All Kerala Unani Hakims' Association (Regd.) & Ors v. State of Kerala & Ors

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **MONDAY, THE 11TH DAY OF JULY 2016/20TH ASHADHA, 1938** ## **WP(C).No. 32548 of 2005 (Y)** **----------------------------** ## **PETITIONER(S):** **----------------------** **1. ALL KERALA UNANI HAKEEMS' ASSOCIATION (REGD.), REGD. NO.25/76, PANANGAD, KOCHI-682 506, REP. BY ITS GENERAL SECRETARY, HAKIM K.E.IBRAHIM, S/O.ESMAIL, AGED 56.** **2. AL AMEEN UNANI CENTRE, REGD., BUS STAND BUILDING, PERINTHALMANNA, REP. BY ITS SECRETARY, HAKIM N.T.MOHAMMED KUTTY, S/O.KUNHAMU, AGED 44 YEARS.** **3. HAKIM K.E. IBRAHIM, AGED 56 YEARS, S/O.ESMAIL, UNANI BHAVAN, PANANGAD, KOCHI-682 506.** **4. HAKIM V.P., M.K. THANGAL, S/O.HABEEB KOYA, THANGAL, AGED 67, HABEEBA MANZIL, P.O PUNNATHALA, POOLAMANGALAM, MALAPPURAM.** **5. M. RADHAKRISHNAN, AGED 47 YEARS, S/O. VAIDYAN PARANGODAN, KRISHNA KRIPA P.O., KARIMBA, PALAKKAD - 678 597.** **BY ADVS.SRI.M.P.KRISHNAN NAIR, SRI.S.BIJU (KIZHAKKANELA), SRI.M.A.SAJI ROSHAN.** - **RESPONDENT(S)/: ----------------------------** **1. STATE OF KERALA, REG. BY CHIEF SECRETARY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE SECRETARY TO GOVERNMENT, HEALTH DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** ## **WP(C).No. 32548 of 2005 (Y)** **3. THE COUNCIL OF INDIGENOUS MEDICINES, REP. BY THE REGISTRAR, OFFICE OF THE MEDICAL COUNCILS, RED CROSS ROAD, THIRUVANANTHAPURAM.** **4. THE DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM.** **5. THE DRUGS CONTROLLER, OFFICE OF THE DRUGS CONTROLLER, RED CROSS ROAD, THIRUVANANTHAPURAM.** **6. UNION OF INDIA, REP. BY SECRETARY, MINISTRY OF HEALTH AND WELFARE, NEW DELHI.** **R1, R2, R4 & R5 BY GOVT. PLEADER SRI.REJI JOSEPH. R3 BY ADV. SRI.N.RAGHURAJ, SC. R6 BY ADV. SRI.A. DINESH RAO, CGC.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22-06-2016, ALONG WITH WP(C). NO.34535 OF 2005 AND WP(C).NO.22246 OF 2008, THE COURT ON 11/07/2016 DELIVERED THE FOLLOWING:** rs. ## **WP(C).No. 32548 of 2005 (Y)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** - **EXT.P1 COPY OF THE REGISTRATION CERTIFICATE NO.477/93, DATED 03/11/1993 OF THE 2ND PETITIONER.** - **EXT.P2 COPY OF THE REPRESENTATION DATED 14/02/1975 SUBMITTED BY THE 1ST PETITIONER.** - **EXT.P3 COPY OF THE LETTER NO.E.L.DIS.1751/77/ME. DATED 21/07/1977 ISSUED BY THE REGISTRAR, THIRUVANANTHAPURAM MEDICAL COUNCIL.** - **EXT.P4 COPY OF THE LETTER NO.G3-19935/77 DATED 04/10/1977 TO THE 1ST PETITIONER.** - **EXT.P5 COPY OF THE LETTER NO.G1-2797/84 DATED 26/07/1984.** - **EXT.P6 COPY OF THE LETTER NO.2026/D1/85/HD DATED 13/06/1984.** - **EXT.P7 COPY OF THE REPRESENTATION DATED 26/10/1993.** - **EXT.P8 COPY OF THE LETTER NO.34774/G2/94/H&F DEPT. DATED 03/02/1995 ISSUED BY THE GOVERNMENT.** - **EXT.P9 COPY OF THE NOTIFICATION NO.58710/81/82/HD DATED 03/05/1992. EXT.P9A COPY OF THE NOTIFICATION G.O.(MS) O.121/86/H& PWD DATED 25/06/1986.** - **EXT.P9B COPY OF THE NOTIFICATION NO.50461/G2/71/HD DATED 22/12/1971. EXT.P9C COPY OF THE NOTIFICATION 43438/62/76/HD DATED 04/05/1977. EXT.P9D COPY OF THE NOTIFICATION 4248/G2/81/HD DATED 13/04/1981.** - **EXT.P10 COPY OF THE COMMON JUDGMENT DATED 17TH JUNE 1997 IN O.P. NO.4651/1992, 1118/91, 5247/1994, 3355/91, 16084/94, 3364/91, 16083/94, 16779/93, 3365/91 AND 3395/91 OF THE HONOURABLE HIGH COURT.** **EXT.P11 COPY OF THE ABOVE JUDGMENT, DATED 08/09/1997 IN O.P. NO. 19857/95. EXT.P12 COPY OF THE INTERIM ORDER IN CMP. NO.11373/2000 IN O.P. NO.6773/2000, DATED 03/03/2000. EXT.P13 COPY OF THE INTERIM ORDER DATED 24/08/2001 IN CMP. NO.40944/2001.** **...2/-** ## **WP(C).No. 32548 of 2005 (Y)** - **EXT.P14 COPY OF THE ABOVE REPRESENTATION DATED 5TH OCTOBER 2002 SUBMITTED BY THE PETITIONERS TO THE 2ND RESPONDENT.** - **EXT.P15 COPY OF THE JUDGMENT DATED 22/10/2002 IN O.P. NO.30615/2002.** - **EXT.P16 COPY OF THE LETTER NO.G2/2003/H& FWD DATED 10/03/2003.** - **EXT.P17 COPY OF THE NOTE SUBMITTED BY THE 3RD PETITIONER DATED 26/03/2003.** - **EXT.P18 COPY OF THE REPORT SUBMITTED BY THE DISTRICT MEDICAL OFFICER, ERNAKULAM DATED 26/05....** - **EXT.P19 COPY OF THE REPRESENTATION DATED 14/12/2004.** - **EXT.P20 COPY OF THE LETTER NO.1660/93/MC DATED 19/11/1993 ISSUED BY THE REGISTRAR, MEDICAL COUNCIL.** - **EXT.P21 COPY OF THE BILL NO.29/79 REGARDING THE PASCHIM BENGA UNANI SYSTEM OF MEDICINE.** - **EXT.P22 COPY OF THE EXTRACT OF THE PASCHIM BENGA UNANI SYSTEM OF MEDICAL ACT 1979 (XLV 1979).** - **EXT.P23 THE DETAILS OF UNANI SYSTEM IN MEDICINE IN KERALA.** - **EXT.P24 COPY OF THE REPRESENTATION DATED 29/09/2005 SUBMITTED BY THE PETITIONERS BEFORE THE RESPONDENTS.** - **EXT.P25 COPY OF THE STATEMENT DATED 23/12/2005 FILED ON BEHALF OF THE 4TH RESPONDENT BY SHRI T.A. SALIM, DY. SUPERINTENDENT OF POLICE (ADMINISTRATION) PALAKKAD, IN WP(C).NO.34535/2005.** - **EXT.P26 COPY OF THE LETTER NO.L. 15112/2005/DC DATED 19/12/2005 SENT TO THE DEPONENT HEREIN IN HIS CAPACITY OF GENERAL SECRETARY OF THE 1ST PETITIONER ASSOCIATION IN REPLY TO REPRESENTATION DATED 17/10/2005.