Proud moment-Key note address @ FPCon 2016-annual conference of FPA Surat

Meningococcal Vaccine: fact sheet MCV4 Vs MPSV4

Courtesy CDC

My Lectures- This time a novel way to look at balancing personal and professional life

Presumptive Taxation &Medical Professionals

Presumptive Taxation: Medical Professionals can use New Section – Section 44 ADA for their Income Tax Purpose

 

 

After Section 44 AD of the Income Tax Act starting 1st April 2017, Section 44 ADA has been inserted namely:

44ADA. (1) Notwithstanding anything contained in sections 28 to 43C, in the case of an assessee, being a resident in India, who is engaged in a profession referred to in sub-section (1) of section 44AA ( it includes medical profession)  and whose total gross receipts do not exceed fifty lakh rupees in a previous year, a sum equal to 50% of the total gross receipts of the assessee in the previous year on account of such profession or, as the case may be, a sum higher than the aforesaid sum claimed to have been earned by the assessee, shall be deemed to be the profits and gains of such profession chargeable to tax under the head “Profits and gains of business or profession”.

 

IMA’s View Point:

•        The Section is for simplification of taxation for professionals.

•        It will reduce compliance burden on small professionals and will felicitate ease of doing profession.

•        It will also bring parity between small businessmen who enjoy Presumptive Taxation under section 44 AD. It will be applicable to individual doctors, their HUF and their partnership firm (for example Husband & Wife partnership). It will not be applicable to limited liability partnership.  

•        Under this Assessment, doctors need not maintain the books required to be kept under Section 44 AA and doctors need not get the accounts audited under Section 44 AB.

•        All deductions from Section 30 to 38 including depreciation and unabsorbed depreciation and allowances shall be deemed as allowed and written down value of depreciable assets shall be re-computed deducting depreciation which is deemed as allowed.

•Kindly note that as a new section is introduced from 2017, Assessment Year 2017-18 and advance tax in the financial year 2016-17 may have to be calculated accordingly.

•This scheme may not be advisable for the professionals having some net profit ratio, who pay interest on borrowings, has significant depreciation available. 

•Unlike businessman who are permitted under Section 44 AD to pay the whole of advance tax by March 2015, the same concession is not available to doctors and they will have to pay  all 4 instalments of advance tax. 

•Also, there is no provision in Section 44 ADA permitting the professional firms to deduct interest/remuneration paid to partners from the presumptive income offered.

Example: if a doctor is earning less than 50 lacs per annum (most of the doctors will come in this bracket) than 25 lacs will be given to them as mandatory allowable expenses with no need for keeping records. Out of the next 25 lacs, they can claim 2-2.5 lacs on various investments and allowable adjustments and to the rest income tax will be applicable.

Roughly for an income of Rs. 50 lacs, Rs. 5 lacs will be the income tax which in totality comes out to be approx. 10% of the gross income.

When we professionals are ready to give 20-30% of our gross income fee to the corporate sector who provides us the space to have the OPD, paying 10% tax is a peanut and resultant no income tax worries.

Dr S S Agarwal and Dr K K Aggarwal  

-- 

Doctors Day Importance

Doctors’ Day: Ist July

 

 

Doctors’ Day is celebrated in India on 1^st July every year to earmark the Birth & Death anniversary of Bharat Ratna Awardee, Dr. Bidhan Chandra Roy (Dr B C Roy).

 

Dr. B C Roy was born in 1882 in Patna, Bihar and after doing his medical graduation in Kolkota and MRCP and FRCS at London, he started his career as Physician in Patna in 1911.

 

He taught in Patna Medical College and in Carmichael Medical College. 

 

He was a true freedom fighter and joined Mahatma Gandhi in Civil Disobedience Movement. In the field of politics, he became a leader of the Indian National Congress and later Chief Minister of West Bengal.

 

He left us on July 1^st, 1962 but his soul is still there in the collective consciousness of the medical profession of our country.

 

In 1976, he was conferred Bharat Ratna and Dr B C Roy National Sward were constituted in his name the same year.

 

The demand for the Doctors’ Day originated in Kolkota by Kidderpore Branch in 1989 under the Presidentship of Dr. Santanu Banerjee and Dr. Pradip Kumar Chatterjee as the Secretary.

 

Later state working committee of IMA Bengal and the IMA Bengal State Council in 1989 resolved to declare 1^st July as Doctors’ day under the President ship of Dr. Ashok Chaudhuri.

 

The forwarded resolution was considered by IMA Central Working Committee held on 24^th & 25^th April 1991 under the then National President, Dr. Ram Janma Singh and IMA declared 1^st July as Doctors’ Day starting from 1^st July 1991.

 

IMA persuaded the Government of India to accept it as National Doctors’ day and 1^st July 1992 became the historical Doctors’ day when it was accepted and recognised by the Govt. of India.

