PETITIONER:
A. T. ZAMBRE AND OTHERS
Vs.
RESPONDENT:
KARTAR KRISHNA SHASHTRI
DATE OF JUDGMENT17/12/1980
BENCH:
KOSHAL, A.D.
BENCH:
KOSHAL, A.D.
ISLAM, BAHARUL (J)
CITATION:
1981 AIR 796 1981 SCR (2) 398
1981 SCC (1) 561
ACT:
Constitution of India 1950, Art. 14 & The Maharashtra
Medical Practitioners Act, 1961, S. 17(5)-Whether
unconstitutional.
HEADNOTE:
The Maharashtra Medical Practitioners Act 1961,
contains provisions for registration and enlistment of
medical practitioners. Clause (ii) of sub-section (5) of
section 17 of the Act provides that any person not being a
person qualified for registration under sub-sections (3) or
(4) who proves to the satisfaction of the Committee
appointed under sub-section (6), “that he was on the 4th day
of November 1941 regularly practising the Ayurvedic or the
Unani System of Medicine in the Bombay area of the State,
but his name was not entered in the register maintained
under the Bombay Medical Practitioners Act, 1938″ shall be
entitled to have his name entered in the register on making
an application and on payment of the prescribed fee.
The respondent whose name was listed by the Board of
Indian Medicine, Uttar Pradesh in the register of Vaids and
Hakims practised as a Vaid and as an Ayurvedic Doctor in
Agra and Bhopal respectively. He migrated to Bombay in 1962
where he started practice as an Ayurvedic Doctor. He applied
for registration as a medical practitioner to the Committee
of the Medical Board of Unani system of Medicine under sub-
section (5) of section 17 of the Act. His application was
rejected, and his appeal filed to the Board was also
dismissed.
The High Court, however, allowed the respondent’s writ
petition, relying on its earlier decision in Rukmani
Hoondraj Hingorani v. The Appellate Authority under the
Maharashtra Medical Practitioner Act, 1961 (1969) 71 Bom.
L.R. 71 (77), held section 17(5) of the Act as
unconstitutional and set aside the orders passed by the
Board.
Dismissing the appeal to this Court,
^
HELD: 1. In Rukmani Hoondraj Hingorani v. The Appellate
Authority under the Maharashtra Medical Practitioners Act,
1961 (1969) 71 Bom. L.R. 71(77) the validity of section
18(2)(b)(ii) fell for consideration and was rightly held to
be unconstitutional as it offends the provisions of Article
14. It was observed in that case that the provision, by
restricting the right of enlistment to those medical
practitioners ‘who have been regularly practising on 4th
November, 1951 in the Bombay area of the State’ had no
rational nexus with the object of the Legislature which was
to allow medical practice by those less qualified persons
who were too old to choose alternative means of livelihood,
and that while it was clearly open to the Legislature to
provide that a person must have been practising for a
certain number of years, or from before a particular date,
in order that his name may be included in the list, no
distinction on the basis of the area in which he had been
practising could be made. [400C-H]
399
2. The provisions of section 18(2)(b)(ii) being in pari
materia with subsection (5) of section 17, the observations
made in the above case apply also to this sub-section. This
sub-section is, therefore, violative of Article 14 of the
Constitution. [401G]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1572 of
1970.
From the Judgment and Order dated 8-11-1968 of the
Bombay High Court in S.C.A. No. 2087/68.
M. C. Bhandare, C. K. Sucharita and M. N. Shroff for
the Appellant.
Nemo for the Respondent.
The Judgment of the Court was delivered by
KOSHAL J., This is an appeal by special leave against
the judgment dated November 8, 1968 of a Division Bench of
the High Court of Bombay allowing a petition under articles
226 and 227 of the Constitution of India and declaring that
sub-s. (5) of s. 17 of the Maharashtra Medical Practitioners
Act, 1961 (hereinafter referred to as the Act) is ultra
vires of article 14 of the Constitution of India.
The facts are not in dispute and may be shortly stated.
The respondent hails from Uttar Pradesh. In 1940 he obtained
the degree of “Ayurved Shastri” from the All India Adarsh
Vidwat Parishad, Kanpur. On November 12, 1940 his name was
listed by the Board of Indian Medicine, Uttar Pradesh, in
the register of Vaids and Hakims. He practised as a Vaid in
Agra thereafter upto 1955 when he migrated to Bhopal where
he was registered as an Ayurvedic Doctor by the Medical
Council of the Government of Bhopal under the Bhopal Medical
Practitioners Registration Act, 1935. He migrated to Bombay
in 1962 and started practising there as an Ayurvedic Doctor.
