Patna High Court
Rakesh Kumar Singh vs Union Of India on 5 December, 2023
Bench: Chief Justice, Rajiv Roy
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.20683 of 2019
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Rakesh Kumar Singh S/o Krishna Kumar Singh Resident of Village- Berua,
P.S.- Saraiya, District- Muzaffarpur.
... ... Petitioner/s
Versus
1. Union of India through Secretary, Ministry of Ayush, Ayush Bhawan, B
Block, GPO Complex, New Delhi.
2. Secretary, Ministry of Ayush, Ayush Bhawan, B Block, GPO Complex, New
Delhi.
3. Under Secretary, Ministry of Ayush, Ayush Bhawan, B Block, GPO
Complex, New Delhi.
4. The State of Bihar through Principal Secretary, Department of Health and
Family Welfare, Bihar, Patna.
5. Principal Secretary, Department of Health and Family Welfare, Bihar, Patna.
6. The Bihar State Council of Ayurvedic and Unani Medicine, K-52, Hanuman
Nagar, P.O.- Lohiya Nagar, Patna- 20 through its Registrar.
7. The Registrar, The Bihar State Council of Ayurvedic and Unani Medicine,
K-52, Hanuman Nagar, P.O.- Lohiya Nagar, Patna- 20.
8. The Central Council of Indian Medicine, 61-65 Institutional Area, Janakpuri,
New Delhi through its Registrar,
... ... Respondent/s
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Appearance :
For the Petitioner/s : Mr. Rajendra Narayan, Sr. Advocate
Mr. Lalan Kumar, Advocate
Mr. Vivek Amritesh, Advocate
For C.C.M. : Mr. Janardan Prasad Singh, Sr, Advocate
Mr. Deepak Kumar, Advocate
For U.O.I. : Mrs. Punam Kumari Singh, CGC
For the Respondent/s 6 &7 : Mr. Vishwaroop Jha, Advocate
Mr. Manoj Kumar Jha, Advocate
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Patna High Court CWJC No.20683 of 2019 dt. 05-12 -2023
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CORAM: HONOURABLE THE CHIEF JUSTICE
and
HONOURABLE MR. JUSTICE RAJIV ROY
CAV JUDGMENT
(Per: HONOURABLE THE CHIEF JUSTICE)
Date : 05-12-2023
The petitioner is said to have qualified the Graduate
of Ayurvedic Medicine and Surgery (for brevity "G.A.M.S.")
Course conducted in the Shrihari Shakuntalayam Ayurvedic
Medical College and Hospital, Muzaffarpur, Bihar which had a
permanent recognition and affiliation with effect from the
academic year 1992 in terms of Sections 13, 14 and 15 of the
Bihar Development of Ayurvedic and Unani System of
Medicine Act, 1951.
2. The petitioner took admission to the G.A.M.S.
course in the academic year 1996, of the five-year course (1996-
2001 batch) while the 1st, 2nd and 4th year examinations are
conducted by the college, the 3rd and 5th year examination is
taken by the State Faculty of Ayurvedic and Unani Medicines
under the Bihar State Ayurvedic and Unani Medicines Council,
Patna (for brevity " Medicines Council"); which examination of
the 3rd and 5th year were known as preliminary and final
examinations respectively.
3. The petitioner appeared in all the four years
examinations but before he could participate in the 5 th year
Patna High Court CWJC No.20683 of 2019 dt. 05-12 -2023
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examination, a writ petition was filed challenging the validity of
the course conducted by the institutes under the aegis of the
State Medicines Council. The matter went up to the Hon'ble
Supreme Court decided in Bihar State Council of Ayurvedic
and Unani Medicine v. State of Bihar reported in (2007) 12
SCC 728.
4. Later to the decision, Ministry of Health and
Family Welfare, Government of India issued notification dated
25.06.2010
under Section 14 (2) of the Indian Medicine Central
Council Act, 1970 (48 of 1970) (for brevity "Act of 1970")
along with other amendments, amending inter alia Item No. 6 of
Column 4 of Schedule II applicable to the State of Bihar. The
validity of the Graduate in Ayurvedic Medicine and Surgery
Course conducted under the aegis of the State Faculty of
Ayurvedic and Unani Medicines, Patna, Bihar was restricted to
the period between 1953 to 2003.