 

મેડિકલ/પેરામેડિકલ એડ્મિશન માટે ઓનલાઇન ફોર્મ ભરવા માટે ના Steps

1. વેબસાઇટ www.medguj.nic.in પર જાઓ.
2. “Applied for admission in medical courses-ACPMEC-2016” બટન પર ક્લિક કરો
3. હવે જે પેજ ખૂલે તેમાં ડાબી બાજુ કેસરી કલર માં આપેલ “Click here for new registration” બટન પર ક્લિક કરો, એટલે એક નવું પેજ ઓપન થશે.
4. Course name માં medical/paramedical ઓપ્શન સિલેક્ટ કરો.
5. GUJCET ૨૦૧૬ નો seat number અને GUJCET ૨૦૧૬ નો application number લખો.
6. ૧૪ આંકડા નો PIN નંબર લખો (Axis bank માંથી અથવા ઓનલાઇન ખરીદેલ બૂકલેટ માંથી લખવા)
7. ગુજકેટ ૨૦૧૬ માર્કશીટમાં દર્શાવ્યા પ્રમાણે તમારું નામ લખો
8. Green કલર માં લખેલ Captcha કોડ એન્ટર કરો
9. Submit બટન ક્લિક કરો
10. હવે જે પેજ ખૂલે તેમાં Personal detail ભરવાની થશે જેમાં પ્રથમ તમને લાગુ પડતી gender, category અને subcategory સિલેક્ટ કરો
11. ગુજરાત સરકારશ્રીના સક્ષમ અધિકારી દ્વારા આપવામાં આવેલ આવકનાં પ્રમાણપત્ર મુજબ આવક લખો.
12. જો તમે પગ ને લગતી શારીરિક ખોડખાપણ ધરાવતા હો તો “YES” સિલેક્ટ કરો અને ત્યારબાદ તે ખોડખાપણ ના સર્ટિફિકેટ નો સિરિયલ નંબર અને તેની તારીખ લખો
13. ત્યારબાદ જન્મતારીખ, માતા અને પિતા નું પુરૂ નામ લખો
14. અમદાવાદ અને સુરત ના local candidate માટે:  જો આપની પાસે એન.એચ.એલ. મ્યુનિસિપલ કોલેજનું લોકલ ઉમેદવારનું પ્રમાણપત્ર હોય તો YES પર ક્લીક કરો.
15. જો ધોરણ 10/12 સંસ્કૃત સાથે પાસે કરેલ હોય તો “YES” સિલેક્ટ કરો
16. ધોરણ ૧૦ ની marksheet પ્રમાણે કુલગુણ માંથી મેળવેલ ગુણ લખો (જો ૧૦માં ધોરણમાં ગ્રેડ સિસ્ટમ હોય તો આ મુજબ ગણતરી કરો. ટકાવારી = CGPA X  ૯.૫ )
17. ધોરણ ૧૨ ની marksheet પ્રમાણે examination board, SID number, School Index No, district name, Seat number લખો
18. ધોરણ ૧૨ ની માર્કશીટ પ્રમાણે બેઠક નંબર, પાસ કર્યાનો મહિનો અને વર્ષ, ગ્રુપ લખો.
19. ધોરણ ૧૨ અને GUJCET ના માર્કસ ઓટોમેટિક આવી જશે, જે ચેક કરી લો
20. Other detail માં આપેલ વિગતો જેવી કે જન્મસ્થળ, નાગરિકત્વ, સરનામું, મોબાઇલ નંબર (ખાસ) અને ઇ-મેઈલ આઇડી લખવી
21. GUJCET ૨૦૧૬ નો સીટ નંબર તમારો “USER ID” થશે
22. હવે તમને મનગમતો ૬ થી ૧૨ અક્ષર નો પાસવર્ડ બનાવો જેમાં આંકડા અને અંગ્રેજી મૂળાક્ષર બંને હોય (ફરી વખત લૉગ ઇન થવા માટે આ પાસવર્ડ યાદ રાખો)
23. Declaration અને undertaking વાંચ્યા બાદ “I Accept” સિલેક્ટ કરો
24. “Submit registration detail” બટન પર ક્લિક કરો
25. હવે તમને તમારી બધીજ વિગતો અને ફોટો દેખાશે જે ચેક કરી લો (તમારો ફોટો GUJCET ૨૦૧૬ માંથી ઓટોમેટિક અપલોડ થઈ જાશે)
26. જો કોઈ વિગત સુધારવાની જરૂર લાગે તો “EDIT REGISTRATION” બટન પર ક્લિક કરો અને સુધારો કરો
27. જો બધી જ વિગતો બરાબર હોય તો  “CONFIRM REGISTRATION DETAIL” બટન પર ક્લિક કરો
28. તમારું online registration હવે પૂરું થશે 
29. હવે ઉપર ની બાજુ આપેલ PRINT REGISTRTION DETAIL બટન ક્લિક કરતાં acknowledgement slip આવશે જેની પ્રિન્ટ કાઢી લો
30. જો acknowledgement slip માં document verification નું લિસ્ટ આપેલું હોય, તો acknowledgement slip અને બધા જ documents (ઓરિજનલ અને તેની self  attested ફોટોકોપી) લઈ નજીક ના હેલ્પ સેન્ટર પર એ પ્રક્રિયા માટે સંપર્ક કરો 
------------------------------------------------
હેલ્પ સેન્ટરોની યાદી
1. બી.જે.મેડીકલ કોલેજ, અમદાવાદ.
2. સરકારી મેડીકલ કોલેજ, વડોદરા
3. સરકારી મેડીકલ કોલેજ, સુરત
4. સરકારી મેડીકલ કોલેજ, ભાવનગર
5. પી.ડી.યુ. મેડીકલ કોલેજ, રાજકોટ
6. એમ.પી.શાહ મેડીકલ કોલેજ, જામનગર
7. જી.એમ.ઈ.આર.એસ. મેડીકલ કોલેજ, સોલા, અમદાવાદ
8. જી.એમ.ઈ.આર.એસ. મેડીકલ કોલેજ, ગાંધીનગર
9. જી.એમ.ઈ.આર.એસ. મેડીકલ કોલેજ, ધારપુર-પાટણ
10. જી.એમ.ઈ.આર.એસ. મેડીકલ કોલેજ, હિંમતનગર
11. જી.એમ.ઈ.આર.એસ. મેડીકલ કોલેજ, ગોત્રી, વડોદરા
12. જી.એમ.ઈ.આર.એસ. મેડીકલ કોલેજ, વલસાડ
13. જી.એમ.ઈ.આર.એસ. મેડીકલ કોલેજ, જૂનાગઢ

