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TMI Blog2003 (2) TMI 519X X X X Extracts X X X X X X X X Extracts X X X X ..... nafter 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 tra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... loyed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dical 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 declara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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