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Subhasis Bakshi & Ors. Vs. West Bengal Medical Council & Ors.

Author: RxPG News, Posted on Wednesday, April 14 @ 13:28:49 IST by RxPG  

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West Bengal PG

CASE NO.:
Appeal (civil) 152 of 1994

PETITIONER:
Subhasis Bakshi & Ors.

RESPONDENT:
West Bengal Medical Council & Ors.

DATE OF JUDGMENT: 14/02/2003

BENCH:
S. RAJENDRA BABU & SHIVARAJ V. PATIL

JUDGMENT:



J U D G M E N T


RAJENDRA BABU, J. :


"Thou shall not prescribe, but treat". Does this commandment stand the
test of legal scrutiny? This is the stark and simple question to be decided in this
case.

The long-winded facts of this case read as follows:

That about 337 persons, including the appellants had completed the
diploma course of Community Medical Service in duly recognized institutions in
the State of West Bengal and were posted in different parts of the State by the
Government of West Bengal. On October 15, 1980 vide Notification No.
Health/MA/7076/5M-5/80 the Government of West Bengal made an amendment
in the Statute of the State Medical Faculty by introducing Article 6F under Part B,
which reads verbatim as under:

"6F: Students who will undergo and complete the requisite course
of studies in Medicine/Medical Science (as defined and detailed in
the Schedule to this article and hereinafter called as the said
Regulations for the Diploma course in Community Medical
Services) in Medical Institutions, duly recognized by the State
Medical Faculty of West Bengal, shall be admitted into
examinations in the subjects laid down in the said regulations and
the students passing the examinations shall be granted Diploma
with the abbreviation "Dip. C.M.S", by the Governing body of the
aforesaid Faculty.

The Governing Body of the aforesaid Faculty shall also maintain a
Register of such Diploma holders with a view to regulating,
supervising and restricting their practice for the present."

The objective of the said Notification, as detailed therein, is as follows:
" I. Objectives:
i). To provide medical training to a group of personnel to man the Health
Centers and Subsidiary Health Centers.
ii). Emphasis is to be given on comprehensive Health Care of the
Community including promotive, preventive and curative aspects.
iii). A candidate after successfully completing the course of studies will act
as a Team Leader of various categories of Field Workers.
iv). Training in curative medicines is to be imparted in such a way that
after completion of training the trainees can treat common diseases
among rural population including communicable diseases, malnutritional
states, snake bite, insecticidal poisoning etc. Instructions on diseases
requiring sophisticated treatment not practicable in Health Centers will be
restricted to the barest minimum. However, such candidates should learn
to recognize sign and symptoms of more serious diseases requiring
special treatment at referral hospitals (e.g., Sub-divisional or District
Hospital) so that such patients may be sent early to these institutions.
v). The training in promotive and preventive aspect of Health Care
including Family Planning and Child Care should be undertaken by actual
participation in the field work under the supervision of their teachers along
with the field workers.
vi). A substantial part of the training will be conducted in Health Centers
where they will reside along with their teacher in each term of their course
so that they are exposed to the field condition from the beginning of their
course."

On 23/6/1987, the Government of West Bengal issued a Corrigendum and
the Diploma that was earlier known as 'Diploma in Medicine for Community
Physicians' was rechristened as 'Diploma in Community Medical Service.'
Apprehending that the re-naming would have a detrimental effect on their rights,
the appellants filed W.P. No.7052/89 in the Calcutta High Court. The said Writ
Petition was disposed of by the learned Single Judge on the assurance given by
the Government Pleader that the State was willing to award the 'Diploma in
Community Medical Service' to the successful candidates. It was also assured by
the State, in the said petition that it would provide jobs to such candidates in
accordance with the stated policy of the Government. The learned Single Judge
of the High Court made it clear that the Diploma Holders will not have the right to
private practice and that part of the order was not challenged by the appellants at
all and entry in the register is only for the right to prescribe medicines and issue
certificates.

Aggrieved by the order of the learned Single Judge, the appellants
preferred an appeal before the Division Bench of Calcutta High Court. The
Division Bench assured that the change in the nomenclature would not affect the
Appellants right. The Division Bench reiterated that "the persons holding the
Diploma and employed to man the Health Centers and Subsidiary Health
Centers would be competent to treat common diseases among rural population
including communicable disease, malnutritional states, snake bite, insecticidal
poisoning etc". The Division Bench also mentioned the stated Government
policy on providing jobs to such Diploma holders. Upon this the High Court
opined that in the light of the clarifications made by and on behalf of the State
Medical Faculty and the State, there should be no reason for the appellants to
entertain any kind of apprehension with regard to their being able to perform
functions and duties which they as are entitled to do under the Regulations as
amended vide notification dated October 10, 1980. Pertaining to the registration
of names in the Register of Diploma holders, the High Court stated that the
Register shall be prepared and will be maintained in accordance with and in
terms of the Statute 6F and that necessary formalities in that regard will be
completed on or before March 31, 1990.