હેલ્પ સેન્ટર પર થતી કામગીરી
૧. ઓનલાઇન ફોર્મ ભરવા
૨. પ્રમાણપત્રો ની ચકાસણી
૩. એડ્મિશન પ્રક્રિયા ને લાગતું માર્ગદર્શન

Please print and keep this in your clinic/Hospital

Bio-Medical Waste Management Rules, 2016

Here are the points to be known to every doctor

Dr K K Aggarwal

Bio-Medical Waste Management Rules, 2016

These rules shall apply to all persons who generate, collect, receive, store, transport, treat, dispose, or handle bio medical waste in any form including hospitals, nursing homes, clinics, dispensaries, veterinary institutions, animal houses, pathological laboratories, blood banks, ayush hospitals, clinical establishments, research or educational institutions, health camps, medical or surgical camps, vaccination camps, blood donation camps, first aid rooms of schools, forensic laboratories and research labs.

"authorised person" means an occupier or operator authorised by the prescribed authority to generate, collect, receive, store, transport, treat, process, dispose or handle bio-medical waste in accordance with these rules and the guidelines issued by the Central Government or the Central Pollution Control Board, as the case may be;

(f) "bio-medical waste" means any waste, which is generated during the diagnosis, treatment or immunisation of human beings or animals or research activities pertaining thereto or in the production or testing of biological or in health camps, including the categories mentioned in Schedule I appended to these rules;

Duties of the Occupier. - It shall be the duty of every occupier to

(a) Take all necessary steps to ensure that bio-medical waste is handled without any adverse effect to human health and the environment and in accordance with these rules;

(b) Make a provision within the premises for a safe, ventilated and secured location for storage of segregated biomedical waste in colored bags or containers in the manner as specified in Schedule I, to ensure that there shall be no secondary handling, pilferage of recyclables or inadvertent scattering or spillage by animals and the bio-medical waste from such place or premises shall be directly transported in the manner as prescribed in these rules to the common bio-medical waste treatment facility or for the appropriate treatment and disposal, as the case may be, in the manner as prescribed in Schedule I;

(c) Pre-treat the laboratory waste, microbiological waste, blood samples and blood bags through disinfection or sterilisation on-site in the manner as prescribed by the World Health Organisation (WHO) or National AIDs Control Organisation (NACO) guidelines and then sent to the common bio-medical waste treatment facility for final disposal;

(d) Phase out use of chlorinated plastic bags, gloves and blood bags within two years from the date of notification of these rules;

 (e) Dispose of solid waste other than bio-medical waste in accordance with the provisions of respective waste management rules made under the relevant laws and amended from time to time;

(f) Not to give treated bio-medical waste with municipal solid waste;

 (g) Provide training to all its health care workers and others, involved in handling of bio medical waste at the time of induction and thereafter at least once every year and the details of training programmes conducted, number of personnel trained and number of personnel not undergone any training shall be provided in the Annual Report;

(h) immunise all its health care workers and others, involved in handling of bio-medical waste for protection against diseases including Hepatitis B and Tetanus that are likely to be transmitted by handling of bio-medical waste, in the manner as prescribed in the National Immunisation Policy or the guidelines of the Ministry of Health and Family Welfare issued from time to time;

i) Establish a Bar- Code System for bags or containers containing bio-medical waste to be sent out of the premises or place for any purpose within one year from the date of the notification of these rules;

(j) Ensure segregation of liquid chemical waste at source and ensure pre-treatment or neutralisation prior to mixing with other effluent generated from health care facilities;

 (k) Ensure treatment and disposal of liquid waste in accordance with the Water (Prevention and Control of Pollution) Act, 1974 (6 of 1974); 5

 (l) Ensure occupational safety of all its health care workers and others involved in handling of biomedical waste by providing appropriate and adequate personal protective equipments;

(m) Conduct health check up at the time of induction and at least once in a year for all its health care workers and others involved in handling of bio- medical waste and maintain the records for the same;

 (n) Maintain and update on day to day basis the bio-medical waste management register and display the monthly record on its website according to the bio-medical waste generated in terms of category and colour coding as specified in Schedule I;

(o) Report major accidents including accidents caused by fire hazards, blasts during handling of biomedical waste and the remedial action taken and the records relevant thereto, (including nil report) in Form I to the prescribed authority and also along with the annual report;

 (p) Make available the annual report on its web-site and all the health care facilities shall make own website within two years from the date of notification of these rules;

(q) Inform the prescribed authority immediately in case the operator of a facility does not collect the bio-medical waste within the intended time or as per the agreed time;

(r) Establish a system to review and monitor the activities related to bio-medical waste management, either through an existing committee or by forming a new committee and the Committee shall meet once in every six months and the record of the minutes of the meetings of this committee shall be submitted 

along with the annual report to the prescribed authority and the healthcare establishments having less than thirty beds shall designate a qualified person to review and monitor the activities relating to bio-medical waste management within that establishment and submit the annual report;

(s) Maintain all record for operation of incineration, hydro or autoclaving etc., for a period of five years;

 (t) Existing incinerators to achieve the standards for treatment and disposal of bio-medical waste as specified in Schedule II for retention time in secondary chamber and Dioxin and Furans within two years from the date of this notification.

IMA white paper on organ transplant

Content courtasy-IMA

What is a competent authority?

It means the Head of the institution or hospital carrying out transplantation or committee constituted by the head of the institution or hospital for the purpose.

What is its role?

