Uttarakhand High Court
Dr. Ved Prakash Tyagi vs Union Of India And Others on 8 December, 2015
Author: Alok Singh
Bench: Alok Singh
IN THE HIGH COURT OF UTTARAKHAND AT
NAINITAL
WRIT PETITION No. 1754 of 2013 (M/S)
Dr. Ved Prakash Tyagi ---Petitioner
Vs.
Union of India & others --Respondents
Present :
Mr. V.K. Kohli, Senior Advocate, assisted by Mr. M.C. Pant, Advocate for
the petitioner.
Mr. N.P. Sah, Standing Counsel for the State/respondent nos. 2 and 3.
Mr. Shivanand Bhatt, Advocate for respondents no. 4 and 5.
Mr. Manoj Tiwari, Senior Advocate, assisted by Mr. P.K. Chauhan,
Advocate for respondent No. 6.
Mr. Harshpal Sekhon, Advocate for respondent no.7.
Hon'ble Alok Singh, J. (Oral)
Present petition is filed assailing the orders dated 06.05.2013, 07.05.2013, 09.05.2013, 19.07.2013 and 27.07.2013, whereby the Registrar of the Board of Indian Medicine, Uttarakhand was pleased to decline to renew the registration of the petitioner and, thereafter, pleased to cancel the registration of the petitioner and appeal filed therefrom was dismissed by the State Government.
Undisputedly, petitioner is a permanent resident of Village Nanheda Anantpur, District Haridwar, wherein he has his ancestral as well as agricultural properties and his forefathers were the permanent resident of Village Nanheda Anantpur, District Haridwar, which is now part of the State of Uttarakhand. Undisputedly, petitioner, after obtaining Intermediate education from the College of 2 District Haridwar, took admission in Parsurampuria Ayurvedic College, Sikar, Rajasthan and did his B.A.M.S. from Parsurampuria Ayurvedic College, Sikar, Rajasthan. It is also not in dispute that petitioner got himself registered with the Board of Indian Medicine, Rajasthan and joined Government services in the year 1985 and, thereafter, resigned from the Government services in the month of February, 2009. It is also not in dispute that petitioner contested and won the elections of Member of Central Council of Indian Medicine being Member of the Board of Indian Medicine, Rajasthan.
As per the case taken by the petitioner, he decided to shift to his native place, i.e. State of Uttarakhand, therefore, after taking retirement from the State Services of Rajasthan in February, 2009, he applied to the Board of Indian Medicine, Rajasthan to grant him 'No Objection Certificate' to obtain membership from the Board of Indian Medicine Uttarakhand; Board of Indian Medicine, Rajasthan granted 'No Objection Certificate' on 25.08.2009, annexure No. 6 to the writ petition, saying Board of Indian Medicine, Rajasthan has no objection in obtaining membership from the Board of Indian Medicine, Uttarakhand by the petitioner with the stipulation that after obtaining the membership from the Board of Indian Medicine, Uttarakhand, petitioner would inform the Board of Indian Medicine, Rajasthan accordingly; 'No Objection Certificate' issued by the Board of Indian Medicine, Rajasthan on 25.08.2009 was valid for a period of one year only;
3vide letter dated 11.10.2010, annexure No. 7 to the writ petition, Board of Indian Medicine, Rajasthan was pleased to extend the validity period of 'No Objection Certificate' dated 25.08.2009 for further one year; vide application dated 10.01.2011, petitioner made request to the Board of Indian Medicine, Uttarakhand to grant him registration; Board of Indian Medicine, Uttarakhand was pleased to grant provisional registration to the petitioner on 10.01.2011 and petitioner was awarded provisional Registration No. UK 01323/10-T; thereafter, permanent registration certificate was issued to the petitioner with Registration No. UK 02076 on 11.04.2011 (which is available on the paper book at Page No. 118); in the registration certificate dated 11.04.2011, name of the petitioner was shown as "Ved Prakash Tyagi," while in the column of permanent address, name of the village is shown as "Nalheda"; vide letter dated 13.05.2011, i.e. after issuing the registration certificate dated 11.04.2011, Registrar, Board of the Indian Medicine, Uttarakhand has written one letter to the Registrar, Board of the Indian Medicine, Rajasthan inquiring as to whether 'No Objection Certificate' was issued by the Board of the Indian Medicine, Rajasthan; vide letter dated 23.05.2011, Board of Indian Medicine, Rajasthan has confirmed since, request was made by the petitioner to issue 'No Objection Certificate' enabling him to obtain registration from the Board of Indian Medicine, Uttarakhand; therefore, 'No Objection Certificate' and extension thereof were issued by the Board of Indian Medicine, Rajasthan on 27.05.2011, 4 petitioner moved one application before the Board of Indian Medicine, Uttarakhand to correct