This judgment of the High Court was not complied with by the State.
Contempt Application was filed on September 7, 1990 in the High Court. By the
time, on November 21, 1990 Director of Health Services, West Bengal vide Order
No. HPH/10 'S-3-90/1512 issued Job Description of Community Health Service
Officers. While hearing the Contempt Application on November 23, 1990 the
High Court accepted the assurance given by the Secretary to the Government in
Department of Family Welfare in the presence of Secretary of the Medical
Faculty and the State Medical Council that the Government would issue fresh
instructions to the Job Description of Community Health Officers. These fresh
instructions, were assured, would be issued in accordance with the earlier
judgment of the Bench. On December 10, 1990 the aforementioned description
was partially modified vide Order No. HPH/10-'S-3-90/1629. By virtue of this
Order, the Diploma Holders were allowed to treat common diseases among rural
population as provided in the sub-clause (iv) of the objectives to the Notification
dated October 15, 1980 and it was also mentioned that item No 17 in the Notice
issued under No 1512 dated November 21, 1990 was treated as omitted.
Another Order No HPH/10-'S-3-90/1630 was issued on the same day which says
that the Diploma Holders were "not permitted to issue Death Certificate, Sickness
Certificate or Medical Fitness Certificates required for Court cases" and also
directed that the treatment advice and prescription made by them were to be
counter signed by the BMO or the MO-in-charge. While on March 6, 1991 vide
Memo No. HPH/10-'S-3/90/222 the Order No HPH/10-'S-3-90/1630 dated
December 10, 1990 was cancelled. By Order dated May 7, 1991 the High Court
disposed of the contempt proceeding by making the direction to the Government
that they would maintain a register of the Diploma Holders in terms of the Article
6F of the original Notification. It is also clarified by the High Court in the Order
that the "Registration by the State Medical Faculty will authorize the Community
Health Service Officers to continue to discharge their duties as specified in the
duty chart in the Health Centers/Subsidiary Health Centers as long as they are in
service." Upon this high note, the first round of litigation before the Calcutta High
Court was concluded.

At this juncture, by virtue of the order of the High Court, the appellants had
obtained the right to treat common diseases among rural population including
communicable diseases, malnutritional states, snake bites, insecticidal poisoning
etc. But their grievance is that the consequential right of issuing certificates of
sickness or death, prescriptions etc. was taken away by Notification No. HPH/10-
'S-3-90/1630 dated November 21, 1990. It is also the case of the appellants that
item no 17 of the said notification was cancelled. Challenging the denial of
'consequential rights to treat' such as right to issue prescription or certificates of
sickness or death, the second round litigation was initiated.

The appellants anchored their case on a Notification No. 1076-Medical
dated May 17, 1915 issued by the then Financial Department, Government of
Bengal. The relevant portion of the said Notification is extracted hereunder:

"In exercise of the power conferred by clause (1) of Section 18 of the
Bengal Medical Act, 1914 (Bengal Act, VI of 1914) and on the
recommendation of the Bengal council of Medical Registration, the
Governor in Council is pleased to direct that a title, certificate of
qualification, Diploma or license granted by the Governing Body of the
State Medical Faculty, to any person shall subject to the provisions
referred to in the said Clause entitled the holder of such title, certificate of
qualifications, Diploma or License to have his name entered in the
Register of Registered practitioners maintained under Section 15 of the
said Act."


By virtue of this Notification read with Sections 15 and 18 of the Bengal
Medical Act, 1914, the appellants argues that they are entitled to enter their
names in the Register of Registered Practitioners maintained by the Bengal
Council of Medical Practitioners. Urging this a Writ Petition was filed before the
learned Single Judge of Calcutta High Court. The Petition was allowed in favour
of these appellants, subject to the condition that they are not allowed to pursue
Private Practice and making it clear that their only right is to prescribe medicines
and issue certificates and this part of the order became final.

Aggrieved by this order of the learned Single Judge of the High Court, the
Bengal Medical Council preferred an appeal before the Division Bench of
Calcutta High Court. The Division Bench allowed the appeal and set-aside the
decision of the learned Single Judge. There are two main reasons given by the
Division Bench to vacate the Writ. They are - (1). "The sine qua non for the
application and operation of Section 18 are- (a) satisfaction of the Council that
any particular qualification is sufficient guarantee for the requisite knowledge or
skill for efficient medical practice, (b) report to that effect by the Council to the
Government, and (c) direction by the Government, on acceptance of such report,
by notification in the Official Gazette. We do not think that in 1915, the Council
could in any way be satisfied as to the quality or merit of a course or qualification
introduced in 1980 and could report its satisfaction by some sort of divine
prescience or foresight. Not do we think that the Government could by a
Notification recognize or approve a course or certificate or qualification in futuro
or in vacuo, in respect of a course or certificate which was not in existence at the
date of Notification." (2). Relying on A.K Sabhapathy v. State of Kerala, AIR
1992 SC 1310 it was found that 'a person can practice in allopathic system of
medicine in a state or in the country only if he possesses a recognized medical
qualification' and since the appellants doesn't possesses the required
qualification, it was held that their names could not be included in the Medical
Register. Thus this appeal by special leave.

