Punjab-Haryana High Court
Para Medical Council (Punjab) vs State Of Punjab on 17 August, 2011
Author: K.Kannan
Bench: K. Kannan
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Civil Writ Petition No.13121 of 2009 (O&M)
Date of decision: 17 .08.2011
Para Medical Council (Punjab), opp. E.S.I. Hospital Industrial Area,
SCO 37, Mohali, through its General Secretary, Shri Manjit Singh Gill,
and others.
...Petitioners
versus
State of Punjab, through Secretary, Department of Animal Husbandry,
Civil Secretariat, Punjab, Chandigarh, and others.
....Respondents
CORAM: HON'BLE MR. JUSTICE K. KANNAN
----
Present: Mr. R.S.Bains, Advocate, for the petitioners.
Mr. N.S.Pawar, Additional Advocate General, Punjab.
----
1. Whether reporters of local papers may be allowed to see the
judgment ? Yes.
2. To be referred to the reporters or not ? Yes.
3. Whether the judgment should be reported in the digest ? Yes.
----
K.Kannan, J.
1. The 1st petitioner is a registered Society called 'Para Medical Council' and the petitioners 2 to 11 are reported to be 'Medical Institutes' owing "affiliation" to the 1st petitioner. The petitioners claim to be training centres imparting education in Para Medical Sciences. They were served with notices from the Director, Research and Medical Education, Punjab, and still later from the Director, Animal Husbandry, Department of Punjab, making enquiries of the 1st petitioner's credentials as an institution to impart such education. They had secured particularly information on certain types of advertisements which were being Civil Writ Petition No.13121 of 2009 (O&M) -2- released by some of the educational institutes that seemed to make it appear as though that certain courses that are offered through these institutes are recognized by the Government and that they offered scope for employment in Government jobs. What seemed like a wide area of education in para medical courses seemed later to be confined to a course leading to a qualification as "Veterinary Pharmacist". The Government of Punjab cautioned that these institutes were cheating people and when the communication amongst the departments of the Punjab Government seemed to head in the way of taking precipitate actions against the 1st petitioner and other institutes run with their affiliation, all the petitioners have joined together to file this writ petition.
2. The counsel for the petitioners would contend that there is no particular enactment that regulates education in Para Medical Sciences and, therefore, there cannot be any restraint by any action of the State that would offend the fundamental freedom to carry on any trade or business. The learned counsel for the petitioners refers to decisions of the Hon'ble Supreme Court that uphold the fundamental right to carryon any profession or trade free of any obstruction by the State. The learned counsel refers to several decisions that hold that fundamental freedoms cannot be violated except through reasonable restrictions brought through law. I am not allowing myself to be detained by such references, since I am examining the case from the point of view of how such a regulation exists in the field where the petitioners are engaged.
3. The State has filed its objection giving details of various advertisements that had been issued by the petitioners that surely Civil Writ Petition No.13121 of 2009 (O&M) -3 - indicated that their activities would seriously imperil public interest and gullible youth would fall prey to their advertisements by putting enormous sums to gain admission even when there were no recognitions from the State for the certain courses which the petitioners/institutes were offering. During the pendency of the proceedings, keeping in view the stand taken by the respondents, the petitioners were restrained by Court order from holding any examination, issuing any advertisement for any diploma/certificate and/or conduct any type of course in the subject of para medical/Veterinary Pharmacy. The Court had also subsequently given a direction on 06.10.2010, directing the State of Punjab to consider the feasibility of some mechanism to regulate imparting of para medical courses. A notice was also given to the Advocate General, Punjab on the limited issue to find out the action, if any, taken by the State authorities in terms of which directions issued on 06.10.2010.
4. These interim directions had been subject of challenge in LPA No.1386 of 2010 before the Division Bench of this Court. The orders had been initially stayed, but however, they were dismissed on 11.02.2011. The Director, Animal Husbandry, Punjab, has filed additional affidavit to explain the stand of the Government in the interim directions. He has referred to Section 2(e) of the Indian Veterinary Council Act of 1984, that defines "recognized veterinary qualification"
to mean, "any of the veterinary qualification included in the First Schedule or the Second Schedule." Section 2(j) of the above Act defines "Veterinary Institution" means "any University or other Institution within or without India which grants degrees, diplomas of licences in Civil Writ Petition No.13121 of 2009 (O&M) -4- veterinary sciences and animal husbandry." According to him, all kinds of degrees, diplomas or licences in veterinary sciences and animal husbandry fall under the purview of the Indian Veterinary Council Act, of 1984. This is stated in the context of all the petitioners contending that in the field of Para Medical Sciences, they are holding diploma/certified courses for Veterinary Pharmacist. The only qualification that could be recognized under Section 15 of the Act shall be courses through institutes included in the First Schedule. The Act also stipulates the manner in which any 'veterinary institution' could apply to the Central Government to have such qualifications recognized. The Central Government has also the power to amend the First Schedule after consulting with the Veterinary Council. Section 15 of the Act, 1984 , that details the procedure is reproduced as under:-
"15 (1) The veterinary qualifications granted by any veterinary institution in India which are included in the First Schedule shall be recognized veterinary qualifications for the purposes of this Act.
