Patna High Court
Sri Sarjoo Prasad And Ors. vs The State Of Bihar And Ors. on 21 February, 2003
Equivalent citations: 2003(51)BLJR686
Author: T.P. Singh
Bench: T.P. Singh
JUDGMENT S.N. Jha, J.
1. This review petition has been filed in the light of the order of the Supreme Court dated 26-2-1999 in SLP (Civil) CC No. 8140/98. The order runs as under.
"Learned Counsel for the petitioners relies on material & submit that the discipline of occupational Therapy/Physiotherapy is a recognised discipline and that the High Court Court was in error in assuming to the contrary. We think it is appropriate that, in the circumstances, such material should be presented to the High Court itself to enable it to consider whether the order under challenge should be reviewed. The SLP is dismissed. If the petitioners present a review petition before the High Court within two weeks, the same shall be duly considered."
2. The above mentioned SLP had arisen from the order dated 9-10-1998 on an interlocutory application (IA No. 8296/97) in CWJC No. 8444 of 1997. The writ Petition was filed as a public interest litigation highlighting the mismanagement in the Patna Medical College & Hospital, a premier teaching Hospital in the State of Bihar. The said interlocutory application related to Vikalang Bhawan, which was then part and parcel of the Patna Medical College & Hospital. It was inter alia, alleged that the para medical staff posted there had been prescribing allopathic medicines to patients, describing themselves as 'Doctors'. Notice was issued to the persons concerned, namely, Shri Sarjoo Prasad and others. They did not deny that they had signed OPD slips, issued prescriptions and prescribed allopathic medicines. They also did not deny describing themselves as Doctors in the OPD slips or the prescriptions. They took the stand that being certificate holders in Occupational Therapy - involving study of subject similar to the study for the MBBS degree, they were eligible to prescribe allopathic medicines. In view of the decision of the Supreme Court in Medical Council of India v. State of Rajasthan, AIR 1996 SC 2073, and in view of the provisions of Section 15(2)(b) of the Indian Medical Council Act, 1956, this Court found their action to be illegal amounting to misconduct and making them, liable to criminal prosecution in view of Section 15(3) of the Act, and accordingly directed the Commissioner & Secretary, Department of Health, Medical Education and Family Welfare, Government of Bihar to take appropriate action against them.
3. Two issues were settled by this Court by the aforesaid order 9-10-1998 -firstly, that the Occupational Therapists/Physiotherapists, which Shri Sarjoo Prasad and others claimed to be, could not use the prefix 'Doctor' in their names, and secondly, that they could not prescribe allopathic medicines. Before the Supreme Court however, it appears, larger question were raised as to whether the discipline of Occupational therapy/physiotherapy is a recognised discipline. This aspect of the case was not argued before this Court and therefore, not gone into in the earlier order. In a sense, thus, in view of the order of the Supreme Court, the scope of the review petition would appear to be wider than the scope of the order dated 9-10-1998 of which review is sought, In my respectful opinion, the question as to whether the discipline of Occupational Therapy/Physiotherapy is a recognised discipline notwithstanding, the question would still remain as to whether the Occupational Therapists/Physiotherapists could practise medicines as being purportedly done by Shri Sarjoo Prasad and others, and a distinction may be drawn in this regard between the para medical staff posted in hospitals like Vikalang Bhawan and qualified Occupational Therapists/Physiotherapists who have obtained the degree in Occupational Therapy and Physiotherapy after prosecuting the course and completing the training.
