Bombay High Court
Dr. Afaque Ahmed Mohd. Iqbal Salar vs The Union Of India And Others on 18 July, 2016
Bench: S.S. Shinde
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6439 OF 2014
Dr. Afaque Ahmed s/o Mohd. Iqbal Salar
Age: 25 years, Occ: Private Practice,
R/o. 387, Shanipeth, Jalgaon,
Jalgaon. PETITIONER
VERSUS
1. The Union of India,
Through its Principal Secretary,
Ministry of Health and Family Welfare,
New Delhi.
2. The State of Maharashtra,
Through its Principal Secretary,
Public Health Department,
Mantralaya, Mumbai.
3. The Principal Secretary,
Medical Education Department,
Mantralaya, Mumbai.
4. The Central Council of Indian Medicine,
Through its Registrar,
'D' Block New Institutional Area,
Janakpuri, New Delhi.
5. Department of Ayush,
Ministry of Health and Family Welfare,
Aayush Bhavan,
B Block, GPO Complex INA,
New Delhi-23.
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6. The Commissioner [Family Welfare]/
Director, National Rural Health Mission,
3rd Floor Arogya Bhavan,
St. George Hospital,
Mumbai. RESPONDENTS
...
Mr.N.E.Deshmukh, Advocate for the petitioner
Mr.V.S.Badakh, AGP for Respondent - State
Mr.B.B.Kulkarni, Advocate for Respondent No.1
...
CORAM: S.S.SHINDE &
ig SANGITRAO S.PATIL,JJ.
Reserved on : 13.06.2016
Pronounced on : 18.07.2016
JUDGMENT: (Per S.S.Shinde, J.):
This Petition is filed with the
following prayers:
A. To quash the order dated 19.07.2014
issued by the respondent No.6 (Exh-
Q) by issuing writ of certiorari or
any other appropriate writ.
C. To hold and declare that the medical
practitioners belonging to Ayush
more particularly BUMS are eligible
to be appointed as Medical Officers
in the recruitment process of
Medical Officers (National Child
Health Team).
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D. To direct the respondent to call
medical practitioners belonging to
Unani medical system for
participating in the recruitment
process for the post of Medical
Officers (National Child health
Team) to be held pursuant to the
advertisement dated 19.07.2014.
2.
It is the case of the petitioner
that he completed his Bachelor of Unani
Medicine and Surgery Degree from the
Maharashtra University of Health Sciences,
Nashik in the year 2011. He is a Medical
Practitioner, duly registered with the
Maharashtra Council of Indian Medicine,
Mumbai. According to him, it is well settled
that the Bachelors of Ayurved Medicine and
Surgery and Bachelors of Unani Medicine and
Surgery recognized under the Indian Medicine
Central Council Act, 1970, ("Act of 1970" for
short) are having equal status. The schedule
appended to the Maharashtra Medical
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Practitioners Act, 1961 ("the Act of 1961"
for short) does not denote any superiority or
inferiority amongst the different systems of
medicine. The above fact is evident from the
communication dated 02.11.1993 which was made
between the Registrar, Maharashtra Medical
Council of Indian Medicine and the All India
Unani Tibbi Conference, Aurangabad.