** - **EXT.P27 COPY OF THE COUNTER AFFIDAVIT DATED 16/02/2006 FILED BY THE 6TH RESPONDENT IN WP(C).NO.34535/2005.** - **EXT.P28 COPY OF THE REPLY AFFIDAVIT DATED 05/06/2006 FILED BY THE PETITIONERS IN WP(C).NO.34535/2005.** - **EXT.P29 COPY OF THE REPORT APPEARED IN VARTHAMANAM NEWS PAPER DATED 10/03/2007.** **....3/-** ## **WP(C).No. 32548 of 2005 (Y)** **EXT.P30 COPY OF THE REPORT APPEARED IN TEJAS NEWS PAPER DAILY DATED 18/04/2007.** **EXT.P31 COPY OF THE REPORT APPEARED IN RASHTRADEEPIKA DAILY DATED 19/04/2007.** **EXT.P32 COPY OF THE GO(MS) DATED 04/06/2009 ISSUED BY THE GOVERNMENT.** **EXT.P33 COPY OF THE REPRESENTATION DATED 15/06/2009 SUBMITTED THE PETITIONERS.** - **EXT.P34 COPY OF THE ACKNOWLEDGMENT CARD RECEIVED BY THE PETITIONERS FROM THE RESPONDENTS.** **EXT.P35 COPY OF THE GO(MS) DATED 21/02/2011 OF THE GOVERNMENT. EXT.P36 COPY OF THE REPRESENTATION DATED 14/05/2010 SUBMITTED BY THE PETITIONERS.** - **EXT.P37 COPY OF THE LETTER DATED 06/10/2010 ISSUED BY THE JOINT DIRECTOR, BHARATHIYA CHIKILSA DEPARTMENT.** - **EXT.P38 COPY OF THE LETTER DATED 31/05/2010 ISSUED BY THE MEDICAL COUNCIL.** **EXT.P39 COPY OF THE REPRESENTATION DATED 19/02/2011 SUBMITTED BY THE PETITIONERS.** **RESPONDENT'S EXHIBITS:NIL.** ## **//TRUE COPY//** ## **P.S. TO JUDGE** rs. ## **P.V.ASHA, J.** ----------------------------------------------------- W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 ---------------------------------------------------Dated this the 11[th] day of July, 2016 ## **JUDGMENT** All these 3 Writ Petitions are filed seeking the very same reliefs. As the issues raised in all these cases are one and the same, these Writ Petitions are disposed of by this common judgment. The parties and documents referred to herein are as described in W.P(c) No.32548/2005 unless otherwise specified. 2. The petitioners in W.P(c) No.32548/05 are All Kerala Unani Hakims Association, Al Ameen Unani Centre and 3 individuals. The petitioner in W.P(c) No.22246/08 is an individual Unani practitioner. The petitioners in W.P(c) No.34535/2005 are 28 Medical Practitioners in Unani. Their grievance is that there is no enactment relating to the Unani system of Indian medicines, on account of which they are not registered in the Council of Indigenous medicines. It is also their grievance that they are subjected to discriminatory treatment while the Government have enacted separate Acts for other systems of medicines. With respect to Homoeopathic W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 2 medical practitioners, Sidha Vaidyas, etc. registration has been given to Sidha Vaidyas etc. Other State Governments have already enacted laws relating to Unani system of medicine. It is also their case that the Government had always been assuring them that their cases would be considered and provisions would be made for recognising their practice and for their registration. 3. The petitioners submit that their association and its members including the individual petitioners have been practising Unani system of medicine for the last 30-50 years. It is their case that there are no institutions available in the State of Kerala where any education is imparted in the Unani system of Indian medicine. According to them, they are traditional practitioners in medicine as in the case of Ayurveda, Sidha, etc. which come under the indigenous system of medicine. The petitioners have produced Ext.P2 representation (32548/05) which is stated to have been submitted before the Minister for Health on 14.2.1975 requesting to take steps for registration of Paramparya Unani Vaidyas, It is stated that by Ext.P3 letter dated 21.7.1977 the Registrar of the Travancore Cochin Medical Council informed them that appropriate provisions are included W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 3 in the Kerala medical practitioners bill which was pending consideration of the Government. Thereafter, by Ext.P4 letter dt.4.10.77, the Director of Indigenous Medicine informed the petitioners that registration can be granted only in accordance with the provisions contained in the medical practitioners' bill. The petitioners have produced letters Exts.P5 and P6 of the year 1984 in order to show that they had been raising their demands for registration and representation in the Medical Council and every time they were assured that their cases would be considered after the Kerala Medical Practitioners’ Bill is enacted. Since the said bill did not materialise, they submitted further representations before the Government requesting for exemption under Section 38 of the Travancore-Cochin Medical Practitioners’ Act, 1953 (`T.C Act, 1953' for short) after constituting a committee for the same. It is stated that the Government had opened a file on the basis of their representation Ext.P7 submitted on 26.10.1993. By Ext.P8 letter dated 3.2.1995, the Government informed them that registration can be given only to qualified persons and there is no provision for registration of paramparya vaidyas and the question of W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 4 registration of paramparya vaidyas would be considered as and when Medical Practitioner’s Act comes into effect. 