4. Dr. Sadanand Jha appearing for the review petitioners and Shri Narendra Prasad appearing for the intervenors were at pains to submit that Occupational Therapy and Physiotherapy are recognised disciplines of medical science. The erstwhile school of Physiotherapy and Occupational Therapy has been upgraded as Bihar College of Physiotherapy and Occupational Therapy under resolution of the State Government dated 29-3-1998 published in the Bihar Gazette dated 4-4-1998. The regulations for the Bachelor Course in Occupational Therapy (B.Th.O.) and the Bachelor course in Physiotherapy (B.Ph.T) of four and a half years duration each have been framed by the Chancellor in terms of Section 29(2) of the Patna University Act, in consultation with the Bihar Inter University Board and the Health, Medical Education and Family Welfare Department, Government of Bihar on the recommendation of the Senate of the Patna University. The Regulations/course contemplate award of Bachelor's degrees in Occupational Therapy and Physiotherapy respectively on completion of four and a half years' course and six moths' internship. The syllabi, it was submitted, are similar to those of the prescribed syllabi for the MBBS and BDS courses. So far as the Diploma holders i.e. recipients of Diploma on the basis of three years' course and Family Welfare Department, Government of Bihar on the recommendation of the Senate of the Patna University. The Regulations/course contemplate award of Bachelor's degrees in Occupational Therapy and Physiotherapy respectively on completion of four and a half years' course and six moths' internship. The syllabi, it was submitted, are similar to those of the prescribed syllabi for the MBBS and BDS courses. So far as the Diploma holders i.e. recipients of Diploma on the basis of three years' course are concerned, under Clause 38 of the Regulation, those having eight years continues teaching experience in Diploma in Occupational Therapy & Physiotherapy at the erstwhile School of Physiotherapy & Occupational therapy, PMCH are to be treated at par with degree holders. Those having diploma may be admitted to the Final Bachelor Course and on completion of one year regular course may be allowed to appear at the Final (Third) B.Th.O or B.Ph.T. examination. Those having less than three years clinical experience are merely required to complete six months internship in the Bihar College of Physiotherapy & Occupational Therapy. Likewise under Clause 39, those who have passed the diploma course of 1992-95 or 1995-98 at the First or the Second year Diploma examination are to be treated as equivalent to First Bachelor or Second bachelor of Occupational Therapy or Physiotherapy examinations, as the case may be, Under Clause 40 the candidates who successfully complete the course of four and half years including internship and have passed the prescribed examinations shall be awarded Degree of Bachelor of Occupational Therapy (B.Th.O.) or Bachelor of Physiotherapy (B.Ph.O.), as the case may be, and be entitled and qualified to practise Occupational Therapy or Physiotherapy and Western Medical Science and Modern Scientific System of Medicine for preventive, curative, restorative treatment and rehabilitative management as well as health care of the patient and disability group.
5. It was stated that suitable amendments have also been made in the Patna University Act by Bihar Ordinance No. 4 of 2000, replaced by Bihar Act 4 of 2001, making provisions for the conduct of examinations etc, by the Bihar College of Physiotherapy and Occupational Therapy, Patna by the Patna University vide Section 71-B. It says that notwithstanding anything to the contrary contained in the Act or in the Statutes, and Regulations made thereunder, the Patna University shall perform functions relating to teaching, examination and confirmation of degrees to the students of the Bihar College of Physiotherapy and Occupational Therapy, Patna.
6. Attention was also drawn to the Bihar amendments in the Indian Medical Degrees Act 1916 by which the Indian System of Medicine has been brought within the ambit of the Act in addition to 'Western Medical Science', and it was submitted that if by virtue of amendments, brought about in 1949, the system of Medical Science is not confined to only Western Medical Sciences and it also includes Indian System of Medicine, any restriction on the Occupational Therapists and Physiotherapists to prescribe allopathic medicines has no meaning.