To give clearance to all near relative based transplants. The competent authority may seek the assistance of the Authorisation Committee in its decision making, if required.

What is authorisation committee?

For giving clearances in case of transplant is between other than near relatives and all cases where the donor or recipient is foreign national (irrespective of them being near relative or otherwise), the approval will be granted by the Authorisation Committee of the hospital or if hospital based Authorisation Committee is not constituted, then by the District or State level Authorisation Committee.

What is the composition of Authorisation Committees?

1.       There shall be one State level Authorisation Committee.

2.       Additional Authorisation Committees in the districts or Institutions or hospitals may be set up as per norms given which may be revised from time to time by the concerned State Government or Union territory Administration by notification.

3.       No member from transplant team of the institution should be a member of the respective Authorisation Committee.

4.       Authorisation Committee should be hospital based if the number of transplants is twenty five or more in a year at the respective transplantation centres, and if the number of organ transplants in an institution or hospital are less than twenty-five in a year, then the State or District level Authorisation Committee would grant approval(s).

What constitutes hospital based Authorisation Committee?

The hospital based Authorisation Committee shall, as notified by the State Government in case of State and by the Union territory Administration in case of Union territory, consist of

(a) The Medical Director or Medical Superintendent or Head of the institution or hospital or a senior medical person officiating as Head - Chairperson;

(b) Two senior medical practitioners from the same hospital who are not part of the transplant team – Member;

(c) two persons (preferably one woman) of high integrity, social standing and credibility, who have served in high ranking Government positions, such as in higher judiciary, senior cadre of police service or who have served as a reader or professor in University Grants Commission approved University or are self-employed professionals of repute such as lawyers, chartered accountants, doctors of Indian Medical Association, reputed non-Government organisation or renowned social worker - Member;

(d) Secretary (Health) or nominee and Director Health Services or nominee from State Government or Union territory Administration - Member.

What constitutes State or District Level Authorisation Committees?

The State or District Level Authorisation Committee shall, as notified by the State Government in case of State and by the Union territory Administration in case of Union territory, consist of,—

(a) A Medical Practitioner officiating as Chief Medical Officer or any other equivalent post in the main or major Government hospital of the District – Chairperson;

(b) Two senior registered medical practitioners to be chosen from the pool of such medical practitioners who are residing in the concerned District and who are not part of any transplant team– Member;

(c) Two persons (preferably one woman) of high integrity, social standing and credibility, who have served in high ranking Government positions, such as in higher judiciary, senior cadre of police service or who have served as a reader or professor in University Grants Commission approved University or are self-employed professionals of repute such as lawyers, chartered accountants, doctors of Indian Medical Association, reputed non-Government organisation or renowned social worker - Member;

(d) Secretary (Health) or nominee and Director Health Services or nominee from State Government or Union territory Administration–Member: Provided that effort shall be made by the State Government concerned to have most of the members’ ex-officio so that the need to change the composition of Committee is less frequent.

What is the Quorum of Authorisation Committee?

The quorum of the Authorisation Committee should be minimum four and the quorum shall not be complete without the participation of the Chairman, the presence of Secretary (Health) or nominee and Director of Health Services or nominee.

Can the committee be manipulated?

It’s unlikely. The quorum makes its mandatory to have minimum two government representatives.

Can the medical officer of case incharge be a member of any committee?

The medical practitioner who will be part of the organ transplantation team for carrying out transplantation operation shall not be a member of the Authorisation Committee constituted under the provisions of clauses (a) and (b) of sub-section(4) of section 9 of the Act or of the competent authority.

What about if the donor and recipients are both foreign nationals?

When the proposed donor or recipient or both are not Indian nationals or citizens whether near relatives or otherwise, the Authorisation Committee shall consider all such requests and the transplantation shall not be permitted if the recipient is a foreign national and donor is an Indian national unless they are near relatives.

What is to be seen by the authorisation committee if the donors and recipients are not related?

The Authorisation Committee shall evaluate nine points-

·         Evaluate that there is no commercial transaction between the recipient and the donor and that no payment has been made to the donor or promised to be made to the donor or any other person

·          Prepare an explanation of the link between them and the circumstances which led to the offer being made

·          Examine the reasons why the donor wishes to donate

·          Examine the documentary evidence of the link, e.g. proof that they have lived together, etc.

·          Examine old photographs showing the donor and the recipient together

·          Evaluate that there is no middleman or tout involved

·          Evaluate that financial status of the donor and the recipient by asking them to give appropriate evidence of their vocation and income for the previous three financial years and any gross disparity between the status of the two must be evaluated in the backdrop of the objective of preventing commercial dealing

·          Ensure that the donor is not a drug addict

·          Ensure that the near relative or if near relative is not available, any adult person related to donor by blood or marriage of the proposed unrelated donor is interviewed regarding awareness about his or her intention to donate an organ or tissue, the authenticity of the link between the donor and the recipient, and the reasons for donation, and any strong views or disagreement or objection of such kin shall also be recorded and taken note of.

Who will approve the SWAP cases?

Cases of swap donation shall be approved by Authorisation Committee of hospital or district or State in which transplantation is proposed to be done and the donation of organs shall be permissible only from near relatives of the swap recipients.

Can the process be expedited?

When the recipient is in a critical condition in need of life saving organ transplantation within a week, the donor or recipient may approach hospital in-charge to expedite evaluation by the Authorisation Committee.

Who is a near relative?

A: Grandmother, grandfather, mother, father, brother, sister, son, daughter, grandson and granddaughter, above the age of eighteen years. They have to be related genetically.

Who gives clearance in cases of near relatives?

