Dr Makandar Basheer Ahamad vs The State Of Karnataka
2022 Latest Caselaw 5608 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 29TH DAY OF MARCH, 2022

                          PRESENT

           THE HON'BLE MRS.JUSTICE S.SUJATHA

                            AND

        THE HON'BLE MR. JUSTICE RAVI V. HOSMANI

                   W.A.No.148/2021 c/w
           W.A.No.149/2021, W.A.No.159/2021 &
               W.A.No.163/2021 (GM - RES)

IN W.A.No.148/2021:

BETWEEN :
Dr. UMESH P.G.,
S/O P.T.GOWDAIAH
AGED ABOUT 62 YEARS,
R/O GARANI, MADUGIRI TALUK
TUMKURU DISTRICT - 572 132                      ...APPELLANT

              (BY SRI RAJESH MAHALE, ADV. A/W
      SRI BALASUBRAMANYA B.N., ADV. FOR SMT.RACHITA
                       NANAIAH M., ADV.)
AND :
1.      CENTRAL COUNCIL OF INDIAN MEDICINE
        BY ITS REGISTRAR, NEW DELHI - 110 001
2.      THE KARNATAKA AYURVEDIC & UNANI
        DEPARTMENT BOARD
        BY ITS SECRETARY
        DHANVANTRI ROAD
        BENGALURU - 560 009
3.      THE SECRETARY
        DEPARTMENT OF FAMILY & CHILD WELFARE
        VIDHANA SOUDHA
        BENGALURU - 560 001.
                        -2-

4.   MINISTRY OF HEALTH & FAMILY WELFARE
     GOVERNMENT OF INDIA, NEW DELHI

5.   Dr. SUVARNA DEVI
     W/O K.GOPAL GOWDA
     AGED ABOUT 60 YEARS
     R/O SRINIVASA CLINIC
     KODIGENAHALI, M.H.ROAD
     MADUGIRI TOWN
     TUMKURU DISTRICT - 572 312

6.   Dr. CHARIKKA THODUVEL UMMER ZUBAIDA
     D/O UMMER C.,
     AGED ABOUT 70 YEARS
     R/AT NO.646, NEAR KSRTC DEPOT
     ANDERSONPET, BANGARPET TALUK,
     KOLAR- 563 113                 ...RESPONDENTS

            (BY SMT.MANASI KUMAR, ADV. FOR
              SMT.NIDHI HANJI, ADV. FOR R-1;
           SMT.SUMANA BALIGA, ADV. FOR R-2;
       SRI T.P.SRINIVASA, PRL. GOVT. ADV. FOR R-3;
          SRI RAKSHITH JOIS Y.P., CGC FOR R-4.)

      THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE WRIT
APPEAL BY SETTING ASIDE THE IMPUGNED ORDER OF THE
LEARNED SINGLE JUDGE DATED 17.12.2020 PASSED IN
W.P.No.56344-56346/2013, BY ALLOWING THE WRIT PETITION
FILED BY THE PETITIONER.


IN W.A.No.149/2021:

BETWEEN :
1.   Dr. MAKANDAR BASHEER AHAMAD
     S/O BUDANSHA,
     AGED ABOUT 53 YEARS,
     R/AT MUMMIGATTI VILLAGE & POST,
     DARWAD DISTRICT.

2.   Dr. J.K.JAYAVIBHAVA
     S/O J.S.KARI BASAPPA
     AGED ABOUT 63 YEARS,
                       -3-

     OCC: BASAVANNA BEEDI POST,
     HOLALKERE, CHITRADURGA DISTRICT.

3.   Dr. S.S.BIRADAR
     S/O SANGAN GOWDA BIRADAR
     AGED ABOUT 61 YEARS,
     R/AT BABALESHWAR,
     BIJAPUR TALUK & DISTRICT.

4.   Dr. I.G.BUDYAL
     S/O GYANAPPA BUDYAL,
     AGED ABOUT 64 YEARS
     R/AT NEAR VITHAL GUDI
     BABALESHWAR,
     BIJAPUR TALUK & DISTRICT

5.   Dr. VIJAYA KUMAR PALLED
     S/O BASAPPA PALLAD,
     AGED ABOUT 61 YEARS,
     R/O SAVADATTI,
     OLD BUS STAND ROAD,
     BELGUAM DISTRICT.

6.   Dr. BASAVARAJA KAMMARA
     S/O RUDRAPPA
     AGED ABOUT 63 YEARS,
     R/O HONDADA ONI,
     BYADGI POST & TALUK

7.   Dr. LAL AHMED
     S/O SHAIK FAKRUDDIN,
     AGED ABOUT 65 YEARS,
     DODDAPET, HOSADURGA
     CHITRADURGA DISTRICT
8.   Dr. SHEIK NISSAR
     S/O SHEIKH FAKRUDDIN,
     AGED ABOUT 62 YEARS
     YADAGANAHALLI (POST),
     SRINIVASPURA TALUK,
     KOLAR DISTRICT

9.   Dr. Y.P.MAHABOOB KHAN
     S/O FAKRU KHAN,
     AGED ABOUT 63 YEARS,
                         -4-

       R/AT NO.135(A), 4TH BLOCK
       DODDA BOMASANDRA, BANGALORE.

10 .   Dr. M.NOOR PASHA
       S/O MEHABOOB KHAN,
       AGED ABOUT 62 YEARS
       R/AT 447, 6TH BLOCK,
       10TH G MAIN ROAD,
       RAJAJI NAGAR, BANGALORE -10.

11 .   Dr. MUNEER AHAMED
       S/O FAKRUDDIN,
       AGED ABOUT 54 YEARS
       R/AT 4TH MAIN ROAD,
       ANEKAL TALUK & DISTRICT.

12 .   Dr. Y.A.WAZEER AHMED
       S/O Y.P.ABDUL SUBHAN
       AGED ABOUT 62 YEARS
       R/AT MAIN ROAD, SRINIVASAPURA,
       KOLAR DISTRICT, KOLAR.

13 .   Dr. SHAIK DASTAGIR
       S/O SHAIK MAHABOOB,
       AGED ABOUT 63 YEARS,
       R/AT NO.489/54, 1ST STAGE,
       7TH MAIN ROAD, 2ND BLOCK,
       YESHWANTHAPUR, BANGALORE -22.
14 .   Dr. B.MAHARUDRAPPA
       S/O BADIGE ERANNA,
       AGED ABOUT 62 YEARS,
       R/AT CHAPPARADAHALLI
       AMRAVATHI ROAD,
       NEAR JALANJANEYA TEMPLE
       HOSPET TALUK, BELLARY DISTRICT.
15 .   Dr. Y.M.HUSSAIN KHAN
       S/O MAHABOOB KHAN,
       AGED ABOUT 62 YEARS,
       R/AT NO.447, 10TH G MAIN ROAD,
       6TH BLOCK, RAJAJINAGAR, BANGALORE.

16 .   Dr. MAHAMMED CHAND
       S/O MEHBOOB
                          -5-

       AGED ABOUT 62 YEARS
       R/AT KURUBABA HALLI,
       MULBAGULU TALUK,
       KOLAR DISTRICT.

17 .   Dr. B.THIPPE SWAMY
       S/O BADIGER VEERANNA
       AGED ABOUT 60 YEARS
       R/AT GENIKAL ROAD,
       KURUGODU POST,
       BELLARY DISTRICT

18 .   Dr. BANNIKAL KUMAR SWAMY
       S/O BANNIKAL ESHAPPA
       AGED ABOUT 60 YEARS
       R/AT HOUSE NO.45,
       K.V.O.R. COLONY, H.B.HALLY,
       BELLARY DISTRICT -583 212.

