The first two writ petitions were admitted on 12.1.1999 and the third writ petition was admitted on 31.3.1999. The Miscellaneous application filed by the petitioners for grant of interim stay on the impugned legislation and the stay of the impugned G.O.70 Department of Health and Family Welfare dated 12.2.1978 was dismissed by a reasoned order dated 20.9.2000. In respect of the earlier two miscellaneous petitions, the prayer for interim relief was dismissed on 27.12.2002. In the subsequent application for interim stay filed by them, only notice was ordered. Pursuant to the notice, the second and fifth respondents have filed counter affidavits. In view of the inter-connectivity among the three writ petitions, they were heard together and common order is being passed.
2. The Tamil Nadu Legislature passed an Act viz. The Tamil Nadu Siddha System of Medicine (Development and Registration of Practitioners) Act, 1997 (For short "TN Siddha Act"). The said Act provides for establishment of Tamil Nadu Siddha Medical Council (For short "State Council"). Under Section 2(14), the Act provides for prescription of a Schedule. Section 34 of the TN Siddha Act reads as follows:-
''The Government may, if they are satisfied on the report of the Council or otherwise that the course of study and examination prescribed by any University or an institution or authority referred to in sub-section (1) of section 27 conferring, granting or issuing any degree, diploma, licence, certificate or any other like award---
(i) included in the Schedule are not such as to secure the possession by persons obtaining such degree, diploma, licence, certificate or any other like award of the requisite knowledge and skill for the efficient practise of Siddha medicine, or (2) not included in the Schedule are such as to secure the possession by the persons aforesaid of such knowledge and skill by notification direct that such degree, diploma, licence, certificate or any other like award ---
(a) in a case falling under clause (1), be removed from the Schedule, or
(b) in a case falling under clause (2), be included in the Schedule, and upon the issue of such notification, the Schedule shall be deemed to have been amended accordingly."
3. The schedule prescribed under Section 34 read with Section 214 the names of the University, respective Boards of Examinations as well as the recognized medical qualifications. The present case is concerned with only Part II, Part III and Part IV, which may be reproduced as under:-
PART II
2. Government College of Indian/Indigenous/ Integrated Medicine, Chennai.
Graduate of the College of Indian/Indigenous/Integrated Medicine.
G.O.I.M.
4. The two writ petitioner-Association as well as one Siddha Medical Practitioner are challenging the power of the State enacting legislation of this sort. According to them, there is already a central legislation i.e.) Indian Medicine Central Council Act, 1970 (Central Act 48 of 1970) is fully occupying the field. If the State has power to prescribe qualification for grant of educational degrees and diplomas to be recognised by the Universities and Medical Council, then it will whittle down the standard of education and also usurp the power of the Central Council from dealing with such issues.
5. A reference is also made to the statement of objects and reasons found in TN Siddha Act. It reads as follows:-
''At present there is no law to provide for the development of the Siddha System of medicine and for the regulation of the practitioners of the Siddha Medicine in the State of Tamil Nadu. It has been considered necessary to develop the Siddha System of Medicine and to register the practitioners of Siddha Medicine in the State. It has also been considered necessary to establish a Council called the Tamil Nadu Siddha Medical Council for the purpose."
6. It was stated by them that the objects and reasons found in the enactment is purely a misstatement. The Central Act as well as the Central Council which was enacted in the year 1970 and brought into force from 1976 is only intended to achieve the said object and therefore, there was neither any necessity for enacting state legislation nor there is any power vested on the state legislature to bring such an enactment. It is necessary to refer to the statement of objects and reasons which enable the Centre to make a law on the subject. The Indian Medicine Central Council Act, 1970 (the Central Act) provides for constitution of a Central Council of Indian Medicine (CCIM) and the maintenance of a Central Register of Indian Medicine and for matters connected therewith. This Act was enacted by Parliament and came into force on 21-12-1970. Introduction to this Act reads as under:-
To consider problems relating to the Indian systems of Ayurveda, Siddha and Unani medicine and Homoeopathic system of medicine a number of Committees were appointed by the Government of India, which had recommended that a statutory Central Council on the lines of the Medical Council of India for modern system of medicine should be established for the proper development of these systems of medicine. In June 1966 the Central Council of Health at its 13th meeting, while discussing the policy on Ayurvedic education, recommended the setting up of a Central Council for Indian System of Medicine to lay down and regulate standards of education and examinations, qualifications and practice in these systems. On the basis of the above recommendations the Indian Medicine Central Council Bill was introduced in Parliament.