(2) Any veterinary institution in India which grants a veterinary qualification not included in the First Schedule may apply to the Central Government to have such qualifications recognized and the Central Government, after consulting the Council, may, by notification in the Official Gazette, amend the First 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 Civil Writ Petition No.13121 of 2009 (O&M) -5- First Schedule against such veterinary qualification declaring that it shall be a recognized veterinary qualification only when granted after a specified date."
5. The attempt through the additional affidavit is, therefore, to point out that there are adequate statutory provisions dealing with the subject and it is not necessary to make any separate mechanism for the same. The communications between State and its functionaries and the 1st petitioner that gives out to be an apex Council sanctioning legitimacy to the other petitioners/institutions are a revelation of how the petitioners over a period of time have gradually shifted their stand and acted quite contrary to what they have been professing through their communications. In the first communication, that was issued by the Director, Research and Medical Education, Punjab, he has sought information from the 1st petitioner to disclose under what rules or orders, he had constituted the Para Medical Council calling it an autonomous body and seeking information, if any, for any approval that may have been taken from the Government of Punjab or any authority or medical institution in the State of Punjab. The copy of the letter has been addressed to the Registrar, Punjab Medical Council, for information and necessary action. The 1st petitioner has explained that it is a registered Society and there is no bar for the use of expression "Council" for such a Society. The 1st petitioner has declared that it is affiliated to an Open International University founded in 1961 under the patronage of World Health Organization (WHO) and the brief documentation of the University was also said to be enclosed along with reply. The contention Civil Writ Petition No.13121 of 2009 (O&M) -6- was that primary health that does not require a MMBS or Phd. Degree but only is required to have basic knowledge to good living and health care. It was purported to bridge the existing gulf between the people and the doctors. The communication in reply on 18.11.2003 makes a statement that there is no law governing the education that is imparted by the Council. The Director, Research and Medical Education has again followed it up with the communication dated 06.01.2004, that it was necessary to obtain the approval from the Punjab Government to start health sciences courses in Punjab and if he did not have had the approval, the same could be applied for to obtain a SCLT certificate. The Council has replied that the University to which the 1st petitioner has been affiliated to, does not require such a certificate. Finding that the communications engaged with the 1st petitioner could not rein in its activities, the Directorate of Medical Education appears to have caused to carry out a surprise inspection of the Council premises, on a complaint from students of SGS Para Medical Institute, Tarn Taran that the 1st petitioner had issued affiliation. The enquiries during the inspection did not reveal any evidence pertaining to the recognition of the Council from any Government or a University established by law. The notice was, consequently, issued on 14.09.2007 calling upon the 1st petitioner to produce requisite documents showing the credibility of the institution to grant affiliations to other educational institutions and warning them of action for misleading youth and extorting money for registering with the Council for Education. In response to this notice, the 1st petitioner has given the details of bylaws that govern its functioning at the time of Civil Writ Petition No.13121 of 2009 (O&M) -7- registration under the Societies Registration Act. It declared that the institute followed the syllabus formulated by the International Multidisciplinary Scientific Society on Alternative Medicines established in 1962 and affiliated to Open International University set up by WHO. The 1st petitioner defied the Directorate of Medical Sciences by stating that it was exercising a lawful activity of imparting education in para medical field which required no registration.