19 .   Dr. PUDUGOSI ANJINEYULU
       S/O PUDUGOSI NEELAPPA
       AGED ABOUT 62 YEARS
       R/AT 9TH WARD, SIRUGUPPA ROAD,
       KURUGODU POST, BELLARY

20 .   Dr. MALLAPPACHAR
       S/O LATE V.VENKATESHULU
       AGED ABOUT 59 YEARS
       R/AT BELLARY ROAD,
       HOSPET TALUK, BELLARY DISTRICT.

21 .   Dr. MOHAMED NAZEER PASHA
       S/O MOHAMED GHOUSE
       AGED ABOUT 61 YEARS
       R/AT JAI PET
       GUBBI POST & TALUK DISTRICT

22 .   Dr. G.N.RASHIDULLA KHAN
       S/O NABI KHAN
       AGED ABOUT 61 YEARS
       R/AT GOLD SMITH STREET
       GUBBI POST & TALUK,
       TUMKUR DISTRICT
                           -6-

23 .    Dr. BIMALEINDU PAUL
        S/O RAMESH CHAND PAUL
        AGED ABOUT 56 YEARS
        PAUL CLINIC, OPP. S.B.M.TOWN
        POLICE STATION ROAD, TUMKUR.

24 .    Dr. SWARINDU KUMAR SINHA
        S/O SRI M.B.SINHA
        AGED ABOUT 63 YEARS
        R/AT NO.8-7-634/1, K.M.COMPOUND,
        CAR STREET, MANGALORE.

25 .    Dr. SUBRATA KUMAR PAUL
        S/O SUJAN CHANDRA PAUL
        AGED ABOUT 58 YEARS
        R/AT NO.116/28, KERBADI LAYOUT
        K.B.EXTENSION, DAVANAGERE POST
        CHITRADURGA DISTRICT.                 ...APPELLANTS

       (BY SRI J.M.NAIDU, ADV. A/W SRI SUDHAKAR M. ADV.)

AND :
1.      THE STATE OF KARNATAKA
        REP. BY ITS SECRETARY,
        DEPT. OF HELATH & FAMILY WELFARE
        VIKASA SOUDHA, BANGALORE - 560009

2.      THE DIRECTOR
        AYUSH, DHANAVANTHRI ROAD
        BANGALORE-560009
3.      THE KARNATAKA AYURVEDA & UNANI
        PRACTITIONER'S BOARD
        REP. BY ITS ADMINISTRATOR
        DHANAVANTHRI ROAD
        AYUSH DIRECTORATE BUILDING
        BANGALORE -560 009
4.      THE REGISTRAR
        THE KARNATAKA AYURVEDA &
        UNANI PRACTITIONER'S BOARD,
        DHANAVANTHRI ROAD, BANGALORE - 560009
5.      THE SECRETARY OF CENTRAL
        COUNCIL OF INDIAN MEDICINE
                            -7-

       61-65, INSTITUTIONAL AREA,
       JANAKPURI, NEW DELHI -110 058.

6.     THE UNION OF INDIA
       REP BY ITS SECRETARY
       DEPT. OF MINISTRY OF FAMILY,
       HEALTH & WELFARE, NEW DELHI-110058

7.     Dr. ATEEQUR REHAMAN
       SHAHAD AHMED YADGIR
       S/O YADGIR S.M., AGED ABOUT 61 YEARS
       R/O OPP. CORPORATION QTRS.,
       GANESHPETH, HUBLI-580020
8.     Dr. BALACHANDRA KRISHNAPPA
       PAGALINAYAK
       S/O KRISHNAPA
       AGED ABOUT 64 YEARS
       R/AT HOSUR (RABAKAVI) BUS STOP
       NEAR WATER TANK, JAMAKHANDI TALUK
       BAGALKOT-587101
9.     A.RIYAZ
       S/O Y.H.ABDUL SUBHAN
       AGED ABOUT 64 YEARS
       R/AT NO.1059, K.R.MOHALLA
       SUNNADAKARI, MYSORE-570002            ...RESPONDENTS

     (BY SRI T.P.SRINIVASA, PRL. GOVT. ADV. FOR R-1 & R-2;
                  SRI MANASI KUMAR, ADV. A/W
                 SMT.NIDHI HANJI, ADV. FOR R-5;
           SMT.SUMANA BALIGA, ADV. FOR R-3 & R-4;
             SRI RAKSHITH JOIS Y.P., CGC FOR R-6.)

      THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE WRIT
APPEAL BY SET ASIDE THE ORDER DATED 17.12.2020 PASSED
IN W.P.No.51899/2013 BY THE LEARNED SINGLE JUDGE BY
ALLOWING THE WRIT PETITION OF THIS HON'BLE COURT.

IN W.A.No.159/2021:

BETWEEN :
1.     Dr. V.V.HYDER SAB
                        -8-

     S/O IMAM SAB
     AGED ABOUT 71 YEARS
     R/AT NO.102, SUHEL MANZIL
     1ST CROSS, B BLOCK
     KANAKA NAGAR, R.T.NAGAR
     BENGALURU-560 032

2.   Dr. H.MOULASHA
     S/O HYDER SAB
     AGED ABOUT 62 YEARS
     R/AT NO.102, 1ST CROSS
     B BLOCK, KANAKA NAGAR
     R.T.NAGAR, BENGALURU-560 032

3.   Dr. Y.M.AMEER PASHA
     S/O Y.E.SHAIK MEHABOOB
     AGED ABOUT 63 YEARS,
     R/AT NO.184, 9TH C STREET,
     JOGUPALYA, ULSOOR,
     BENGALURU-560 008

4.   Dr. Y.N.NAGARAJ
     S/O A.VENKATACHALAPATHI,
     AGED ABOUT 62 YEARS
     R/O OPP. SAPTHAGIRI PETROL BUNK,
     B.B.ROAD, YALAHANKA,
     BENGALURU-560 064
5.   Dr. IQBAL HUSSAIN WASIF
     S/O MOHAMMED ARIF,
     AGED ABOUT 63 YEARS,
     R/AT NO.60, 8TH MAIN,
     PADARAYANAPURA, BENGALURU-560 026

6.   Dr. SHABEEN TAJ
     D/O ABDUL RAZACK SAB,
     AGED ABOUT 64 YEARS,
     R/O SULIKUNTE, BANGARPET TALUK,
     KOLAR DISTRICT-563 114

7.   Dr. MANJUNATH
     S/O LATE SANNADYAMANNA,
     AGED ABOUT 65 YEARS,
     R/O KALIDASA NAGAR, SIRA,
     TUMKUR DISTRICT-572 137
                          -9-

8.      Dr. RAJANNA
        S/O ERADASAPPA,
        AGED ABOUT 66 YEARS,
        R/AT NO.20, ANUGRAHA,
        NEAR SHIVAGANGA KALYANA MANTAP,
        MALLASANDRA, BENGALURU-560 057

9.      Dr. VASANTHA KUMAR D.H.,
        S/O DODDA HONNAIAH,
        AGED ABOUT 64 YEARS,
        R/O TAVAREKERE,
        BENGALURU RURAL DISTRICT-562 132

10 .    Dr. K.KRISHANAPPA
        S/O KARIYANNA,
        AGED ABOUT 65 YEARS,
        R/AT NO.555, 3RD MAIN ROAD,
        UDAYA PUBLIC SCHOOL,
        OPP. RAJESHWARINAGAR,
        LAGGERE, BENGALURU-560 058

11 .    Dr. SHANKUKAPPA
        S/O SUBBANNA KAMMAR,
        AGED ABOUT 63 YEARS,
        R/O GUDDADAMATTI HALLI POST,
        UPPUNISHI TALUK, HANAGAL DISTRICT,
        HAVERI-581 148
12 .    Dr. ESHWARA SHETTY
        AGED ABOUT 65 YEARS,
        S/O LATE KALLAPA,
        RES, 75, 1ST CROSS,
        MARISWAMY MATDAGALLI,
        COTTON PET, BANGALORE-560 053         ...APPELLANTS

               (BY SRI RAJESH MAHALE, ADV. A/W
       SRI BALASUBRAMANYA B.N., ADV. FOR SMT.RACHITA
                        NANAIAH M., ADV.)

