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Dr. Ravindra Kumar Goel And Others v. State Of Uttar Pradesh And Another

Dr. Ravindra Kumar Goel And Others
v.
State Of Uttar Pradesh And Another

(High Court Of Judicature At Allahabad)

Second Appeal No. 320 Of 2004 | 27-04-2004


M. Katju, J.

1. This case reveals the wide spread malpractices which are going on in the State of U.P. regarding medical practice by unauthorized persons (quacks) who often have bogus degrees/certificates from bogus/fictitious so called medical colleges in various parts of the country.

2. This appeal has been filed against the order of the learned single Judge dated 28.1.2004. We have heard learned Counsel for the parties and have perused the said order in great detail.

3. The impugned order of the learned single Judge reveals the great concern of the learned single Judge about the alarming and widespread malpractice prevailing in the State of Uttar Pradesh in the medical field. In fact the matter had come up before the Supreme Court in D.K. Joshi v. State of U.P. : 2000 (3) AWC 1845 (SC) : (2000) 5 SCC 80 [LQ/SC/2000/780] . Copy of the said judgment has been filed as Annexure-1 to the special appeal. In that case it was brought to the notice of the Supreme Court that unqualified persons are carrying on medical profession in the State of Uttar Pradesh. The Supreme Court was distressed to note that inspite of the direction to the U.P. Government to check this malpractice the District Magistrate and the Chief Medical Officers in the State had not taken effective steps to stop this menace which is hazardous to human life. The Chief Medical Officers only forwarded the names of the unauthorized medical practitioners to the District Magistrates but no follow up action was taken. It was also noted that after being warned the unqualified/ unregistered doctors have shifted to neighbouring districts. The Supreme Court therefore, issued several directions in paragraph 6 of the said judgment to stop the carrying on of medical profession in U.P. by the unqualified/unregistered persons and in addition to take the following steps:

(i) All District Magistrates and the Chief Medical Officers of the State shall be directed to identify, within a time-limit to be fixed by the Secretary, all unqualified/ unregistered medical practitioners and to initiate legal actions against these persons immediately ;

(ii) Direct all the District Magistrates and the Chief Medical Officers to monitor all legal proceedings initiated against such persons ;

(iii) The Secretary, Health and Family Welfare Department shall give due publicity to the names of such unqualified/ unregistered medical practitioners so that people do not approach such persons for medical treatment ;

(iv) The Secretary, Health and Family Welfare Department shall monitor the actions taken by all District Magistrates and all Chief Medical Officers of the State and issue necessary directions from time to time to these officers so that such unauthorized persons cannot pursue their medical profession in the State.

4. It appears that thereafter a contempt petition was moved before the Supreme Court alleging that the directions of the Court have not been complied with. By its order dated 8.10.2001 the contempt petition was dismissed with the direction that Petitioner should move the High Court for the relief sought for. The Petitioner then filed Contempt Petition No. 820 of 2002 in which notices were issued to the Respondent namely Chief Secretary, U.P. Secretary Health and Family Welfare, District Magistrate, Meerut and Chief Medical Officer, Meerut. Other authorities were also impleaded as parties and were required to take action. The successive Principal Secretaries, Medical Health, U.P. have filed their affidavits including the action taken and the reports of the Chief Medical Officers, The Court also directed the Director General of Police to submit his report.

5. During the pendency of the contempt petition the Court also directed inspection of the Community Health Centre at Koraon and Shankergarh, district Allahabad to verify the complaints regarding unauthorized practitioners. In the report submitted by the Director, Medical Health, U.P., it was stated that the Community Health Centre are not providing adequate medical care which was almost absent in the rural areas. The Doctor are not attending their duties and the medical equipments are either not available or are non-functional. The para medical staff is wholly insensitive. Some doctors managing long tenures at their postings have entered into a close nexus with unauthorized practitioners. The Medical Council of India was also impleaded and it filed its affidavit. Relevant extract of the affidavit has been quoted by the learned single Judge in his order.