5. According to the petitioner, after the said
notification, the State Faculty conducted an examination in the
month of April, 2012 in which the petitioner participated and
qualified. The petitioner also is said to have been subjected to an
internship and a completion certificate was issued as on
15.01.2013. The State Faculty granted provisional certificate to
Patna High Court CWJC No.20683 of 2019 dt. 05-12 -2023
the petitioner which was followed with a registration with the
Bihar State Council of Ayurvedic and Unani Medicines.
6. Later on the basis of a complaint, the Council
constituted a committee to inquire into the matter which found
that the Institute from which the petitioner is alleged to have
qualified is a fraudulent one. The committee accordingly
submitted its report on 09.03.2016, based on which the
registration of the petitioner stood cancelled. The same is under
challenge in the writ petition.
7. Shri Rajendra Narayan, learned Senior Advocate
appearing for the petitioner submitted that once registered he
started practicing medicine and thus the cancellation was made
arbitrarily. It is argued that the amendment to the Act of 1970
was brought in the year 2010, thus recognizing the G.A.M.S.
Course which is carried out till 2003. It is based on this
amendment in the year 2010 that the 5th year examination was
conducted by the State Faculty, which conferred the degree on
the petitioner, enabling his practice in medicine. It is argued that
the decision of the Hon'ble Supreme Court squarely permits the
continuance of practice of the petitioner and also similarly
situated persons.
8. Shri Janardan Prasad Singh, learned Senior
Patna High Court CWJC No.20683 of 2019 dt. 05-12 -2023
Advocate appearing for the National Commission for Indian
System of Medicine, which has superseded the Central Council
of Indian Medicine (the 8th respondent) points out that the
decision of the Hon'ble Supreme Court is against the petitioner.
The petitioner is not a person who qualified prior to 2003 and
hence, if at all the subsequent qualification is to be recognized
and registration granted, the Institute from which he studied
should have a recognition from the erstwhile Central Council of
Indian Medicine within three years from the year 2003.
9. Learned Senior Counsel also placed before us the
judgment of another Division Bench of this Court in CWJC No.
20544 of 2019, which is said to regulate the issue as of now. Ms.
Punam Kumari Singh, Central Government Counsel appeared
for the Union of India, while Shri Vishwaroop Jha, appeared for
Respondent Nos. 6 and 7. The Government Advocate
represented the Respondent Nos. 4 and 5.
10. We do not think that the decision of another
Division Bench in CWJC No. 20544 of 2019 regulates the
matter, especially since it was a Public Interest Litigation filed
against the admissions continued in the G.A.M.S. course in the
two respondent colleges impleaded therein. The Division Bench
noticed the judgment of the Hon'ble Supreme Court and
Patna High Court CWJC No.20683 of 2019 dt. 05-12 -2023
observed that any Institute could carry on the course, if the
Institution seeks and obtain permission from the Central
Government for the medical qualification issued by it and that it
does not invalidate the qualifications already conferred by the
previously established medical colleges.
11. We have looked at the decision of the Hon'ble
Supreme Court in Bihar State Council of Ayurvedic and Unani
Medicine (supra). Therein, the question raised was the
eligibility of six writ petitioners who had obtained a G.A.M.S
degree from the State Faculty of Ayurvedic and Unani
Medicines established under Section 17 of the State Act of
1951, to appear in the examination for admission in post
graduate courses in Ayurveda, leading to award of degree of
Doctor of Medicine in Ayurveda.
12. The question arose also in the teeth of the
amendment brought about in the Act of 1970, in the year 2003
by introduction of Sections 13-A, 13-B and 13-C for the
purpose of continuance of the Institutions which had not
obtained prior permission of the Central Government. A time
limit of three years had been provided under Section 13-C to
regularize the institution's affairs as required under the Act, for
obtaining permission of the Central Government. Section 13-A,
Patna High Court CWJC No.20683 of 2019 dt. 05-12 -2023
by its insertion regulated the opening of the indigenous medical
colleges, which by virtue of the non obstante clause interdicts
establishment of a medical institution without the prior
permission of the Central Government. Under Section 13-B, the
medical qualification granted by a college established without
such prior permission would not be a recognised medical
qualification. Section 13-C (1) puts the existing colleges at par
with the new colleges as both of them were required to seek
permission within three years from the commencement of the
amending act.
