Dr.Jaipal & Anr v. Govt. of N.C.T. of Delhi & Ors

MANMOHAN, J AUGUST 09, 2010 nm

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 9th August, 2010 + W.P.(C) 4619/2003 DR.JAIPAL & ANR. ..... Petitioners Through Mr.Arvind Gupta with Mr.Bipin Singhvi and Mr.Ankit Chaudhary, Advocates versus GOVT. OF N.C.T. OF DELHI & ORS ..... Respondents Through Ms.Meera Bhatia, Adv. for GNCTD Mr.Ashok Mahajan, Adv. for R-3. Mr.T.K. Joseph, Adv. for R-4 CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE MANMOHAN 1. Whether reporters of the local papers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes DIPAK MISRA, CJ By this writ petition preferred under Article 226 of the Constitution of India, the petitioner has prayed for declaring Section 17(5) of the Delhi Bhartiya Chikitsa Parishad Act, 1998 (for short "the 1998 Act") as ultra vires Articles 14, 19(1)(e), 19(1)(g) and 21 of the Constitution of India and Sections 17(3)(b) and 29 of the Indian Medicine Central Council Act, 1970 (for brevity "the 1970 Act") and further to issue a mandamus to the respondents not to give effect to Section 17(5) of the 1998 Act. That apart, a prayer has been made to issue a writ of certiorari to quash the order dated 26th June, 2003, Annexure P-3, passed by the Delhi Bhartiya Chikitsa Parishad, the respondent No.3 herein, by which the said Parishad had declined to register the petitioner No.1 at Delhi. 2. At the very outset, it is imperative to state that with the efflux of time, the questions that have emerged for consideration at one point of time, if we allow ourselves to say so, have gradually melted into insignification. We say so as two decisions, namely, Pradeep Kumar & Ors. v. Govt. of NCT of Delhi & Ors. 128 (2006) DLT 753 (DB) and Rajasthan Pradesh V. S. Sardarshahar & Anr. v. Union of India & Ors. JT 2010 (6) SC 306 have come into existence. In view of the aforesaid, we need not refer to the entire facts that have been adumbrated in the writ petition and the stand and stance put forth in the counter affidavit and the rejoinder affidavit. We think it apt to refer to the basic facts which are necessitous for the purpose of adjudication of the lis in question. 3. It is not in dispute that the petitioner No. 1 passed Ayurved Bhaskar from Gurukul Ayurveda Maha Vidhyalaya Jawalapur, Haridwar, U.P. in the year 1975 and got himself registered with the Board of Indian Medicine, Lucknow, U.P. on 7th August, 1976. The petitioner No.2 passed in the year 1978 and got himself registered with the aforesaid Board on 1st January, 1979. Both the petitioners applied for registration in Delhi on 25th May, 2001 but the said benefit was declined as a consequence of which the present writ petition came to be filed. 4. Before we advert to the issue relating to the constitutional validity as prayed for, we think it apposite to delineate whether the petitioners are entitled to the benefit as claimed by them. Section 17 of the 1970 Act reads as follows: "17. Rights of persons possessing qualifications included in Second, Third and Fourth Schedules to be enrolled.- (1) Subject to the other provisions contained in this Act, any medical qualification included in the Second, Third or Fourth Schedule shall be sufficient qualification for enrolment on any State Register of Indian Medicine. (2) Save as provided in section 28, no person other than a practitioner of Indian medicine who possesses a recognized medical qualification and is enrolled on a State Register or the Central Register of Indian Medicine,- (a) shall hold office as Vaid, Siddha, Hakim or physician or any other office (by whatever designation called) in Government or in any institution maintained by a local or other authority; (b) shall practice Indian 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 signed or authenticated by a duly qualified medical practitioner; (d) shall be entitled to