4. The petitioners submit that there are more than 20000 families of paramparya vaidyas and 50000 qualified doctors in Indian medicine including Ashta Vaidyans etc. who are practicing and who hail from Ashtavaidya families in Kerala. There are also paramparya vaidyas under the Vishavaidyas, balachikitsa etc. According to the petitioners, these eminent people were recognized throughout in Travancore, Cochin and Malabar areas and they were effectively administering medicines and considered as experts in the respective fields. It is also stated that they are trained from their very childhood by their own parents, who are the gurus, without going to any institutions and they had been continuing the practice without any hindrance from any part. The petitioners state that there was never a case where any member of the Kerala Unani Hakim’s Association went wrong in any treatment and they are not indulging in any fraudulent activities. According to them, they are entitled to registration by virtue of the first proviso to Section 38 of the Travancore Cochin Medical Practitioners’ Act, W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 5 1953 which provides that any person or class of persons can be exempted by Government from the application of the Act by notification in the gazette, ie. in such cases registration with State Medical Council is not necessary for such persons to practise. The petitioners relied on Ext.P9 series of orders to show that the Government have granted exemption to several such classes and even individuals in exercise of its power under the first proviso to Section 38 of the T.C Act, 1953. Ext.P9 is a notification issued on 3.5.1992 by which the Government granted exemption to a batch of Sidha Vaidyas. By Ext.P9(a) notification issued on 25.6.1986 the Ayurveda Physicians mentioned therein belonging to Ashtavaidya families were allowed to continue practice without registration. Similarly by Ext.P9(b) notification issued on 22.12.1971, Ext.P9(c) notification issued on 4.5.1977 and Ext.P9(d) notification issued on 13.4.1981, the Government exempted M/s.K.P.Panicker and P.J.Stephen practising in modern medicines; the degree holders of integrated DAM and Diploma holders of integrated DAM, and Diploma holders in medicine and surgery awarded by the Government of Bihar through the Bihar State Board of W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 6 Homoeopathic medicine in practicing modern medicine were granted exemption under the first proviso to Section 38. The petitioners have further produced Ext.P32 order, along with a reply affidavit, passed by the Government on 4.6.2009, by which the Government granted exemption to traditional Ayurveda vaidyans and Homoeopathic practitioners who had 5 years of practice in Travancore-Cochin and had completed 21 years of age as on the date of its order, ie. 4.6.2009. Ext.P35 is another order in modification of Ext.P32 order by which the Government exempted practitioners in traditional Ayurvedas and Homoeopathy practising in Malabar area (Palakkad, Malappuram, Kozhikode, Wayanad, Kannur and Kasaragod districts) for 20 years as on 1.1.2011 and it was directed that the concerned practitioners shall submit their applications within six months along with relevant documents to the Registrars of the indigenous medicine and homoeopathy medical council and authorized Department of Health and Family Welfare to issue orders based on the recommendations of the respective Registrars. The petitioners submit that even though they submitted Ext.P33 representation on 15.6.2009 seeking similar W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 7 action in their case also as in Ext.P32 order and to include one of their representations in the Committee constituted by Government order, the Director of Indian System of Medicine rejected their representation as per Ext.P37 letter dated 6.10.2010 stating that, that department is not empowered to include anybody in the committee and directed the petitioners to approach the Travancore-Cochin Medical Council. By Ext.P38 letter dated 31.5.2010 the Travancore-Cochin Medical Council directed that their representation has to be submitted before the Government. The petitioners have thereupon submitted Ext.P39 representation before the Minister for Health and Family Welfare requesting for orders allowing the members of the association `B’ class registration as in the case of others covered by the orders issued by the Government. It was pointed out that there is no institution in Kerala imparting education in Unani system of medicine whereas such institutions are available outside Kerala. They requested for orders for registration of all the Unani Hakims who have been practicing for not less than 20 years. It was also pointed out that, there are Unani Hakims practising in this system belonging to other communities also. W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 8 5. The petitioners also claim the benefit of clause (e) of sub section 3 of Section 17 of the Indian Medicine Central Council Act, 1970 (`IMCC Act' for short) for recognizing their practice as Hakims in Unani system of medicines. 