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TMI Blog2010 (6) TMI 891X X X X Extracts X X X X X X X X Extracts X X X X ..... iable to be quashed. (iii) As to whether restriction imposed under the Central Act from practicing, unless names appear in the Central Register, is violative of Article 14 of the Constitution of India with reference to the State Act. 2. Facts and circumstances giving rise to Civil Appeal Nos. 5324- 5325 of 2007 and appeal arising out of SLP(C) No. 21043/2008 are that Section 32 of the Rajasthan Indian Medicine Act, 1953 (hereinafter referred to as `Act 1953') provided that persons who had obtained degree of Vaidya Visharad or Ayurved Ratna from Hindi Sahitya Sammelan Prayag were recognized as having sufficient qualification for practicing as Vaidyas in Rajasthan and they were permitted to get themselves registered as Vaidyas in the register maintained under the said Act 1953. Section 17(2) of the Act 1970 provided that persons who possessed the qualifications as laid down in Second, Third and Fourth Schedule of the Act 1970 would be permitted to practice. Section 17(3) however, carved out an exception for those Vaidyas who had been practicing prior to the commencement of the Act 1970. Different provisions of the Act 1970 were enforced throughout the country but on dif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... practice and it had upheld the validity of Entry No. 105 in the 4th Column regarding the expression upto 1967 in the Second Schedule of the Act, 1970. 5. Appeal arising out of SLP(C) No. 20912 of 2009 has been preferred by Delhi Pradesh Registered Medical Practitioners Association being aggrieved by the judgment and order of Delhi High Court dated 19.11.2009 passed in C.W.P. No. 1999 of 1998 wherein it has been held that unless a person possessed qualification as required in Schedule II, III and IV to the Act 1970, he is not entitled to practice. 6. In all these cases, learned Counsel appearing for the appellants namely, Shri S.K. Dholakia, Sr. Advocate and Shri B.D. Sharma have submitted that such a restriction imposed on appellants infringes their right to practice under Article 19(1)(g) of the Constitution of India, 1950. More so, once their names stood enrolled in the State Register, they were entitled to practice. More so, they are entitled to continue to practice, as an exception has been carved out under Section 17(3) of the Act, 1970. Restriction imposed under the Act 1970 from practicing unless the names appear in the Central Register is violative of Article 14 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10. There is no document on record disclosing as what was the institution/school where such persons had got admission, imparted education, attended the classes and practicals in laboratories and what was its duration. A bald statement in all these cases that persons possess certificates from Hindi Sahitya Sammelan has been made. Study of medical sciences require attendance in the classes and a proper technical training under competent faculty as they play an important role in maintaining the public health. None of the learned Counsel appearing for the appellants is able to point out as to which University/Board, the educational institution where they were imparted medical education had been affiliated and as to whether such schools had ever been accorded recognition by the competent Statutory Authorities. 11. It is settled proposition of law that a party has to plead the case and produce/adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. In Bharat Singh and Ors. v. State of Haryana and Ors. AIR 1988 SC 2181, this Court has observed as under: In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present the students for public examination, recognition of a private school is for the other purposes mentioned under the Statute and unless the school is recognized by the appropriate authority, the school cannot be amenable to any other provision of the Statute applicable in this regard. 17. In Re: The Kerala Education Bill, 1957 AIR 1958 SC 956; and T.M.A Pai Foundation and Ors. v. State of Karnataka and Ors. (2002) 8 SCC 481, this Court held that it is always open to the State or the Statutory Authority to lay down conditions for recognition of an educational institution namely, that the institution must have particular amount of funds or properties or number of students or standard of education and so on and so forth and it is also permissible for the Legislature to make a law prescribing conditions for such recognition, however, such a law should be constitutional and should not infringe any Fundamental Right of the minorities etc. Recognition is a Governmental function. 18. This Court has persistently deprecated the practice of an educational institution admitting the students and to allow them to appear in the examinations without having requisite recognition and aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e relevant entries read as under: 105 Hindi Sahitya Vaidya Visharad.... From 1931 Sammelan, Prayag to 1967.... From 1931 Ayurved-Ratana to 1967 22. Section 14(2) of the Act 1970 provides that any University or Board/Medical Institution if wants to impart medical education and has not been included in the Second Schedule, may apply to the Central Government for recognition of its medical qualification and to be included in Second Schedule. If such an application is made, the Central Government is empowered to make necessary amendment as and when required in the Second Schedule, after considering the application. 23. In UmaKant Tiwari and Ors. v. State of U.P. and Ors. (2003) 4 AWC 3016, a Division Bench of the Allahabad High Court has considered the issue at length and came to the conclusion that the Hindi Sahitya Sammelan Allahabad/Prayag were only registered societies and not educational institutions. The said societies had no business to impart education in medical sciences. Hindi Sahitya Sammelan, Allahabad was a fake institution whereas Hindi Sahitya Sammelan, Prayag was recognised only from 1931 to 1967. 