Kerala High Court
M.R.Bhaskaran Vaidyar vs State Of Kerala on 15 March, 2019
Author: N.Nagaresh
Bench: N.Nagaresh
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE N.NAGARESH
FRIDAY ,THE 15TH DAY OF MARCH 2019 / 24TH PHALGUNA, 1940
WP(C).No.6790 of 2015
PETITIONERS:
1 M.R.BHASKARAN VAIDYAR
AGED 76 YEARS
S/O.V.G.RAMAN, SOUPARNIKA, NELLIKKODE P.O,
KOZHIKODE 673 016.
2 K.V.MADHAVA VARRIER
NIRMALA BHAVAN, PERUVAYAL P.O, MAVOOR,
KOZHIKODE.
3 EDAVANA LOHITHAKSHAN VAIDYAR
KANAKALAYAM, IRINGAL, VATAKARA,
KOZHIKODE DISTRICT.
BY ADV. SRI.JACOB ABRAHAM
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY, SECRETARIAT,
THIRUVANANTHAPURAM 695 001.
2 DIRECTOR
INDIAN SYSTEM OF MEDICINE (BHARATHEEYA CHIKILSA
VAKUPPU), AROGYA BHAVAN, P.B NO.182,
TRIVANDRUM 695 001.
3 PRINCIPAL SECRETARY
DEPARTMENT OF HEALTH AND FAMILY WELFARE,
TRIVANDRUM 695 001.
BY GOVERNMENT PLEADER SRI B.JAYASURYA
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON
15.03.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.6790 of 2015
2
JUDGMENT
~~~~~~~~~ Petitioners seek to set aside Ext.P6 order.
2. The petitioners state that they are residents of Kozhikode District and are traditional ayurvedic medical practitioners. They have been practising traditional ayurvedic medicine for the last more than 50 years. According to the petitioners, they are qualified under Section 39 of the Travancore Cochin Medical Practitioners Act, 1953, to get exemption from the requirements of the Act, to get registration and to practice ayurvedic medicine. However, the authorities have taken a contrary stand.
3. The petitioners earlier approached this Court filing W.P.(C) No.21667/2013. This Court, as per Ext.P5 judgment, found that the application preferred by the petitioners necessarily has to be considered by the competent authority in tune with the mandate of Section 17(3) of the Indian Medicine Central Council Act, 1970. On WP(C).No.6790 of 2015 3 the basis of this finding, this Court set aside Ext.P3 order therein and directed the 3 rd respondent to re-consider the matter in the light of Ext.P2 recommendation and the relevant provisions of the Indian Medicine Central Council Act, 1970. It was further directed that orders shall be passed after giving an opportunity of hearing to the petitioners within two weeks.
4. Based on the said Ext.P5 judgment, the 1st respondent passed Ext.P6 order. In Ext.P6 order, it has been stated that the petitioners do not possess a recognised qualification as enumerated in the schedule to the Travancore Cochin Medical Practitioners Act, 1953 or a qualification included in the schedule to the Indian Medical Council Act, 1956, to entitle them to get registered with the Travancore Cochin Medical Council. On these premises, it was ordered that the petitioners are not entitled to get registered with the Travancore Cochin Medical Council and practice in any medicine.
5. It is the argument of the petitioners that the WP(C).No.6790 of 2015 4 competent authority which passed Ext.P6 order has not considered the entitlement of the petitioners, who are traditional practitioners in Indian medicine, to continue their practice in the light of Section 17(3) of the Indian Medicine Central Council Act, 1970.
6. The respondents objected to the prayers of the petitioners and contested the writ petition filing a counter affidavit. According to the respondents, the issue has been considered by the Apex Court in Civil Appeal No.897/2018 and other connected appeals and the Apex Court observed that a number of unqualified untrained quacks are posing a great risk to the entire society and playing with the lives of people without having the requisite training and education in the science from approved institutions. On the basis of the judgment of the Apex Court, the 1st respondent has issued Ext.R3(a). The judgment of the Apex Court clearly stated that no person can practice any system of medicine without registration. Hence, in the light of the judgment, all the exemptions ordered will come under the purview of the WP(C).No.6790 of 2015 5 judgment and no person can practice any system of medicine without approved qualification and registration. The writ petition is, therefore, without any merit and it is to be dismissed, contented the learned Government Pleader.