his name as 'Vedprakash Tyagi' instead of 'Ved Prakash Tyagi' and to correct the name of his village as 'Nanheda Anantpur' instead of 'Nalheda'; on the request of the petitioner fresh registration certificate was issued on 27.05.2011, correcting his name as well as the name of his village as requested by the petitioner; although, previously issued registration certificate dated 11.04.2011, was shown to be valid till 10.03.2016, however, after carrying out the correction as prayed by the petitioner, corrected certificate was shown to be valid till 11.10.2011 only; petitioner contested the election as Registered member of the Board of Indian Medicine, Uttarakhand and was declared elected as Member of the Central Council of Indian Medicine on 27.08.2011 and, thereafter, was elected as Chairman of Central Council of Indian Medicine on 05.07.2012 for a period of five years; vide order dated 06.05.2013, Registrar, Board of Indian Medicine, Uttarakhand was pleased to inform the petitioner since, petitioner has concealed the fact of pendency of the Civil Writ Petition No. 3875 of 2006 before the Rajasthan High Court against the Board of Indian Medicine, Rajasthan, therefore, Board has decided not to renew his registration after 11.04.2011; vide letter dated 07.05.2013, petitioner was informed that in the previous letter dated 06.05.2011, 11.04.2011 may be read as 11.10.2011; vide subsequent impugned order dated 09.05.2013, petitioner was informed that his registration was cancelled on the ground that same was obtained by the petitioner by 5 playing fraud; order dated 09.05.2013 was assailed by the petitioner before the State Government under Section 43 of United Provinces Indian Medicine Act, 1939; vide order dated 20.05.2013, appeal, so filed by the petitioner, was allowed by the State Government setting aside the orders dated 06.05.2013, 7.05.2013 and 09.05.2013; against the order dated 20.05.2013, passed by the State Government, Writ Petition (M/S) No. 1149 of 2013 was preferred before this Court, which was allowed by the Coordinate Bench of this Court, vide order dated 30.05.2013, remanding the matter to the Principal Secretary, Medical Health Ayush, Uttarakhand to pass fresh orders after hearing all the concerned; thereafter, impugned order dated 19.07.2013 was passed dismissing the appeal of the petitioner; feeling aggrieved, petitioner has preferred this writ petition before this Court; writ petition was initially dismissed by the Coordinate Bench of this Court vide judgment dated 10.03.2014 on the ground of availability of alternate remedy; judgment dated 10.03.2014 was assailed by the petitioner in Special Appeal No. 70 of 2014 before the Division Bench of this Court; Special Appeal No. 70 of 2014 was allowed by the Division Bench of this Court and writ petition was remanded to the Writ Court to decide it afresh, vide judgment dated 13.05.2014, saying dismissal of the writ petition on the ground of alternate remedy was bad in law; S.L.P. was preferred before the Hon'ble Apex Court being S.L.P. (Civil) No. 1045 of 2014 assailing the judgment of Division Bench of this Court dated 13.05.2014 which was dismissed by the Hon'ble Apex Court vide order dated 6 29.09.2015; a Review Petition was filed before the Hon'ble Apex Court, which too came to be dismissed by the Hon'ble Apex Court, vide order dated 26.11.2015; that is how this writ petition is once again before this Court for fresh adjudication.
I have heard Mr. V.K. Kohli, learned Senior Counsel assisted by Mr. M.C. Pant, learned counsel for the petitioner, Mr. N.P. Sah, learned Standing Counsel for the State/respondent nos. 2 & 3, Mr. Shivanand Bhatt, learned counsel for the respondent nos. 4 & 5, Mr. Manoj Tiwari, learned Senior Counsel, assisted by Mr. P.K. Chauhan, learned counsel for respondent no.6 and Mr. Harshpal Sekhon, learned counsel for respondent no.7 and have carefully perused the record.
Learned counsel for the parties do not dispute that petitioner was registered with the Board of Indian Medicine, Rajasthan on 11.03.1980 and was having Registration No. 14839 Class-A. Learned counsel appearing for the parties do not dispute that after taking voluntary retirement from the Government Service from the Rajasthan, petitioner has applied for issuance of 'No Objection Certificate' enabling him to obtain membership from the Board of Indian Medicine, Uttarakhand and 'No Objection Certificate' was issued by the Board of Indian Medicine, Rajasthan on 25.08.2009, initially for one year, however, same was extended for further one year vide order dated 11.10.2010. Learned counsel appearing for the parties admit that now petitioner is permanently residing in the State of Uttarakhand.