7. The learned counsel for the petitioners pointed out various provisions of the Central Act. The constitution of the Central Council found under
Section 3 takes into account the interest of each State since the Central Council permits 5 members of each State to be in the Council.
Section 14 deals with recognition of medical qualification granted by various medical institutions in India and they are prescribed under Second Schedule to the Act. Items 93 to 98 deal with the list of institutions operating in Tamil Nadu and also recognised medical qualifications have been prescribed. With reference to the medical qualification in Siddha system, serial Nos.97 and 98 deal with the recognised medical qualifications approved by the Central Council and they are as follows:-
University of Madras, Madras Ayuveda-Shiromani Bachelor of Indian Medicine (Siddha) B.I.M.
(From 1930) (From 1965) 98 Madurai Kamaraj University, Madurai Bachelor of Indian Medicine (Siddha) Doctor of Medicine(Siddha) Bachelor of Siddha Medicine & Surgery B.I.M.
M.D. (Siddha) B.S.M. & S.
From 1971 onwards From 1975 onwards From 1982 onwards
8. It is also submitted that if any new qualification to be recognised on a request made by a University, Board or other medical institutions, which are not included in Second Schedule, must apply to the Central Government, which, after consulting the Central Council will amend the Second Schedule by adding those qualifications. The power to withdraw recognition of an institution vests with the Central Council. In the same way, the prescription of minimum standards of education in Indian medicine shall vest only with the Central Council. The Central Council maintains a Central Register of list of practitioners. Therefore, it is not open to the State to pass a legislation usurping the power of the Central Government.
9. The State Government unmindful of its limited role had also constituted a State Council by virtue of the impugned order in G.O.Ms.No.70, Health and Family Welfare Department, dated 12.2.1998. The petitioner in W.P. No.402 of 1999 also produced a copy of letter dated 29.12.1998 sent by the Central Council (5th respondent) to the Association, enclosing a copy of the letter written to the State Government dated 15.12.1998.
10. The Central Council (5th respondent) has also filed a counter affidavit. In paragraphs 7 and 14, it is averred as follows:-
" 7. ..... the Tamil Nadu Siddha Medical Council, the First Respondent herein formed by the Tamil Nadu Siddha System of Medicine (Development and Registration of Practitioners) Act, 1997 is in no way empowered either to regulate the system of Siddha Medicine or to issue any certificate of passing the Siddha Degree Course Examination. CCIM formed by the IMCC Act 1970 is the only body that has control and regulation over education of Indian Systems of Medicine all over the nation. No other body than CCIM can have any powers in this regard.
14 .... I generally submit that many of the provisions contained in this State Act i.e. Tamil Nadu Siddha System of Medicine (Development and Registration of Practitioners) Act, 1997, are quite contrary to the provisions already made under the Central Act i.e. the IMCC Act, 1970. Therefore, such contrary provisions render the State Act liable to be struck down."
11. On the contrary, the second respondent-State Siddha Medical Council had filed a counter affidavit dated 24.2.2003, refuting the stand of the fifth respondent-Central Council. The following averments made in paragraphs 4 and 5 are extracted below:-
" 4. ........ The Government of Tamil Nadu have enacted the Tamilnadu Siddha System of Medicine (Development and Registration of Practitioners) Act, 1997. The said Act is constituted not only for the registration of Siddha Practitioners. It is for the development of Siddha Practitioners and Siddha Systems. Provision have also been included in the Act for the following purpose.
1) Recommend to Government to opening of new hospitels, dispensaries.
2) Prescribe and publish text books for the courses provided by the Siddha Medical Institutions.
3) Evolve norms for standardisation of Siddha Medicine.
4) Make regulations for the manufacture and sale of Siddha Medicine.
5) Unearth various siddha Medicine and formulations kept secret by hereditary pactitioners and popularise them.
6) Formulate the aims and patterns of research on scientific lines in Siddha Medicine.
7) Undertake any search or research oriented programmed.
8) Suggest new courses of study and to make regulations for such courses.
5. ........ the Indian Medicine Central Council Act has come into force only from 1-10-76. But the Tamilnadu Board of Indian Medicine is registering institutionally qualified and the hereditary Indian Medical Practitioners since 1933. Therefore, the Tamilnadu Board of Indian Medicine classified the qualification as follows and issued certificates.