The only relief, which these appellants are seeking, is the protection of
their 'consequential rights to treat' such as issuing prescriptions or sickness or
death certificates. As a matter of fact the respondents do not dispute the validity
of Notification No. Health/MA/7076/5M-5/80 dated October 15, 1980. It is by
virtue of this Notification that the appellants were having the right to treat. Now
the only question for consideration is whether the Appellants, who are having the
right to treat could issue prescription or sickness or death certificates?

In this context it is worthwhile to discuss Dr. Mukhtiar Chand v. State of
Punjab, (1998) 7 SCC 579. In this case the validity of Notifications issued by
State Governments of Punjab and Rajasthan, under Rule 2(ee)(iii) of the Drugs
and Cosmetics Rules, 1945 whereby the Governments declaring some vaids/
hakims as persons practicing modern medicines were challenged. Upholding the
validity of the Notifications and the said Rule, this Court held that, for the purpose
of Drugs Act "what is required is not the qualification in modern scientific
system of medicine but a declaration by a State Government that a person is
practicing modern scientific system and that he is registered in a Medical
Register of the State". In Dr. Mukhtiar Chand, this Court also clarifies that there
could be two registers for medical practitioners i.e, Indian Medical Register and
State Medical Register. As far as the State Medical Registers are concerned the
concerned State Government according to the rules will determine the required
qualification. While recognizing the rights of vaids or hakims to prescribe
allopathic medicines, this Court also took into account of the fact that qualified
allopathic doctors were not available in rural areas and the persons like vaids /
hakims are catering to the medical needs of residents in such areas. Hence the
provision which allows them to practice modern medicine was found in the public
interest. In this context Dr. Mukhtiar Chand holds that "It is thus possible that in
any State, the law relating to registration of practitioners of modern scientific
medicine may enable a person to be enrolled on the basis of the qualifications
other than the 'recognized medical qualification' which is a prerequisite only for
being enrolled on the Indian Medical Register but not for registration in a State
Medical Register. Even under the 1956 Act, 'recognized medical qualification' is
sufficient for that purpose. That does not mean that it is indispensably essential.
Persons holding 'recognized medical qualification' cannot be denied registration
in any State Medical Register. But the same cannot be insisted for registration in
a State Medical Register. However, a person registered in a State Medical
Register cannot be enrolled on the Indian Medical Register unless he possesses
'recognized medical qualification'. This follows from a combined reading of
Sections 15(1), 21(1) and 23. So by virtue of such qualifications as prescribed in
a State Act and on being registered in a State Medical Register, a person will be
entitled to practice allopathic medicine under Section 15(2)(b) of the 1956 Act."
Based on this reasoning this Court partially overruled A.K Sabhapathy, which
earlier ruled that a person could practice allopathic medicine only if he possess a
recognized medical qualification. In Medical Council of India & Another v.
State of Rajasthan and Anr, (1996) 7 SCC 731 (2 judges), it was observed that
"It would thus be clear that the basic qualification of MBBS as a primary
qualification is a precondition for a candidate for being registered in the State
Medical Register maintained by the State Board". Identical view expressed in
the decision in A.K Sabhapathy on the same point having been overruled, this
view in Medical Council of India vs. State of Rajasthan [supra] also stands
impliedly overruled.

Coming back to the case in hand, the Division Bench in the impugned
judgment relied upon A.K Sabhapathy to deny the appellants' right to prescribe
medicines or to issue sickness or death certificates and held that the appellants
do not possess the 'recognized medical qualification'. In the light of the ruling in
Dr. Mukhtiar Chand this view of the Division Bench cannot be sustained.
Therefore there is no bar to register the name of the appellants in the State
Medical Register.

Now the only issue for consideration is whether the right to issue
prescription or certificates could be treated as a part of right to treat. In Dr.
Mukhtiar Chand it was pointed out that "because prescribing a drug is a
concomitant right to practice a system of medicine. Therefore, in a broad sense,
the right to prescribe drug of a system of medicine would be synonymous with
the right to practice that system of medicine. In that sense, the right to prescribe
an allopathic drug cannot be wholly divorced from the claim to practice allopathic
medicine." The appellants are validly holding the right to treat certain diseases.
So their right to issue prescriptions or certificates cannot be detached from their
right to treat. Such right to issue certificates or prescriptions is imbibed in the
right to treat. One cannot and shall not be separated from the other. Once the
right to treat is recognized, then the right to prescribe medicine or issue
necessary certificate flows from it. Or else the right to treat cannot be completely
protected. Hence, even assuming for a moment that the 1915 Notification is not
there, still the appellants' right to prescribe medicine cannot be denied. In that
view of the matter, the order of the Division Bench is set aside and that of the
learned Single Judge is restored.

Therefore, the respondents shall make necessary arrangements to include
the names of all the concerned Diploma holders in the State Medical Register for
the limited purpose indicated therein within a period of six months from today.
The appeal is allowed accordingly.



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