7The perusal of the impugned orders would reveal that registration of the petitioner with the Board of Indian Medicine, Uttarakhand was cancelled mainly on three grounds viz.-
(i) No Objection Certificate ought not to have been issued by the Board of Indian Medicine, Rajasthan, since, there is no provision to issue No Objection Certificate by any State Board and the Board of Indian Medicine, Uttarakhand was not competent to grant registration to the petitioner in the garb of No Objection Certificate issued by the Board of Indian Medicine, Rajasthan.
(ii) Petitioner has not withdrawn his membership from the Board of Indian Medicine, Rajasthan prior to the moving of the application before the Board of Indian Medicine, Uttarakhand for obtaining membership from the Uttarakhand Board.
(iii) Petitioner did not inform the Board of Indian Medicine, Uttarakhand that he had earlier filed writ petition against the Board of Indian Medicine, Rajasthan and same was pending disposal before the Rajasthan High Court.
Mr. Manoj Tiwari, learned Senior Counsel appearing for the respondent no.6, contends that since initially provisional registration was granted to the petitioner by the Board of Indian Medicine, Uttarakhand on 10.01.2011 and permanent registration was granted on 11.04.2011 and on both the dates petitioner was having registration with the Board of Indian Medicine, Rajasthan, therefore, dual 8 membership was not permissible in view of the advisory issued by the Central Council of Indian Medicine dated 10.10.2011. He further contends that as per the advisory dated 10.10.2011, Board of Indian Medicine, Rajasthan was not competent to issue 'No Objection Certificate' nor the Board of Indian Medicine, Uttarakhand was competent to grant registration in the garb of No Objection Certificate issued by the Board of Indian Medicine, Rajasthan. According to Mr. Manoj Tiwari, learned Senior Counsel appearing for the respondent no. 6, petitioner should have applied for cancellation/withdrawal of his membership from the Board of Indian Medicine, Rajasthan and only after withdrawal of his membership from the Board of Indian Medicine, Rajasthan should have applied for fresh membership with the Board of Indian Medicine, Uttarakhand.
Mr. Manoj Tiwari, learned senior counsel appearing for the respondent no. 6 further contends that since petitioner has not mentioned in his application seeking membership from the Board of Indian Medicine, Uttarakhand as well as in accompanying affidavit therewith that he had filed Civil Writ Petition No. 3875 of 2006 before the High Court of Rajasthan against the cancellation of his membership by the Board of Indian Medicine, Rajasthan which was pending disposal, therefore, petitioner has concealed this important fact from the Board of Indian Medicine, Uttarakhand and thus has played fraud for obtaining the membership from the 9 Board of Indian Medicine, Uttarakhand. Had this fact been disclosed to the Board of Indian Medicine, Uttarakhand, membership ought not to have been granted by the Board of Indian Medicine, Uttarakhand. Mr. Manoj Tiwari, learned Senior Counsel further contends that corrected registration certificate, copy of which is available on the paper book at page no. 123 reveals that registration in favour of the petitioner was valid till 11.10.2011, therefore, as on day, even if, order of cancellation of membership is quashed, petitioner, in fact, would get no relief in view of the fact that as on day, there is no registration certificate in his favour.
Sections 26, 27 & 31 of the United Provinces Indian Medicine Act, 1939 read as under:-
"26. Duties of Registrar - (1) Subject to the provisions of this Act and subject to any general and special orders of the Board, it shall be the duty of the Registrar to keep the register and discharge such other functions as are required to be discharged by him under this Act or by any rules framed by the State Government.
(2) The Registrar shall so far as practicable keep the register correct and up-
to-date and may from time to time enter therein any material alteration in the addresses or qualifications of the practitioners. He shall also remove from the register the names of the registered practitioners who die or who cease to be qualified as such.
(3) The State Government may direct that no alteration in the entries in respect of additional qualifications shall be made unless such fee as may be prescribed is paid.
10(4) For the purposes of this section the Registrar may write to any registered practitioner at the address which is entered in the register to inquire whether he has ceased to practise or has changed his residence, and if no answer is received to the said letter within three months, the Registrar may issue a registered reminder, and in case no reply is received to the reminder within one month from the date of its issue, he may remove the name of the said practitioner from the register:
Provided that the Board may if it thinks fir direct that the name of the said practitioner be re-entered in the register.