Institutionally qualified person - A Class Non-institutionally qualified person- B Class and C Class The Tamilnadu Siddha Medical Council cannot reject the medical registration certificate issued by the Tamilnadu Board of Indian Medicine to the hereditary Siddha Medical Practitioners."
12. The leaned counsel appearing for the Tamil Nadu Siddha Council also submitted that the Central Act 48 of 1970 itself contemplate the existence of a State law providing for State Council and a State medical register. In this context, a reference is made to Section 2(b) defining the term ''Board" and
Section 2(j) defining the term ''State Register". Both provisions are extracted hereunder:-
" (b) "Board" means a Board Council, Examining Body or Faculty of Indian Medicine (by whatever name called) constituted by the State Government under any law for the time being in force regulating the award of medical qualifications in, and registration of practitioners of, Indian medicine.
(j) "State Register of Indian Medicine" means a register or registers maintained under any law (or for the time being in force in any State regulating the registration of practitioners of Indian medicine"
(Emphasis Added)
13. A reference was made to the constitution of Central Council provided under
Section 3(1)(a) of the Central Act referring to the State Register.
Section 3(1)(a) of the Central Act is extracted below:-
" 3. Constitution of Central Council--
(1) The Central Government shall, by notification in the Official Gazette constitute for the purposes of this Act a Central Council consisting of the following members, namely:-
(a) such number of members not exceeding five as may be determined by the Central Government in accordance with the provisions of the First Schedule (or each of the Ayurveda, Siddha and Unani systems of medicine from each State in which a State Register of Indian Medicine is maintained to be elected from amongst themselves by persons enrolled on that Register as practitioners of Ayurveda, Siddha or Unani, as the case may be;"
14. It was also pointed out that
Section 17 recognizes the right of persons whose names are found in the State Register also to hold office and also to practice Indian Medicine.
Section 17 (3) also provides for a saving clause and it reads as follows:-
''(3) Nothing contained in sub-section (2) shall affect, -
(a) the right of a practitioner of Indian medicine enrolled on a State Register of Indian Medicine to practise Indian medicine in any State merely on the ground that, on the commencement of this Act, he does not possess a recognised medical qualification:
(b) the privileges (including the right to practise any system of medicine) conferred by or under any law relating to registration of practitioners of Indian medicine for the time being in force in any State on a practitioner of Indian medicine enrolled on a State Register of Indian Medicine;
(c) the right of a person to practise Indian medicine in a State in which, on the commencement of this Act, a State Register of Indian medicine is not maintained if, on such commencement, he has been practising Indian medicine for not less than five years;
(d) ... ... .. (omitted) ."
15. It was also stated that the Central Register of Indian Medicine provided under
section 23 must contain the names of all persons who are for the time being enrolled on any State Register of Indian Medicine and who possess any of the recognised medical qualification. Under
section 27, the Central Council is bound to remove the name of a person from the Central Register if his name is otherwise removed from the State Register pursuant to the order conferred by or under any law relating to registration of practitioners of Indian medicine, which is in force in any State.
16. In the light of the above, it is submitted that there was no conflict between the Central Act and the T.N.Siddha Act.
17. In opposition to the stand taken by the State, the learned counsel for the Central Council submitted that merely because the State is entitled to maintain a State Register and also to have a State Council for maintaining such Register, it does not give any authority for the State Legislature to create a law on a field which is already covered by the Central Law on the subject. Once the Central Law is enacted for the purpose of laying down co-ordination of standards on the field of Siddha medicine, only that law will prevail over the State law. In this context, the learned counsel for the petitioner relied upon the judgment of the Supreme Court in Medical Council of India -vs- State of Karnataka and others reported in (1998) 6 SCC 131. In that case, the Supreme Court upheld the validity of the power of the Medical Council of India in framing regulations with reference to the admission of students including the intake of the number of students to be admitted. To that extent, it was held that the State Law providing for the issues covered by the Central Law was repugnant to the Central Law and they were held to be unconstitutional.
18. Following this judgment, a Division Bench of this Court in Dharma Medical and Research Charitable Trust -vs- Government of India reported in 2006-2-L.W.346 considered the scope of the Indian Medicine Central Council Act, 1970 vis-a-vis the State enactment, viz., Dr.MGR Medical University Act. In paragraphs 5, 10 and 13, it was held as follows:-
''Para 5. In the instant case, both the State Act and the Central Act have been enacted in exercise of the powers conferred by Entry 25 of List III. Since Parliament and State Legislatures are empowered to make laws on the same subject, the possibility of repugnancy between a law made by Parliament and a law made by a State Legislature under Entry 25 of List III cannot be excluded.