AND :
1.      CENTRAL COUNCIL OF INDIAN MEDICINE
        BY ITS REGISTRAR, NEW DELHI-110 001

2.      THE KARNATAKA AYURVEDIC &
        UNANI DEPARTMENT BOARD
                       - 10 -

     BY ITS SECRETARY,
     DHANVANTRI ROAD,
     BENGALURU-560 009

3.   THE SECRETARY
     DEPARTMENT OF FAMILY & CHILD WELFARE,
     VIDHANA SOUDHA, BENGALURU-560 001

4.   MINISTRY OF HEALTH & FAMILY WELFARE
     GOVERNMENT OF INDIA, NEW DELHI

5.   Dr. CHERIKKA THODUVIL UMMER ZUBAIDA
     D/O UMMER C.,
     AGED ABOUT 70 YEARS
     R/AT NO.646, NEAR KSRTC DEPOT
     ANDERSONPET, BENGALURU TALUK
     K.G.F., KOLAR DISTRICT

6.   Dr. Y.H.VAZEER AHMED
     S/O Y.H.HYDER SAB
     AGED ABOUT 66 YEARS
     R/O N.R.EXTENSION, CHINTAMANI
     CHIKKABALLAPUR DISTRICT-563 125

7.   Dr. ABDUL AZEEM MAJID
     S/O R.M.ABDUL HAZEEZ
     AGED ABOUT 66 YEARS
     R/AT NO.34, 12TH CROSS
     KANAKA NAGAR, R.T.NAGAR POST
     BENGALURU-560 032

8.   Dr. B.T.CHANDRASHEKARA GOWDA
     S/O THIMMEGOWDA H.,
     AGED ABOUT 68 YEARS
     R/AT NO.72/1, 1ST MAIN
     KSRTC LAYOUT
     VISHWANEEDAM POST
     MAHADESHWARA NAGAR 2ND STAGE
     HEROHALLI, BENGALURU-560 091

9.   Dr. PANCHAKSHARI
     S/O ESWARAPPA MAYACHARI
     AGED ABOUT 73 YEARS
     R/O KALIDASA NAGAR
                        - 11 -

     HIREKERUR POST
     HAVERI DISTRICT-581 111              ...RESPONDENTS

            (BY SMT.MANASI KUMAR, ADV. FOR
              SMT.NIDHI HANJI, ADV. FOR R-1;
           SMT.SUMANA BALIGA, ADV. FOR R-2;
       SRI T.P.SRINIVASA, PRL. GOVT. ADV. FOR R-3;
          SRI RAKSHITH JOIS Y.P., CGC FOR R-4.)

     THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO ALLOW THE WRIT
APPEAL BY SETTING ASIDE THE IMPUGNED ORDER OF THE
LEARNED SINGLE JUDGE DATED 17.12.2020 PASSED IN
W.P.NO.53976/2013, BY ALLOWING THE WRIT PETITION FILED
BY THE PETITIONERS.

IN W.A.No.163/2021:

BETWEEN :
1.   Dr. S.HAJI PEERAN
     S/O S.MASTHAN SAHEB
     AGED ABOUT 76 YEARS
     R/O SRINIVASPUR
     KOLAR DISTRICT-563135

2.   Dr. C.BHANUMURTHY
     S/O Dr. C.SRINIVASAIAH
     AGED ABOUT 68 YEARS
     R/AT NO.10,
     BEHIND OLD POLICE STATION
     KONANAKUNTE, BENGALURU - 560062

3.   Dr. HYDER SHERIFF
     S/O MOULASAB
     AGED ABOUT 66 YEARS
     BHARAT PILES & FISTULA CLINIC
     OLD M.C.ROAD, NEAR HASSAN CIRCLE,
     MANDYA - 571401

4.   Dr. Y.M.KAKISHA
     S/O MOULASAB
     AGED ABOUT 63 YEARS
     R/O BACHELLI, GUNDLUPET TALUK
     CHAMARAJANAGAR DISTRICT - 571313
                          - 12 -

5.     Dr. K.SRINIVAS
       S/O KRISHNAPPA
       AGED ABOUT 62 YEARS
       2ND MAIN, PRAKASHNAGAR
       BENGALURU - 560021

       NOW R/AT KUDYANOOR
       MALUR TALUK
       KOLAR DISTRICT - 563130

6.     Dr. Y.P.MASTHAN KHAN
       S/O HAKIM PACHA HASAN
       AGED ABOUT 66 YEARS
       R/O SALAGAM ROAD, HASSAN - 573201

7.     Dr. NISSAR AHMED
       S/O ABDUL SATTAR
       AGED ABOUT 62 YEARS
       2215, NEAR WATER TANK
       K.R.PET, MANDYA DISTRICT - 571401

8.     Dr. A.SHARATH KUMAR
       D/O LATE S.GOPALAKRISHNA
       AGED ABOUT 62 YEARS
       SAI KRISHNA CLINIC, ALPUR POST
       CHICKMAGALURU DISTRICT - 571111

9.     Dr. SILAR RAO
       S/O SAIDA RAO
       AGED ABOUT 72 YEARS
       OPP. SHASHIMAHAL TALKIES
       NO.4-5-18, RAICHUR - 101
10 .   Dr. GURULINGAPPA
       S/O R.SHARANAPPA
       AGED ABOUT 62 YEARS
       R/O PATTAN POST,
       GULBARGA DISTRICT - 585311
11 .   Dr. M.MOULASA
       S/O SHAIK MAHABOOB SAB
       AGED ABOUT 67 YEARS
       R/O 3RD CROSS, CHRISTIAN COLONY
       NEAR SHIVANANJAPPA PARK
       MANDYA - 571401
                         - 13 -

12 .   Dr. T.H.SHAMSHUDDIN
       S/O T.HUSSAIN SAB
       AGED ABOUT 67 YEARS
       C/O SUBBANNACHAR
       KANCHUKAR STREET
       CHANNARAYAPATNA
       HASSAN DISTRICT - 573116

13 .   Dr. MOULASHA
       S/O SHAIK FAKRUDDIN
       AGED ABOUT 63 YEARS
       R/O BEGUR MAIN ROAD
       GUNDLUPET
       CHAMARAJANAGAR DISTRICT - 571313

14 .   Dr. Y.S.CHANDBASHA
       S/O LATE SHAIK FAKRUDDIN
       AGED ABOUT 64 YEARS
       R/AT NO.1545, 17TH MAIN ROAD
       YESHWANTHPUR
       BENGALURU - 560022

15 .   Dr. Y.H.MOHAMMED SHARIFF
       S/O HUSSAIN SAB
       AGED ABOUT 77 YEARS
       PILES & FISTULA CLINIC
       HASANAMBA CIRCLE
       HASSAN - 573201

16 .   Dr. MOHAMMED SHARIFF
       S/O H.S.PYAREJAN
       AGED ABOUT 66 YEARS
       R/AT NO.222, 5TH CROSS
       2ND STAGE, MYSURU - 570001

17 .   Dr. SHARANAPPA
       S/O CHANNABASAPPA
       AGED ABOUT 58 YEARS
       R/O KALKERI POST, SINDGI TALUK
       BIJAPUR DISTRICT - 586118

18 .   Dr. VISHWANATHA H.L.,
       S/O LAKSHMANACHAR
       AGED ABOUT 68 YEARS
                         - 14 -

       R/O MALLILPATTANA POST
       ARAKALAGUDU TALUK
       HASSAN DISTRICT - 573102

19 .   Dr. MOHAMMED
       S/O MAQBUL
       AGED ABOUT 66 YEARS
       R/O SHAHABAD
       GULBARGA DISTRICT - 585226

20 .   Dr. VINOD KULKARNI
       S/O CHANDRAKANTH
       AGED ABOUT 66 YEARS
       R/O C-13, GANASHAM COMPLEX
       MAHALAKSHMI NAGAR,
       GULBARGA - 103