27. Persons entitled to be registered -
(1) Every person possessing the qualifications mentioned in the Schedule shall, subject to the provisions contained in or made under this Act and upon payment of such fees, whether in a lump sum or periodically, as may be prescribed, be entitled on an application made to the Registrar, to have his name entered in the Register. When the name of a person has been registered in accordance with the provision aforesaid he shall be granted a certificate in the prescribed form.
(2) Any person aggrieved by the order of the Registrar refusing to enter his name in the Register or to make any entry therein may, within ninety days of such refusal, appeal to the Board.
(3) The appeal shall be heard and decided by the Board in the prescribed manner.
(4) The Board may on its own motion or on the application of any person cancel or alter any entry in the Register if in the opinion of the Board such an entry was fraudulently or incorrectly made or obtained, or an application was wrongly refused.
31. Powers of Board to prohibit entry in, or to direct removal from, the register, etc. -
11(1) The Board may prohibit the entry in, or order the removal from the register of the name of any Vaidya or Hakim -
(a) who has been sentenced by a Criminal Court in British India to imprisonment for an offence declared by Government to involve such moral turpitude as would render the entry or continuance of his name in the register undesirable, or
(b) whom the Board or a Committee specially authorized for the purpose after enquiry (at which opportunity has been given to him to be heard in his defence and to appear either in person or by counsel, Vakil, pleader or attorney, and which may, in the discretion of the Board, be held, in camera, has found guilty of professional misconduct or other infamous conduct by a majority of at least two-thirds of the members present and voting at the meeting.
(2) The Board may direct that the name of any person against whom an order has been made under sub-section (1) shall be entered or re-entered, as the case may be, after having satisfied itself that due to lapse of time or otherwise the disability mentioned in sub-section (1) above has ceased to have any force."
As per the Section 26 of the Act, Registrar of the Board of Indian Medicine Council, Uttarakhand is duty bound to keep register of registration duly maintained. Registrar shall remove the name of the practitioner from the Register if practitioner dies or ceases to have qualification to practice. Name may also be removed from the Register if practitioner is found not in practice or is not found residing at the address mentioned in the Register after due notices. Registrar may direct to re-register the name in the Register if disqualification observed earlier is found no more existing.
12The bare reading of Section 27 of the Act would make it clear that if applicant is possessing requisite qualification mentioned in the Schedule and pays the prescribed fee, on an application made to the Registrar, his name shall be entered in the register. In other words, if applicant, who has applied for the registration of membership, has requisite qualification and has paid prescribed fee, the registration certificate shall be issued in his favour. Certificate so issued may be cancelled, if same is found to have been obtained by playing fraud or is found to have been issued incorrectly or he is found not to be the resident of State or has made himself disqualified to continue as the member of the Board.
Section 31 provides that State Board may prohibit any practitioner registered with the Board to practice or may direct to remove his name from the Register of membership if such practitioner is sentenced by Criminal Court for the offence involving moral turpitude making such practitioner undesirable to further practice or if such practitioner is found guilty of professional misconduct.
Learned counsel appearing for the parties do not dispute that there is no provision in United Provinces Indian Medicine Act, 1939 whereunder the Registrar or Board, as the case may be, may issue temporary or provisional registration certificate; nor there is any provision whereunder registration certificate can be issued for limited period; nor there is any provision wehreunder such temporary-provisional or limited 13 period registration certificate can be renewed for further limited period. In my humble opinion to the contrary, simple and unambiguous language of Section 27 would go to suggest that if applicant is having requisite qualification and has paid prescribed fee, on his application, his name shall be entered in the Register of membership. In my further opinion such registration shall be valid till same is directed to be removed by the Registrar or by the Board, as the case may be, under Section 26, 27 or Section 31 of the Act.
Since, there is no provision in the Act to issue temporary-provisional or limited period membership, therefore, Registrar or Board, as the case may be, has no jurisdiction to issue limited period certificate. Moreover, there is no provision for renewal of registration, therefore, in my considered opinion, scheme of the State Act demonstrates that certificate shall not be issued for limited period. Consequently, I find that entry made in the Registration Certificate that same would be valid till 11.10.2011 is without jurisdiction and is thus ipso facto invalid. Consequently, I hold that certificate issued to the petitioner is valid till same is cancelled on the ground mentioned in Section 26, 27 or 31 of the Act.
Let me now examine as to whether impugned cancellation orders are legal and valid?