6. The 3[rd] respondent Travancore Cochin Medical Council of Indigenous medicine has filed a counter affidavit stating the following: The issue raised by the petitioners is covered by the judgment of a Division Bench of this Court in **Omana v. Sussi Kunjachan** [(2003) 1 KLT 525], where it has already been held that, only those who are duly qualified, can get registration for practising any of the systems of Indian medicines. It was also held therein that, provision providing for exemption is only an enabling provision and there is no right to claim exemption. As per the IMCC Act, those who are able to substantiate before the competent authority that they are practising the Indian system of medicines for a period of 5 years as on the date of coming into force of that Act are made eligible for practising the indigenous system of medicine. A time limit was also provided for claiming the benefit under the Act and no benefit can be granted on expiry of the time limit provided in W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 9 Section 17 and there cannot be any exemption from the mandatory provisions under the Act. As per the provisions contained in the TC Act, 1953 as well as the IMCC Act, 1970, only those practitioners who have acquired the recognized qualification as provided in the schedule to the Act are eligible to practise medicine in the State. The Kerala Medical Practitioners Bill 1972 did not get approval of the Central Government as it was found that the provisions contained therein were repugnant to those in the Central Act, 1970. In those circumstances, the communications received from the Government referred to the said Act cannot be of any help to the petitioners. Unani is a system of medicine which is distinct from Ayurvedic system. Power of the Government under the provisions contained in the T.C Act, 1953 for granting exemption can be invoked only in an area where there are none of the 3 classes of practitioners, ie. Ayurveda, Homoeopathy or modern medicines, duly qualified and registered carrying on medical practice. There is no dearth of qualified hands even in the field of indigenous medicines. The State Government has already stopped the exercise of such power since 1992. Therefore, the petitioners cannot rely on the W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 10 exemption given as per Ext.P9 series of orders, any more. The benefits granted to renowned Ashtavaidyans cannot be extended to the petitioners and there is no discrimination as alleged. The State register of practitioners of indigenous medicines is maintained in the State and therefore, the contention of the petitioners that there is no State register of Indian Medicine as provided under Section 17 of the Central Act is not correct and the petitioners' claim under the proviso to Section 17 of the said Act is baseless. Consequent to the judgment in **Omana v. Sussi Kunjachan** (supra), in which the power of the Government with respect to the provision regarding exemption is explained, the petitioners cannot claim that they should be allowed to practice or that they should be registered. The claim of the petitioners on the basis of the fact that there is a separate enactment in the West Bengal cannot be accepted because of the totally different circumstances arising in both these States, especially when there is no dearth of qualified hands in the State of Kerala. The petitioners cannot also claim benefits on the basis of the judgment in **K.H.M.G. Assn. v. State of Kerala** [2005(3) KLT 620] which relates to Homoeopathic Medical practitioners. The W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 11 illegal practice cannot be regularized in the cases of those without any recognized qualification, when there are a large number of institutions all over India which conduct recognized courses and award recognized qualification in Unani. In the light of **A.K.Sabhapathy v. State of Kerala** [AIR 1992 SC 1310], the power to grant exemption cannot be invoked by the State Government after the coming into force of the Indian Medical Council Act. The genuineness of the claims of the members of the petitioners association cannot be agitated before this Court under Article 226 of the Constitution of India. 7. Regarding Ext.P32 order as modified by Ext.P35 order issued in 2011 granting further exemptions, the learned counsel for the 3[rd] respondent submitted that those orders are already stayed by this Court in W.P© No.6579/2011 as per order dated 15.3.2011. 