21 .   Dr. RAJU B.S.,
       S/O LAKSHMINARASIMHAIAH
       AGED ABOUT 58 YEARS
       R/O PANDITHANAHALLI
       B.G.PURA HOBLI, MALAVALLI TALUK
       MANDYA DISTRICT - 571401
22 .   Dr. KANTHARAJU N.,
       S/O NARASIMHAIAH
       AGED ABOUT 58 YEARS
       R/O MIKKARE, KIRUGAVALU HOBLI
       MALAVALLI TALUK
       MANDYA DISTRICT - 571401
23 .   Dr. MOHAMMED RAFI
       S/O KUTTUBUDDIN NADAF
       AGED ABOUT 66 YEARS
       R/O BHAGYANAGAR, RAMDURG
       BELGAUM DISTRICT - 591123
24 .   Dr. B.H.RAMANJANEYA
       S/O B.S.HANUMANTHAIAH
       AGED ABOUT 63 YEARS
       R/O BEDATHUR POST & VILLAGE
       MADHUGIRI TALUK
       TUMKUR DISTRICT- 572133
25 .   Dr. MOGAL KASIM SAHEB
       S/O HUSSAIN SETH
                           - 15 -

        AGED ABOUT 83 YEARS
        R/O ROSHAN PILES CLINIC
        SP COMPLEX,
        NEAR JANI CLOTH MARKET
        TANK BUND ROAD, BELLARY - 583102

26 .    Dr. PATHAN MASTAN RAO
        S/O SAIDA RAO
        AGED ABOUT 66 YEARS
        R/AT NO.13-3-141, BALAJI CLINIC
        LAKSHMI NIVAS,
        NEAR HYDERABAD ROAD
        LADAGERI, BIDAR - 585401
27.     Dr. GIRY A.T.S.,
        S/O A.THIMMAIAH,
        AGED ABOUT 64 YEARS,
        R/AT NO.1375, E BLOCK,
        4TH MAIN, RAJAJINAGAR 2ND STAGE,
        BENGALURU-560010.
28.     Dr. SUMANGALA N. HIREMATH
        W/O NAGNATH HIREMATH
        AGED ABOUT 60 YEARS,
        R/AT NO.C-1, PRADHAN VISTA,
        2ND MAIN, ABBAIAH REDDY LAYOUT,
        KAGGADASAPURA, C.V.RAMAN NAGAR,
        BENGALURU-560093.                      ...APPELLANTS
               (BY SRI RAJESH MAHALE, ADV. A/W
       SRI BALASUBRAMANYA B.N., ADV. FOR SMT.RACHITA
                        NANAIAH M., ADV.)

AND :
1.      CENTRAL COUNCIL OF INDIAN MEDICINE
        BY ITS REGISTRAR, NEW DELHI - 110001

2.      THE KARNATAKA AYURVEDIC &
        UNANI DEPARTMENT BOARD,
        BY ITS SECRETARY
        DHANAVANTRI ROAD, BANGALORE-560009

3.      THE SECRETARY
        DEPARTMENT OF FAMILY & CHILD WELFARE
        VIDHANA SOUDHA, BANGALORE-560001
                           - 16 -

4.   MINISTRY OF HEALTH & FAMILY WELFARE
     BY ITS SECRETARY,
     GOVT. OF INDIA, NEW DELHI

5.   Dr. S.A.HABEEB
     S/O LATE SYED AZIZ
     AGED ABOUT 73 YEARS
     R/O BANGALORE-560001                   ...RESPONDENTS

               (BY SMT.MANASI KUMAR, ADV. FOR
                 SMT.NIDHI HANJI, ADV. FOR R-1;
              SMT.SUMANA BALIGA, ADV. FOR R-2;
          SRI T.P.SRINIVASA, PRL. GOVT. ADV. FOR R-3;
                 SRI K.RAM BHAT, CGC FOR R-4.)

      THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO WRIT APPEAL BY
SETTING ASIDE THE IMPUGNED ORDER OF THE LEARNED
SINGLE     JUDGE    DATED     17.12.2020   PASSED    IN
W.P.Nos.50673/2013, 52909-52936/2013, BY ALLOWING THE
WRIT PETITION FILED BY THE PETITIONERS.

      THESE APPEALS HAVING BEEN HEARD AND RESERVED,
COMING ON FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY,
S. SUJATHA, J., DELIVERED THE FOLLOWING:

                      JUDGMENT

Since common and akin issues are involved, the

matters are heard together and disposed of by this

common judgment.

2. The appellants/petitioners claiming to be the

registered Ayurvedic Medicinal Practitioners and

registered in the Karnataka State with the respondent

No.2 - the Karnataka Ayurvedic and Unani Practitioners

- 17 -

Board ('the Board' for short) to practice their Ayurvedic

medicines based on the certificates issued by the

Registrar of the Board, had approached the writ Court

challenging the notification dated 25.06.2010 issued by

the Central Government exercising the powers under

Section 14[2] of the Indian Medicine Central Council

Act, 1970 ['IMCC Act' for short] so far as it relates to

Entry-2 inter alia challenging the action of the Board in

canceling the registration certificates of practice of the

appellants vide order dated 18.09.2013 regarding the

course of Vaidyavidwan. The writ petitions having been

dismissed by the learned Single Judge vide common

order dated 17.12.2020, these appeals are preferred by

the appellants/petitioners.

3. Succinctly stated the facts are as under;

All the petitioners are holders of Vaidyavidwan

Certificate issued by Andhra Ayurvedic Parishad,

Vijayawada ('Parishad' for short) during 1976 to 1979.

The appellants are registered medical practitioners in

- 18 -

Ayurvedic System of Medicne [Vaidyavidwan] in

Karnataka having registered in Karnataka Ayurvedic

Unani Practitioners Board ['Board' for short]. The

Government of India has constituted a council for

Central Council of Indian Medicine ['CCIM' for short].

Indian Medicine Central Council Act, 1970 ['IMCC Act'

for short] was enacted with an object to provide for the

Constitution of a Central Council of Indian Medicine

and the maintenance of a Central Register of Indian

Medicine and for matters connected therewith. The

Parishad was conducting examination and issuing

certificates in respect of the course Vaidyavidwan as a

recognized medical qualification defined in Section

2(1)(h) of the IMCC Act. It transpires that the Board has

issued a notification dated 28.02.2008 canceling the

registration of number of Doctors including the

appellants herein, who were practicing as

"Vaidyavidwan Certificate" holders, on the premise that

- 19 -

the said certificates said to have been issued by the

Parishad was fake/fabricated.

4. Some of the petitioners and others had filed

W.P.No.4090/2008 and allied matters before this Court

which came to be disposed of, on 8.12.2008 directing

the Registrar of the Board to hold an enquiry after

giving an opportunity to the respective petitioners

therein, and to pass appropriate orders in accordance

with law. The Board has referred the matter to the COD

in respect of the cancellation of registration of the

appellants/petitioners. W.P.Nos.31670-72/2010 were

filed by some of the Vaidyavidwan Certificate holders

questioning the validity of the FIR and succeeded in

terms of the order dated 4.10.2010. The FIR filed

against the petitioners therein, were set aside. The

Board has constituted a Sub-Committee consisting of

six members to examine the veracity of the

certificates/qualification of the Doctors. The Sub-

committee has submitted its interim report on

- 20 -

11.09.2013 recommending among others that [1]

Registration of 18 practitioners with Vaidhya Vidhwan

Certificates issued to up to 31.12.1975 may be

continued, subject to further investigation; and [2]

Registration of 99 practitioners with Vaidhya Vidhwan

certificates issued after 31.12.1975 may be cancelled.