Article 254 of the Constitution makes a provision for dealing with such a situation.
Article 254(1) gives overriding effect to the provisions of a law made by Parliament, which Parliament is competent to enact or to any provision of any existing law in respect of one of the matters enumerated in List II and if a law made by the legislature of the State is repugnant to the provisions of the law made by Parliament, the law made by the legislature of the State is to be treated as void to the extent of repugnancy. Under Clause (2), the law made by the legislature of a State with respect to one of the matters enumerated in List III will prevail over the provisions of an earlier law made by Parliament or an existing law with respect to that matter if the law made by the legislature of the state has been reserved for consideration by the President and has received his assent. The proviso to clause (2) curtails the ambit of clause (2) by providing that Parliament can enact a law with respect to the same matter on which the State legislature has made the law and by such law Parliament can add to, amend, vary or repeal the law made by the legislature of a State.
Para 10. It would thus be clear that in enacting Section 13A, Parliament has made a complete and exhaustive provision covering the entire field for establishing a new medical college and for its continuance. No further scope is left for the operation of the State Legislation in the said field which is fully covered by the law made by the Parliament. As per sub-section (1) of Section 13A read with Explanation 2, inserted by the Amendment Act 52 of 2002, the admission capacity has to be fixed by the Central Government from time to time for being admitted to such course of training. Therefore, the University had clearly erred in denying Sanction to the petitioner college for the intake of 40 students which has been duly approved by the Central Council.
Para 13. The law laid down by the Supreme Court with reference to the provisions of the Medical Council Act is squarely applicable to the medical colleges governed by the Indian Medicine Council Act, 1970....."
19. Though the counsel for both sides made reference to the Central Act, they were unaware of the amendments brought into the Central Act by the Indian Medicine Central Council (Amendment) Act, 2003 (Central Act 58 of 2003) with effect from 07.11.2003. By the said amendment, sections 13A, 13B and 13C together with their sub-sections were introduced. They read as under:-
13-A. Permission for establishment of new medical college, new course of study, etc.(1) Notwithstanding anything contained in this Act or any other law for the time being in force,
(a) no person shall establish a medical college; or
(b) no medical college shall
(i) open a new or higher course of study or training, including a postgraduate course of study or training, which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or
(ii) increase its admission capacity in any course of study or training including a postgraduate course of study or training, except with the previous permission of the Central Government obtained in accordance with the provisions of this section.
Explanation 1.For the purposes of this section, person includes any university or a trust, but does not include the Central Government.
Explanation 2.For the purposes of this section, admission capacity, in relation to any course of study or training, including postgraduate course of study or training, in a medical college, means the maximum number of students as may be fixed by the Central Government from time to time for being admitted to such course or training.
* * * 13-B. Non-recognition of medical qualifications in certain cases.(1) Where any medical college is established without the previous permission of the Central Government in accordance with the provisions of Section 13-A, medical qualification granted to any student of such medical college shall not be deemed to be a recognised medical qualification for the purposes of this Act.
(2) Where any medical college opens a new or higher course of study or training including a postgraduate course of study or training without the previous permission of the Central Government in accordance with the provisions of Section 13-A, medical qualification granted to any student of such medical college on the basis of such study or training shall not be deemed to be a recognised medical qualification for the purposes of this Act.
(3) Where any medical college increases its admission capacity in any course of study or training without the previous permission of the Central Government in accordance with the provisions of Section 13-A, medical qualification granted to any student of such medical college on the basis of the increase in its admission capacity shall not be deemed to be a recognised medical qualification for the purposes of this Act.
13-C. Time for seeking permission for certain existing medical colleges.(1) If any person has established a medical college or any medical college has opened a new or higher course of study or training or increased the admission capacity on or before the commencement of the Indian Medicine Central Council (Amendment) Act, 2003, such person or medical college, as the case may be, shall seek, within a period of three years from the said commencement, permission of the Central Government in accordance with the provisions of Section 13-A.
(2) If any person or medical college, as the case may be, fails to seek permission under sub-section (1), the provisions of Section 13-B shall apply, so far as may be, as if permission of the Central Government under Section 13-A has been refused.
