Dr. Ved Prakash Tyagi vs Union Of India & Others
2014 Latest Caselaw 2424 Del

                            Reserved Judgment
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

                 Special Appeal No. 70/2014

Dr. Ved Prakash Tyagi                                  ... Appellant
                               Versus

Union of India & 6 Other                           ... Respondents
Mr. Jeevan Prakash Sharma, Advocate, for the appellant/petitioner.
Mr. B.P.S. Mer, Advocate, for the Union of India/respondent 1.
Mr. Subhash Upadhyaya, C.S.C., for the State of Uttarakhand/respondents 2
and 3.
Mr. Paresh Tripathi, Advocate, for the respondents 4 and 5.
Mr. Pradeep Kumar Chauhan, Advocate, for the respondent 6.
Mr. Harshpal Sekhon, Advocate, for the respondent 7.

                               JUDGMENT

Coram: Hon'ble Servesh Kumar Gupta, J.

Hon'ble U.C. Dhyani, J.

Per : Hon'ble Servesh Kumar Gupta, J.

By way of this appeal, the judgment dated 10.3.2014, passed by a learned Single Judge of this Court, has been assailed. Simultaneously, the prayer has also been advanced in this appeal that the writ petition of Mr. Tyagi (appellant/petitioner) should be allowed in toto by this Appellate Court itself.

2. Having heard learned Counsel for each and every party at length, we feel that it would not be desirable on our part to adjudicate the matter in issue in the writ petition as the same would tantamount to taking over the jurisdiction of the writ court. More so, by way of instant appeal, basically the impregnability of the judgment of learned Single Judge, whereby he has refused to entertain the writ petition on the ground of availability of alternate statutory remedy to the petitioner, has been questioned. So, we are keeping ourselves limited only to the extent of this aspect which itself now has become an issue between the parties. However, mentioning of some facts are indispensable in

order to arrive at the correct finding on this controversy.

3. Petitioner basically hails from the State of Uttarakhand. Somehow, he was in his medical (Ayurvedic) profession in Rajasthan for decades. At the fag end of his career, he made up his mind to shift to his home State. So, after obtaining 'No Objection Certificate' from Rajasthan State Medical Board, he got his provisional registration done on 10.1.2011 in the State Medical Board of Uttarakhand Government, which was valid till 11.10.2011. This provisional registration was made permanent on 11.4.2011 and it was made valid up to 10.3.2016. Here the fact remains that the registration of the petitioner in Rajasthan State Medical Board could be terminated only on 27.6.2011. Meaning thereby, at the time of being permanently registered in Uttarakhand State Medical Board, his registration in Rajasthan Board was subsisting. So, this was later on agitated by his colleagues, led by Dr. Vinod Kumar Chauhan, respondent 6. It was done more so because the question could not remain confined only up to simple registration of the petitioner in Uttarakhand State Board, but being a member of the Ayurvedic Doctors State List, he was elected as a member of Central Council of Indian Medicine based at Delhi, which is the central body to regulate all Ayurvedic and related medical colleges in the entire country. This exalted position of the petitioner was further elevated because he was elected as the President of Central Council of Indian Medicine.

4. On the complaints made to Uttarakhand Board, raising the issue of dual registration at a time,

show cause notice was issued to the petitioner on 28.6.2011 by the Registrar of Uttarakhand Board. Ultimately, Uttarakhand Board cancelled the registration of the petitioner on 9.5.2013 and later refused to uphold the registration up to 10.3.2016.

5. The petitioner preferred an appeal under Section 43 of The United Provinces Indian Medicine Act, 1939 (hereinafter called as the 'State Act'). The State Government was the appellate authority. Principal Secretary, authorized officer on behalf of the State Government, dismissed the appeal of the petitioner on 19.7.2013 upholding the decision of the State Board, and the impact of the cancellation of the registration in Uttarakhand Board was the seizure of the name of the petitioner from the Central Council of Indian Medicine. Appropriate orders were passed by the Central Government on 27.7.2013.

6. The net result of all this was that the petitioner was no longer eligible to retain the post of President of the Central Council of Indian Medicine. This is the main controversy which is before us. However, at this stage, we are not inclined to deal with the issues of the validity or invalidity of the registration of the petitioner in Uttarakhand or its cancellation or his seizure to act as the President of Central Council of the Indian Medicine. We leave these questions to be adjudicated first by the writ court.

7. We would like to dwell upon only on the question of availability of the alternate statutory remedy, debarring the petitioner to knock the door of the writ court.

8. We have gone through the impugned judgment of the learned Single Judge dated 10.3.2014 and feel that the relevant provisions of Section 43 of the State Act and Section 27(2) coupled with the Regulations, 1979 framed by the Central Government in exercise of the powers conferred by Section 36 of The Indian Medicine Central Council Act, 1970 (hereinafter called as the 'Central Act'), have not been correctly construed.

9. It would be in the fitness of things to reproduce the said provision. Section 43 of the State Act reads as under:

"43. Appeals to the State Government from decision of Board.--(1) An appeal shall lie to the State Government from every decision of the Board under this Act except a decision made by the Board as an appellate authority."

10. Bare literal reading of this provision makes it abundantly clear that every decision (except those which have been passed by the State Board in its capacity of appellate authority) of the State Board under this Act shall be appellable to the State Government. Rather, it makes it mandatory for the aggrieved persons to prefer an appeal to the State Government against every such decision of the Board and the petitioner did exactly the same in compliance of said mandate.

11. It is true that at the time of enactment of this State Act, there was no Central Council of Indian Medicine or the existence of the Central Act, which were later on enacted in the post-Constitutional times in the year 1970. This Central Act has not repealed the State Act. There is no clause, in the entire Central Act,

repealing the State Act or making it inoperative to any extent.

