C.M.S.E.D. Allopathy
CMS ALLOPATHY COURSE
NAME OF THE COURSE & DURATION
Course : CMS ED Duration : TWO YEARS
Eligibility : 10th or Higher/ BAMS, BHMS, BUMS
CMS diploma is known as diploma in Community Medical Services. It is a diploma for primary health care by general Allopathic medicines, which are recommended by the world health Organasation for primary health care. The Hon. Supreme court has given an order that CMS Diploma holder can given the treatment in all disease including Infection disease.
Qualification: 10th or Higher/ BAMS, BHMS, BUMS.
Recommended Medicine (W.H.O)
LIST OF GENERAL ALLOPATHIC MEDICINES (RECOMMENDED BY W.H.O.
(WORLD HEALTH ORGANIZATION) FOR THE TREATMENT OF PRIMARY HEALTH CARE FOR CMS DIPLOMA HOLDER The List Is Based On The Book Essential Drugs For Primary Health Care Published By W.H.O. Genewa, Switzarland And The Book Written By Spanish Dr. David Warner Published By VOLUNTARY HEALTH ASSOCIATION OF INDIA , SWASTHYA , BHAWAN, NEW DELHI.
The List had been Send To The Health Ministry . The Govt. Of India , By ICM&HC ( The Moved Iosms University ) Vide No (SPEU-563552573 IN) According To The Hon Supreme Court Judgement, CMS Diploma holder can provide his Basic Medical Services to the distressed humanity by the medicine which are recomended by WHO For Primary Health Care.
• Glucose Powder D&C
• Oral Rehydration Salt
• Lime Water
• Camphor Water
• Chlorine Water
• Hydrogen Per Oxide
• Acriflavin Powder (Lotion)
• Gention Violet Paint
• Carbolic Acid
• Povidine Lodine (Solution , Ointment)
• Ring Warm Ointment(White Fields Liniment)
• Neomycin- Bactricine Ointment
• Benzyl Benzoate Lotion
• Gama Benzene Hexa Chloride (Lindane)
• Potassium Per Magnate (KMnO4)
• Calamine Lotion
• Zinc Sulphate Powder
• Sulphur Powder
• Boric Powder
• Castor Oil
• Glycerin
• Magnesium Sulphate
• Belladonna
• Asprin
• Paracetamol
• Ibuprofen
• Diclofenac
• Chlorempheniramine Maleate
• Cetrizine Hydrochloride
• Gripe Water
• Vitamin A
• Vitamin B Complex
• Vitamin C
• Vitamin D
• Vitamin E
• Isabgoal Powder
• Senna Leaves
• Soda Bi Card (Sodium Bi –Carbonate)
• Yeast Tablets
• Piperazine Powder
• Mebendazol
• Ferrus Sulphate ( Iron Preparations )
• Procain Hydrochloride
• Furazolidone
• Matronidazole
• Kaolin Powder
• Liver Pills & Syrup
• Folic Acid
• Magnesium Tricillicate
• Calcium Pills
• Calcium Lactate
• Ashoka Cordial
• Oral Contraceptive pills & syrup
• Enzyme Tablets
• Haemostatic Tablets
• Diethyl Carbamazine Citrate (Benocide)
• Ephedrine
• Aminophyllin Tablets
• Codine Sulphate
• Dexamethasone
• Betamethasone
• Chloroquine
• Primoquine
• Dome peridome
• Degepam
• Dicyclomine Hydro Chloride
• Atropine
• Co- Trimoxazole
• Sulphadimidene
• Penciline
• Amoxycilline
• Ampicilline
• Gentamycin
• Tetracycline
• Chloremphenicol
• Dextrose 5% Sodium Chlore 9% Injection
• Tabramycin
• Grisofulwin Tablets
• Streptomycin
• DDS (Sulphone)
• Rifampicin Capsules
• Clofazimine Tablets
• Streptomycin
• Isoniazid Tablets
• Refampicin Capsule
• Thiocetazone Isoniazid Tablet
• Pyrizinamide Tablets
• Tuberculosis Tablet
• Streptomycin
• Sumag & Mag Mag
• Boroglycerine
• Paracetamol+ ibuprofen Or Diclofenac
• Iodex Ointment
• Corex Or Vics 44 Cough Syrup
• Multivitamin Tablets Or Capsuls
• Etophyllin Tablets
• Betnovate N., C. , Skin Ointment
• DPT Vaccine
• Carminative Mixture
Legal Status
The CMS Diploma is valid all over India for Practice by Harmless General Allopathic Medicines for Primary Health Care Practice. As per the Judgment of Hon'ble Supreme C
C
Dr. Sunil Dangwal vs The Registrar on 9 February, 2016
Author: Hemraj
IN THE COURT OF HEM RAJ
ACJ/CCJ/ARC¬(SOUTH EAST DISTRICT),
SAKET COURTS, NEW DELHI
CS. No. 41/2015
Unique case ID No. 02406C0052972015
Dr. Sunil Dangwal
S/o Sh. Manwar Singh Dangwal
Owner of Garhwal Clinic,
Gali No. 26, Molarband Extension,
Badarpur, New Delhi.