Where the proposed transplant of organs is between near relatives related genetically the competent authority or the Authorisation Committee (in case donor or recipient is a foreigner)

What is their role?

The committee shall evaluate;

(i)                  Documentary evidence of relationship

Relevant birth certificates

Marriage certificate

Other relationship certificate from Tehsildar or Sub-divisional magistrate or Metropolitan Magistrate or Sarpanch of the Panchayat

Similar other identity certificates like Electors Photo Identity Card or AADHAAR card  

(ii)                Documentary evidence of identity and residence of the proposed donor

Ration card

Voter identity card

Passport

Driving license

PAN card

Bank account

Family photograph depicting the proposed donor and the proposed recipient along with another near relative

Similar other identity certificates like AADHAAR Card (issued by Unique Identification Authority of India).

If in the opinion of the competent authority, the relationship is not conclusively established after evaluating the above evidence, it may in its discretion direct DNA Profiling from NABL certified lab.

Can the competent authority be misled?

Only if the above documents are forged. It may be difficult for the competent authority to scrutinise forged documents.

What is the procedure when the donor is a spouse?

Where the proposed transplant is between a married couple the competent authority or Authorisation Committee (in case donor or recipient is a foreigner) must evaluate the factum and duration of marriage and ensure that documents such as marriage certificate, marriage photograph etc. are kept for records along with the information on the number and age of children and a family photograph depicting the entire family, birth certificate of children containing the particulars of parents.

Dr K K Aggarwal

Doc negligence to be vetted against standard practice* Landmark judgement

*Doc negligence to be vetted against standard practice* Landmark judgement. Keep copy of it for ref.
May 30 2016 : The Times of India (Mumbai)

Jehangir B Gai


Medical science is not an exact science. There can be various reasons for failure of a treatment or surgery , which are beyond the control of the doctor. If a doctor has acted according to standard medical protocol he cannot be accused of negligence merely because some untoward incident has taken place due to circumstances beyond his control.

Sanghmitra Khobragade was suffering from abdominal pain. She went to the Government Medical College and Hospital (GMCH) at Nagpur and underwent sonography which revealed gall stones. She was referred to Dr Sanjay Gadekar for laparoscopic removal of stones.

Khobragade later filed a consumer complaint alleging that her consent was obtained on a blank form. The doctor then performed an open cholecystecto my instead of a laparoscopic surgery . She complained that despite oozing of yellowish fluid through the drain, she was discharged without being cured.

Khobragade subsequently developed jaundice for which GMCH asked her to contact a specialist. She was brought to Shrikhande Hospital in Mumbai where she underwent a major surgery of jejuno jejunostomy of the intestine. After an 8.5hour surgery she recovered and was discharged. She attributed that the obstructive jaundice was due to a wrong surgery by Dr Sanjay Gadekar and claimed a compensation of Rs 8.5 lakh for alleged negligence.

The state commission allowed the complaint and directed Dr Gadekar to pay Rs 8.5 lakh along with 9% interest and cost of Rs 25,000. The doctor challenged this order before the National Commission. The doctor relied on medical texts which showed that iatrogenic injuries occur inadvertently during certain medical procedures. In cholecystectomy , an incidence of over 85% iatrogenic injuries is noticed during follow-up. In such circumstances, it would not be right to attribute negligence on the part of the surgeon.

The doctor showed that consent had been properly obtained. The patient was in good condition at the time of discharge. The complication due to the iatrogenic injury was notice during follow up, for which Khobragade was advised to get herself admitted for corrective measures, but she had refused to get hospitalized again.

The National Commission observed that the patient was a qualified advocate. The doctor had obtained proper consent on the form which had been signed by Khobragade as well as her husband. The medical record showed there were no problems during the surgery . Extra hepatic biliary obstruction, which is a known complication of cholecystectomy , which was detected during follow up, but the patient had refused treatment.

The Commission observed that all medical injuries do not that all medical injuries do not arise due to negligence, and some complications occur due to blameless events. The Consumer Protection Act should not act as an “halter round the neck“ of doctors to make them fearful and apprehensive of taking professional decisions at crucial moments, which can make a difference to between life and death, it added.

ImpactConclusion: Accordingly , by the commision's order dated 20.5.2015 delivered by Dr S M Kantikar for the bench along with Justice J M Malik, the National Commission held that there was no negligence on Dr Gadekar's part.On the contrary Khobragade had failed to follow instruction for post operative complications. So the commission set aside the State Commission's order, and dismissed Khobragade's complaint.

A medical practitioner would be liable only where his conduct falls below that of the standards of a reasonably competent practitioner in his field.

(The author is a consumer activist and has won the Govt.

of India's National Youth Award for Consumer Pro tection. His email is jehangir.gai.co

This message is a forwarded from a what's up group,expecting it be authentic and publish here to help fellow colleagues. Courtesy unknown author.

no practitioner of Indian System of Medicine or holding a qualification as listed in the Schedule to the Indian Medicine Central Council Act, 1970, even if it be of in integrated medicine as defined in Section 2(h) of the Delhi Bharatiya Chikitsa Parishad Act, 1998, is entitled to practice modern scientific system of medicine

Congratulations to all the member of DMA and IMA for this historic judgment by delhi high court  on 25-5-16
from Dr.Rakesh Gupta,Dr.Ashwani Goel,Dr.Cally, Dr . Vijay Malhotra ,Dr.V.N.Sharma,Dr.H.R.Satija,Dr.Anil Bansal and whole executive committee of DMA and Dr. Arun Gupta, Dr GirishTyagi  DMC .