6. The learned single Judge after considering the matter in detail issued the following directives:

(1) All the Hospitals, Nursing Homes, Maternity Homes, Medical Clinics, Private Practitioners, practicing medicine and offering medical and health care services, Pathology Labs, Diagnostic Clinics, whether run privately or by Firms, Societies Trusts, Private Limited or Public Limited Companies in the State, shall register themselves with the Chief Medical Officer of the district where these establishments are situate, giving full details of the medical facilities offered at these establishments, the names of the registered and authorized medical personnel practicing, employed or engaged by them, their qualifications with proof of their registrations, the Para Medical staff employed or engaged and their qualifications on a form (for each category) prescribed by the Principal Secretary, Medical Health and Family Welfare, Government of U.P. The prescribed proforma with true and accurate information shall be submitted supported by an affidavit of the person providing such medical services or the person in-charge of such establishment sworn before a Notary Public. The required information shall be submitted for registration by all these persons on or before 30.4.2004.

(2) The Principal Secretary, Medical Health and Family Welfare, U.P. shall publish the information requiring all these persons to obtain registrations along with the directions given in this order, and the prescribed proforma, in all leading newspapers of the State at least three times in the months of February, 2004.

(3) Any change or addition in the particulars submitted shall be notified within thirty days and the registrations shall be renewed every year before 30th April of the year.

(4) On and from 1.5.2004, all those persons who have not furnished the information and obtained registration with the Chief Medical Officers of the district, shall be taken to be practicing unauthorisedly and the Chief Medical Officers, shall scrutinize and forthwith report the matter to the Superintendent/ Senior Superintendent of Police of the district with information to this Court, to conduct raids and to seal the unauthorized premises/establishments. All the authorized person/ establishments, who fail to obtain registration, will have liberty to apply only to this Court to explain the delay and to seek permission to continue with their medical practice/ profession.

(5) All those medical practitioners who desire to offer medical services in the State, in future, shall be required to submit the details in the aforesaid proforma for registration as above with the Chief Medical Officer of the district before they start medical practice.

(6) All the institutions/ establishments/ colleges awarding medical degrees in the State shall apply and get themselves registered with the Principal Secretary, Medical Health and Family Welfare, U.P., with full particulars of their authorization to confer such degrees/certificates, on or before 30.4.2004.

(7) The newspapers and magazines, published in Uttar Pradesh are restrained from publishing advertisements by and from unauthorized medical practitioners, publishing their claims of quick and magic remedies. They shall require these persons to give proof of the qualifications and registrations. The breach shall be taken to aid and abet illegal activities violative of Magic Remedies (Objectionable Advertisement) Act, 1954 and other relevant legislations.

(8) The Principal Secretary, Medical Health and Family Welfare, is directed, to ensure that no medical officer in the Government service is posted beyond three years in any district and that all para medical staff serving in the Primary Health Centre/ Community Health Centre/ District Hospitals and other hospitals run by Government of U.P. for more than five years, shall be transferred from the Centre/Hospital. Any doctor in employment of State Government offering their services to the unauthorized medical practitioners shall face immediate disciplinary action by the State Government, and shall be prosecuted for aiding and abetting such unauthorized practice.

7. The learned single Judge in his order has observed that the above directions shall be strictly complied with and breach of these orders shall be treated as contempt of court and punished accordingly. The learned single Judge has further directed that the Respondent shall continue to identify and prosecute the unauthorized medical practitioners. He observed that there is a large gap between identification of the unauthorized medical practitioners and the prosecution launched against them so far.

8. We fully agree with the directives issued by the learned single Judge in the impugned order dated 28.1.2004, except for the modification we are making in direction No. 8. Rather we share his concern with even greater emphasis. An alarming situation has arisen throughout the State of U.P. (and perhaps in many other States) due to this widespread practice of quackery which is hazardous to the health and life of the public, apart from driving out the genuine doctors, just as bad coins drive out good coins from circulation. We are informed that in U.P. the number of quacks is several times (perhaps 10 times or more) than the genuine doctors.

9. Apart from what the learned single Judge has stated in the impugned order we would like to say that on earlier occasions we have found in several cases that persons coming from the State of Bihar are doing medical practice in Uttar Pradesh and when we enquired from them about their medical degrees they produced degrees/certificates, which appeared to us to be fake.

10. It is reported that in the State of Bihar all kinds of fake and phoney institutions have mushroomed in which degrees are available for sale. In one case the Court directed investigation into 110 educational institutions in Bihar (so called medical colleges, engineering colleges etc.) and it was found that all these 110 institutions exist only on paper. There is neither land, building, staff, teachers nor any instruction is being imparted there. However, for years such bogus teachers and other employees in these institutions are drawing salaries from these fake institutions pretending to be Principal, teachers, clerks etc. In a large number of cases, which have come before us the fake degrees have been obtained from Bihar. It is possible that the same malady is going on in some other States also, where degrees/certificates are available for sale.