20. A question came up before the Supreme Court with reference to the validity of Bihar's Development Ayurvedic and Unani Systems of Medicine Act, 1951 with that of the Central Act. The controversy arose therein was whether the G.A.M.S.Degree given under the Bihar State Act stand derecognised or not in operation after the introduction of the amendment to the Central Act.
21. The Supreme Court vide its decision in State of Bihar and others -vs- Dr.Sudhir Kumar Singh and others reported in (2007) 12 SCC 728 answered such a question. It is necessary to refer to the passages found in paragraphs 50, 51, 52 and 56 to 60, which are as follows:-
''Para 50. The provisions of Sections 13-A, 13-B and 13-C of the 1970 Act as introduced by the amending Act of 2003, if given retrospective operation, the medical qualification acquired from the study in the medical colleges which have been opened prior to the commencement of the amending Act of 2003 and conferred medical qualification on the students who studied in such medical colleges, the degrees so conferred in the absence of the permission of the Central Government would be non est though there is no fault on the part of the students who have studied in the institutions which are recognised and affiliated to the Faculty under the 1951 Act.
Para 51. In our opinion, where the legislature has used words in an Act which if generally construed, must lead to palpable injustice and consequences revolting to the mind of any reasonable man, the court will always endeavour to place on such words a reasonable limitation, on the ground that the legislature could not have intended such consequence to ensue, unless the express language in the Act or binding authority prevents such limitation being interpolated into the Act. In construing an Act, a construction ought not be put that would work injustice, or even hardship or inconvenience, unless it is clear that such was the intention of the legislature. It is also settled that where the language of the legislature admits of two constructions and if construction in one way would lead to obvious injustice, the courts act upon the view that such a result could not have been intended, unless the intention had been manifested in express words. Out of the two interpretations, that language of the statute should be preferred to that interpretation which would frustrate it. It is a cardinal rule governing the interpretation of the statutes that when the language of the legislature admits of two constructions, the court should not adopt the construction which would lead to an absurdity or obvious injustice. It is equally well settled that within two constructions that alternative is to be chosen which would be consistent with the smooth working of the system which the statute purported to be regulating and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system. (See Collector of Customs v. Digvijaysinhji Spg. & Wvg. Mills Ltd.1, SCR at p.899 and Kesavananda Bharati v. State of Kerala2.) Para 52. The court must always lean to the interpretation which is a reasonable one, and discard the literal interpretation which does not fit in with the scheme of the Act under consideration.
Para 56. The amendment brought about in the Indian Medicine Central Council Act, 1970, in 2003 by introduction of Sections 13-A, 13-B and 13-C are the provisions for continuance of the institution which has not obtained prior permission of the Central Government and, therefore, time-limit of three years has been provided under Section 13-C to regularise the institutions affairs as required under the Act by seeking permission of the Central Government. Insertion of Section 13-A in the 1970 Central Act in the year 2003 has regulated the opening of an indigenous medical college. The non obstante clause clearly indicates that a medical institution cannot be established except with the prior permission of the Central Government.
Para 57. Under Section 13-B, any medical qualification granted by the colleges established without the prior permission of the Central Government is not a recognised medical qualification. The reasonable reading of Section 13-C(1) puts the existing colleges on a par with the new colleges as both of them are required to seek permission within three years from the commencement of the amending Act. The phrase on or before has made it clear that the existing colleges are also required to seek permission and there is no exemption.
Para 58. Section 13-C(2) further provides that the medical qualification granted by existing colleges whose establishment has not been recognised by the Central Government, the medical qualification would not be a recognised qualification. Similar requirement is to be fulfilled by the new medical colleges opened i.e. to seek permission of the Central Government for the medical qualification to be recognised qualification. Thus, new colleges or existing colleges cannot any more grant a recognised qualification without the sanction of the Central Government. Section 13-C(2) does not say that the effect of non-permission by the Central Government to the existing colleges after the amending Act came into force would render the medical qualifications already granted by the existing colleges before the insertion of Sections 13-A, 13-B and 13-C in 2003, unrecognised.