8. The learned counsel for the petitioners submitted that the judgment in **Omana v. Sussi Kunjachan** (supra) is under challenge before the Supreme Court in SLP (Civil) 1446814468/2003 in Civil Appeal No.89 to 900 of 2009. 9. In W.P© No.34535/2005, the 6[th] respondent Union of W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 12 India has filed counter affidavit, which is produced as Ext.P27 in W.P© No.32548/2005 along with I.A No.8443/2006 stating the following. Section 17(3)(a) & (b) of the IMCC Act provides for exemptions in the case of persons who were already enrolled on State Register before 1.10.1976, ie. the date of enforcement of Section 17, and clause (c) thereof provides for exemption to those who were already practising Indian medicine for not less than 5 years before the commencement of the Act in such a State where no State Register was being maintained at that time. There is no other exemption and the rule is that in order to practice Indian medicine in a State, a person must possess any recognized medical qualification and must have enrolled/registered with the State board concerned. The provisions of IMCC Act, 1970 prevails over the provisions of State legislation. IMCC Act does not recognize Paramparya Hakims and after 1.10.1976 only those persons who are institutionally qualified and whose qualifications are mentioned in second, third and fourth schedule of IMCC Act, 1970 Act, can practice Indian medicine. The petitioners do not hold recognized medical qualification as prescribed by the Central Government W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 13 and thus are not entitled to registration from any State Board after 1.10.1976. The Government of India has written several letters to State Government to amend their State Act in consonance with the Central Act. The Rules or regulations of the State Act which run contrary to the provisions under the Central Act shall be avoided. Therefore, the traditional vaidyas, paramparya chikitsa, etc. have not been recognized by the Central Government and even if it finds any mention in the State Act it is not of the recognized system of medicine. Apart from being institutionally qualified, persons practising in the Indian system of medicine must have scientific outlook and knowledge along with recognized qualification and proper training in a well equipped college. A large number of so called doctors without getting proper teaching, training and practical experience will flood the medical market and will get the license to play with the lives of the public by treating them without acquiring knowledge in science, and the lives of the public would be in danger. Paramparya hakims are not institutionally qualified and they can be equated with the quacks and cannot be allowed to practise Indian medicine in the interest of general public. They do not W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 14 fall under the category of practitioner under the Indian system of medicine. Central Government has been taking stringent action to curb unauthorized practice and it is for the State Government to take care of the State legislation regulating practice and registration in the State level. The counter affidavit also refers to the judgment of the Supreme Court in **Poonam Verma v. Ashwin Patel & Ors** [(1996) 4 SCC 332] and **D.K.Joshy v. State of U.P** [(2000) 5 SCC 80], wherein strict directions are issued for identifying unqualified/unregistered practitioners and publications of their name for information of public and for initiation of legal action against them. 10. The petitioners are seeking exemption from the provisions contained in Section 38 of the State Act as well as Section 17 of the Central Act. 11. I have heard Sri M.P.Krishnan Nair, the learned counsel appearing for the petitioners, Sri N.Raghuraj, the learned counsel appearing for the 3[rd] respondent, the learned Central Government Standing Counsel for the 6[th] respondent and the learned Government Pleader appearing for the State Government. W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 15 12. Since the petitioners have claimed exemption from the provisions of the Central and T.C Act of 1953 and 1970 respectively, it is necessary to have a look at the relevant provisions relating to registration and practice of medical practitioners. The T.C Act, 1953 was published in the gazette dated 28.7.1953 and the said Act was amended by the Kerala Adaptation of Laws Order, 1956. As per the preamble, this enactment was made in order to regulate the qualifications and to provide for registration of practitioners of modern medicine, homoepathic and indigenous medicine with a view to encourage the study and spread of such medicine in the state of Travancore-Cochin. Section 2(d) defines indigenous medicine to mean Ayurvedic medicine, Sidha medicine and the Unani tibbi medicine whether supplemented