However, in the meantime, i.e., on November 23, 1961, the
Act came into force, except for Chapter VI thereof which
came into operation on November 1, 1966. The respondent’s
application for registration as a medical practitioner made
to the Committee of the Medical Board of Unani System of
Medicine under sub-s. (5) of s. 17 of the Act (although none
of the clauses of that sub-section had anything to do with
it) was rejected and his appeal filed to the Board was also
dismissed on September 30, 1964.
Clause (ii) of the said sub-s. (5) with which we are
concerned provides that any person not being a person
qualified for registration under sub-ss. (3) or (4) who
proves to the satisfaction of the Committee appointed under
sub-s. (6) “that he was on the 4th day of November 1941
regularly practising the Ayurvedic or the Unani System of
Medicine in the Bombay area of the State, but his name was
not entered in the register maintained under the Bombay
Medical
400
Practitioners Act, 1938″ shall be entitled to have his name
entered in the register on making an application on the
prescribed form, on payment of a fee of Rs. 10/- and
production of such documents as may be prescribed by the
rules. The expression “Bombay area of the State of
Maharashtra” is defined in sub-s. (6) of s. 3 of the Bombay
General Clauses Act to mean “the area of the State of
Maharashtra excluding the Vidarbha region and the Hyderabad
area of that State.”
A contention was raised before the High Court on the
strength of Rukmani Hoondraj Hingorani v. The Appellate
Authority under the Maharashtra Medical Practitioners Act,
1961 that sub-s. (5) of s. 17 of the Act fell foul of
article 14 of the Constitution, and that contention was
accepted. We may usefully refer to the following
observations made in the decision just above cited:
“Confining our attention, however, to medical
practitioners practising in the Bombay area of the
State, we find it difficult to appreciate why the right
of enlistment should have been restricted to those who
were regularly practising on 4th November 1951, `in the
Bombay area of the State’. Since the object of the
Legislature was to allow medical practice by those less
qualified persons who were too old to choose
alternative means of livelihood, it was clearly open to
the Legislature to provide that a person must have been
practising for a certain number of years, or from
before a particular date, in order that his name may be
included in the list. It was thus open to the
Legislature to provide that, out of unregistered and
unlisted medical practitioners who were practising in
the Bombay area of the State, only those would be
entitled to have their names included in the list who
were practising regularly from before the 4th of
November, 1951. It is, however, not possible to find
any rational basis for the provision that medical
practitioners in the Bombay area of the State, in order
to be entitled to enlistment, must not only have been
practising regularly from 4th November, 1951, but must
have been practising on that day `in the Bombay area of
the State’. The provision that medical practitioners
must have been practising on 4th November, 1951 in the
Bombay area of the State has no rational nexus with the
object of the Legislature which was to ensure that
medical practitioners, who were not fully qualified but
who were too old to choose alternative means of
livelihood, should not be deprived of their practice.
401
In order to illustrate the discriminatory nature
of the provision contained in s. 18(2)(b)(ii), we shall
take imaginary instances of five persons who were all
practising in the Bombay area of the State at the time
of their applications under s. 18 (i.e., on or before
31st March, 1965) and who were not already enlisted and
were not entitled to registration under the Act. Let us
suppose that one of them, A, was practising
continuously in Bombay City from 1950 to 1963, when he
applied under s. 18 of the Act. Since on 4th November,
1951 he was practising regularly ‘in the Bombay area of
the State’, he is clearly entitled to have his name
included in the list. Let us take another person B who
practised in Poona from 1950 to 1954 and in Bombay City
from 1954 to 1963 when he applied under s. 18. He is
also entitled to enlistment because Poona falls in the
Bombay area of the State. We may then take the instance
of C who practised in Nagpur from 1950 to 1954 and in
Bombay City from 1954 to 1963. He would not be entitled
to have his name included in the list, because on 4th
November, 1951 he was regularly practising in Nagpur
which, though situated in Maharashtra, is not included
in the Bombay area of the State. We will next take the
instance of D who practised in Baroda, then a part of
the Bombay State, from 1950 to 1954 and thereafter in
Bombay City from 1954 to 1963. He is also not entitled
to enlistment, since Baroda in out side the State of
Maharashtra. Similar would be the position of another
person E who practised in Bhopal from 1950 to 1954 and
then in Bombay City from 1954 to 1963. No rational
explanation can be given of why A and B should receive
the said concession from the Legislature and should be
able to continue their practice and why C, D and E
should not receive the concession and should be
deprived of their practice.”
We find ourselves in complete agreement with these
observations which were made in relation to sub-clause (ii)
of clause (b) of sub-s. (2) of s. 18 of the Act. The
provisions of that sub-clause being in pari materia with
sub-s. (5) of s. 17 of the Act, they apply fully to that
sub-section which must therefor be held to be violative of
article 14 of the Constitution. Accordingly we have no
hesitation in upholding the impugned judgment and dismiss
this appeal, but with no order as to costs as the respondent
has not appeared before us to contest it.
N.V.K. Appeal dismissed.
402