3. It is further the case of the
petitioner that the Medical Education and
Drugs Department, Mantralaya, Mumbai issued a
Notification on 12.05.1999 and directed
inclusion of the degree of Bachelor of Unani
Medicine and Surgery in part D, after entry
no.11 on the Schedule to the Maharashtra
Medical Practitioners Act, 1961 so as to
enable a person holding such degree to get
registered his name in the register
maintained under the Act of 1961. The
Practitioners of Unani Tibb are at par with
the practitioners of Ayurved, which is also
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evident from the Notification dated
19.05.2004 published by the Central Council
of Indian Medicine, New Delhi. It is the
case of the petitioner that the Government of
Maharashtra, Public Health Department, issued
a communication to the Chief Executive
Officers ig of Zilla Parishads for
implementation of School Health Programme
under the National Rural Health Mission
("NRHM" for short) as sanctioned by the
Government of India. The Secretary and
Commissioner (Family Welfare), vide
communication dated 28.12.2007, directed the
Chief Executive Officers to start the
selection process for recruitment for
implementation of the NRHM programme by
recruiting MBBS Doctors. If the MBBS Doctors
are not available, then BAMS Doctors should
be hired. It is the case of the petitioner
that the Public Health Department of the
Government of Maharashtra has prescribed the
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Recruitment Rules for the appointment of the
Medical Officers in the Maharashtra Medical
and Health Services, Group-A, vide Government
Resolution dated 30.10.2000. The Recruitment
Rules provide for appointment to Group-A
services only to the candidate, who are MBBS
or BAMS, more specifically it reserves 25%
posts for the candidates or practitioners of
Shuddha Ayurved.
4. It is the case of the petitioner
that the Government of Maharashtra issued an
advertisement, calling for applications from
the candidates belonging to MBBS and BAMS
medicine systems for recruiting 52 Doctors as
Medical Officers in the Maharashtra Medical
and Health Services Group-A. The candidates
belonging to Unani or Homeopathic Systems of
Medicine are barred from being considered for
the appointment as Medical Officers. It is
further the case of the petitioner that total
6 Colleges in Maharashtra are conducting the
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course of Unani. If the students of Unani
Tibbi system would not find any scope or ray
of hope in getting the Government jobs, then
it would not only be discouraging, but also
disheartening for them to take Unani, though
their counterparts from Ayurved, who are at
par with them would be recruited by the
Government. The above fallacy would
ultimately lead to closure of Unani Medical
Colleges for want of students and qualified
Lecturers, since no one would be left to
become qualified teachers.
5. It is further the case of the
petitioner that respondent no.6 had issued an
advertisement in all news papers on
17.02.2013, calling upon the candidates
belonging to MBBS and BAMS medical systems to
fill up 1270 posts of Medical Officers, 50%
male and 50% female, apart from Pharmacists
and Nurses to work on contract basis in
National Child Health Scheme. Moreover, the
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guidelines issued by the National Child
Health Programme ("NCHP" for short) provides
for the establishment of mobile teams
consisting of 2 Medical Officers (1 Male and
1 Female), more particularly related to Ayush
(BAMS/BUMS/BHMS/Yoga) and 1 Pharmacist and 1
Nurse. It is further the case of the
petitioner that he along with other persons
related to Unani medical system gave
representation to respondent no.6 pointing
out the fact that the recruitment process
conducted under the National Child Health
Programme requires that the Medical Officers
to be from Ayush (BAMS/BUMS/BHMS/
Yoga/Siddha). It is the case of the
petitioner that respondent no.6 had issued an
advertisement dated 19.07.2014 calling upon
the candidates to fill up the posts of
Medical Officers (National Child Health Team)
for the State Maharashtra wherein only the
Medical Practitioners belonging to MBBS and
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BAMS are called. Although as per the
programme of the National Child Health
Programme, the mobile units should consist of
2 Doctors, 1 Male and 1 Female, belonging to
Ayush.