11. The citizens have a right to life under Article 21 of the Constitution and this includes the right to get medical treatment vide Consumer Education and Research Centre v. Union of India JT 1995 (1) SC 637 wherein the Supreme Court observed (vide para 26):

The right to health and medical care is a fundamental right under Article 21 read with Articles 39(c), 41 and 43 of the Constitution. Right to life includes protection of the health and strength and the minimum requirement to enable the persons to live with dignity.

12. In U.P. the unauthorized medical practitioners (quacks) have mushroomed and spread into every nook and corner. Such unauthorized medical practitioners have been befooling the people of Uttar Pradesh for more than two decades and have been exploiting them and often endangering their health. Under the law only a registered medical practitioner who has a degree from a recognized and genuine medical college alone can practice medicine. Even if a person has got himself registered with the Medical Council of India or with the Board of Indian Medicine, U.P. or Homoeopathic Medical Council or some other such body, he cannot be allowed to practice on the strength of that registration/ certificate alone. He must further have a medical degree from a genuine and recognized Medical College. We think it necessary to say this because what is often happening is that persons who do not have a degree from genuine and recognized Medical Colleges get themselves registered with the Medical Council of India or with the Board of Indian Medicine, U.P., Homeopathic Medical Council, etc. by some irregular methods and/or manipulation and then they claim that they have a right to practice medicine. In our opinion, to permit this would be like permitting a person who has not got an LL.B. degree from a genuine and recognized Law College to practice law just because he has somehow managed to get himself enrolled with the Bar Council, although he may be only High School passed.

13. Taking advantage of the poverty of the people of the State such unauthorized practitioners are deceiving them by offering their services on lower fees. They are often endangering the health of such people, apart from doing something which is illegal. We therefore, fully agree with the directions given by the learned single Judge by order dated 28.1.2004, as they are salutary and praiseworthy, and were long overdue.

14. In fact many of these directions were made on suggestions of the parties, which were deliberately and readily accepted by Sri. R.K. Mittal, Principal Secretary Medical Health, U.P. and Dr. Amrendra Singh, Director General, Medical Care, U.P., as mentioned in the impugned order itself.

15. Sri. U.N. Sharma, learned Counsel for the Petitioner has submitted that the Appellants are doing private practice and they are aggrieved by the first direction contained in the order dated 28.1.2004 by which they have been required to get themselves registered with the Chief Medical Officer of the district giving full details as directed. He submitted that the Appellants have already been registered under the Medical Council of India Act, 1956, the Indian Medicine Central Council Act, 1970, Homeopathic Central Council Act, 1973, or Board of Indian Medicine, U.P. and hence they should not be asked to get themselves registered again.

16. In our opinion, this argument is misconceived. The object of the direction given by the learned single Judge to get registration done with the Chief Medical Officer was not that there is any need to get some statutory registration under the Indian Medical Council Act or some other Statute. The purpose was to find out who were the unauthorized practitioners so that such persons can be stopped from doing illegal medical practice in the State. We see nothing objectionable in the direction of the learned single Judge that all medical practitioners must register themselves with the Chief Medical Officer of the district. In fact, to our mind such a step was long overdue, and the time has surely come when the authorities must strictly check the medical degrees, registration certificate etc. of those who are doing medical practice in Uttar Pradesh, since a large number of quacks are illegally doing medical practice in the State.

17. As already observed above, if the Chief Medical Officer finds that the person concerned does not have a medical degree from a genuine and recognized Medical College then his medical practice must be stopped immediately even if he is registered with a Statutory body like the Medical Council of India. We are informed that the Indian Medical Council of India. Board of Indian Medicine, U.P., Homeopathic Central Council etc. are not strict in examining the applications of persons who want to be registered as medical practitioners, and often they register persons with fake medical degrees or degrees of Medical Colleges which are not genuine or recognized. We give a direction to all these Medical Councils (whether Allopathic, Homeopathic, Ayurvedic or Unani) that in future they must be very strict and carefully scrutinize whether the medical degree of the applicant is from a genuine and recognized Medical College or not, and they should refuse to grant registration where it finds that the degree is not of a genuine and recognized Medical College.