12. Section 27(2) of the Central Act reads as under:-

"27. Removal of names from the Central Register of Indian Medicine--

(1)......(not relevant at this stage for our purpose).

(2) Where the name of any person has been removed from a State Register of Indian Medicine on any ground other than that he is not possessed of the requisite medical qualifications or where any application by the said person for restoration of his name to the State Register of Indian Medicine has been rejected, he may appeal in the prescribed manner and subject to such conditions, including conditions as to the payment of a fee, as may be prescribed, to the Central Government whose decision, which shall be given after consulting the Central Council, shall be binding on the State Government and on the authorities concerned with the preparation of the State Register of Indian Medicine."

13. It becomes explicit by reading the above provision of the Central Act that it was not incumbent upon the petitioner to prefer the appeal to the Central Government against the cancellation of his name in the State Register. After enactment of the Central Act, two remedies were available to the petitioner and out of these two remedies, he was at his choice either to prefer the appeal to the Central Government or to the State Government. Rather, to prefer an appeal to the State Government was more intended by the law as the

word "shall" has been used in Section 43 of the State Act. Undoubtedly, we may infer that since the Central Act was not in existence at the time of enactment of the State Act, so the only remedy, available to an aggrieved person, was to prefer an appeal to the State Government, wherefor the provision has been made in Section 43 of the State Act.

14. At the time of enactment of the Central Act, our Parliament was aware of the right available to an aggrieved person under Section 43 of the State Act. Hence, the word "may" has been used in Section 27(2) of the Central Act. The intention of the Parliament was made more explicit and clear by enactment of the Regulations of 1979, which prescribe the 'Form-D' for preferring an appeal to the Central Government. In case, an aggrieved person chooses to prefer the appeal to the Central Government, then he was bound to submit an undertaking to the effect, "I have not made any appeal to the State Government in this matter". Meaning thereby, after cancellation of the registration of the petitioner by the Uttarakhand Board, an alternate remedy accrued to the petitioner to prefer an appeal to the Central Government, but in that case, he was bound to submit an undertaking as stated above. However, when the petitioner chose to prefer the appeal to the State Government, a remedy which was available under the State Act, then there was no question for him to prefer a second appeal to the Central Government, because in that eventuality he could not have submitted the said undertaking as has been mandated by Clause 5 of the 1979 Regulations.

15. It has strenuously been argued on behalf of respondents 3 and 4 that the petitioner himself has

made an averment in paragraph 36 of the writ petition filed on 24.7.2013 submitting to this Court to consider the reference of the matter to the Central Government under the Regulations of 1979. This averment is supported by an affidavit filed along with the writ petition. Further, the same averment has been relied by the petitioner appellant in paragraph 3 of the affidavit dated 10.3.2014 filed in support of his appeal. So, the learned Counsel for the said respondents intends to argue that when the petitioner himself is praying that this Court should refer the matter to the Central Government, then how he could be permitted to press the prayers of his writ petition, which have been further reiterated in the instant appeal.

16. To our mind, the argument of the learned Counsel for the respondents 3 and 4 is thoroughly misconceived for the reason that if any averment, either in the writ petition or in the appeal, talks to the notion which is contrary to the law prevailing on the issue concerned, then the Courts should not accept that averment and this concept has been well explained in the precedent of Hon'ble Supreme Court rendered in 2011 (12) SCC 658 (at page 663), Vimaleshwar Nagappa Shet v. Noor Ahmad Sharif & Others, wherein it has been held that an erroneous concession made by a Counsel on a question of fact is binding on the client, but if it is on a question of law, it is not binding. We may understand that here the averment is not of the Counsel, but it is of the petitioner himself. So, in this eventuality, we would like to elaborate the said concept laid down by the Hon'ble Supreme Court a little further that if any erroneous concession is pleaded by a petitioner or any litigant (may it be on the affidavit), which is contrary to the

position of the law, then the Courts are not supposed to pay any regard to it. The Courts cannot function only on the basis of any averment made by a litigant, which, in the opinion of the Court, is not in accordance with law. That apart, there is no such provision either in the Central Act or in its Regulations empowering this Court to refer the matter to the Central Government. So, the argument of learned Counsel for respondents 3 and 4, in our opinion, is quite misconceived.

17. So, in the above circumstances, the appellant/petitioner cannot be left remediless, and the filing of the writ petition is the one and only remedy, which was available to the petitioner. His writ petition, to our view, cannot be thrown out on the ground of alternative remedy, which is, now, not at all available to him under the Central Act.

18. Learned Single Judge in the impugned judgment has dealt with the Regulations of Medical Education by the Central Council of Indian Medicine, but with all due regards to the opinion of the learned Judge, we are of the view that presently this was not the subject matter before the writ court and the finding ought to have been confined only to the validity/invalidity of the registration of the petitioner in the State Register and then in the Central Register and further on holding the office of President of the Central Council of Indian Medicine in the aforementioned facts and circumstances of the case.

19. We are conscious of the fact that Hon'ble Apex Court, in the Special Leave Petition presented by the petitioner, has expected this Court to adjudicate this matter expeditiously. So, in furtherance of that

hope and expectation of Hon'ble Apex Court, we would like to request the learned Single Judge to decide the present controversy as expeditiously as possible.

20. Thus, we allow this special appeal and set aside the impugned judgment of learned Single Judge dated 10.3.2014. We remand the matter back to the learned Single Judge of this Court and send back the writ petition for its adjudication with the request made by us hereinabove.

(U.C. Dhyani, J.) (Servesh Kumar Gupta, J.) 13.5.2014 Prabodh