6. The learned counsel appearing for
the petitioner submits that the petitioner's
claim so as to be considered for the post of
Medical Officer (Rashtriya Bal Swastha
Pathak) is based upon the grounds that the
degree and training of BAMS and BUMS Doctors
i.e. Bachelor of Ayurvedic Medicine System
and Bachelor of Unani Medicine are equivalent
for the reasons that both the degrees BAMS
and BUMS are recognized by the Central
Council of Indian Medicine i.e. CCIM, New
Delhi. The duration of course study of 4 ½
years followed by the 6 months internship and
3 months internship at Primary Health Centre,
Zilla Parishad that too in remote area and 3
months internship at Civil Hospital at
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District place is one and the same for both
BUMS and BAMS. For the BAMS and BUMS
degrees, Modern Medicine Science (Allopathy)
is being taught. Both BAMS and BUMS are
affiliated to the Maharashtra University of
Health Sciences, Nashik. Both BUMS and BAMS,
after completion of medical course are
registered under the Indian Medicine Central
Council Act, 1970 and they can practise
throughout India. BUMS degree holder Doctors
are registered under the Act of 1961 and are
included in Schedule appended to the
aforesaid Act in Part D whereas the BAMS
degree holders are also registered under the
Act of 1961 and are included in Schedule
appended in Part A, B and A-1. The Central
Council of India Medicine New Delhi long
back, vide Notification dated 19.05.2004 has
permitted the degree holders of BUMS and BAMS
to practise modern scientific medicine
including surgery also. The order dated
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23.02.1999 issued by the Deputy Secretary to
Government, under the Drugs and Cosmetics
Rules, 1945, permits the graduates holding
the qualifications for the time being
mentioned in Part A, A-1, B (BAMS-Ayurvedic)
and D (BUMS-Unani) under the Act of 1961 to
practice modern scientific system of medicine
i.e. allopathy. Therefore, he submits that
it may safely be concluded that the status of
Bachelor of Ayurved Medicine System and
Bachelor of Unani Medicine System is equal in
the eyes of law.
7. It is further submitted that the
State of Maharashtra has amended Section 25
the Act of 1961, on 26th June, 2014. The
learned counsel invites our attention to the
said amendment and submits that the said
amendment entitles the Doctors or Degree
Holders of Bachelor of Unani Medicine System
to practise allopathy in the State of
Maharashtra since the training received by
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the BAMS and BUMS degree holders is the same,
since the same subjects of Pharmacology and
Toxicology are taught for both the courses.
The contention of respondent nos.2 and 6 in
their affidavit-in-reply in para 8 is made
without ascertaining the present position of
law i.e.
ig the Maharashtra Medical
Practitioners Act, 1961. It is further
submitted that the contention that 'Unani
graduates are not allowed to practise
Allopathy in Maharashtra at par with MBBS /
BAMS", is not correct, but misleading also.
The petitioner is not comparing himself with
the MBBS, but only with the BAMS.
Respondent nos.2 and 6 have not specifically
pointed out the subjects covered for either
MBBS and BAMS, leave aside the BUMS course,
and therefore, their contention in para 9 of
their affidavit-in-reply is baseless. The
work of addressing 4 D's i.e. Defect,
Disease, Deficiencies and Developmental
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Delays and Disabilities can very well
identified by the Doctors holding BUMS degree
much as the same as Doctors holding BAMS
degree.
8. It is further submitted that the
communication dated 01.09.2007 issued by the
Registrar (I/c.), Maharashtra Council of
Indian Medicine to Member of MCIM clearly
states that the BUMS degree holders can
practise modern system of medicine i.e.
allopathy who are appended to Schedule Part-D
of the Maharashtra Medical Practitioners Act,
1961. It is further submitted that the
Rashtriya Bal Swastha Karyakram under the
National Rural Health Scheme is floated by
the Central Government and the funds are
received from the Central Government for the
above scheme. It is further submitted that
pursuant to filing the present petition, the
Maharashtra Medical and Health Services,
Group-A, Recruitment Rules are amended
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inasmuch as the degree holders of BUMS are
granted 10% reservation in the 25% quota
allotted to BAMS graduates, which means that
the Government of Maharashtra is appointing
the graduates of BUMS as Medical Officers in
District Health Services i.e. in Government
Civil Hospitals.