7. In view of the materials brought on record, briefly referred to above, there can be little doubt that Occupational Therapy and Physiotherapy have acquired status of recognised disciplines in medical science. However, as indicated above, notwithstanding affirmative finding on the point, a question would arise as to whether Occupational Therapists/Physiotherapists can practise medicine like MBBS doctors. But before adverting to this question, I may point out the distinction between persons who claim to have acquired the qualification in Occupational Therapy or Physiotherapy on the basis of short training and those who have acquired the qualification on completion of regular degree/diploma course followed by internship. Person like Shri Sarjoo Prasad and others whose case was considered by this Court in 1A No. 8296/ 97 do not claim to be diploma/degree holders and therefore, their cases would stand on different footing altogether. It may be noted here that while disposing of 1A No. 8296/97 this Court had held "on the basis of admitted facts and materials we have no difficulty in holding that the action of Shri Sarjoo Prasad and other similarly situate Occupational Therapists of Vikalang Bhawan constitutes misconduct and also make them liable to criminal prosecution." The words "other similarly situate" clearly referred to persons other than Shri Sarjoo Prasad posted as Occupational Therapists in Vikalang Bhawan, such as Prakash Prasad Singh and Kishore Kumarwhose names find mention in the earlier part of the order dated 9-10-1998, but a doubt seems to have arisen in some quarters that the order relates to all Occupational Therapists and Physiotherapists. It is in this background and for clarification that 1A No. 3406/ 2002 has been filed by the intervenors. The doubt or confusion is without any basis and totally misconceived. As already indicated above, the order was passed in relation to Shri Sarjoo Prasad and others "similarly situate", that is to say, others similarly situate as Shri Sarjoo Prasad. In other words, the Occupational Therapists and Physio Therapists who acquire the prescribed qualification in terms of the Regulations/ amendments in the Patna University, referred to above, would stand on different footing. The order under review dated 9-10-1998 was not meant to apply to them.
8. Now coming to the question which arose for consideration in 1A No. 8296/97, the answer lies in Section 15(2)(b) of the Indian Medical Council Act, 1956. Section 15 contains provisions regarding right of persons possessing qualifications included in the Schedule (of the Act) to be enrolled on a State Medical Register. It is only on such enrolment that they get right to practise medicine in any State. The" Section so far as relevant may be quoted as under:
"(1) subject to the other provisions contained in this Act, the medical qualification included in the schedule shall be sufficient qualification for enrolment on any State Medical Register (2) Save as provided in Section 25, no person, other than medical practitioner enrolled on State Medical Register,--
(a) ....... ..... .......
(b) shall practise medicine in any State,
(c) shall be entitled to sign or authenticate a medical or fitness certificate or any other certificate required by any law to be singed or authenticated by a duly qualified medical practitioner.
(d)..... ..... .....
(3) Any person who acts in contravention of any provision of Sub-section (2) shall be punished with imprisonment for a term which may extent to one year, or fine which may extent to one thousand rupees or with both."
It is relevant in this connection to notice the definition of 'medicine' occurring in Section 15(2)(b). The term has been defined in Section 2(f) of the Act to mean, "Modern Science Medicine in all its branches and includes surgery and obstetrics, but does not include veterinary medicine and surgery."
It may be useful to notice the definition of 'recognised medical qualification' in Section 2(h) of the Act as follows:
"Means any of the medical qualifications in the Schedules"
The definition of the term 'State Medical Register' in Section 2(k) may also be noticed as under:
"A Register maintained under any law for the time being in force in any State regulating the registration of practitioners of medicine."
Section 25, referred to in Section 15(2), contains provisions relating to provisional registration. The Indian Medical Council Act provides for another Medical Register called 'Indian Medical Register', vide Selection 23 of the Act, maintained by the Medical Council of India. The Registrar of the Council may, on receipt of report of registration of a person in a State medical Register or on application made by such person in the prescribed manner, enter his name in the Indian Medical Register.
9. From a bare perusal of Section 15(2)(b) it is apparent that unless a person is enrolled on State Medical Register as medical practitioner, he cannot practise medicine, nor he can sign or authenticate any medical certificate or any certificate required by any law to be signed or authenticated by a duly qualified medical' practitioner. Thus, notwithstanding that an Occupational therapist or Physiotherapist holds diploma/degree in Occupational therapy or Physiotherapy granted by the University on the basis of the course of studies prosecuted by him, if he is not enrolled on a State Medical Register, he cannot practise modern medicine. Indeed, medical qualification included in the Schedule of the Indian Medical Council Act only entitles the person to be enrolled on a State Medical Register, but without such enrolment even he cannot practise medicine. It is relevant to mention here that Sub-section (2) of Section 15 of the Indian Medical Council Act was added by Act 24 of 1964 with effect from 16-6-1964. Prior to the amendment there was no such provision that only a person enrolled on 'State Medical Register' can practise modern science medicine.