Para 59. The whole spectrum of the amendment brought about by introducing Sections 13-A, 13-B and 13-C indicates that it has an application from the date they have been introduced by an amendment in the 1970 Central Act. The effect of the amendment brought about is clear to us that all the medical colleges which are in existence or the medical colleges which have to be established should compulsorily seek permission of the Central Government within the period provided and on failure to get the permission of the Central Government the medical qualification granted to any student of such medical college shall not be a recognised medical qualification for the purposes of the 1970 Act. The established colleges are also required to seek permission of the Central Government for the medical qualification to be recognised medical qualification but it would not mean that the already conferred medical qualification of the students studied in such previously established medical colleges would not be a recognised medical qualification under the 1970 Act.
Para 60. On a reasonable construction of these sections, we hold that the provisions of Section 13-B whereby the qualification granted to any student of a medical college would not be deemed to be a recognised medical qualification would not apply. When a degree has been legally conferred on the students prior to the commencement of the amending Act of 2003, it shall be treated as a recognised degree although the medical college has not sought permission of the Central Government within a period of three years from the commencement of the amending Act of 2003.
Thus it can be seen that the Supreme Court while upholding the validity of the Central amendment held that in respect of Section 13B, derecognition of a degree granted under State enactment cannot be retrospective in character. In other respects, the overriding effect of the Central Law over the State enactment was well recognised by the Supreme Court. Therefore to the extent the T.N.Siddha Act is repugnant to the provisions of the Central Act, it will be inoperative.
22. The question therefore is to what extent the T.N.Siddha Act is repugnant to the Central Act has to be considered. Before going into the said issue, it is necessary to refer to a similar controversy which arose between the veterinary practitioners registered under the Maharashtra Veterinary Practitioners Act, 1971 (State Act) vis-a-vis the provisions of the Indian Veterinary Council Act, 1984 (Central Act) came up before the Supreme Court in the case relating to Udai Singh Dagar and others -vs- Union of India and others reported in (2007) 10 SCC 306. It is necessary to refer to paragraphs 37, 49, 50, 54, 55, 81 and 82 which read as follows:-
''Para 37. The validity of a statute would ordinarily be tested keeping in view the social conditions as were existing on the date of coming into force thereof. It is one thing to say that a law causes hardship to a section of the people but it is another thing to say that the same would be unconstitutional. It may be that with the passage of time, a statute which was intra vires on the date of coming into force of the Act may be considered to be ultra vires. However, for that there should be sufficient materials which are either brought on record or of which the court can take judicial notice. The difficulty would arise where the materials brought on record may provide for divergent views. In such a situation, the court will not ordinarily exercise its power of judicial review over legislation. The facts on the basis whereof the legislature of a State or Parliament had chosen to rely upon should be the guiding factor. The legislature or executive can have several choices or options to deal with a matter, and courts cannot say which choice or option should have been preferred.
Para 49. Furthermore, the Central Act is flexible. It not only recognises the degrees granted by the institutions recognised by it, it provides extension of grant of such recognition to other institutions also if they satisfy the tests. Undoubtedly, such a flexible situation has been created by reason of the Central Act only to meet the exigencies of the situations arising in future, if any.
Para 50. It is not for this Court to arrive at a conclusive opinion that the rural areas continue to be heavily dependant on the certificate-holders for providing essential veterinary services as was submitted on behalf of the petitioners. The State is presumed to know the needs of the citizens.
Para 54. It is one thing to say that laying down such qualification or taking away the right of the practitioners to continue their practice is unconstitutional but it is another thing to say that the same cannot be given retrospective effect.
Para 55. A statute does not operate retrospectively only because a persons right to continue in profession comes to an end. A person will have a right to enter into a profession and continue therewith provided he holds the requisite qualification. As and when a qualification is laid down by a law within the meaning of sub-clause (g) of Clause (1) of
Article 19 of the Constitution of India, the same would come into effect. In other words, it would act prospectively and, thus, not retrospectively, inasmuch as the practice he had already enjoyed is not taken away.
Para 81. We cannot also accept the submission of Mr Nariman that, as for certain reasons with which we are not at present concerned, a large number of certificate-holders could not file application for getting themselves registered, they have derived an accrued right to have their names entered in the register. For the purpose of registration, the conditions laid down under Regulation 3 were to be fulfilled. A person, thus, is not entitled to be registered by the State Council or the Central Council only because he holds an educational qualification. Several other factors are required to be taken into consideration therefor. The right to practice or right to be in service or right to obtain an appointment in government or semi-government organisation would, thus, be dependant upon a persons name being registered therefor in the State or Central register, as the case may be. So long as their names are not on the register, the question of their acquiring any vested or accrued right does not arise. In a case of this nature, the court cannot confer a right to practice on the certificate-holders despite the fact that their names do not find place in the register maintained by the State Council or the Central Council.