9. It is further submitted that the
Government of Maharashtra cannot discriminate
between the degree holders of BAMS and BUMS
since it would amount to violation of Article
16 (1) of the Indian Constitution. Moreover,
there is no justification as to why the
graduates holding degree of BUMS are not
called even for the walk-in-interviews to be
conducted by the Civil Surgeon at District
Civil Hospital at every District for the
recruitment of Medical Officers (Rashtriya
Bal Swastha Pathak) under the National Rural
Health Mission when they are granted
permission to practise allopathy and are even
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appointed in the Government Civil Hospitals
throughout Maharashtra. It is further
submitted that the injustice caused to the
graduates of BUMS in Maharashtra by the
respondents is violation of their fundamental
rights. The graduates of BUMS are equally
qualified to practice modern scientific
system i.e. allopathy as their counterpart in
BAMS. Moreover, each year 11 months
appointment are conferred by way of walk-in-
interviews to the graduates of BAMS/MBBS
(rarely MBBS Doctors approach for the walk-
in-interviews). The graduates of BUMS deserve
the opportunity to get employed as Medical
Officers (Rashtriya Swastha Bal Pathak).
Therefore, the learned counsel for the
petitioner submits that the Petition deserves
consideration.
10. On the other hand, the learned AGP
appearing for respondent - State, relying
upon the affidavit-in-reply and additional
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affidavit-in-reply made the following
submissions. The contention of the petitioner
that the degree in the medical fields i.e.
BUMS, MBBS and BAMS are at par is not
correct. These degrees are in the different
streams of medicine and may not be treated as
equivalent. It is submitted that the Medical
Education and Drugs Department, Government of
Maharashtra, vide Notification dated
25.11.1982, made an amendment in Section 25
of the Act of 1961 whereby the Ayurvedic
Practitioners enrolled on the State Register
of Practitioners of Indian Medicine holding
qualification specified in Parts A, B and A-1
of the Schedule appended to the said Act have
been held eligible to practise modern system
of medicine, which is known as Allopathic
system, to the extent of training they
receive in the system. The Unani graduates
are not allowed to practise Allopathy
Medicine in Maharashtra at par with MBBS /
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BAMS. The health is a State subject and the
guidelines issued by the Government of India
from time to time are only suggestive and it
is for the State whether to adopt the
guidelines as per local needs and
circumstances. The Secretary and Commissioner
(Family Welfare), Mumbai, being Recruiting
Authority for all contractual posts falling
under the purview of National Health Mission,
exercised discretionary powers endowed upon
him/her by the relevant Statute. Accordingly
for serving the children who are in need of
diagnosis and early treatment under NCHP, it
was felt that the best resources should be
made available to the beneficiaries of the
scheme. The Government of Maharashtra has
decided to appoint contractual Medical
Officers having qualifications MBBS/BAMS.
Further, the NCHP is a medical checkup
programme based on Allopathic system of
medicine and protocols prescribed thereunder.
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As per MCIM Act, only M.B.B.S. / B.A.M.S.
graduates are authorized to practise
Allopathic system of medicine. The
recruitment Rules framed as per Government
Resolution dated 30.10.2000 are keeping in
view the delivery of quality services at the
Government Health Centres operational in
rural areas.
11. It is submitted that the
advertisement which was issued as per the
Recruitment Rules framed by the Government of
Maharashtra, it is open for the Appointing
Authority to lay down the requisite
qualification for the recruitment of the
Government service and also to lay down
preconditions of appointment, and
accordingly, the Government has fixed the
norms for recruitment. The advertisement was
published by the Mission Director of National
Rural Health Mission, Mumbai. It is submitted
that for proper implementation of the newly
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launched NCHP (Operational Guidelines in
February 2003), for which in the initial
phase the recruitment of human resource is a
very crucial step. The courses i.e. M.B.B.S.,
B.H.M.S., B.A.M.S., B.U.M.S., Yoga and Siddha
are studied after 12th standard. On scrutiny
of all subject-textbooks, the subjects are
covered in more detail for MBBS and
integrated BAMS courses. In view of this,
MBBS was considered in respect of common
subjects being taught, and was prioritized
for recruitment of Medical Officers and
second priority is given to BAMS in case MBBS
candidates are not available. Admittedly, the
present petitioner is holding Bachelors
Degree of Unani Medicine and Surgery and as
per the advertisement the qualification
prescribed is MBBS or BAMS. Therefore, the
petitioner cannot claim appointment to the
post advertised.