$~S.B.-1 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P.(C) No.7865/2010 DELHI MEDICAL ASSOCIATION ...
.. Petitioner Through: Mr. Nitin K. Gupta, Adv.
versus PRINCIPAL SECRETARY HEALTH & ORS. .....
Respondents Through: Ms. Aayushi Gupta, Adv. for Mr. Raman Duggal, Standing Counsel for GNCTD/R-1 to 4.
Mr. Vinay Garg, Sr. Adv. with Mr. Praveen Khattar,
Adv. for R-5/DMC. Mr. Rakesh Tiku, Sr. Adv. with Mr. Sandeep Gupta, Adv. for R- 10/Review applicant. Mr. A.J. Nasir, Adv. for R-11. Mr. Ruchir Mishra, CGSC with Mr. Mukesh Tiwari, Adv. for UOI. CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW O R D E R % 13.05.2016 Review Petition No.226/2016 (of the respondent no.10 All India Indian Medicine Graduates Association (Regd.).
1. Review is sought of our judgment dated 8th April, 2016 allowing the writ petition (i) by declaring that no practitioner of Indian System of Medicine or holding a qualification as listed in the Schedule to the Indian Medicine Central Council Act, 1970, even if it be of in integrated medicine as defined in Section 2(h) of the Delhi Bharatiya Chikitsa Parishad Act, 1998, is entitled to practice modern scientific system of medicine as defined in the Indian Medical Council Act, 1956 read with Indian Medical Degrees Act, 1916 and as has come to be known as Allopathic system of medicine; W.P.(C) No.7865/2010 Page 2 of 5 (ii) by directing all the authorities concerned with enforcement of the provisions of the Indian Medical Council Act, 1956, Delhi Medical Council Act, 1997, Indian Medicine Central Council Act, 1970 and the Delhi Bharatiya Chikitsa Parishad Act, 1998 and/or entrusted with the task of preventing persons not holding qualification as mentioned in the Schedules of the Indian Medical Council Act, 1956 from practicing modern scientific system of medicine, to not allow any person holding qualification in Indian Medicine as described in the Schedule to the Indian Medicine Central Council Act, 1970, even if holding a degree in integrated course as defined in the Delhi Bharatiya Chikitsa Parishad Act, 1998, from practicing modern scientific system of medicine; (iii) by declaring that Section 2(h) of the Delhi Bharatiya Chikitsa Parishad Act, 1998 or any other provision thereof or of the Indian Medicine Central Council Act, 1970 does not permit any person holding qualification in Indian Medicine as prescribed in the Indian Medicine Central Council Act, 1970 even if a degree in integrated course to practice modern scientific system of medicine in terms of Indian Medical Council Act, 1956 read with Indian Medical Degrees Act, 1916 and Delhi Medical Council Act, 1997; (iv) by declaring that the Notification dated 10th February, 1961 of the Delhi Government issued in pursuance to Rule 2(ee) of the Drugs and Cosmetics Rules, 1945 does not entitle any person not holding a qualification listed in the Schedules to the Indian Medical Council Act, 1956 and whose name is not entered in the State Medical Register under the Delhi Medical Council Act, 1997 to prescribe Allopathic drugs and, (v) by declaring that the Notification dated 19th May, 2004 of the Central Council of Indian Medicine does not entitle the practitioners of Indian Medicine within the meaning of the Indian Medicine Central Council W.P.(C) No.7865/2010 Page 3 of 5 Act, 1970, even if holding degree in integrated medicine within the meaning of the Delhi Bharatiya Chikitsa Parishad Act, 1998 to practice modern scientific system of medicine / Allopathic system of medicine within the meaning of Indian Medical Council Act, 1956 read with Indian Medical Degrees Act, 1916.
2. We may at the outset state that though the review application emphasises the factum of the judgment dated 8th April, 2016 having been delivered after eleven months of being reserved and cites Anil Rai Vs. State of Bihar (2001) 7 SCC 318 and the senior counsel for the review applicant also states that in the title of the judgment the date on which it was reserved has not been given but the judgment expressly records the date when it was reserved and that no oral arguments were addressed by the counsel for the review applicant though he had filed written submission. The senior counsel for the review applicant also admits that no oral arguments were addressed. We wonder, whether a counsel who has not even bothered to address oral arguments, can make such a grievance. Not only so, the counsel for the review applicant also appears to be oblivious of the listing of the matter on 29th January, 2016 to ascertain further developments therein and when further arguments were heard of the counsels who chose to appear. Upon our pointing out the same to the senior counsel, he does not press the said grievance.
3. The thrust of the senior counsel for the review applicant for seeking review is (i) the judgment of the Supreme Court in Subhasis Bakshi Vs. West Bengal Medical Council (2003) 9 SCC 269 which he argues was not noticed in the judgment of which review is sought and (ii) Rule 10 of the Delhi Bharatiya Chikitsa Parishad Rules. W.P.(C) No.7865/2010 Page 4 of 5
4. We have already recorded above that the counsel for the review applicant, when ought to have, did not address arguments. We have in the judgment of which review is sought recorded having perused the written submissions filed before us. We have today again perused the said written submissions filed on behalf of the review applicant through Shri Jasbir Singh Malik, Advocate and do not find even therein any mention even of either of the two grounds on which review is sought. Certainly the scope of review is not to allow a counsel who has not chosen to argue at the time of addressing arguments to, as an afterthought, argue the matter afresh.
5. Having said that we must notice that review is sought by the review applicant through Shri Sandeep Gupta, Advocate who was appearing for the respondent no.12 Central Association of Medical Practitioners (CAMP) and who also though had not chosen to argue at the relevant time but in his written submissions had referred to the judgment of the Supreme Court in Subhasis Bakshi supra and which was perused by us. However the same was not found relevant by us for the purposes of the said petition as the said judgment was concerning the Bengal Medical Act, 1914 and the notifications issued by the Government of West Bengal and which had no applicability as far as Delhi is concerned. Undoubtedly the said judgment refers to Dr. Mukhtiar Chand Vs. State of Punjab (1998) 7 SCC 579 which has been analysed by us in detail in the judgment of which review is sought but the same was no ground to burden our judgment with Subhasis Bakshi supra. We even now do not find the Supreme Court, in Subhasis Bakshi supra, to be reading Dr. Mukhtiar Chand supra any differently from what has been analysed by us in the judgment of which review is sought.
6. The review applicant, being fully aware that the grounds on which W.P.(C) No.7865/2010 Page 5 of 5 review is sought not finding mention in the written submissions of its Advocate, has along with the review application also filed the written arguments filed by Mr. Sandeep Gupta, Advocate on behalf of the respondent no.12 CAMP. However the review applicant cannot derive any benefit therefrom.
7. As far as Delhi Bharatiya Chikitsa Parishad Rules are concerned, in the light of the reasoning given by us in the judgment of which review is sought, the same are of no relevance. 8. The senior counsel for the review applicant however contends that Rule 10 supra has not been declared as bad.
9. As aforesaid, when the same was not under challenge or relied upon by any counsel, the question of our dealing with the same does not arise.
10. No ground for review is made out. Dismissed. No costs.
CHIEF JUSTICE RAJIV SAHAI ENDLAW, J MAY 13, 2016 ‘pp’.. (Corrected and released on 25 th May, 2016)