5. The Board has initiated proceedings

pursuant to the notification dated 25.6.2010 issued by

the Ministry of Health and Family Welfare, Government

of India, New Delhi, wherein the Central Government in

consultation with CCIM (Central Council of Indian

Medicine) has amended II Schedule to the Act of 1970 in

exercise of the powers conferred under sub-section (2) of

Section 14 of the Act of 1970, inserting the validity

period from 1923 to 1975 in column No.4 and acting on

the recommendation of the six members committee, to

cancel the registration of the appellants. The Board has

cancelled the registration of practice by the petitioners

- 21 -

vide official memorandum dated 18.09.2013 individually

informing them about the availability of appeal remedy

under Sub-section [4] of Section 17 of the Karnataka

State Ayurvedic Naturopathy, Siddha, Unani and Yoga

Practitioners' Miscellaneous Provisions Act, 1961. As

regards the challenge made to the notification dated

25.6.2010, the learned Single Judge placing reliance on

the decisions of the Hon'ble High Court of Delhi in the

case of Ashfaque Ansari v. Union of India and ors.,

reported in (2016) SCC Online Del. 81 and

Rajasthan Pradesh V.S. Sardarshahar and Anr., v.

Union of India and others, (2010) 12 SCC 609,

upheld the notification. As regards the challenge to the

order dated 18.09.2013, granted liberty to the

petitioners to challenge impugned order passed by the

Board dated 18.9.2013 before the appellate authority as

provided under Section 17(4) of the Act. Being

aggrieved, the appellants/petitioners have preferred

these writ appeals.

- 22 -

6. Learned counsel for the appellants Sri

Balasubramanya B.N in WA.Nos.148/2021, 159/2021

and 163/2021 argued that the recognition of a

"recognized medical qualification" as defined under

Section 2(h) and "recognized" under Section 14(1) of the

IMCC Act, namely Vaidyavidwan awarded by the

Parishad has been restricted to the validity period i.e.,

from 1923 to 1975 in terms of the impugned

amendment dated 25.6.2010. The said amendment

intends to de-recognize all the Vaidyavidwan certificates

awarded by the Parishad from 1975 till 2010 as invalid.

Resultantly, the registration and enrolment of the

appellants as practitioners of Indian Medicine is sought

to be cancelled.

7. Learned counsel submitted that the

amendment purported to be made in exercise of the

powers under Section 14(2) of the IMCC Act is an

administrative act, not a legislative act. Hence, the

- 23 -

considerations for challenge of the legislative

amendment, such as existence of legislative competence

or presumption of constitutionality etc., do not apply.

The executive has no power to amend the schedule when

the legislature did not intend to specify a "validity period"

for the recognition of the medical qualification. The

executive bringing the amendment to the heading of the

column by substituting the words "validity period" in

place of the words "remarks" is without authority of law.

8. Learned Counsel further submitted that, in

terms of Section 14(2) of the IMCC Act the power is given

to the Central Government to amend only to add to the

list of recognized medical qualification in the II Schedule

and to specify any particular validity period when granted

after a specified date. Section 21(4) of the IMCC Act was

referred, to contend that the said provision ought to have

been invoked for withdrawal of the recognition. In the

absence of any factual basis on the strength of which the

respondents have taken the decision to restrict the

- 24 -

validity period of Vaidyavidwan qualification between

1923 to 1975, the same is without authority of law and

suffers from non-application of mind.

9. Learned counsel further argued that the

impugned notification violates the fundamental rights of

the appellants. Placing reliance on Bihar State Council

of Ayurvedic and Unani Medicine v. State of Bihar,

reported in (2007) 12 SCC 728, the learned counsel

submitted that when a degree stands legally conferred

on the appellants/practitioners, the same shall be

treated as a recognized degree. Distinguishing the

judgments of Ashfaque Ansar and Rajasthan

Pradesh V.S Saradarshahar, supra, learned counsel

submitted that Bihar State Council of Ayurvedic and

Unani Medicine is applicable to the facts and

circumstances of the case. Thus, the learned counsel

submitted that the learned Single Judge has failed to

appreciate these vital aspects in a right perspective

while dismissing the writ petitions.

- 25 -

10. Learned counsel Sri J.M.Naidu along with

Sri Sudhakar M appearing for the appellants in

WA.No.149/2021 supporting the arguments of the

learned counsel appearing for the appellants in

WA.No.148/2021 and allied matters submitted that the

action of the Board in de-recognizing the medical

qualification is wholly perverse and is repugnant to the

provisions of the Act, 1961.

11. Learned Counsel Smt Manasi Kumar

appearing for the CCIM justifying the impugned

notification dated 25.6.2010 and the orders impugned

submitted that the Central Government had competency

for invoking Section 14(2) of the Act of 1970 to specify

the validity period. It was argued with vehemence that

for the reasons best known to the appellants the

Parishad is not arrayed as a party to the proceedings

which indeed is a necessary and proper party to put

forth its stance in the matter. The interim report dated

- 26 -

11.9.2013 would demonstrate that no admission was

provided to the courses by the Parishad post 1.2.1976.

In view of the Act of 1970, amended on 21.12.1970 by

Act No.48/1970, the only recognized course was BAMS.

Disputing the genuineness of the certificates said to have

been issued by the Parishad in respect of Vaidyavidwan

examination, learned counsel submitted that the

appellants cannot find fault with the notification

Annexure-F or Interim report at Annexure-E.

12. Learned counsel further submitted that the II

Schedule to the IMCC Act recognized some of the old

medical qualifications awarded in different States of India

under different enactments with a view to protect

practitioners in different States who obtained the

degree/certificate prior to implementation of the IMCC Act.

In order to ensure that the old courses are not continued

by the institutions which would defeat the object and

purpose of the IMCC Act, 1970, it was deemed necessary

- 27 -

to give a validity period. In this regard, correspondence

was made with the respective universities/institutions to

collect relevant data. However, Parishad has not

responded to the clarifications/queries made by the CCIM.

The said notification included several other amendments

to Schedule II.

13. IMCC Act of 1970 being a special enactment,

enacted by the Parliament, prevails over the State

enactment. Much emphasis was placed on the judgment

of the Hon'ble Delhi High Court in the case of Ashfaque

Ansari, supra, to contend that the validity of the

notification dated 25.6.2010 impugned herein having

been upheld as valid, similar view is warranted in the

present set of facts. The appellants without exhausting

the alternative and efficacious remedy of appeal

available under the Act cannot rush to this Court

invoking the writ jurisdiction. Thus, the learned counsel

justifying the impugned notification dated 25.6.2010

- 28 -

submitted that the ground of challenge is vague. Mere

hardship or inconvenience caused to the appellants

would not be a ground for challenging the validity of the

notification issued by the competent authority

exercising the statutory power conferred under the Act.

The appellants are denuded to practice as the

certificates said to have been issued by the Parishad

from 1976 appears to be fake, which has been analyzed

by the Board.

14. Learned counsel Smt Sumana Baliga

appearing for the Board inviting the attention of the

Court to Ashfaque Ansari, supra and justifying the

action of the proceedings initiated for de-recognition of

the certificate of recognition of the appellants sought for

dismissal of the appeals. Learned Counsel further

argued that no writ petition is maintainable since the

appellants have not availed the statutory remedy of

appeal under Section 17(4) of the Act of 1961; having

regard to these aspects, the learned Single Judge

- 29 -

upholding the notification dated 25.06.2010 has rightly

relegated the appellants to the appellate authority

insofar as the challenge to the order dated 18.09.2013

is concerned. The same deserves to be confirmed

dismissing the writ appeals.