Also
Residing at:¬E¬67, Mohan Baba Nagar,
Badarpur, New Delhi. .........Plaintiff
Versus
1.
The Registrar Delhi Medical Council Room No. 308, IIIrd Floor, Administrative Block, Maulana Azad
Medical College, New Delhi.
2. The Secretary Ministry of Health Department, Govt. of India, 1st Floor, Nirman Bhawan, New Delhi.
CS. No. 41/2015 Dr. Sunil Dangwal Vs. The Registrar, Delhi Medical Council & Ors. age 1 of 11
3. The Secretary/Chairman Department of Ayurveda Yoga & Naturopathy, Unani, Sidha and Homeopathy,
Ayush Bhawan, B¬Block, GPO Complex, INA, New Delhi. .........Defendants Suit instituted on :
16.02.2015 Judgment pronounced on : 09.02.2016 EX¬PARTE JUDGMENT
1. This is a suit instituted by plaintiff against the defendants seeking a decree of mandatory
injunction thereby directing the defendants to remove the name of the clinic of plaintiff i.e
Garhwal Clinic, Gali No. 26, Molarband Extension, Badarpur, New Delhi¬110044 from the list of
fake/incompetent clinic/doctors website which has been done by the defendants in collusion and
in connivance with one another with immediate effect. Further a decree of perpetual injunction
thereby restraining the defendants, their agents, servants, attorneys, assignees, representatives
etc. from illegally and forcibly publishing the name of abovesaid clinic of plaintiff and from
interfering/restraining in the peaceful operation/run/practice of the said clinic CS. No. 41/2015
Dr. Sunil Dangwal Vs. The Registrar, Delhi Medical Council & Ors. age 2 of 11 by the plaintiff
without any due process of law.
2. Brief narration of the facts as stated in the plaint is that the plaintiff is Prathmic Chikitsak
Doctor by profession and is running a clinic under the name and style of Garhwal Clinic, Gali No.
26, Molarband Extension, Badarpur, New Delhi. Plaintiff is having a valid degree of Medical
Education as "Diploma in Naturopathy & Yogic Science (DNYS)" obtained from All India Nature Cure
Federation, Delhi Gandhi Smarak Nidhi, Patparganj, New Delhi in the year 2006. Plaintiff has also
obtained and having a diploma in Community Medical Service (CMS) and ED from Maharshi Balmiki
National University, New Delhi in the year 2011. Plaintiff on the basis of abovesaid documents has
been running his clinic and providing better services to the citizens locality and the society as
well as other persons. Plaintiff surprised when he watched the name of his clinic on defendants
Delhi Medical Council website as "Doctor is not competent to run clinic in the name and style of
Garhwal Clinic". The Medical Council of India clearly stated vide letter No. MCI¬2013 (1)/2004¬
Regn./10/93 dated 21.04.2004 in reference to "permission recognition of Para¬medical & CMS & Ed
Certificate & Diploma Courses", that "With reference to defendants letter No. NBV HAB 13X04, dated
08.10.2004, on the subject noted above this is to inform defendants that Paramedical & CMS & ED
courses do not come under the purview of Medical Council of India, New Delhi. As CS. No. 41/2015
Dr. Sunil Dangwal Vs. The Registrar, Delhi Medical Council & Ors. age 3 of 11 such, permission of
the MCI is not required for starting/running Para¬medical & CMS & ED courses in MCI as on date".