24. In Dr. Vijay Kumar Gupta and Ors. v. State of U.P. and Or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reading of the aforesaid provisions of Act, 1970, it will be seen that only degrees/certificates granted by the Hindi Sahitya Sammelan, Prayag between 1931 to 1967 alone have been held to be recognised medical qualification for the purposes of Section 14 conferring a right to practice upon the holder of the degree under Act, 1970. With regard to challenge to the words upto 1967 , the only ground raised for contending that the cut off date is arbitrary and violative of Article 14 of the Constitution of India, is that no reasons have been disclosed. In support thereof, it is stated that the course/curriculum which was there prior to 1967 continues even thereafter for the purposes of examinations held by the Hindi Sahitya Sammelan and, no change has been introduced in the course after 1967. From the counter affidavit filed on behalf of Central Council of Indian Medicine, it is apparently clear that the words upto 1967 have been provided in the Second Schedule of Act, 1970 with reference to the information supplied by the State Government. Such prescription of 1967 in these circumstances, cannot be termed to be arbitrary, more so when in the facts of the case a power was conf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments and getting the Entry No. 105 in Second Schedule of the Act, 1970, modified. 33. In such a fact-situation, even by stretch of imagination, the said cut-off date cannot be termed as arbitrary. In fact it is not the cut-off date fixed by the Statutory Authorities, rather it indicates that such courses or certificates had not been recognised after 1967. 34. After remand, in Umakant Tiwari (supra) the Allahabad High Court has recorded the following findings of fact: Shri Jeevan Prakash Sharma, learned Counsel for Hindi Sahitya Sammelan has fairly stated that Hindi Sahitya Sammelan does not grant affiliation to any institution for imparting education in medical courses. Hindi Sahitya Sammelan in fact only conducts written examination for the purposes of awarding the said degrees. Any person, who is successful in the written examination so held by the Hindi Sahitya Sammelan is awarded the degree, irrespective of the fact as to whether he was enrolled as a regular student in any institution or not. No application was ever made by the Hindi Sahitya Sammelan, Allahabad/Prayag to get its medical qualifications i.e. Vaidya Visharad and Ayurved Ratna recognized and included ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... can only be awarded by University constituted/established under the provisions of University Grants Commission Act or Rule or any State Act or Parliament Act. No University can be established by a private management without any statutory backing. Similar reasons apply to Hindi Sahitya Sammelan also, as it is only a society duly registered under the Societies Registration Act. The competence to grant medical degree under any provisions of law is therefore, wanting. 36. In Delhi Pradesh Registered Medical Practitioners v. Delhi Admn. Director of Health Services and Ors. AIR 1998 SC 67, this Court held that unless a person possess the qualifications prescribed in Schedule II, III and IV of the Act, 1970, does not have a right to practice and the Central Legislation will proceed over State Act if there is any repugnancy between the two. 37. In Dr. Mukhtiar Chand and Ors. v. State of Punjab and Ors. AIR 1999 SC 468, this Court examined the issue of delegation of power dealing with the provisions of the Drugs and Cosmetics Act, 1940 wherein various observations have been made regarding registered medical practitioners and certain rules therein had been declared ultra vires by the H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner we find no merit in this petition and the same is dismissed. 39. In Udai Singh Dagar and Ors. v. Union of India and Ors. (2007) 10 SCC 306 while dealing with a similar issue, this Court has held as under: We, therefore, are of the opinion that even in the matter of laying down of qualification by a statute, the restriction imposed as envisaged under second part of Clause (6) of Article 19 of the Constitution of India must be construed being in consonance with the interest of the general public. The tests laid down, in our opinion, stand satisfied. 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. (vide State of Madras v. V.G. Row AIR 1952 SC 196). 40. In Civil Appeal No. 1337 of 2007, Ayurvedic Enlisted Doctor's Assn. Mumbai v. State of Maharashtra and Anr. decided on 27.2.2009, this Court considered the issue involved herein at length and came to the conclusion as under: So far as the claim that once the name is included in the register of a particular State is a right to practice in any part of the country is not tenable on the face of Section 29 of the Central Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Second Schedule to the Act 1970 i.e. to 1967 does not arise as it is not a cut-off date fixed by the Statutory Authority rather a date, after which the qualification in question was not recognised. Hindi Sahitya Sammelan itself admitted that the Society was not imparting any education. It had no affiliated colleges. It merely conducts the test. The Society never submitted any application after 1967 before the Statutory Authority to accord recognition and modify the Entry No. 105 to Part I of Schedule II to the Act 1970. Submissions to the effect that 1953 Act conferred privileges upon the Vaidyas in exceptional circumstances to practice and any restriction to practice unless the names are entered in the Central Register is arbitrary and violative of statutory provisions of the State Act, are preposterous for the reason that such privileges, if are repugnant to the provisions of Act 1970, cannot be availed by operation of the provisions contained in Article 254 of the Constitution. Thus, such a restriction can be held violative of equality clause enshrined in Article 14 of the Constitution. 43. At the cost of repetition, it may be pertinent to mention here that in view of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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