6. The Directorate of Medical Education had to take a different approach only when the communications engaged with the 1st petitioner led suddenly to a new disclosure. What started as education in para medical field grew particularized in a branch of veterinary science and all the institutes which claimed affiliation to the 1st petitioner had been stated to be running courses in Veterinary Pharmacy. The Dairy Development Department of Punjab had raised some objections to which the 1st petitioner responded by making an application under the Right to Information (RTI) Act with the Public Information Officer (PIO) attached to the Directorate of Animal Husbandry Department. In that regard, the 1st petitioner had declared that, on 22.02.2008, they had started two year diploma course in Veterinary Pharmacy with the Committee of experts of veterinary Officers and Deputy Director retired from the Veterinary Husbandry Department. The petition literally seeks to elicit whether the State department had any objection regarding the starting of such a course in Veterinary Pharmacy. The department replied giving information that there was a diploma course offered by the department at Patiala which was a two year Veterinary Pharmacy training Civil Writ Petition No.13121 of 2009 (O&M) -8- course with the appropriate staff and infrastructure. The communication was to further inform that at least 450 students were getting training. On 11.10.2007, the Director had informed that as per Punjab (non- Ministerial) Class-III Service Rules, 2003, and as per the Punjab Government Policy, only those persons were considered for jobs, who had two years Veterinary Pharmacy course from the department or from any recognized institute. This is reiterated also in the communications dated 13.02.2008 and 07.03.2008. To a further query from the 1st petitioner, the department had also given the list of 155 laboratories established by the department at various places in Punjab. The petitioners found the heat on only when the Financial Commissioner, Animal Husbandry Department took it up with the other officials for immediately taking action against the 1st petitioner and other institutions in various places which had been running courses without any accreditation or affiliation from any recognized University established by law. For the notices sent by the Deputy Director of the Animal Husbandry Department to Guru Gobind Singh Para Medical Institute, Moga (3rd petitioner) and the Para Medical College, Ajitwal, they declared that they had been affiliated to the 1st petitioner. Guru Nanak Para Medical College, Court Road Barnala (9th petitioner) was served with a notice by the Animal Husbandry Department which elicited a response in the year 2009 that they were collecting yearly tuition fees and they were having examination centres in various places.
7. To show that the responses of the petitioners were untrue since they were actually enticing students for admission by giving false Civil Writ Petition No.13121 of 2009 (O&M) -9- promises, the 1st respondent has reproduced some of the advertisement which had been issued in "Jagbani" Jalandhar on 09.02.2005. The advertisement reads as follows:-
"Medical Admission Do Veterinary Pharmacist course from Government of India University approved by the Veterinary Council of India (VCI). Duration 2 years, Eligibility Tenth. Second batch starting from January 15. For prospectus and further information Contact: Mata Sahib Kaur Medical Institute, near Bye pass Chowk, Kotkapura Road, Muktsar. 98149- 97733, 98726-10206, 98146-82665.
Valid for Gov. Jobs (Approved University from UGC and MHRD) Contact for doing Veterinary Pharmacist course. Apex Medical Institute, near Bus Stand, Malout Road, Muktsar. 01633-263154, 94173-83604. (emphasis supplied) Free Admission Veterinary Pharmacy, DMLT, BEMS, DEMS, CMS/ED, Qualification Matric, preference to +2, limited seats Correspondence & Regular, SGS College, Tarntaran. M-98148-61572. Note: Last date for admission:
15 February, 2005.
Veterinary Pharmacy, DPT, DMLT, BEMS, DEMS, CMS/ED, Correspondence & Regular Qualification Matric, preference to +2, Limited seats, Last date for admission: 15 February,2005 Contact: Paramedical Institute, Moga.
Civil Writ Petition No.13121 of 2009 (O&M) - 10 -
Tele:01636-395779, 238766."
As on 15.02.2005 again an advertisement was issued making it appear as though it is a medical admission, which reads as follows:-
"Medical Admission Valid for Govt. Jobs (Approved University from UGC and MHRD) Contact for doing Veterinary Pharmacist course. Apex Medical Institute, near Bus Stand, Malout Road, Muktsar. 01633-262154, 94173-83604 Veterinary Pharmacy, DPT, DMLT, BEMS, DEMS, CMS/ED, Correspondence & Regular: Qualification Matric, preference to +2, limited seats, Last date for admission 15 February, Contract: GGS Paramedical Institute, Moga. Tele:01636-395779, 238766." (emphasis supplied)
8. The Government had refuted the false claims brought through these advertisements and warning people from falling prey to such misleading advertisements. In the rejoinder filed on behalf of the 1st petitioner, it is contended that the advertisements do not mention anywhere that they are valid for Government jobs and authorized from UGC, Ministry of HRD and Veterinary Council of India approved University. The advertisements issued on 09.02.2005 includes the name of SGS, Tarn Taran, which is the 2nd petitioner herein, and also includes the Para Medical Institute at Moga and the advertisement deliberately conceals the full identity by merely giving the name of the institute as Para Medical Institute, Moga. It can be easily seen that it is the 3rd petitioner which is concealing itself through the advertisement. The Civil Writ Petition No.13121 of 2009 (O&M) - 11 -
advertisement issued on 15.02.2005 again definitely declares the name as SGS, Medical Institute, Moga and conceals the identity of the 3rd petitioner which is declared as Guru Gobind Singh Veterinary Medical Institute, Moga. The rejoinder, therefore, conceals definite facts and falsely declares that the petitioners are not connected with those advertisements.