So, admittedly keeping in view the abovesaid observation Medical Council of Delhi has absolutely
no authority to blacklist the abovesaid clinic of plaintiff or put any ban on that.
The Health Ministry of India, vide its order dated 25.11.2003, letter no. R14015/25/96 U & H (R)
(Pt) having given permission to practice the doctor who has Naturopathy degree from recognized
university.
The Hon'ble Supreme Court of India in its judgment and order dated 19.02.2003 has held that
"Giving thousands of diploma holder in Community Medical Service (C.M.S) the right to prescribe
medicine is unjust to allow them only to treat rural population without the consequential right
to prescribe medicine or issue medical certificate." Aggrieved from the said illegal acts of the
defendants, the plaintiff with all relevant documents approached three times to the office of
defendant no. 1 and showed the said documents to the officials of defendant no. 1 and requested
them to remove the name of clinic from the list of fake/incompetent clinic/doctors on the website
of the defendants. It has been further stated that due to said illegal acts of defendants,
plaintiff is suffering exceptional financial loss and further have lost his reputation in society
and legal fraternity. Thereafter, plaintiff issued a statutory legal notice dated 08.12.2014 under
section 80 CPC to the CS. No. 41/2015 Dr. Sunil Dangwal Vs. The Registrar, Delhi Medical Council
& Ors. age 4 of 11 defendants calling upon them to stop their abovesaid illegal, unlawful and
unwarranted acts of wrongly publishing the name of plaintiff's clinic on the fake/incompetent
clinic/doctors website. The defendants neither replied to the said notice nor removed/de¬listed the
name of plaintiff's clinic. Hence, the present suit.
3. Defendant no. 1 entered the contest by filing written statement. It has been submitted that the
plaintiff has filed the present suit on the wrong premises that he is a doctor being the holder
of Diploma in Naturopathy and Yogic Science from All India Nature Cure Federation and Diploma in
Community Medical Service & ED from Maharshi Valmiki National University. The plaintiff can not
claim himself to be a doctor and practice in Allopathic System of Medicine in the NCT of Delhi
without being registered with Delhi Medical Council. Even the so called Diploma in Naturopathy and
Yogic Science from All India Nature Cure Federation, Patparganj is ostensibly not a recognized
course from a recognized institution and does not entitle the plaintiff to call himself as a doctor.