10. Heavy reliance was placed on Dr. Mukhtiar Chand v. The State of Punjab, (1998) 7 SCC 579, on behalf of the review petitioners and the intervenors. The dispute in that case related to Vaids/Hakims who were declared 'registered medical practitioners' by the Government of Punjab in terms of Rule 2 (ee) (iii) of the Drugs and Cosmetics Rules 1945. Under the relevant provisions of the Drugs and Cosmetics Act 1940 and the Drugs and Cosmetics Rules 1945, the drugs can be sold or supplied by a pharmacist or druggist only on prescription of 'a registered medical practitioner' who can also store them for treatment of his patients. The High Court set aside the notification. It held that the notification was ultra vires the rules and also contrary to the Indian Medical Council Act. Upholding validity of the notification the Supreme Court observed that for the purposes of Rule 2(ee) (iii) of Drugs & Cosmetics Rules what is required is not the qualification in modern scientific system of medicine but a declaration by a State Government that a person is practicing modern scientific system and that he is registered in a Medical Register of the State (other than a register for registration of homeopathic practitioners). However, while upholding the rule and the notification, the Supreme Court clarified that after insertion of Sub-section (2) in Section 15 of the Indian Medical Council Act, the right of non-allopathic doctors to prescribe drugs by virtue of the notification got obliterated unless the privilege of such right to practise any system of medicine is conferred by the State law under which practitioners of Indian Medicine are registered in the State which is for the time being in force. They are, however, not debarred from prescribing or administering allopathic medicine sold across the counter "for common ailments".
11. It would be useful to quote the relevant observations occurring at pages 596-97 of the Report as under:
Rule 2 (ee), as noted above, has been inserted in the Drugs Rules with effect from 14-5-1960. Section 15 of the 1956 Act, as to then stood, only provided that the medical qualifications in the Schedule shall be sufficient qualification for enrolment on any State Medical Register and so there was no inconsistency between the section and the Rule when it was brought into force. But after Sub-section (2) of Section 15 was inserted in the 1956 Act, with effect from 15-9-1964 (sic 16-6-1964), which, inter alia, provides that no person other than a medial practitioner enrolled on a "State Medical Register" sale practise modern scientific medicine in any State, the right of non-allopathic doctors to prescribe drugs by virtue of the declaration issued under the said Drugs Rules, by implication, got obliterated. However, this does not debar them from prescribing or administering allopathic drugs sold across the counter for common ailments.
Dwelling upon the scope of Section 15(2)(b) of the Indian Medical Council Act, the Supreme Court observed at page 595 of the Report as under:
Section 15(2)(b) of the 1956 Act prohibit all persons from practising modern scientific medicine in all its branches in any State except a medial practitioner enrolled on a State Medical Register. There are two types of registration as far as the State Medical Register is concerned. The first is under Section 25, provisional registration for the the purposes of training in the approved institution and the second is registration under Section 15(1). The third category of registration is in the "Indian Medical Register" which the Council is enjoined to maintain under Section 21 for which recognised medical qualification is a prerequisite. The privileges of persons who are enrolled on the Indian Medical Register are mentioned in Section 27 and include the right to practise as a medical practitioner in any part of India. "State Medical Register" in contradistinction to "Indian Medical Register", is maintained by the State Medical Council which is not constituted under the 1956 Act but is constituted under any law for the time being in force in any State; so also a State Medical Register is maintained not under the 1956 Act but under any law for the time being in force in any State regulating the registration of practitioners of medicine. It is thus possible that in any State, the law relating to registration of practitioners of modern scientific medicine may enable a person to be enrolled on the basis of the qualifications other than the "recognised medical qualification" which is a prerequisite only for being enrolled on the Indian Medical Register but not for registration in a State Medical Register. Even under the 1956 Act, "recognised medical qualification" is sufficient for that purpore. That does not mean that it is indispensably essential. Persons holding "recognised medical qualification" cannot be denied registration in any State Medical Register, But the same cannot be insisted upon for registration in a State Medical Register. However, a person registered in a State Medical Register cannot be enrolled on the Indian Medical Register unless he possesses "recognised medical qualification." This follows from a combined reading of Sections 15(1), 21(1) and 23. So by virtue of such qualifications as prescribed in a State Act and on being registered in a State Medical Register, a person will be entitled to practise allopathic medicine under Section 15(2)(b) of the 1956 Act.