9. The petitioners' contentions are flawed from the fundamental error in assuming that there is no requirement for any recognition from any University and that its own affiliation to Open International University at Colombo legitimizes its existence the affiliation that it grants to other Para Medical Institutes. We have already observed that under the so-called Para Medical Institutes under the banner of the so-called Para Medical Institutes, they have enlisted students for admission into diploma courses for Veterinary Pharmacy. The Central Veterinary Council Act definitely controls all veterinary institutes in India and it shall be impermissible for anyone to have any courses through any institute that is not registered and enlisted in First Schedule of Veterinary Council Act of 1984. In Punjab, the Punjab Veterinary Council was established under the Punjab Veterinary Council Act of 1981. The first Punjab Council came into existence during the year, 1983 and the State Council continued to be constituted as per the State Act till the year 1993 when the Punjab Vidhan Sabha through a unanimous resolution extended the Indian Veterinary Council Act of 1984 of the State of Punjab and repealed the State Act of 1981. Thereafter, the Punjab State Veterinary Council remains constituted Civil Writ Petition No.13121 of 2009 (O&M) - 12 -
under the Central Act and the notification to the said extent had also been issued under the Indian Veterinary Council Act of 1984. The Central body and the respective State Councils regulate veterinary practice and provides for the establishment of a Central Vigilance Council and the State Vigilance Councils and prepares and maintains registers of practitioners. In the face of such an enactment, it shall be futile for the petitioners to contend that under the banner of Para Medical Institutes, they have a right to offer certificate or diploma courses for Veterinary Pharmacy.
10. There can be no affiliation to a firm or educational institution which is not recognized in the manner laid down under Section 16 of the Central Act of 1984. It is again only those institutes in foreign countries where there is a scheme of reciprocity that any recognition is possible. An Open University from Colombo cannot give any legitimacy for any institute in India offering Veterinary Pharmacy coursed in India. Section 18 of the Act enjoins that every veterinary institute in the State which grants a recognized veterinary qualification to furnish such information as the State Council demands from time to time as to the courses conducted and examinations to be undergone. Section 19 empowers a Committee constituted under Section 12 to make inspection in any institution for the purpose of recommending recognition from the Central Government, meaning thereby that without any such recognition, it shall be impermissible for any Veterinary Council to run courses or conduct examinations. The provisions for enrollment and registration of veterinary practitioners are brought Civil Writ Petition No.13121 of 2009 (O&M) - 13 -
through Section 30 of the Act. Section 50 terms as a criminal offence by any person using a description as a veterinary practitioner without registration in the State Council. The veterinary services which the practitioner could give are quite expansive, for, it includes a large variety of veterinary services. "Minor veterinary services" is defined specifically under Section 30(1)(b) with explanation to mean, "rendering of preliminary veterinary aid, like, vaccination, castration and dressing of wounds, and such other types of preliminary aid or the term of such ailments as the State Government may, by notification in the Official Gazette, specify in this behalf." Such minor service could be rendered only by persons holding a diploma or a certificate of veterinary supervisor through stockman or stock Assistant issued by the Directorate of Animal Husbandry. Here, again it is to be seen even for such like services, Section 30 requires registration and declares that no person could practice veterinary medicine in any State without such registration.