7. I have considered the writ petition, counter affidavit and the arguments made on either side.
8. As late as in 2008, the Health and Family Welfare (G) Department has issued Ext.P1 order, which states that the Government have decided to give exemption to those who are eligible to claim protection under Section 17(3)(c) of the Indian Medicine Central Council Act and ordered the medical practitioners, who come under the above provision, to approach the concerned District Medical Officers of Indian Systems of Medicine Department with relevant documents for appropriate orders.
9. True, the Apex Court has delivered the judgment in Civil Appeal No.897/2018 on 13.04.2018 subsequent to Ext.P1 order. However, the findings of the Apex Court as quoted in paragraph 3 of the counter affidavit filed by the WP(C).No.6790 of 2015 6 respondents, do not show that the Apex Court has considered and denied rights of traditional practitioners to the limited extent granted under Section 17(3)(c) of the Indian Medicine Central Council Act, 1970. As long as the said provision, namely Section 17 of the Indian Medicine Central Council Act, 1970, is in force, persons like the petitioners have a right to practice, provided they satisfy the conditions prescribed in Section 17(3)(c).
10. This Court, as per Ext.P5 judgment, directed the concerned respondent to consider the claim of the petitioners in tune with the mandate of Section 17(3) of the Indian Medicine Central Council Act, 1970. Ext.P6 has been passed in pursuance to the said Ext.P5 judgment. A perusal of Ext.P6 order does not show that the authority which has passed Ext.P6 order has considered the eligibility of the petitioners in the background of Section 17(3)(c) of the Indian Medicine Central Council Act, 1970. Hence, Ext.P6 cannot be taken as one passed in accordance with the directions contained in Ext.P5 WP(C).No.6790 of 2015 7 judgment.
11. Therefore, Ext.P6 cannot be sustained. Ext.P6 is, therefore, set aside. The 1st respondent is directed to reconsider the claim of the petitioners in the light of Section 17(3)(c) of the Indian Medicine Central Council Act, 1970, as directed by this Court in Ext.P5 judgment. While taking a decision in the matter, the 1st respondent will also consider Ext.P1 order dated 10.11.2008 of the Health and Family Welfare (G) Department.
Writ petition is disposed of as above.
Sd/-
N. NAGARESH, JUDGE aks/16.03.2019 WP(C).No.6790 of 2015 8 APPENDIX PETITIONER'S EXHIBITS:
ANNEXURE P1 COPY OF THE ORDER
G.O(RT)NO.3708/2008/H&FWD DATED
10.11.08.
ANNEXURE P2 COPY OF THIS LETTER BEARING
NO.M.2516/11 DATED 20.08.11 ISSUED
BY THE DISTRICT MEDICAL OFFICER
(I.S.M) KOZHIKODE TO THE SECOND
RESPONDENT.
ANNEXURE P3 COPY OF THE ORDER NUMBER
36134/G2/2011 H&FWD DATED 29.11.12
ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P4 COPY OF THE PETITIONERS LETTER DATED
2.6.13 ISSUED TO THE D.M.O INDIAN
SYSTEM OF MEDICINE, KOZHIKODE.
EXHIBIT P5 COPY OF THE JUDGMENT DATED 18.10.13
OF THIS HONOURABLE COURT MADE IN WPC
21667/2013.
EXHIBIT P6 COPY OF THE G.O NO.
(RT)NO.3434/2014/H&FWD DATED
THIRUVANANTHAPURAM 21.10.14 ISSUED
BY THE 3RD RESPONDENT.
RESPONDENT'S EXHIBITS:
R3(A) TRUE COPY OF THE COMMUNICATION DATED
14.01.2019