or not by such modern advances as the council of indigenous medicine may from time to time recognise. Under the Indian Medicine Central Act, 1970, Indian Medicine is defined under clause (e) of sub section 1 of Section 2 to mean, the system of Indian medicine commonly known as Ashtang Ayurveda, Sidha or Unani Tibb whether supplemented or not by such modern advances as the Central W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 16 council may declare by notification from time to time. State Register of Indian medicine is defined under the Central Act in clause (j) of sub section 1 of Section 2 to mean, a register or registers maintained under any law for the time being in force in any State regulating the registration of practitioners of Indian medicine. `Medical Institutions’ means under clause (f), any institution within or without India which grants degrees, diplomas or licences in Indian medicine and `recognized medical qualification' under clause (b) means, any of the medical qualifications, including Post Graduation medical qualification, of Indian medicine included in the second, third or fourth schedule to that Act. Under clause (k) of the T.C Act, 1953, Register means, the register of practitioners maintained under the Act. Practitioner under clause (g) means, any person ordinarily engaged in the practice of modern medicine or homoeopathic medicine or indigenous medicine as the case may be. Qualified practitioner under clause (i) means, practitioners holding a recognized qualification and recognized qualification under clause (j) means a qualification enumerated in the schedule. In order to be a medical practitioner/qualified practitioner under W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 17 the T.C Act, 1953 one should be a person engaged in the practice of indigenous medicine, modern medicine or homoeopathic medicine and for a registered practitioner he should find his name in the register maintained by the Registrar of appropriate council. Council is defined under clause (a) to mean, the respective council of modern medicine, Homeopathic Medicine or indigenous medicine, as the case may be, established under Section 3. Sub section 1 of Section 3 of the T.C Act 1953 Act provides that the Government shall, by notification in the gazette, establish 3 Councils namely, (a) council of modern medicine (b) council of Homoeopathic medicine and (c) council of indigenous medicine. Sub section 4 thereof provides that the council of indigenous medicine shall consist of 11 members as provided therein. Clause (f) thereof provides for a member elected by registered practitioners of Unani tibbi medicine from among themselves also. Sub section 5 of Section 3 provides that the Government may, by notifications in gazette, direct that the council of indigenous medicine shall consist of less than 11 members, if there are no qualified registered practitioners in any of the 3 branches of medicine to be elected from among them. W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 18 Section 23 relates to eligibility for registration, according to which, every holder of a recognized qualification and every practitioner holding appointment under the Government at the commencement of the Act and every person who, within the period of one year or such other longer period as may be fixed by the Government from the date on which this Act come into force proves to the satisfaction of the appropriate council that he has been in regular practice as a practitioner for a period not less than 5 years preceding the first day of April, 1953, shall be eligible for registration under this Act. It further provides that, no practitioner shall be registered under clause (ii) after the expiration of one year, or such other longer period as may be fixed by the Government from the date on which this Act came into force. Sub section 3 further provides that the Government may, after consulting appropriate council, permit registration of any person who shall furnish to such council proof of possession of medical degree, diploma or certificate of any University, medical school or college approved by such council other than those mentioned in the schedule. The proviso to sub section 4 also provides that, no practitioner shall be registered under that W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 19 sub section after expiry of one year or such other longer period ## as may be fixed by the Government. Section 38 reads as follows: “38. Persons not registered under this Act, etc. not to practise:- No person other than (i) a registered practitioner or (ii) a practitioner whose name is entered in the list of practitioners published under Section 30 or (iii) a practitioner whose name is entered in the list mentioned in Section 25 shall practice or hold himself out, whether directly or by implication, as practising modern medicine, homocopathic medicine or ayurvedic medicine, siddha medicine or unani