The bench of Supreme Court comprising Justice B.S.Chauhan and Swatanter Kumar, J.J. on 01.06.2010 in the case of Rajasthan Pradesh V.S. Sardarshahar and Anr.
Vs. Union of India (UOI) and Ors. held that the right to practice under Article 19(1)(g) of the Constitution not absolute and is subject to reasonable restrictions provided under Article 19(6) of the Constitution and hence a person who acquired the certificate, degree or diploma from Hindi Sahitya Sammelan Prayag after 1967 is not eligible to indulge in any kind of a medical practice.
Vs. Union of India (UOI) and Ors. held that the right to practice under Article 19(1)(g) of the Constitution not absolute and is subject to reasonable restrictions provided under Article 19(6) of the Constitution and hence a person who acquired the certificate, degree or diploma from Hindi Sahitya Sammelan Prayag after 1967 is not eligible to indulge in any kind of a medical practice.
It is stated that the Hindi Sahitya Sammelan does not affiliate or recognise any institution and it exercises absolutely no control on the teaching in the subject of medicine qua degrees of Vaidya Visharad and Ayurved Ratana, nor it is necessary for a candidate to appear in the examination conducted by the Hindi Sahitya Sammelan to have been admitted as a regular student in any institution imparting education in the field of medicine. The Hindi Sahitya Sammelan holds written examination only for awarding the degree. In the opinion of the Court such grant of degree without any practical teaching, cannot be approved of and it is for this reason that the Central Government has come out with Central Act laying down the norms in detail for education being imparted in the field of medicine.
This Court has persistently deprecated the practice of an educational institution admitting the students and to allow them to appear in the examinations without having requisite recognition and affiliation. This kind of infraction of law has been treated as of very high magnitude and of serious nature. Students of a un-recognized institution cannot legally be entitled to appear in any examination conducted by any government, university or board. (Vide Minor Sunil Oraon Thr. Guardian and Ors. v. C.B.S.E. and Ors. AIR 2007 SC 458).
In Pramod Kumar v. U.P. Secondary Education Services Commission and Ors. (2008) 7 SCC 153, this Court held that recognized degree can only be awarded by University constituted/established under the provisions of University Grants Commission Act or Rule or any State Act or Parliament Act. No University can be established by a private management without any statutory backing. Similar reasons apply to Hindi Sahitya Sammelan also, as it is only a society duly registered under the Societies Registration Act. The competence to grant medical degree under any provisions of law is therefore, wanting.
More so, Article 21 which deals with the life and liberty of persons has also to be kept in mind and the poor people of this country who cannot afford to avail the facilities of qualified doctors have to be protected from quacks. Hindi Sahitya Sammelan Prayag had not been recognized for imparting medical education after 1967. Hindi Sahitya Sammelan is not a medical institution or university or a board. It is merely a society registered under the Registration of Societies Act. It does not have any affiliated colleges. Therefore, such persons cannot be permitted to indulge in medical practice. Rajasthan High Court erred observing that persons, who possessed the qualifications from Hindi Sahitya Sammelan Prayag upto 1.10.1976 i.e. the date of enforcement of Section 17 of the Act 1970 in Rajasthan, be allowed to practice.
The Bench further came to the conclusion that unless the person possesses the qualification as prescribed in Schedule II, III and IV of the Act, 1970, he cannot claim any right to practice in medical science and mere registration in any State register is of no consequence.
In view of the above, it is evident that right to practice under Article 19(1)(g) of the Constitution is not absolute. By virtue of the provisions of Clause (6) to Article 19 reasonable restrictions can be imposed. The Court has a duty to strike a balance between the right of a Vaidya to practice, particularly, when he does not possess the requisite qualification and the right of a "little Indian" guaranteed under Article 21 of the Constitution which includes the protection and safeguarding the health and life of a public at large from mal-medical treatment. An unqualified, unregistered and unauthorized medical practitioner possessing no valid qualification, degree or diploma cannot be permitted to exploit the poor Indians on the basis of a certificate granted by an institution without any enrolment of students or imparting any education or having any affiliation or recognition and that too without knowing the basic qualification of the candidates.
Finally the Court came to the following inescapable conclusions:-
(I) Hindi Sahitya Sammelan is neither a University/Deemed University nor an Educational Board.
(II) It is a Society registered under the Societies Registration Act.
(III) It is not an educational institution imparting education in any subject inasmuch as the Ayurveda or any other branch of medical field.
(IV) No school/college imparting education in any subject is affiliated to it. Nor Hindi Sahitya Sammelan is affiliated to any University/Board.
(V) Hindi Sahitya Sammelan has got no recognition from the Statutory Authority after 1967. No attempt had ever been made by the Society to get recognition as required under Section 14 of the Act, 1970 and further did not seek modification of entry No. 105 in II Schedule to the Act, 1970.
(VI) Hindi Sahitya Sammelan only conducts examinations without verifying as to whether the candidate has some elementary/basic education or has attended classes in Ayurveda in any recognized college.
(VII) After commencement of Act, 1970, a person not possessing the qualification prescribed in Schedule II, III & IV to the Act, 1970 is not entitled to practice.
(VIII) Mere inclusion of name of a person in the State Register maintained under the State Act is not enough making him eligible to practice.
(IX) The right to practice under Article 19(1)(g) of the Constitution is not absolute and thus subject to reasonable restrictions as provided under Article 19(6) of the Constitution.
(X) Restriction on practice without possessing the requisite qualification prescribed in Schedule II, III & IV to the Act, 1970 is not violative of Article 14 or ultra vires to any of the provisions of the State Act.
It is held that a person who acquired the certificate, degree or diploma from Hindi Sahitya Sammelan Prayag after 1967 is not eligible to indulge in any kind of a medical practice. Hence, an unqualified,unregistered and unauthorized medical practitioner possessing no valid qualification,degree or diploma cannot be permitted to exploit the poor Indians on the basis of a certificate granted by an institution without any enrollment of imparting any affiliation or recognition and that too without knowing the basic qualification of the candidates. Mere inclusion of name of a person in a State Registrar maintained under the State Act is not enough making him eligible to practice.