Concluding, at pages 601-02 of the Report the Supreme Court held, The upshot of the above discussions is that Rule 2 (ee) as effected from May 14, 1960 is valid and does not suffer from the vice of want of the legislative competence and the notifications issued by the State Government thereunder are not ultra vires the said rule and are legal. However, after Sub-section (2) in Section 15 of the 1956 Act occupied the field vide Central Act 24 of 1964 with effect from June 16, 1964, the benefit of the said Rule and the notifications issued thereunder would be available only in those States where the privilege of such right to practise any system of medicine is conferred by the State law under which practitioner of Indian Medicine are registered in the State, which is for the time being in force. The position with regard to Medical practitioner of Indian medicine holding degrees in integrated courses is on the same plain inasmuch as if any State Act recognises their qualification as sufficient for registration in the State Medical Register, the prohibition contained in Section 15(2)(b) of the 1956 Act will not apply."
12. It would thus appearthat the decision in Dr. Mukhtiar Chand's case lends no support to the petitioners/intervenors case. Though the rule as well as the notification declaring the Vaids/Hakims was held to be valid, the benefit of the rule and the notification issued thereunder, it was held, could be claimed only where the privilege of the right to practise any system of medicine is conferred by the relevant State law dealing with the registration of practitioners of Indian medicines. Reference to the Indian System of Medicine was obviously in the context of the case as the dispute related to Vaids/Hakims, but the same thing would be applicable to other fields/ disciplines of Medical science. In other words, in the absence of conferment of right to practise the modern system of medicine under the relevant law in the State, the Occupational Therapists and Physiotherapists cannot claim any right to practise modern scientific medicine i.e. allopathic medicine. Whereas in terms of Section 15(2)(b) of the Indian Medical Council Act, without enrolment on the State Medical Register they cannot claim such right, the Supreme Court held, in context, that the benefit of the rule or notification thereunder "would be available where the privilege of right to practise any system of medicine is conferred by the State law under which medical practitioners are registered in that State". By implication the Supreme Court held that Section 15(2)(b) was not exhaustive. Earlier in the judgment the Court had observed that it was possible that in any State the law relating to registration of practitioners of modern scientific medicine may enable a person to be enrolled on the basis of the qualification other than the 'recognised medical qualification' which is a pre-requisite for being enrolled on the Indian Medical Register but not for registration in State Medical Register.