tibbi and no person who is not a registered practitioner of any such medicine shall practise any other medicine unless he is also a registered practitioner of that medicine: Provided that the Government may, by notification in the Gazette, direct that this section shall not apply to any person or class of persons or to any specified area in the State where none of the three classes of practitioners mentioned above carries on medical practice: Provided further that this section shall not apply to a practitioner eligible for registration under this Act who, after having filed the application for registration, is awaiting the decision of the appropriate council or of the Government in case of appeal. Provided also that this section shall not apply to a practitioner eligible for registration under this Act until the period precribed for application under Section 23 expires.” Thus it can be seen that in order to practice any system of medicine in the State one should be a registered practitioner whose name is entered in the list of practitioners published under Section 30 or in the list maintained under Section 25. Section 25 deals with the list of practitioners as on first April, 1953. The condition for inclusion in the said list was a minimum W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 20 of one year practice as on the date of commencement of the Act and he should have substantiated his claim regarding his regular practice before the Registrar. Section 30 deals with annual list of practitioners and the Registrar is required to publish the full or supplementary list of names along with qualification of all the practitioners registered under this Act every year in the gazette and it is presumed under sub section 3 that every person whose name is entered in the list is registered practitioner and whose name is not so entered is not a registered practitioner. 13. The petitioners claim exemption for practising Unani system of medicine in the light of the proviso to Section 38 which is an enabling provision for Government to notify in the gazette that the mandatory requirement for registration under Section 38 shall not apply to any person or class of persons to any specified area in the State where none of 3 classes of practitioners mentioned above is carrying on medical practice. Proviso itself makes it clear that exemption can be granted only to such classes of persons where none of the 3 classes of practitioners are carrying on medical practice, ie. a registered practitioner or a practitioner whose name is entered in the list of W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 21 practitioners, published under Section 30 or a practitioner whose name in the list under Section 25 is not carrying on medical practice. 14. Coming to the provisions under the Central Act, Section 17 reads as follows: “17. (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.” Sub Section 1 of Section 17 provides for the qualifications which are required for enrollment on any State Register of Indian medicine and the qualifications are provided in the second, third and fourth schedule. That means, only those persons who are having the qualifications mentioned in second, third and fourth schedule alone are eligible for enrollment on any State register of Indian medicine. Sub section 2 provides that, no person other than a practitioner of Indian medicine who possesses a W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 22 recognized medical qualification and is enrolled on a State register or central register of Indian medicine shall practice Indian medicine in any State. Sub Section 3 is the provision which is relied on by the petitioners. Clause (a) thereof provides that, the right of a practitioner of Indian medicine enrolled on a State Register of Indian medicine in any State merely on the ground that he does not possess a recognized medical qualification as on the date of commencement of the Act shall not be affected by the provisions contained in sub section (2). Clause (b) provides that sub section 2 shall not affect the privileges of a practitioner of Indian medicine enrolled on a State register of Indian medicine. Clause (c) provides that, the right of a person to practice Indian medicine in a State in which a State Register of Indian medicine is not maintained as on the date of commencement of this Act, if he has been practising Indian medicine for not less than 5 years on such commencement. That means, as on the date of commencement of the 1970 Act, the said person should have been practicing Indian medicine for not less than 5 years and there should not have been a register of Indian medicine maintained by the State. W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 23 As per the counter affidavit filed by the 3[rd] respondent, there is a State register maintained for indigenous medicine as on the date of commencement of the IMCC Act, 1970, in which the petitioners are not included. The petitioners are claiming a separate enactment for their registration and to protect their practice. In view of the provisions mentioned above, the exemptions under Section 38 or 17(3) are only admissible to those who have been practising as on the date of commencement of the Act as well as in a case where there was no State Register maintained as on the date of commencement of the Act. When the 3[rd] respondent asserts that there was already a State Register maintained under the T.C 1953 Act, though there is no separate register or separate council for Unani system of Medicine alone, this Court cannot direct any of the authorities to grant exemption either under Section 17(3)(c) or under the first proviso to Section 38. 