I have carefully perused the provisions of Indian Medicine Central Council Act, 1970 as well as United 14 Provinces Indian Medicine Act, 1939 with the help of the learned counsel appearing for the parties.
Learned counsel appearing for the parties do not dispute that none of the provisions of Central and State Acts provide that before obtaining registration certificate in a subsequent State certificate obtained from the previous State has to be withdrawn. Nor there is any provision in either of the Acts which prohibits grant of certificate by the subsequent State during the existence of certificate of registration issued by previous State.
As mentioned, hereinbefore, the Board of Indian Medicine, Uttarakhand itself has sought clarification from the Board of Indian Medicine, Rajasthan as to whether 'no objection certificate' submitted by the petitioner was issued by the Board of Indian Council, Rajasthan and Board of Indian Council, Rajasthan has replied in affirmative. Therefore, issuing the registration certificate by the Board of Indian Medicine, Uttarakhand in the light of 'No Objection Certificate' issued by the Board of Indian Medicine, Rajasthan cannot be said without jurisdiction and petitioner cannot be held guilty for playing fraud with the Board of Indian Medicine, Uttarakhand by obtaining registration certificate by submitting 'No Objection Certificate' validly issued by the Board of Indian Medicine, Rajasthan.
Mr. Manoj Tiwari, Learned Senior Counsel appearing for the respondent no. 6 has vehemently argued that although there is no provision in both the 15 Acts that before getting registration from the subsequent State, registration issued by the previous State has to be withdrawn. However, in view of the advisory issued by the Central Council of Indian Medicine dated 10.10.2011, petitioner ought to have withdrawn his membership from the Board of Indian Medicine, Rajasthan prior to applying for the membership from the Board of Indian Medicine, Uttarakhand.
I find myself unable to agree with the contention made by Mr. Manoj Tiwari, learned senior counsel appearing for the respondent no. 6 for the simple reason that advisory does not have statutory force and by issuing the advisory neither Central Council of Indian Medicine nor State Board can attempt to amend the provisions of the Central as well as State Act and ultimately provisions of the Central Act as well as State Act have to be complied with and cannot be overlooked merely because advisory contrary to the provision has been issued either by the Central Council of Indian Medicine or by the State Board.
Careful perusal of the application moved by the petitioner for obtaining the membership would reveal that applicant was required to mention as to whether any litigation was pending against the Board wherefrom he was seeking membership?
Admittedly, there was no litigation pending between the petitioner and the Board of Indian Medicine Uttarakhand, therefore, he had correctly mentioned that no litigation was pending with the 16 Board of Indian Medicine, Uttarakhand. It is nowhere mentioned in the application that as to whether any litigation is pending between the applicant and any Board of any State of India. Had it been so, perhaps petitioner would have replied in affirmative.
Yet, there is another aspect of the matter that Board of Indian Medicine, Rajasthan was aware of the litigation pending between the petitioner and the Board of Indian Medicine, Rajasthan on the question of cancellation of the membership of the petitioner by the Board of Indian Medicine, Rajasthan, wherein stay was granted by the Rajasthan High Court in favour of the petitioner and his membership with the Board of Indian Medicine, Rajasthan was continuing on the strength of interim order of the Rajasthan High Court. Yet 'No Objection Certificate was issued by the Board of Indian Medicine, Rajasthan in favour of the petitioner which was duly submitted before the Board of Indian Medicine, Uttarakhand by the petitioner. Not only this on the clarification sought by the Board of Indian Medicine, Uttarakhand, the Board of Indian Medicine, Rajasthan has confirmed issuing the No Objection Certificate. Therefore, petitioner cannot be held guilty for playing fraud on the Board of Indian Medicine, Uttarakhand.
There is another aspect of the matter. Division Bench of the Rajasthan High Court in Civil Writ Petition No. 3875 of 2006, vide judgment dated 04.12.2013, was pleased to hold that membership of the petitioner with the Board of Indian Medicine, Rajasthan shall be deemed to be valid till the date he 17 was granted registration/membership by the Board of Indian Medicine, Uttarakhand.
In view of the above, present petition succeeds and is hereby allowed. Impugned orders are hereby quashed. It is held that petitioner is a validly registered member with the Board of Indian Medicine, Uttarakhand. It is further held that all the consequential orders issued pursuant to the impugned orders also stand quashed.
In the peculiar facts and circumstances of the case, no order as to costs.
(Alok Singh, J.) Dated: 08.12.2015 Deepak/JM