of the Drugs Rules and declaration made thereunder by State Governments. Indeed, Ms Indira Jaising has also submitted that the right to practise a system of medicine is derived from the Act under which a medical practitioner is registered. But she has strenuously argued that the right which the holders of a degree in integrated courses of Indian medicine are claiming is to have their prescription of allopathic medicine honoured by a pharmacist or a chemist under the Pharmacy Act and the Drugs Act. This argument is too ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitute a reasonable restriction within the meaning of the first part of Article 19(6) of the Constitution of India and the fundamental rights under Article 19(1)(g) thereof. 52. If the legislative power of the Parliament vis-`-vis the State Government in this behalf is considered, a'fortiori the State will have the legislative competence to lay down the qualification therefor. 53. It is one thing to say that laying down such qualification or taking away the right of the practitioners to continue their practice is unconstitutional but it is another thing to say that the same cannot be given retrospective effect. 54. A statute does not operate retrospectively only because a person's right to continue in profession comes to an end. A person will have a right to enter into a profession and continue therewith provided he holds the requisite qualification. As and when a qualification is laid down by a law within the meaning of Sub-clause (g) of Clause (1) of Article 19 of the Constitution of India, the same would come into effect. In other words, it would act prospectively and, thus, not retrospectively, inasmuch as the practice he had already enjoyed is not taken away. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Government stepped in only because of the resolutions adopted by some State Governments at the outset and resolutions adopting the Central Government by other States at a later stage, viz., 1997. Section 6 of the General Clauses Act, therefore, was referred to in Section 67 of the Central Act creating a legal fiction as if both the Central Act and the State Act are enacted by the Parliament. In absence of such a legal fiction raised, the provisions of either the General Clauses Act, 1897 or the respective State General Clauses Act would have no application. It, therefore, does not create any right. It does not make Section 6 of the General Clauses Act ipso facto applicable. Section 6 of the General Clauses Act would be attracted but it would have no application if a different intention appears. 59. We have noticed the contention of the learned Senior Counsel appearing on behalf of the petitioners that there exists an inconsistency insofar as whereas under the Central Act only the degree holders are entitled to be enrolled in the register maintained by the Central Council; the State Act recognizes the diploma and certificate holders also. 60. Veterinary services in terms of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conclusion becomes inescapable that whenever there is a repeal of an enactment and simultaneous re-enactment, the re-enactment is to be considered as reaffirmation of the old law and provisions of the repealed Act which are thus re-enacted continue in force uninterruptedly unless the re- enacted enactment manifests an intention incompatible with or contrary to the provisions of the repealed Act. Such incompatibility will have to be ascertained from a consideration of the relevant provisions of the re-enacted enactment and the mere absence of the saving clause is, by itself, not material for consideration of all the relevant provisions of the new enactment. In other words, a clear legislative intention of the re-enacted enactment has to be inferred and gathered whether it intended to preserve all the rights and liabilities of a repealed statute intact or modify or to obliterate them altogether. 74. On the touchstone of the principles of law culled out from the judgments of various courts applied to the facts of these cases lead to a definite conclusion that the Assistant Commissioner (Commercial Taxes), Warangal Division was fully justified in initiating and completing the proc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Maguire [1999 (2) ALL ER 859], where it is stated: The relevant overpayment there had been made before the legislation changed but the fact of such overpayment was not discovered until afterwards. The Secretary of State sought to contend that s.53 was retrospective. In holding not, the House of Lords decided rather that s.119 could still be operated to effect recovery (albeit with greater difficulty for the Secretary of State) in respect of pre-repeal overpayments. Having cited s.16(1)(c) (of Interpretation Act 1978.) Lord Woolf said this: Inchoate rights and obligations and liabilities are covered by (c). This was established by Free Lanka Insurance Co Ltd v Ranasinghe [1964] AC 541. In that case the Privy Council had no difficulty in construing the Ceylon Interpretation Ordinance 1900 as including an inchoate or contingent right and the same approach should be adopted to the interpretation of 'right,' 'obligation,' or 'liability' in s.16 of the Act of 1978. The section clearly contemplates that there will be situations where an investigation, legal proceeding or remedy may have to be instituted before the right or liability can be enforced a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld to be unreasonable only because persons with lesser qualifications are not allowed to continue to practice or enter into the services of the government or semi-government organizations. 73. A faint submission has been made that whereas Section 19 of the 1953 Act or Section 23 of the 1971 Act provided for a mandatory obligation on the part of the practitioners to get themselves registered so as to enable them to obtain appointment in the services of the State or other local authorities or public corporations, no such restriction was prescribed for general medical practitioners. 74. On the first flush, the submission appears to be attractive. The liability of a person to get himself registered on the State register, in our opinion, is imperative so as to enable the State to control the profession as such. We have seen hereinbefore that the Maharashtra Zilla Parishads and Panchayat Samities Act, 1961 confers the responsibility of providing veterinary services on the Zilla Parishads and Panchayat Samities. Nothing has been shown to us that any person could start practice in veterinary services without getting himself registered. Hence, in our opinion, the answer to the said q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e number of certificate holders could not file application for getting themselves registered, they have derived an accrued right to have their names entered in the register. For the purpose of registration, the conditions laid down under Regulation 3 were to be fulfilled. A person, thus, is not entitled to be registered by the State Council or the Central Council only because he holds an educational qualification. Several other factors are required to be taken into consideration therefor. The right to practice or right to be in service or right to obtain an appointment in government or semi-government organization would, thus, be dependant upon a person's name being registered therefor in the State or Central register, as the case may be. So long their names are not on the register, the question of their acquiring any vested or accrued right does not arise. In a case of this nature, the court cannot confer a right to practice on the certificate holders despite the fact that their names do not find place in the register maintained by the State Council or the Central Council. 81. Despite our aforementioned findings, we are of the opinion that those who are in service of the St ..... X X X X Extracts X X X X X X X X Extracts X X X X
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