18. In fact it may be pointed out that the Supreme Court had itself issued directions in D.K. Joshis case (supra) that the Secretary, Health and Family Welfare, U.P. shall take all steps necessary to stop carrying on of medical profession in the State of Uttar Pradesh by unqualified or unregistered persons. In addition the Supreme Court also directed all District Magistrates and Chief Medical Officers to identify the unqualified/ unregistered medical practitioners and to take legal proceedings against them. We regret to say that despite these directives of the Supreme Court they have not been carried out by the authorities.

19. Sri. U.N. Sharma, learned Counsel for the Petitioner then submitted that the learned single Judge has no right to give such a direction for registration of the medical practitioners before the Chief Medical Officer since he was only exercising contempt jurisdiction. He submitted that in contempt jurisdiction the learned single Judge can either punish the contemnors for contempt or discharge them, but he cannot issue directions as if he was sitting in writ jurisdiction. In our opinion, it is no doubt true that ordinarily a Judge who is sitting in contempt jurisdiction should not issue directions as if he was sitting in writ jurisdiction. However, in our opinion, in exceptional and rare cases he can do so, particularly if there is some pressing urgency or alarming situation as is prevailing in U.P. in the medical profession.

20. In S. Barrow v. State of U.P. : AIR 1958 All 154 , [LQ/AllHC/1957/222] a Division Bench of this Court held:

Article 226 of the Constitution does not confine the powers of Courts to issuing prerogative writs in cases where a party makes an application for the purpose, and the words of Article 226 are wide enough to authorise the High Court to quash an order suo motu.

21. Thus, the High Court has power to issue writs suo motu without any application.

22. In Smt. Abida Begam v. R. C. E. O. : AIR 1959 All 675 , [LQ/AllHC/1959/87] a Division Bench of this Court held:

It may not be possible for us to grant a decree in the suit, but, in spite of that fact, we think that this Court has jurisdiction under Article 226 of the Constitution to grant the relief as against the Defendant No. 1, even though this matter had not come in its writ jurisdiction on an application under Article 226.

23. It may be mentioned that in Abida Begums case (supra) the Division Bench was deciding a special appeal against the judgment of a learned single Judge who had decided a second appeal under Section 100, Code of Civil Procedure Thus, the Court was not exercising writ jurisdiction but the jurisdiction of second appeal. However, it was observed that even in such a jurisdiction in certain exceptional cases the Court can issue writs. Thus, the decision in Abida Begums case (supra) is an authority for the proposition that in exceptional cases a Judge sitting in a particular jurisdiction can issue a directive relating to another jurisdiction so as to do justice.

24. Learned Counsel for the Appellant then objected to the directive No. 8 in the impugned order dated 28.1.2004. By that directive the Principal Secretary, Medical Health, U.P., was directed to ensure that no Medical Officer in the Government Service is posted beyond three years in any district and that all para medical staff serving in Primary Health Centre/Community Health Centre/District Hospital for more than five years shall be transferred from that hospital and any Government doctor offering service to unauthorized medical practitioners shall face disciplinary action and shall also be prosecuted.

25. In our opinion, it is correct to say that the principles of transfer are policy matters, and they should ordinarily be decided by the State Government and not by this Court. Hence, we modify direction No. 8 contained in the judgment of the learned single Judge, and we hold that this directive shall be treated as a recommendation rather than a binding directive on the State Government. However, we would like to say that we fully agree and share the concern of the learned single Judge in this connection. Obviously what motivated the learned single Judge in issuing such a direction was that several Government doctors managed their place of posting in big cities for long periods as they have connections with high-ups, and such Government doctors often run their private clinics also where they spend most of the time instead of attending their duties in Government hospitals. Hence, it is obvious that what the learned single Judge intended to say was that this practice should be stopped as it would not be fair to other doctors who do not have connections with high-ups and remain posted in the rural areas for a long time. We fully agree with the learned Judge that there should be fair treatment to all Government doctors and transparency in the matter.

26. Hence, we direct the State Government to frame a scheme regarding transfer and posting of the Government doctors so as to ensure fair treatment to everyone and no special benefit to those who have contacts with high-ups. This scheme framed by the statement must not only provide for fair treatment to all Government doctors in the State regarding their transfer and posting, but also ensure that sufficient number of doctors are posted in rural areas in rotation, since presently the position is that even those who are technically posted in rural areas often do not go to rural areas except, say, for one or two days in a month for the sake of formality and they hardly stay there one or two hours and then come back to the cities. Because of this practice quacks have mushroomed in the rural areas because there are no Government doctors usually available in the rural areas. This is not fair to the people in the rural areas who are the majority in our country. The State Government must not only do posting of Government doctors in rotation to rural areas but also ensure that those who are posted in rural areas really work there during their official hours. For this purpose, the State Government must provide for suitable residential accommodation commensurate to the status of the doctors near the family health centre/ community health centre where they are posted. Also such residential accommodation must be provided water, electricity and other basic essential facilities. In the absence of these, it is unrealistic to expect the Government doctors to remain in rural areas for a long period. Apart from that, we are of the opinion that the doctors who are posted in the rural areas should be given some adequate special allowances because they have to usually maintain double establishment since their wives and children usually remain in cities because their children are studying in schools there.