15. Learned counsel appearing for the Union of

India adopting the arguments advanced by the learned

counsel appearing for the CCIM submitted that, the

impugned notification dated 25.06.2010 has been

issued by the Central Government exercising the powers

under Section 14[2] of the IMCC Act, inserting the

validity period from 1923 to 1975 to 'Vaidyavidwan'

conducted by Andhra Pradesh Parishad, Vijayawada

[Examining Body], in the II Schedule. The learned Single

Judge having appreciated the competency of the Central

Government in the backdrop of the judgment of the

Hon'ble Delhi High Court in Ashfaque Ansari supra,

has rightly upheld the said notification and the same

deserves to be confirmed by this Court.

- 30 -

16. We have carefully considered the rival

submissions of the learned counsel appearing for the

parties and perused the material on record.

17. The IMCC Act has been enacted by the

Parliament to provide for the Constitution of a Central

Council of Indian Medicine and the maintenance of a

Central Register of Indian Medicine and for matters

connected therewith. Statement of Objects and Reasons

to the IMCC Act would indicate the purpose of

establishing a statutory composite Central Council for

Indian Systems of Medicine [Ayurveda, Siddha and

Unani] and Homeopathic system of medicine, on the

analogy of Medical Council of India. The main function

of the Central Council is to evolve uniform standards of

education in and registration of the practitioners of

these systems of Indian medicine and Homeopathy.

For this purpose, the Central Council has to

constitute separate committees for Ayurveda, Siddha,

- 31 -

Unani and Homeopathy consisting of members of the

respective systems of medicine to deal with matters

pertaining to those systems. The registration of

practitioners on the Central Register of Indian Medicine

and Homeopathy will ensure that medicine is not

practiced by those who are not qualified in these

systems, and those who practice observe a code of

ethics in the profession.

18. Section 14 of the IMCC Act deals with

recognition of medical qualifications granted by certain

medical institutions in India and the said provision runs

thus:

              "14.      Recognition         of       medical
        qualifications           granted      by      certain
        medical institutions           in India.-- (1) The
        medical      qualifications     granted     by    any

University, Board, or other medical institution in India which are included in the Second Schedule shall be recognised medical qualifications for the purposes of this Act.

- 32 -

(2) Any University, Board or other medical institution in India which grants a medical qualification not included in the Second Schedule may apply to the Central Government to have any such qualification recognised, and the Central Government, after consulting the Central Council, may, by notification in the Official Gazette, amend the Second Schedule so as to include such qualification therein, and any such notification may also direct that an entry shall be made in the last column of the Second Schedule against such medical qualification declaring that it shall be a recognised medical qualification only when granted after a specified date."

19. Section 17 contemplates with the right of

persons possessing qualifications included in Second,

Third and Fourth Schedules to be enrolled. In terms of

Clause[b] of Sub-Section [2] of Section 17, no person

who is not possessing requisite qualifications envisaged

in the Act and is enrolled on a State Register or the

- 33 -

Central Register of Indian Medicine is entitled to

practice the system of Indian Medicine.

20. Section 21 of the Act deals with the

withdrawal of recognition. Section 21[1] is quoted

hereunder for ready reference:

"21. Withdrawal of recognition.-- (1) When upon report by the inspector or the visitor, it appears to the Central Council--

(a) that the courses of study and examination to be undergone in, or the proficiency required from candidates at any examination held by, any University, Board or medical institution, or

(b) that the staff, equipment, accommodation, training and other facilities for instruction and training provided in such University, Board or medical institution or in any college or other institution affiliated to the University, do not conform to the standard prescribed by the Central Council, the Central

- 34 -

Council shall make a representation to that effect to the Central Government."

21. Serial No.2 of the Second Schedule to the

IMCC Act before amendment reads thus:

THE SECOND SCHEDULE (See section 14) RECOGNISED MEDICAL QUALIFICATIONS IN INDIAN MEDICINE GRANTED BY UNIVERSITIES, BOARDS OR OTHER MEDICAL INSTITUTIONS IN INDIA Name of University, Recognised Abbreviation Board or Medical for Remarks Medical Qualifications Registration Institution

PART I - AYURVEDA AND SIDDHA Andhra

1. xxxx xxxx xxxx

2. Andhra Pradesh Parishad, Vaidyavidwan ... ...

Vijayawada [Examining Body]

22. By virtue of the notification dated

25.06.2010, Central Government has amended the

Second Schedule. Relevant portion of the same reads

thus:

- 35 -

"In the Second Schedule to the Indian Medicine Central Council Act, 1970, - [1] in column 4, in the column heading, for the word "Remarks", the words "Validity Period" shall be substituted.

           [2]    .....
           [a]    .....
           [i]    .....

(ii) against serial number 2, relating to 'Andhra Ayurveda Parishad, Vijayawada' [Examining Body], in column 4, the entry "From 1923 to 1975" shall be inserted."

23. The main arguments of the learned counsel

for the appellants is that the amendment carried out to

Schedule II as per the notification dated 25.06.2010

inserting the validity period exercising the power under

Section 14[2] of the Act is without authority as power is

given to the Central Government to amend the Second

Schedule under Section 14[2] of the Act only to add to

the list of recognized medical qualification and declaring

- 36 -

such added medical qualification shall be recognized

only after the specified date.

24. No doubt, power to withdraw recognition of

the 'recognized medical qualification' is provided under

Section 21[4] of the Act, such power has to be exercised

on the report submitted by Inspector or visitor as

enumerated in Sections 19 and 20 of the Act to inspect

any medical college, hospital or other Institution where

education in Indian Medicine is given, or to attend any

examination held by the University, Board or Medical

Institution. No such circumstances of invoking Section

21 had arisen in the present set of facts. Both the

Sections i.e., Section 14 and Section 21 operates in

different fields. Indeed, the impugned notification

does not deal with the withdrawal of recognition, on

the other hand, a validity period for the recognition of

the degree of Vaidyavidwan is inserted which is

relevant herein. Hence, exercising power under

- 37 -

Section 14[2] of the Act cannot be held to be without

authority of law.

25. It is significant to note that prior to

enactment of the IMCC Act and constitution of Central

Council of Indian Medicine [CCIM], there were different

courses of Indian Medicine, prevalent in various

States having variation in the duration of course,

contents, curriculum and syllabus, and the

nomenclature of degree or diploma. After the IMCC

Act, 1970 has come into force, as per Section 22, CCIM

obtained opinions from the State Governments. The

Second Schedule of the IMCC Act recognized some

of the old medical qualification as well granted in

different States of India under the different State Acts.

As per Section 14 of the IMCC Act, degrees/certificates

granted by any University, Board or other medical

institutions in India which are included in

- 38 -

the Second Schedule of the Act are recognized medical

qualifications for the purposes of the Act.

26. It transpires from the submissions of the

learned counsel appearing for the CCIM that in order to

protect students who had already enrolled into

Vaidyavidwan Course of 4 ½ years, by the time the

IMCC Act, 1970 came into force on 15.08.1971 and they

would graduate in 1975, the validity period was fixed

from 1923 to 1975, by the impugned notification dated

25.06.2010. As such, the period of validity fixed

whether is valid is the most crucial question. In this

regard, it would be beneficial to refer to the judgment of

the Hon'ble Apex Court in the case of Bihar State

Council of Ayurvedic and Unani Medicine supra, the

Hon'ble Apex Court considering Section 14 of the IMCC

Act, 1970 vis-à-vis Bihar Development of Ayurvedic and

Unani Systems of Medicine Act, 1951, with respect to

- 39 -

granting of Graduate in Ayurvedic Medicine and Surgery

Degree [GAMS], has observed thus:

"56. The amendment brought about in the Indian Medicine Central Council Act, 1970, in 2003 by introduction of Sections 13A, 13B and 13C are the provisions for continuance of the institution which has not obtained prior permission of the Central Government and, therefore, time limit of three years has been provided under Section 13C to regularize the institution's affairs as required under the Act by seeking permission of the Central Government. Insertion of Section 13A in the 1970 Central Act in the year 2003 has regulated the opening of an indigenous medical college. The non-obstante clause clearly indicates that a medical institution cannot be established except with the prior permission of the Central Government.