FORM OF CERTIFICATE RECOMMENDED FOR LEAVE OR EXTENSION OR COMMUNICATION OF LEAVE AND FOR FITNESS

}Signature of patient
or thumb impression ___________________________________________

To be filled in by the applicant in the presence of the Government Medical Attendant, or Medical Practitioner.

Identification marks:-

◦__________________________

◦__________________________

}I, Dr. _____________________________________ after careful examination of the case certify hereby that _______________ whose signature is given above is suffering from __________________ and I consider that a period of absence from duty of ____________________ with effect from __________________ is absolutely necessary for the restoration of his health.


I, Dr. ________________________ after careful examination of the case certify hereby that ______________________ on restoration of health is now fit to join service.

Place ___________________ Signature of Medical attendant.
Date ________________Registration No. ___________________


(Medical Council of India / State Medical Council of ……….....…. State)


Note:- The nature and probable duration of the illness should also be specified . This certificate must be accompanied by a brief resume of the case giving the nature of the illness, its symptoms, causes and duration. 

Source:http://www.mciindia.org/RulesandRegulations/CodeofMedicalEthicsRegulations2002.aspx

Must read judgment: Doctor are also human beings

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI, CONSUMER CASE NO. 366 OF 2014, Shri MANISHBHAI KANTILAL JOSHI vs SHETH P. T. SURAT GENERAL HOSPITAL Surat

HON'BLE MR. JUSTICE V.K. JAIN, PRESIDING MEMBER and HON'BLE DR. B.C. GUPTA, MEMBER, Dated: 09 Feb 2016, ORDER: JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

Late Shri Kanti Lal C. Joshi, aged about 86 years, father of the complainant was admitted in Sheth P.T Surat General Hospital (Opposite Party No.1) on 19.11.2012.  He was admitted under another doctor, but later put under the treatment of Dr. Sameer Gami. 

He expired at about 2.30 AM on 21.11.2012 while on ventilator.  In the night of 20.11.2012, he was under the care of Dr. S.S. Indorwala after Dr. Sameer Gami had retired for the day.  Alleging negligence in the treatment of his father, the complainant is before this Commission seeking compensation quantified at Rs.2 Crores along with cost of litigation quantified at Rs.50,000/-.

When this complaint came up for consideration on 26.09.2014, the learned counsel for the complainant submitted that the main grievance of the complainant was that Dr. Sameer Gami had left for outstation when the deceased was still admitted in the hospital and was under his treatment, without giving the instructions to Dr. S.S. Indorwala, who otherwise was not a qualified specialist in the relevant field.

In his reply, Dr. Sameer Gami, who is a Chest Physician having obtained MBBS and MD degrees from B.J. Medical College, Ahmedabad, has inter-alia stated that the father of the complainant was suffering from chronic end stage disease, severe chronic obstructive pulmonary disease, fibrotic lung lesion and bronchiectasis.  He was admitted to the hospital under the treatment of one Dr. Ketan S. Choksi though he Dr Gami was also seeing the patient for the last few months as OPD patient. 

The deceased had been taking nebulizer and home oxygen support for six months before his death.  Lung transplant, which was only option available in such a case was not suitable for him, considering his advanced age and therefore he had been put on steroids. 

He further stated in the reply that on account of critical sickness of his father in the evening of 20.11.2012, he planned to leave for out station and therefore he advised shifting the patient to ICU. 

In the evening of 20.11.2012 due to critical condition of the patient, he was initially advised non-invasive ventilator support.  However, when his condition deteriorating, he was put on invasive ventilator after taking consent from the complainant and the condition of the patient was explained to his family members before the said consent was obtained. 

According to Dr Gami he last saw the patient at about 8.00 PM on 20.11.2012.  The patient died early in the morning of 21.11.2012 on account of having succumbed to long existing chronic end stage respiratory disease.  It is stated in the reply that the patient was duly taken care of treating his treatment in the hospital and there was absolutely no negligence in the said treatment.