27. The scheme mentioned above should ensure that there should be rotation between those who are posted in urban areas and those who are posted in rural areas so that a person who is posted for, say, three or four years in a city should thereafter be sent for 3 or 4 years to a rural area. Such a scheme would be fair to all Government doctors and thereby avoid unnecessary bickering and heart burning. The scheme framed by the State Government should also provide that the Government doctors who are conniving with the unauthorised medical practitioners (quacks) shall face disciplinary action and the scheme framed by the Government should also remove the possibility of the Government doctors in developing contacts with the quacks.

28. We request the learned single Judge, (Honble Sunil Ambwani, J.) who passed the impugned order to monitor the scheme framed by the State Government as directed above. Honble Sunil Ambwani, J., is requested to list the case before himself, say, after every two months and call for a progress report from the State Government regarding the progress made in the last two months. We feel that this is necessary otherwise mere directives given by the Court are often forgotten unless they are regularly monitored. The State Government must ensure that the doctors posted in the rural areas regularly work there, and if they do not do so then disciplinary action should be taken against them.

29. We further direct that a doctor who has a degree in a particular branch of medicine, say Ayurvedic or Unani should not be allowed to do practice other systems of medicine, e.g., Allopathic unless the law permits it. We feel it necessary to issue this direction because often it is found that a person who has a degree in Ayurvedic or Unani is practicing Allopathic medicine, which in our opinion is illegal.

30. No doubt many of the directions issued by the learned single Judge and by us are unconventional but extraordinary situations require extraordinary remedies.

31. In view of the above we uphold the impugned order of the learned single Judge with the modification regarding direction No. 8 as stated above.

32. With this slight modification this appeal is dismissed.

33. Let a copy of this judgment be sent by the Registrar General of this Court to the Chief Secretary, U.P. Government, Lucknow, Principal Secretary Medical Health, Principal, Home Secretary, Law Secretary and Director General of Police, U.P. who will ensure compliance of the directives of the learned single Judge and of this Bench. Copy of this judgment will also be given to the learned standing counsel free of cost by tomorrow and he will communicate it to the aforesaid authorities forthwith.

Advocates List

For Petitioner : Chandan SharmaSuneet Kumar, Advs.For Respondent : C.S.C.

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

HON'BLE JUSTICE M. KATJU

HON'BLE JUSTICE R.S. TRIPATHI, JJ.

Eq Citation

2004 5 AWC 4707 ALL

2004 (55) ALR 807

ILR [2004] 2 ALLAHABAD 439

LQ/AllHC/2004/783

HeadNote

Medical Practice — Unauthorised medical practitioners (quacks) — Widespread practices of in the State of U.P. — Directions issued to stop the malpractice — Registration of medical practitioners and institutions with the Chief Medical Officer directed — Authorities directed to identify and prosecute the unauthorised medical practitioners — Chief Medical Officers to scrutinize and report to Superintendent/ Senior Superintendent of Police of the district for sealing of unauthorized premises/establishments — All unauthorized person/establishments have liberty to apply to High Court for permission to continue with their medical practice/profession — Institutions/establishments/colleges awarding medical degrees in the State directed to apply and get themselves registered with the Principal Secretary — Newspapers and magazines restrained from publishing advertisements by and from unauthorized medical practitioners — Direction issued to ensure that no medical officer in the Government service is posted beyond three years in any district — All States directed to strictly check medical degrees, registration certificate of medical practitioners — No doctor with a degree in a particular branch of medicine to be allowed to do practice other systems of medicine — Directions issued to stop the carrying on of medical profession in the State of Uttar Pradesh by unqualified or unregistered persons — Constitution of India, Arts. 21, 39(c), 41, 43 — Indian Medical Council Act, 1956 — Indian Medicine Central Council Act, 1970 — Homeopathic Central Council Act, 1973 — Board of Indian Medicine, U.P.\n