11. It is a serious deficiency that professionals such as laboratory technicians, or those trained in therapeutic procedures such as physiotherapy or occupational therapy, are unregulated at an all-India level. In contrast, nurses and doctors are regulated by central councils who set minimum educational and ethical standards, register practitioners, and take disciplinary action against those who violate professional norms of conduct. A government notification in 1998 included physiotherapists and occupational therapists under the Rehabilitation Council of India Act, 1992, though a subsequent notification in 1998 reversed that decision. The Rehabilitation Council Civil Writ Petition No.13121 of 2009 (O&M) - 14 -
of India regulates professionals who work with the disabled. The Rehabilitation Council of India Act, 1992 (See http:// rehab council. nic.in/council/acts_amend. Htm.). As of now, there is no particular law that regulates para medial courses. The Central Government has introduced 'The Paramedical and Physiotherapy Central Councils Bill, 2007' on 4th December 2007 in the Lok Sabha which was referred to the Standing Committee on Health and Family Welfare to establish a Council that will give accreditation for courses that could render eligible for persons to work as operation theater technician, O.T. Assistant, Laboratory Technician, X-ray technician, ECG technician, Dark Room Assistant, etc. The Bill seeks to establish three central councils. The Physiotherapy Central Council will regulate physiotherapists and occupational therapists. The Para Medical (Medical Laboratory Technology) Central Council will regulate medical laboratory technicians. The Para Medical (Radiology Technology) Central Council will regulate radiological technicians. PRS, an independent, not-for- profit group making legislative research reports that some states such as Madhya Pradesh, Delhi, Maharashtra and Himachal Pradesh have passed laws setting up Sate councils to regulate medical laboratory technicians, physiotherapists or occupational therapists. A Planning Commission Working Group pointed out that there is a lack of uniformity of norms and standards across these states. The report said there was a need to have a Central Council to ensure uniformity in standards across the country (Report of the Working Group on Clinical Establishments, Professional Services Regulation and Accreditation of Civil Writ Petition No.13121 of 2009 (O&M) - 15 -
Health Infrastructure for the 11th Five Year Plan, Planning Commission, http://www.planningcommission.nic./aboutus/committee/wrkgrp11/wg11 _hclinic.pdf.)
12. The absence of legislation in Para Medical Sciences Punjab does not necessarily mean that there is an open field for anyone to enter into an activity where there are already regulations in place. Veterinary sciences are an occupied field through legislative regulations and the petitioners are liable for prosecution under the relevant provisions enumerated above. The 1st petitioner has no right to 'affiliate institutes' as though it is an established body under State or Central law. It shall have no right to claim that a foreign University has given such authority. The activities of the petitioners including advertisements have serious portents of public mischief, with the gullible youth being enticed on promises that jobs are available for the taking from the Government departments. It shall be perfectly possible for the State machinery to act to prevent such false and misleading postures of the petitioners. The name by which the 1st petitioner has registered itself is highly suspect. A Para Medical Council that claims affiliation from a little known 'Open University' at Colombo is surely an attempt to hoodwink the public into believing that it is a recognized institute and that persons undergoing training will secure jobs from Government departments. Indeed various Colleges and Medical Institutes that claimed affiliation from the 1st petitioner have done themselves no credit to their credibility but they have allowed a misleading name as a Para Medical Council for people to imagine that it is in the same league as Medical Council of India or Civil Writ Petition No.13121 of 2009 (O&M) - 16 -
Veterinary Council of India. It has to be really examined whether such a misleading name could be registered. The Registrar of the Societies operating at Mohali is not a party to the proceedings and the respondents shall be at liberty to apply to the Registrar to seek for examination of the issue of cancellation of the name under which the 1st petitioner has been registered. Needless to state that such an exercise will be undertaken after due notice to the 1st petitioner. I have gone beyond the brief in directing action against the petitioners only because I am convinced that there is an attempt to bring legitimacy to their existence with foundations in quicksand that can harm public interest. The petitioners shall be entitled to no protection and the State machineries shall be at full liberty to take appropriate criminal action both under Indian Penal Code (IPC) and under the provisions of the Central Veterinary Council Act in so far as they offer any course in Veterinary Pharmacy and issue misleading advertisements in print and electronic media. The 1st petitioner hosts a website, which again is suspicious. It posts images of persons of western white race (so it seems) rubbing shoulders with Indians, dressed in white overcoats as though they are doctors doing Researches. The State machineries shall keep a close watch on the petitioners that they do not breach any law that regulates specified medical or para-medical fields. The proposed law on para medical courses, if it becomes law, will bring the most desired regulation in the field that urgently needs attention, but till such legislation takes shape, there is no need to lower the gun and slacken the vigil.
Civil Writ Petition No.13121 of 2009 (O&M) - 17 -
13. The writ petition is dismissed with the above observations and with costs of Rs.10,000/- each against each one of the petitioners.
(K. KANNAN) JUDGE 17 .08.2011 sanjeev