It has been further submitted that the Indian Medical Council Act, 1956 regulates modern system of
medicine (Allopathy) in the NCT of Delhi, the regulation of practice of profession in the modern
system of medicine is being done by statutory authority viz Delhi Medical Council constituted under
the Delhi Medical Act, 1997. It is pertinent to mention here that for practicing in modern
scientific CS. No. 41/2015 Dr. Sunil Dangwal Vs. The Registrar, Delhi Medical Council & Ors. age 5
of 11 system of medicine registration with the Delhi Medical Council is mandatory in the NCT of
Delhi. Without registration, a person can not practice in the modern scientific system of medicine
in the NCT of Delhi and is also liable for action under the Medical Council Act, 1997. The plaintiff
has not approached the Hon'ble Court with clean hands. Hence, he is not entitled to the equitable
relief of injunction. It has been stated that on 10.03.2008, the Delhi Medical Council received a
complaint letter from one Sh. S.P. Rathore alleging the quacks mentioned therein including the
plaintiff are practicing in the allopathic system of medicines without holding any recognized medical
qualification. It was requested by the Delhi Medical Council to carry out an inspection/survey at
their place to ascertain in which system of medicine the said individuals are practicing and to send
the inspection report to the DMC within 15 days of receipt of the letter. It has been further stated
that the inspection report in respect of the clinic mentioned that the said clinic was inspected on
19.11.2008 and the plaintiff was stated to be practicing from the last 8¬9 years using allopathic
medicines. The said report was accompanied by the copy of registration of the plaintiff with Council
of Ayurvedic and Unani System of Medicine, Bihar. The same did not entitle the plaintiff to practice
in Allopathic. Thereafter a show cause notice dated 09.01.2009 was issued to the plaintiff to stop
practicing allopathic system of medicine forthwith and to appear before the Delhi Medical Council
on 20.01.2009. The CS. No. 41/2015 Dr. Sunil Dangwal Vs. The Registrar, Delhi Medical Council &
Ors. age 6 of 11 said show cause notice was returned back with the remark "left without
address/wrong address". The Delhi Medical Council again issued a show cause notice dated 17.03.2009
to the plaintiff which again was returned back with the same remark. The plaintiff has committed
the offence punishable under section 27 of the Delhi Medical Council Act, 1997. Hence, the plaintiff
is not entitled to the reliefs prayed for.
4. Defendant no. 3 filed its written statement wherein it has been stated that there is no Central
Act or Regulation to regulate the naturopathy system of medicine. Therefore, the defendants have
no authority to issue any direction regarding publishing of the name of plaintiff or his clinic
in the website of defendant no. 1. It has been submitted that the then Department of AYUSH now
Ministry of AYUSH has issued guidelines to all the State Governments to enact comprehensive
legislation for regulation of Naturopathy covering registration of practitioners, medical education
etc. It has been stated that as per the plaintiff, the defendant no. 1 i.e Delhi Medical Council
has published the name of the clinic on their website. The defendant no. 3 has no role in issuing
the orders regarding the publishing of the name of plaintiff or his clinic in the website of
defendant no. 1. As such, it is for the defendant no. 1 to redress the grievance of the plaintiff.
On bare perusal of the prayer of the plaintiff in the suit, it is evidently clear that the plaintiff
has CS. No. 41/2015 Dr. Sunil Dangwal Vs. The Registrar, Delhi Medical Council & Ors. age 7 of 11
wrongly sought relief from defendant no. 3. The issue raised in the suit does not come under the
purview of defendant no. 3 and as such defendant no. 3 is not the concerned appropriate authority
and can not provide any relief/reliefs to the plaintiff.
5. On 06.06.2015, counsel for plaintiff submitted that defendant no. 2 be deleted from the array
of parties. Although no formal order was passed but during the course of arguments, this fact
was not disputed by the Ld. Counsel for plaintiff. Hence, defendant no. 2 has been treated as
deleted from the array of parties. Thereafter, on 11.09.2015, defendant no. 3 was deleted from
the array of parties on the statement of counsel for plaintiff. Further on 15.10.2015 defendant
no. 1 was proceeded ex¬parte for non appearance and plaintiff was directed to lead ex¬parte evidence.
6. In plaintiff's ex¬parte evidence, plaintiff Dr. Sunil Dangwal examined himself as sole witness
and tendered his affidavit as Ex.PW1/A. He relied upon the documents i.e copy of voter ID card
as Ex.PW1/1, copy of electricity bill of the suit property as Ex.PW1/2, photograph of suit property
as Ex.PW1/3, copy of diploma (DNYS) as Ex.PW1/4, copy of diploma (CMS and ED) as Ex.PW1/5, copy
of migration certificate as Ex.PW1/6, Internet copy of website showing the name of the clinic
is Mark A, copy of notification having number MCI¬203(1)/2004¬Regn./10/93 dated 21.04.2004 as
Ex.PW1/7, copy of Gazette published on 06.03.1997 as Ex.PW1/8, copy of CS. No. 41/2015 Dr. Sunil
Dangwal Vs. The Registrar, Delhi Medical Council & Ors. age 8 of 11 letter no. RI4015/25/96 dated
25.11.2003 as Ex.PW1/9, copy of judgment for reference as Ex.PW1/10, copy of notice as Ex.PW1/11,
postal receipts as Ex.PW1/12 (colly) and plaint as Ex.PW1/13. No other witness has been examined
by the plaintiff and PE was closed on 17.11.2015.