Para 82. Despite our aforementioned findings, we are of the opinion that those who are in service of the State or the semi-government or local self-government organisations must be held to have a right to continue in service. The employees of the State enjoy a status. A person who enjoys a status can be deprived therefrom only in accordance with law having regard to the nature of right conferred on him under
Article 311 of the Constitution of India. The law in this behalf, in our opinion, is clear. Their nature of duty may change but they would be otherwise entitled to continue in service. The State of Maharashtra or for that matter even the other States have issued notification(s) in terms of Clause (b) of
Section 30 of the Central Act. Minor veterinary services, therefore, having been specified in terms of the said notification, those certificate-holders who are in the services of the State or the other semi-government organisations are entitled to continue in service, subject of course to, carrying out their duties strictly in terms of the notification issued by the State under Clause (b) of
Section 30 of the Central Act. In the event, any State has not issued such a notification, they may do so".
23. If it is seen in the light of the above legal precedents, then there will be no difficulty in holding that the State legislature enacting the T.N.Siddha Act for the purpose of providing development of Siddha system of medicine and regulating the practitioners of Siddha medicine in the State of Tamil Nadu and for establishing the Tamil Nadu Siddha Medical Council including providing for a State Register containing the names of siddha practitioners as valid.
24. However, to the extent the State enactment providing for establishment of Siddha Medical Institution in terms of
Section 2(15) and grant of prior approval by the State Government for establishing a Siddha medical institution with the approval of the State Council as found in
section 3(1) as well as starting of Siddha medical institution by the Government and not to have any approval in terms of the Central Act as found in
section 3(2) and clothing the State Council with the power under
section 13(1) so as to enable it to establish Siddha medical institution with the approval of the Government, to give approval to establish Siddha medical institution, to withdraw such approval with the previous approval of the Government, and prescription of qualifications in the Schedule provided under section 18(1)(a) as well as allowing any person who in the opinion of the Council has qualification to enter his name in the Register as found in
section 19(2) and also section 25(1) authorising the registered practitioner to give certificate equivalent to that of a medical practitioner and also to have a wider definition of the term 'legally qualified medical practitioner' under
section 25(2) and the prohibition of a person to practice Siddha medicine other than those who are registered under
section 18 in terms of
section 26(1) and
section 27 granting recognition to an institution established by a Council and
section 34 providing for a Schedule to include degrees, diplomas and certificate approved by the State Government without reference to the Central Government and Central Council will be ultra vires and unconstitutional.
25. In the light of the above, it is hereby declared that Sections 2(15), 3(1), 3(2), 13(1), 18(1)(a), 19(2), 25(1), 25(2), 26(1), 27 and 34 of the Tamil Nadu Siddha System of Medicine (Development and Registration of Practitioners) Act, 1997 are unconstitutional and ultra vires the Central Act.
26. In respect of the provisions which are held to be unconstitutional, the Central Act 48 of 1970 will have to be followed by the State Government. In other respects, the T.N.Siddha Act is valid and constitutional.
27. All the three writ petitions are allowed to the extent indicated above. Consequently, the miscellaneous petition is closed. However, there will be no order as to costs.
Index:- Yes/No 28.01.2009 Internet:- Yes/No ssa/js To 1. The Registrar, Tamil Nadu Siddha Medical Council, Anna Hospital Campus, Aumbakkam, Chennai 600 106. 2. The Secretary, Government of Tamilnadu, Health and Family Welfare Department, Fort St. George, Chennai 9. 3. The Registrar, Tamil Nadu Board of Indian Medicine, Anna Hospital Campus, Arumbakkam, Chennai 600 106. 4. The Registrar, Central Council of Indian Medicine, No.61-65, Institution Area, Janakpuri New Delhi-110 058. 5. The Secretary, Government of India, Ministry of Health and Family Welfare, Nirman Bhavan, New Delhi-110 001. 6. The Registrar, Tamil Nadu Dr. M.G.R. Medical University, Guindy, Chennai - 600 032. K. CHANDRU, J. ssa/js Pre-delivery order in W.P.Nos.402, 403 and 5239 of 1999 and connected W.M.P. 28.01.2009