13. Thus, Occupational Therapists and Physiotherapists can claim right to practise either on their enrolment on the State Medical Register or on conferment of such a right under the law of the State under which medical practitioners are registered in the State. Admittedly, Occupational Therapists or Physiotherapists- muchless those posted in Vikalang Bhawan, like Shri Sarjoo Prasad and others, are not enrolled on the State Medical Register within the meaning of Section 15(2) (b). No notification conferring upon them any right to practise their system of medicine by the State Government was brought to our notice. In this view of the matter notwithstanding that the Occupational Therapy and Physiotherapy have acquired the status of recognised disciline in medical science, they cannot practise modern scientific medicines. 14. A ide issue decided by the order under review, related to the use of prefix, 'Doctor' i the name. The term 'doctor' has been defined in Stedman's Medical Dictionary (furnised by the review petitioners themselves - at page 216 of the petition- part of Annexure 21)as under--(1)A(sic)itle conferred by a University on one who has followed a prescribed course of study, or given as a mark of distinction; as doctor of medicine, doctor of laws philosophy etc. (2) A physician, especially one upon whom has been conferred the degree of M.D. by a University or medical school. It was stated on behalf of the revie petitioners that MBBS doctors are called as such as a Courtesy. It is not necessary to go into the history as to how MBBS doctors, or the like, started using the pre ix 'Doctor' in their names, or started being addressed as such. The question of courtesy or respect apart, in terms of the medical definition of the term (supra), a person who has not been conferred this title after a prescribed course of study cannot use it as a prefix in his name as of right. In villages even quacks call themselves and are sometimes addressed by others as doctors but they cannot claim it as part of their status. All said, the order under review was passed in a particular context and in respect of person who did not not have the degree on the basis of any prescribed course of study. 15. Before taking up the review petition for final hearing notice was issued to the Medical Council of India and the Indian Medical Association (Bihar Chapter) to assist this Court on the points involved. Shri Anil Kumar Tiwary appearing for the Medical Council of India submitted that the Occupational Therapists and Physiotherapists have never applied for inclusion of the qualification as a 'recognised medical qualification' in the third Schedule of the Act in terms of Section 13(3) of the Indian Medical Council Act. Thus, even though Section 15(2) of the Act has been held to be not exhaustive by the Supreme Court, the qualification cannot be treated as sufficient under the State law unless the Degree in Occupational Therapy and Physiotherapy is included as a recognised medical qualification in the Schedule and the Occupational Therapists and Physiotherapists cannot be allowed to practise modern scientific medicines.
16. Shri Jainandan Singh appearing for the Indian Medical Association (Bihar Chapter) submitted that the 2001 Regulations are under review and Committee constituted by the Patna University vide notification dated 15-3-2002 to examine the administrative and academic rules and regulations etc. of the Bihar Physiotherapists and Occupational Therapists has suggested certain amendments on 9-5-2002, and final decision has not been taken. He submitted that prescribing medicines is a concomitant of practising medicine and if Occupational Therapists and Physiotherapists cannot practise modern scientific medicine they cannot prescribe allopathic drugs too. Shri Singh submitted that what the petitioners realty want is declaration that they have right to practise modern scientific medicine and, in effect, a direction to the State to enact a -law treating the qualification in Occupational Therapy and Physiotherapy as equivalent to recognised medical qualification but it is well settled that no writ can be issued to enact law or to take any policy decision. He cited the cases of Narinder Chand Hem Raj v. Lt. Governor, Administration, Union Territory, AIR 1971 SC 2399, Supreme Court Employees' Welfare Association v. Union of India, AIR 1990 SC 334 and State of Jammu & Kashmir v. A.R. Zakki, AIR 1992 SC 1546. A PIL being CWJC No. 9437/98, was in fact dismissed by this Court on 25-11-1998 on this ground. He submitted that the subject is covered by Entry 26 of List III of the 7th Schedule of the Constitution and therefore, if there be any conflict between the Bihar and Orissa Medical Act 1916 and Indian Medical Council Act, 1956, the latter being a Central law will prevail. The Indian Medical Council Act occupies the field and in terms thereof only those who are covered by the Act are entitled to practise modern scientific medicines. Unless the Occupational Therapists and Physiotherapists are enrolled on State Medical Register in terms of Section 15(2)(b) or the qualification is treated at par with recognised medical qualification by the State Government under the relevant law, as held by the Supreme Court, they cannot claim this right.
17. In the above premises, I do not find any ground for reviewing the order dated 9-10-1998 in CWJC No. 8444 of 1997. The review petition is accordingly, dismissed.
Tarkeshwar Prasad Singh, J.
18. I agree.