Oral This petition has been filed by the petitioner praying for a mandamus to be issued to the opposite parties not to interfere in the private practice of the petitioner as Hakim.
It has been submitted that initially the writ petition was filed against the District Magistrate, Lakhimpur Kheri, Sub Divisional Magistrate, Gola, Lekhpal / Kanoongo, Gola and the Indian Medical Council of State of U.P. through its Registrar.
This Court while hearing the petition on an earlier occasion, had directed a counter affidavit to be filed by the State respondents on the allegation that the Lekhpal is interfering with the petitioner's working.
A counter affidavit was filed on 20.2.2019 on behalf of opposite party nos. 1 to 3. In the said counter affidavit, it was stated that the petitioner had been issued a Certificate on 14.6.1965 by the Board of Indian Medicine, U.P. and he was registered as a Vaid / Hakim.
In the counter affidavit it has been submitted in 2014 on the basis of complaints received by the Government, it directed opposite party nos. 1 & 2 to enquire into clinics and dispensaries run by Hakims and other Medical practitioners, and allow only those to practice who are actually registered with the Indian Medical Council, U.P. In pursuance of such directions, the opposite party no.2 had issued orders to Subordinate Revenue Officers to conduct surveys in their local areas regarding medical practitioners who did not have a valid degree or registration, the Lekhpal / Kanoongo contacted the petitioner at his shop and made certain queries asking him to show documents to the opposite party no. 2. The petitioner however did not submit any documents to the opposite party no. 2. The petitioner has never been restrained from working as Hakim. The petitioner has also not made any representation to the SDM or even the District Magistrate. Had the petitioner made any such representation, it would certainly have been forwarded to the Sub Divisional Magistrate, Gola to conduct an enquiry. The petitioner can practice as Hakim if a registration Certificate had been issued by the Indian Medical Council, U.P. State Medical Council to him.
On the basis of such counter affidavit, when the matter was heard again, this Court directed the learned standing counsel to seek instructions from the Chief Medical Officer, Lakhimpur Kheri as to whether the registration Certificate issued in the name of the petitioner for doing practice by the Bhartiya Chikitsa Parishad is a valid document which would allow him to practice as Hakim in the district concerned.
After this order was passed on 9.4.2019, instructions were received from the office of the Chief Medical Officer, Lakhimpur Kheri to the effect that the petitioner's registration was with Bhartiya Chikitsa Parishad, U.P. i.e. Board of Indian Medicine, U.P., and on the basis of said registration, he cannot be allowed to prescribe Alopathic Medicines. There was no registration of the petitioner with the U.P. State Medical Council. The Chief Medical Officer had further opined that definite opinion / information can only be given by the Medical Council of India.
The petitioner was directed to implead the U.P. State Medical Council and the Medical Council of India through its Registrar. The petitioner has impleaded the aforesaid two Authorities as opposite party nos. 7 & 8 to his petition, and Sri Gyanendra Kumar Srivastava appears for the newly impleaded respondents.
Sri Gyanendra Kumar Srivastava on the basis of instructions says that it is apparent from a perusal of the Certificate issued to the petitioner, which has been annexed to the writ petition as Annexure 1, that he has been registered with Board of Indian Medicine, U.P. on 14.6.1965. He can only practice as Hakim on the basis of such a Certificate.
Sri Gyanendra Kumar Srivastav has produced before this Court copies of judgments rendered by the Hon'ble Supreme Court in Poonam Verma Vs. Ashwin Patel & others 1996 (4) SCC 332; Dr. Mukhtiar Chand & others Vs. State of Punjab & others AIR 1999 SC 468; D.K. Joshi Vs. State of U.P. & others 2000 (5) SCC 80; Rajasthan Pradesh Vaidya Samiti Sardarshahar & another Vs. Union of India & others 2010 (12) SCC 609 and Bhanwar Kanwar Vs. R.K. Gupta & another 2013 (4) SCC 252.
The Supreme Court has held in the aforecited judgments that there is no scope for a person enrolled in the State register of Indian Medicine or Central register of Indian Medicine to practice in modern scientific medicine in any of its branches unless such a person is enrolled on a State Medical Register within the meaning of Section 15 of the Indian Medical Council Act, 1956. A person who does not have knowledge of a particular system of medicine but practices in such a system can only be called a charlatan or a quack.
The Supreme Court had issued directions for initiation of legal action against unauthorised and unqualified medical practitioners in D.K. Joshi Vs. State of U.P. (supra) and the said judgment has been reiterated again by this Court in its various judgments namely, Dr. Ravindra Kumar Goyal & others Vs. State of U.P. & others 2004 (2) ESC (Alld.) 976; Dr. Gauri Shankar Gupta & others Vs. State of U.P. & others 2013 (3) UPLBC 2575 and Praveen Kumar Vs. State of U.P. & others 2014 (1) ESC 461.
This Court had perused the judgments cited by Sri Gyanendra Kumar Srivastava. This Court while referring to the judgments rendered by the Hon'ble Supreme Court in the case of Praveen Kumar (supra) has observed that even though an Anatomy and Physiology may be similar in the syllabus meant for Unani or Ayurvedic systems of medicine, the practitioners of Unani and Ayurvedic systems of medicine can only use the knowledge so taught to them for prescribing Ayurvedic and Unani Medicines. For practicing modern medicine i.e. for prescribing Allopathic Medicines, the person should posses the qualification as provided under the Indian Medical Council Act, 1956 and should have a enrollment on the State Medical Register.
This Court finds from a perusal of the writ petition and the pleadings on record that the petition has been filed by referring to Government Order issued in 1953 which permitted the prescription of Sulpha Drugs and Streptomycin by Ayurvedic and Unani practitioners, and which Government Order was reiterated in 1961. This Government Order cannot override the provisions of the Act of 1956 or even the Act of 1970.
The petitioner can be allowed to practice as a Hakim only and to prescribe only Unani Medicines to his patients. He cannot be allowed to prescribe any Allopathic Medicines for which he is not qualified.
This petition is disposed of with a direction to the Chief Medical Officer, Lakhimpur Kheri to allow the petitioner to practice in his particular field of Medicine only, as he has been registered by the Board of Indian Medicine, U.P.
Order Date :- 30.7.2019 Arif