59. The whole spectrum of the amendment brought about by introducing Sections 13A, 13B and 13C indicates that it has an application from the date they have

- 40 -

been introduced by an amendment in the 1970 Central Act. The effect of the amendment brought about is clear to us that all the medical colleges which are in existence or the medical colleges which have to be established should compulsorily seek permission of the Central Government within the period provided and on failure to get the permission of the Central Government the medical qualification granted to any student of such medical college shall not be a recognized medical qualification for the purposes of the 1970 Act. The established colleges are also required to seek permission of the Central Government for the medical qualification to be recognized medical qualification but it would not mean that the already conferred medical qualification of the students studied in such previously established medical colleges would not be a recognised medical qualification under the 1970 Act.

60. 28. On a reasonable construction of these Sections, we hold that the provisions

- 41 -

of Section 13B whereby the qualification granted to any student of a medical college would not be deemed to be a recognized medical qualification would not apply. When a degree has been legally conferred on the students prior to the commencement of the Amending Act of 2003, it shall be treated as a recognized degree although the medical college has not sought permission of the Central Government within a period of three years from the commencement of the Amending Act of 2003."

27. In the case of Ashafaque Ansari supra, the

Hon'ble High Court of Delhi in the context of the

challenge made to the amendment of Second Schedule

to IMCC Act, 1970 vide notification dated 25.06.2010

insofar as Sl.No.6 is concerned, in the backdrop of the

qualification of GAMS obtained by the petitioner therein

in the year 2012, has held thus:

"14. The further contention of the petitioner that under Section 14(2) of the IMCC Act, 1970, the Central Government is

- 42 -

empowered only to include any unrecognized qualification in the Second Schedule but the deletion of any qualification already existing in the Second Schedule is impermissible, is equally untenable. Section 14(1) and (2) may be reproduced hereunder for ready reference:

"14 (1). The medical qualifications .....

(2) Any University, Board or other medical institution ......"

15. It is no doubt true that in exercise of the power so conferred by Section 14(2), the Central Government issued the impugned Notification dated 25.6.2010 by virtue of which in Item No. 6 relating to State Faculty of Ayurvedic and Unani Medicine, Patna, the entry „from 1953 onwards‟ in Column No.4 has been substituted as „from 1953 to 2003‟. It is no doubt true that consequent to the said amendment, the qualification of GAMS granted by the State Faculty established under State Act, 1951 has not been recognised after 2003. We are of the view that the said amendment under no circumstances can be equated to deletion of a

- 43 -

qualification as sought to be contended by the petitioner. The amendment has only clarified the position that GAMS qualification is not a recognized qualification after 2003 as held by the Supreme Court in Bihar State Council of Ayurvedic (supra). The contention of the petitioner that it would amount to deletion of the qualification of GAMS from the Second Schedule is misconceived and cannot be accepted."

28. Indeed, it has been observed by the Hon'ble

High Court of Delhi that the petitioner therein had

placed much reliance upon para 61 of the Bihar State

Council of Ayurvedic and Unani Medicine supra

insofar as the GAMS degree conferred on the appellants-

students shall be treated as a recognized degree for the

purpose of taking admission to the higher course of

study and also for the purpose of employment to

substantiate the arguments that the impugned

notification dated 25.06.2010 runs contrary to the law

declared by the Hon'ble Apex Court. Having regard to

- 44 -

these arguments, the Hon'ble High Court of Delhi has

categorically observed that the declaration in para 61

was made only in respect of the appellants therein and

it is not as if the Hon'ble Apex Court had declared that

GAMS qualification is valid for all purposes as sought to

be contended. In the present case, similar arguments

have been advanced by the learned counsel for the

appellants that a degree which has been legally

conferred on the students prior to the issuance of the

notification dated 25.06.2010, shall be treated as a

recognized degree. Chapter II A deals with the

permission for new Medical College, Course, etc., where

any medical college is established without the previous

permission/opens a new or higher course of study or

training including a post-graduate course of study or

training/increases its admission capacity in any course

of study or training without the previous permission of

the Central Government in accordance with Section 13-

A, medical qualification granted to any student of such

- 45 -

medical college shall not be deemed to be a recognised

medical qualification for the purpose of the IMCC Act.

Time limit of three years was provided under Section 13C

to regularize the institutions' affairs as required under the

Act by seeking permission of the Central Government. In

our considered view, the law enunciated by the Hon'ble

Apex Court in para 60 of the said judgment in Bihar

State Council of Ayurvedic and Unani Medicine supra,

would not be applicable to the present case as the Hon'ble

Apex Court exercising the powers under Article 142 of the

Constitution has held so, but the same cannot be made

applicable generally. Even otherwise, Chapter II A [13A,

13B, 13C] operates in a different domain and the same

cannot equated to the power exercised by the Central

Government under Section 14[2], in the facts and

circumstances of the present case.

29. The learned Single Judge placing reliance on

this judgment of the Hon'ble High Court of Delhi, has

- 46 -

upheld the validity of the notification dated 25.06.2010.

It is pertinent to note that the Hon'ble High Court of

Delhi was dealing with item No.6 relating to State

Faculty of Ayurvedic and Unani Medicine, Patna

substituted as 'from 1953 to 2003' as against the

original entry from 1953 onwards. Indisputedly, the

subject matter of grant of registration was with respect

to the qualification of GAMS obtained in the year 2012

i.e., subsequent to the issuance of the impugned

notification dated 25.06.2010. However in the present

set of facts, it is significant to refer to the memo filed by

the Board - respondent No.2 along with the copy of the

letter dated 31.08.2019 addressed to the Registrar,

Andhra Ayurveda Board seeking clarification regarding

the validity period of Andhra Ayurvedic Parishad

Diploma Course and the letter dated 11.09.2019

addressed by the Government of Andhra Pradesh -

Commissioner, Ayush Department to the Board along

with the extract of the letter dated 21.02.1976 of Indian

- 47 -

Medicine and Homeopathy Department - Recognition of

Diploma, issued by Andhra Ayurvedic Parishad,

Vijayawada. The relevant portion of the letter dated

11.09.2019 is quoted here under for ready reference:

"Sub: AYUSH Department - Requesting clarification regarding the validy period of Andhra Ayurved Parishat Diploma Course - Information Submitted - Regarding.

Ref: From the Chief Administrative Officer, of Karnataka Ayurveda and Unani Practitioner Board, Brigade Plaza, Anand Rao Circle, Bangalore, Karnataka State, dt 09/09/2019.

*** With reference to the subject above cited, it is to inform that the Government of Andhra Pradesh have issued a G.O.Ms.No.160 Health, HH and M.A Department, dt.21/2/1976, the recognition given to the Diplomas issued by the Andhra Ayurveda Parishat shall be cancelled with effect from the date of issue of this order dt.21/02/1976 [Copy enclosed].

This is for your kind information."

- 48 -

30. The relevant portion of the letter dated

21.02.1976 is quoted here under for ready reference:

"1] G.O.Ms.No.617 Health dated 6-3-1961. 2] From the Director of Indian Medicine & Homeopathy, letter No.33169/F1/73 dated 27-11-1974.

3] From the Director of Indian Medicine & Homeopathy Letter No.33160/F1/73 Dated 14-2-1975.

*** O R D E R:

The Government direct that the recognition given to the Diplomas issued by the Andhra Ayurveda Parishat shall be cancelled with effect from the date of issue of this order.

[BY OIRDER AND IN THE NAME OF THE GOVERNOR OF ANDHRA PRADESH]

Sd/-

M.R.PAI, SECRETARY TO GOVERNMENT"

- 49 -

31. The interim report of the Board dated

11.09.2013 would indicate that no admissions were

taken after 21.02.1976 for the course of Vaidyavidwan.