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12. It is submitted that the State
Government, vide Government Order, Medical
Education and Drugs Department, bearing
No.CIM.1099/122/C.R.25 / 99 / Acts, dated
23.02.1999, published in the Maharashtra
Government Gazette, dated 25.03.1999, in
pursuance to the provisions of sub-clause
(iii) of clause (ee) of Rule 2 of the Drugs
and Cosmetics Rules, 1945, declared the
persons holding the qualifications for the
time being mentioned in Parts A, A-1, B and D
of the Schedule appended to the said Act of
1961, to be the persons practising the modern
scientific medicine for the purposes of the
Drugs and Cosmetics Act, 1940 (23 of 1940).
It is pertinent to note that the said Part D
contains qualifications in the Unani system
of medicine. Therefore, the learned AGP
submits that when the qualification possessed
by the petitioner is not mentioned in the
advertisement, the question of considering
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the candidature of the petitioner for the
appointment to the said posts which are
advertised, does not arise.
13. We have given consideration to the
submissions of the learned counsel appearing
for the petitioner, the learned AGP appearing
for the respondent - State and also the
learned counsel appearing for respondent
no.5. With their able assistance, perused
the pleadings and grounds taken in the
petition, annexures to the Petition, written
notes of argument submitted by the learned
counsel for the petitioner, reply and
additional reply filed by respondent nos. 2
and 6 and also the reply filed by respondent
no.5. Admittedly, the qualification possessed
by the petitioner does not find mention in
the advertisement. The main bone of
contention of the petitioner appears to be
that the status of Bachelor of Ayurvedic
Medicine System and Bachelor of Unani
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Medicine System is equal in the eyes of law.
It is further the contention of the
petitioner that though the Government jobs
are offered to the degree holders from
Ayurved; the same are denied to the
petitioner and the similar persons possessing
Unani degree amounts to discrimination. It is
the bone of contention of the petitioner that
the Government of India itself recommends to
engage the Doctors belonging to AYUSH
(Ayurveda, Yoga, Unani, Shiddha, Homeopathy).
Therefore, calling applications by the State
Government from the candidates belonging to
only MBBS and BAMS amounts to discrimination.
In our opinion, in this respect, the State
Government is the Competent Authority and the
said subject would exclusively fall within
the sphere of the Legislature / Executive,
either to include or exclude any particular
qualification for the appointment to the post
of Medical Officer. The respondents have
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tried to justify the inclusion of MBBS and
BAMS qualification for the appointment to the
posts, which are advertised, and make
distinction why the candidates possessing
Unani Degree cannot be considered.
14. As rightly contended by the learned
AGP appearing for the respondent - State that
the health is a State subject and upon
comparative status / account, the State
decided to invite applications from the
candidates possessing MBBS / BAMS degrees.
In the circumstances, we are of the
considered view that while exercising the
judicial review, it is not desirable to enter
into exercise of finding out the equivalence
of the qualifications and then direct the
State to include the particular qualification
in the advertisement for the appointment to
the post of Medical Officers. Therefore, the
petitioner will be at liberty to approach the
State Government by filing comprehensive
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representation raising all the issues /
points raised in this Petition. In case such
comprehensive representation is preferred by
the petitioner, the State Government should
consider it keeping in view all the legal
provisions and also practical implications of
adding / non-adding BUMS qualification for
the appointment to the post of Medical
Officers. The State Government should also
keep in view the contention of the petitioner
that under National Rural Programme the BUMS
Doctors are appointed as Medical Officers on
contract basis. However, we are not inclined
to grant any stay to the recruitment process
initiated on the basis of the advertisement
dated 19th July, 2014. We clarify that
respondent nos. 1 to 3 can go ahead with the
recruitment process initiated pursuant to the
advertisement and make appointments as
scheduled.
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15. The Writ Petition stands disposed of
in the above terms. No costs.
Sd/- Sd/-
(SANGITRAO S.PATIL) (S.S.SHINDE)
JUDGE JUDGE
DDC