15. The petitioners relied on the judgments of this Court in **K.H.M.G. Assn. v. State of Kerala** [(2005) 3 KLT 620] and asserted that this Court had recognized the genuiness of the claims of parambarya Vaidays and since Special Leave Petitions W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 24 are pending against the judgment in SLP (Civil) 1446814468/2003 in Civil Appeal No.89 to 900 of 2009, in the light of the continued assurances which were being given to them by the State Government to protect their claims, they are also entitled to be granted exemption as done in Exts.P32 and 35. But **K.H.M.G. Assn. v. State of Kerala** (supra) was a case where the Hoomeo Medical Graduate Association challenged the 1[st] proviso to Section 38 of the T.C Act 1953 and sought directions against those who were practising medicine without requisite qualification. In that case the Government had filed a counter affidavit justifying the requirement of exemption. Moreover the learned Government Pleader, in that case stated that the State Government was intending to bring a suitable legislation covering all aspects of medical practice and that the Kerala Medical Practitioners Bill, 1996 was taken up with the Central Government for clearance. This Court further found that the petitioners therein were unable to substantiate their case as to discrimination on account of the 1[st] proviso to Section 38 of the Act 1953 and found that there was justification for such provision for exemption. However that does not in any manner W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 25 dilute the findings in **Vanchiyoor M.D. Sannidhanam v. State** **of Kerala** [2003 (1) KLT 520], decided by an earlier Division Bench, where it was held as follows: “14. So far as this aspect of the matter is concerned, it deserves notice that the conditions of eligibility for registration etc., have been laid down in S. 23. Under Cl. (1) sub-cl. (ii) even persons who have been practising for a period of five years preceding the first day of April, 1953 were made eligible for registration. Still further, in the proviso, it was laid down that "no practitioner shall be registered under Cl. (ii) after the expiration of one year, or such other longer period as may be fixed by the Government." The obvious implication was that the application for registration on the basis of experience had to be made within the prescribed period of one year. Thereafter, the power to grant exemption was under S. 138. It could be invoked. But, the provision does not confer an indefeasible right to the citizen to claim exemption. It only embodies an enabling provision. A person who does not fulfil the qualifications cannot claim, as of right, the grant of exemption. Equally, it cannot be said that the mere fact that exemption has been granted to some persons and not to others, the action is per se discriminatory.” Just because the aggrieved parties therein have SLPs or that Government have passed Ext P32 or 35, which are already stayed by this court in other proceedings, this Court cannot direct that the petitionrs are entitled to exemption. This Court is bound to follow the decision in **Vanchiyoor Madhom** (supra) case. 16. All the more, it is a question to be established by each individual practitioner as to their claims and as to the fact that W.P(C) Nos.32548 of 2005, 22246 of 2008 and 34535 of 2005 26 whether they were practising as on the date of commencement of the respective Acts. In the light of legal provisions governing the petitioners as on today and in the light of the judgments relied on by the respondents, this Court cannot under Article 226 direct the Government either to issue orders of exemption invoking the 1[st] proviso to Section 38 or to frame a separate enactment as claimed by them or as done by the Government of West Bengal. If at all they have got any claim, it is for them to substantiate the same before the authorities individually. Therefore, without prejudice to their such claims, these Writ Petitions are dismissed. This will not prevent the State Government/Central Government in considering the claims of the respective individuals in accordance with law. Sd/- **(P.V.ASHA, JUDGE)** rtr/