13. The Hon'ble Supreme Court in Bihar State
Council of Ayurvedic and Unani Medicine (supra)
categorically found that the phrase employed in the provision
'on or before' clarified unequivocally that the existing colleges
are also required to seek permission and there is no question of
an exemption. We extract hereunder Paragraph 58, 59 and 60 of
the aforecited decision:-
58. Section 13-C(2) further provides
that the medical qualification granted by existing
colleges whose establishment has not been
recognised by the Central Government, the medical
qualification would not be a recognised
qualification. Similar requirement is to be fulfilled
by the new medical colleges opened i.e. to seek
permission of the Central Government for the
medical qualification to be recognised qualification.
Thus, new colleges or existing colleges cannot any
Patna High Court CWJC No.20683 of 2019 dt. 05-12 -2023
more grant a recognised qualification without the
sanction of the Central Government. Section 13-
C(2) does not say that the effect of non-permission
by the Central Government to the existing colleges
after the amending Act came into force would
render the medical qualifications already granted
by the existing colleges before the insertion of
Sections 13-A, 13-B and 13-C in 2003,
unrecognised.
59. The whole spectrum of the
amendment brought about by introducing Sections
13-A, 13-B and 13-C indicates that it has an
application from the date they have 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
recognised 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
recognised 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. On a reasonable construction of
these sections, we hold that the provisions of Section
13-B whereby the qualification granted to any
student of a medical college would not be deemed to
be a recognised 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
recognised degree although the medical college has
not sought permission of the Central Government
Patna High Court CWJC No.20683 of 2019 dt. 05-12 -2023
within a period of three years from the
commencement of the amending Act of 2003.
14. The above extracted operative portion of the
judgment clearly indicates that even colleges established prior to
2003 will have to get a recognition/permission from the Central
Government which alone would entail those obtaining medical
qualifications, subsequent to 2003, after the said amendments
came into force, to validly practice medicine.
15. However, while holding that along with the
newly proposed colleges, the existing colleges would also be
required to seek permission of the Central Government, it was
all the same held that it would not mean that the degrees
conferred already would be rendered invalid. Hence, when a
degree is conferred prior to the commencement of the
Amending Act of 2003, it would be treated as a recognised
degree, even if the medical college had not sought for and
obtained permission of the Central Government, before that or
within a period of three years from the commencement of the
Amending Act of 2003.
16. The petitioner does not have the case that he was
conferred with a degree prior to 2003. Insofar as the conferment
of the degree claimed by the petitioner in the year 2012 is
Patna High Court CWJC No.20683 of 2019 dt. 05-12 -2023
concerned, going by the binding declaration of the Hon'ble
Supreme Court, it can be recognised as a valid qualification
enabling practice in medicine, only if the Institute which carried
on the course and conferred the degree was one recognised
within three years from the date of commencement of the
Amending Act of 2003, even if the Institute, as is in the present
case, was one established prior to the Amending Act. There is no
such contention raised in the writ petition. The writ petitioner,
hence is not entitled to the reliefs prayed for.
17. We cannot, but notice that the amendments
brought to the Act of 1970 was only to make it in consonance
with the decision of the Hon'ble Supreme Court. The G.A.M.S.
degree granted by the State Faculty of Ayurvedic and Unani
Medicines, within the State of Bihar would be recognised only
if the grant of degree is between 1953 to 2003. This does not in
any manner help the petitioner nor can the examination
conducted in 2012 be said to be one carried out pursuant to the
notification of 2010.
18. We find absolutely no reason to interfere with the
amendments made to the Act of 1970 nor do we find a reason to
accept the contentions of the petitioner against the cancellation
of his registration.
Patna High Court CWJC No.20683 of 2019 dt. 05-12 -2023
19. We dismiss the writ petition, leaving the parties
to suffer their respective costs.
(K. Vinod Chandran, CJ)
Rajiv Roy, J I agree
( Rajiv Roy, J)
Anushka/-
AFR/NAFR NAFR
CAV DATE 30.11.2023
Uploading Date 05.12.2023
Transmission Date