7. I have heard the arguments at bar advanced by Ld. Counsel for plaintiff, perused the written
arguments filed on behalf of plaintiff and gone through the records.
8. in this suit, the defendant no. 1 was proceeded ex¬parte after it had filed the written statement.
Defendant no. 1 was the main defendant in the suit as the relief had been claimed against him.
Defendant no. 2 and3 were deleted from the array of parties. It is well settled principle of law
that even though the defendant is ex¬parte still the plaintiff is not absolved from its
responsibility to prove the case on merits. Plaintiff has to stand upon its own legs and he can
not derive any benefits from either the absence of the defendant or the weakness of the defence.
9. The plaintiff has sought the relief that defendants be directed to remove the name of the
clinic of the plaintiff from the list of fake/incompetent clinics/doctors website as he is
a qualified diploma holder in Naturopathy and Yogic Science. The pleadings especially the
written statement filed by the defendant no. 1 shows that the plaintiff has been guilty of
suppressing the material facts and has approached the Court with unclean CS. No. 41/2015
Dr. Sunil Dangwal Vs. The Registrar, Delhi Medical Council & Ors. age 9 of 11 hands. In its
written statement, defendant no. 1 has stated in para no. 8 that on a complaint, it had
directed the CDMO (South) Directorate of Health Services, Govt. of NCT to carry out an
inspection of the clinic of the plaintiff which was done on 19.11.2008 and the plaintiff was
found to be practicing from the last 8¬9 years using allopathic medicine. A show cause notice
was issued to the plaintiff by it. The plaintiff had provided copy of his registration with
Council of Ayurvedic and Unani System of Medicine, Bihar but was practicing in the modern
science (Allopathic).
In reply to para 8 of the preliminary submission of ws, the denial was made by the plaintiff
in his replication for the first time. These facts were not mentioned by the plaintiff in his
plaint and disclosed the same for the first time in his replication.
In my opinion the plaintiff has been guilty of suppressing the material facts from the
knowledge of the Court. It is settled law that one he who seeks equity must do equity. The
power of injunction is a discretionary relief and the Court can not use the discretion in favour
of party who has not approached the Court with clean hands.
10. Furthermore the plaintiff has not examined any official from the so called institution from
where he has alleged to have received his diploma in Naturopathy and Yogic Science as well as
diploma in Community Medical CS. No. 41/2015 Dr. Sunil Dangwal Vs. The Registrar, Delhi Medical
Council & Ors. age 10 of 11 Service and ED. It has not been proved on record whether such
institute exits or not or whether any diploma etc has been received by the plaintiff from them.
Accordingly, I hold that the plaintiff has failed to prove on record the genuineness of his
documents.
11. Therefore, in view of the aforesaid discussions, I hold that the plaintiff has miserably
failed to prove his case on merits. The plaintiff is not entitled to discretionary relief
of injunction as prayed for. The suit of the plaintiff, therefore, stands dismissed. No
order as to costs. Decree sheet be prepared accordingly. File be consigned to Record Room.
Announced in the open Court (Hem Raj)
Today on February 9th, 2016 ACJ/CCJ/ARC¬(SE)
Saket Court, New Delhi
CS. No. 41/2015 Dr. Sunil Dangwal Vs. The Registrar, Delhi Medical Council & Ors. age 11 of 11
Supreme Court of India
Subhasis Bakshi & Ors vs West Bengal Medical Council & Ors on 14 February, 2003
Author: R Babu
Bench: S. Rajendra Babu, Shivaraj V. Patil
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
according.