But at the same time, while referring to the stance of

the Government of Andhra Pradesh it has been observed

that a decision was taken not to conduct any

examination after 14.10.1991 with respect to

Vaidyavidwan. In order to set right this contradiction

found in the interim report, the petitioners ought to

have impleaded Andhra Ayurvedic Parishad, Vijayawada

as a party to the proceedings but for the reasons best

known to them they have not done so. On the other

hand, the letter of the Government of Andhra Pradesh

Commission Ayurvedic Department referred to above,

clarifies that no recognition is given to the certificates

issued by the Parishad with effect from 21.02.1976. The

documents placed on record by the CCIM [R1 and R2]

along with the statement of objections filed before the

Writ Court would demonstrate that CCIM has issued

- 50 -

letter dated 21.11.2007 and reminder letter dated

11.08.2008 to Andhra Ayurvedic Parishad, Vijayawada

[Examining Body] seeking confirmation for the validity

period from 1923 to 1975 for the Vaidyavidwan

certificate, but there was no response. The document

Nos.R3 and R4 evinces the letters exchanged between

the CCIM and the Central Government. Having

considered all these aspects, the Central Government

after consulting the CCIM, has amended Sl.No.2 to the

Second Schedule inter alia including the validity period

from 1923 to 1975 for Vaidyavidwan Certificate Course.

32. In Zile Singh V/s. State of Haryana and

Others [(2004) 8 SCC 1], the Hon'ble Apex Court has

held thus:

"13. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by necessary implication made to have a retrospective operation. But the rule in general is applicable where the object of the statute is

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to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only 'nova constitutio futuris formam imponere debet non praeteritis' - a new law ought to regulate what is to follow, not the past. (See :

Principles of Statutory Interpretation by Justice G.P. Singh, 9th Edition, 2004 at p.438)."

33. In Bannari Amman Sugars ltd., V/s.

Commercial Tax Officer and Others [(2005) 1 SCC

625], the Hon'ble Apex Court has held thus:

"10. Where a particular mode is prescribed for doing an act and there is no impediment in adopting the procedure, the deviation to act in different manner which does not disclose any discernible principle which is reasonable itself small be labelled as arbitrary. Every State action must be

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informed by reason and it follows that an act uninformed by reason is per se arbitrary."

There is no cavil on these legal propositions.

34. The aforesaid judgments are cited by the

learned counsel appearing for the appellants in support

of the arguments that there is absolutely no factual basis

to restrict the validity period of Vaidyavidwan

qualification for the period from 1923 to 1975; the period

1923 to 1975 is decided arbitrarily and without any

empirical data or basis on which such decision could be

taken and the validity period ought not to have been

fixed retrospectively. Having regard to the nature of lis

involved herein, these judgments would be of little

assistance to the appellants since the registration of

cancellation is made by the Board on 18.09.2013 with

immediate effect. Moreover, the memo dated 24.02.2022

filed by the respondent No.1 indicates that several of the

appellants had not completed the Vaidyavidwan course

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as per the memorandum of marks enclosed therewith. As

could be seen the main grounds urged in challenging the

notification impugned are, violation of fundamental

rights, breach of principles of natural justice,

discrimination and non-application of mind in

prescribing the validity period retrospectively. No

violation of fundamental rights has been established.

There is no violation of Article 19 of the Constitution

since the right to practice any profession, trade or

occupation under Article 19[1][j] is subject to restriction

under Article 19[6][i] of having a recognized qualification.

Further, a right to health of people at large also plays a

significant role. The impugned notification cannot be

held to be arbitrary and violative of Article 14. It has

been issued in exercise of powers conferred under

Section 14[2] of the IMCC Act. By the impugned

amendment in Entry 2 of Second Schedule to the Act, a

reasonable classification has been created that has a

nexus with the object and purpose of the IMCC Act. It is

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trite that hardship pales insignificance in considering the

validity of a notification. Presumption is always in favour

of constitutionality of the notification. It appears that the

Parishad had ceased to be functional subsequent to

1975 i.e., after 4 ½ years of the Act coming into force on

15.08.1971 as the sole recognition being given to the

BAMS course by the CCIM. The validity period has been

fixed from 1923 to 1975 to protect the students who had

already enrolled into the Vaidyavidwan course by the

time the IMCC Act has come into force. This reasoning

stated by the CCIM establishes the nexus, more

particularly, when the problem of continuation of old

courses by some Institutions and examination boards

came to the fore. Sections 21 and 35 of the Act, 1970

and Section 25 of the Act, 1961 has no application since

the impugned notification is issued exercising the

powers under Section 14[2] of the IMCC Act.

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35. At this juncture, it is beneficial to refer to the

judgment of the Hon'ble Apex Court in Rajasthan

Pradesh V.S. Sardarshahar supra, wherein, it is

observed thus:

"41. This Court further came to the conclusion that unless the person possesses the qualification as prescribed in Schedule II , III and IV of the Act, 1970, he cannot claim any right to practice in medical science and mere registration in any State register is of no consequence.

42. In view of the above, it is evident that right to practice under Article 19(1)(g) of the Constitution is not absolute. By virtue of the provisions of Clause (6) to Article 19 reasonable restrictions can be imposed. The Court has a duty to strike a balance between the right of a Vaidya to practice, particularly, when he does not possess the requisite qualification and the right of a "little Indian"

guaranteed under Article 21 of the Constitution which includes the protection and safeguarding the health and life of a

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public at large from mal-medical treatment.

An unqualified, unregistered and unauthorized medical practitioner possessing no valid qualification, degree or diploma cannot be permitted to exploit the poor Indians on the basis of a certificate granted by an institution without any enrolment of students or imparting any education or having any affiliation or recognition and that too without knowing the basic qualification of the candidates.

Question of entertaining the issue of validity of Entry No.105 to the 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."

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This judgment would be applicable to the present

appeals in full force which has been rightly relied upon

by the learned Single Judge.

36. At the cost of repetition we observe that,

fixing the validity period cannot be construed as

deletion of the qualification as contended by the

appellants but is a declaration that the Vaidyavidwan

course shall be a recognized medical qualification only

for the specified period prescribed. The said power is

vested with the Central Government under Section 14[2]

of the IMCC Act whereby the Second Schedule would be

amended by issuing notification in the Official Gazette.

The cancellation orders issued by the Board dated

18.09.2013 are with immediate effect not with

retrospective effect. Hence, the arguments of the learned

counsel for the appellants deserve to be negated.

37. Section 17[4] of the Karnataka Ayurvedic

Naturopathy Act, 1961 provides an appeal remedy

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against the order of the Board to the State Government.

In the background of the genuineness of the certificates

issued by the Parishad being disputed by the Board as

fake/fabricated, these disputed questions of facts would

have been agitated before the Appellate Authority.

Hence, learned Single Judge having upheld the validity

of the notification reserved liberty to the appellants to

prefer appeal/s before the Appellate Authority under

Section 17[4] of the Act, 1961 within a period of six

weeks from the date of receipt of the order further

observing that if such appeal is preferred by the

appellants, the time spent in the litigation before the

Writ Court would be considered for the purpose of

condonation of delay in presenting the memorandum of

appeal. However, the appellants without availing the

said alternative remedy had approached this Court.

38. Hence, we are of the considered view that it

would be appropriate to relegate the parties to the

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Appellate Authority on this point. However, it is observed

that if such appeals are filed within a period of six weeks

from the date of the receipt of the certified copy of this

order, the Appellate Authority shall consider the same on

merits without objecting to the period of limitation.

39. For the reasons aforesaid, we find no

grounds to interfere with the well reasoned order of the

learned Single Judge.

Resultantly, Writ Appeals stand dismissed.

No order as to costs.

Sd/-

JUDGE

Sd/-

JUDGE

nd/NC.