 In their reply the hospital and Dr Indorwala have maintained the stand taken in the reply of Dr Gami and have stated that the patient was admitted with past history of Bilateral Centrilobulor Emphysemtous in the form of Hyperinflated lung with flattening of lobes, Minimal subpleural opacity in the right upper lobe suggest fibrotic/old granulomatos lesion, Atherosierotic arotic changes and degenrative spinal changes along with Rounding of Trachear and filling defect in upper trachea.

 It is however stated in the said reply that Dr Gami had treated the patient as per the standard protocol and practice but the patient succumbed to the chronic disease despite adequate treatment given to him.  It is also stated in the said reply that Dr. S.S. Indorwala is a qualified doctor, who was employed on regular basis with the hospital. . 

The learned counsel for the complainant has submitted during the course of arguments that Dr gami left for outstation on 20.11.2012 itself without giving proper instructions to Dr Indorwala  as regards the treatment of the patient and Dr Indorwala not being a Chest Specialist was not qualified to treat the patient. 

We however find no merit in the contention.

It has come in the reply of Dr Gami that he had last seen the patient at about 8 PM on 20.11.2012.  The medical record clearly supports the stand taken by Dr Gami in this regard. 

There is absolutely no evidence of Dr Gami having left for outstation on 20.11.2012.  Be that as it may, even if we proceed on the assumption that DR Gami had taken leave and left for outstation on 20.11.2012 that by itself does not make out any negligence on his part in the treatment of the patient. 

A Doctor, like any other professional can take leave if felt necessary by him on account of his personal reasons or otherwise. 

If that happens it is for the hospital in which the patient is admitted to make alternative arrangement for the treatment of the patient in the hospital. 

We have to keep in mind that the patient was admitted in a hospital and not in the clinic of Dr Gami.

Therefore, in the absence of Dr Gami the patient was to be treated by some other doctor available in the hospital or called by the hospital from outside.  No case of negligence on the part of the Dr Gami is therefore made out even if we assume that he had left for outstation on 20.11.2012.

As far as briefing the other doctor who was to treat the patient in his absence, in our opinion, no such briefing would be necessary since the symptoms and diagnosis of the patient as well as the treatment being given to him in the hospital is recorded in the treatment record of the patient kept in the hospital and therefore any suitably qualified doctor attending the patient, in the absence of the previous doctor, would be in a position to advise appropriate treatment and medicines taking into consideration symptoms, conditions and illness of the patient along with the treatment given to him in the past. 

So long as the doctor treating the patient in the absence of the previous doctor is a competent doctor he should have no difficulty in treating the patient on the basis of the record prepared in the hospital. 

Therefore, Dr. S.S. Indorwala could have absolutely no difficulty in treating the patient in the absence of Dr. Sameed Gami.

 

 

 In any case, this is not the case of Dr Indorwala in his reply that he was handicapped in any manner in the treatment of the patient on account of having not been adequately briefed by Dr. Gami.  Therefore it is difficult for us to accept the contention that the leave taken by the Dr. Gami was responsible for the father of the complainant succumbing to the illness from which he was suffering.

As far as qualification of Dr Indorwala is concerned, we are informed during the course of hearing that he is an M.D.  Being a Doctor of Medicine, he was competent to treat the father of the complainant, who was suffering from long ailments.  It is not as if only a super specialist in chest related disease can treat such a patient. 

A doctor, who has done Post Graduation in Medicine, in our opinion, is fully competent to treat the patient.  In fact, in almost all the hospitals, Senior Doctors normally retire for the day in the evening/night and it is only Junior Doctor such as Junior Residents and Senior Residents who remain on duty.  The consultant is called if necessary, depending upon the condition of the patient.  Therefore, we are unable to accept the contention that Dr. S.S. Indorwala was not qualified enough to treat the father of the complainant in the absence of Dr. Gami.

In any case, as stated in the reply of Dr Gami he had last seen the patient at about 8 PM on 20.11.2012.  The patient died at about 2.30 AM on 21.11.2012 i.e. within a span of 6 ½ hours after Dr. Gami had left the hospital.  Dr. Gami could not have been expected to remain with the patient or in the hospital 24 hours of the day.  Like other normal human being he also needs to take rest and his meals and then get ready for the duty to be performed on the next day.  Therefore, there was no negligence on the part of Dr. Gami in leaving the hospital and the patient being treated by Dr. S.S. Indorwala in his absence.

For the reasons stated hereinabove, we find no merit in the complaint and the same is accordingly dismissed with no order as to costs.

                                                                     

Major Victory for IMA on Crosspathy

Congratulations DMA; Major Victory for IMA on Crosspathy
Dr K K Aggarwal

Delhi Medical Association vs Principal Secretary (Health) & ... on 8 April, 2016

Author: Rajiv Sahai Endlaw, IN THE HIGH COURT OF DELHI AT NEW DELHI, Date of decision: 8th April, 2016, W.P.(C) No.7865/2010

HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW RAJIV SAHAI ENDLAW, J

1. This petition under Article 226 of the Constitution of India, filed as a Public Interest Litigation (PIL), inter alia seeks directions for ensuring that no practitioner of Indian System of Medicine or of Homoeopathic Medicine practices in Allopathic System of Medicine including by prescribing Allopathic Medicines. The petition also impugns Section 2 (h) of the Delhi Bharatiya Chikitsa Parishad Act, 1998 (DBCP Act) and the Notification No.28-5/2004-Ay. (MM) dated 19th May, 2004 of the respondent no. 8 Central Council of Indian Medicine (CCIM) on the basis whereof the practitioners of Indian System of Medicine are said to be claiming to have a right to practice in the Allopathic System of Medicine.

2. The petition was entertained and admitted for hearing and ordered to be heard on an early date. Counter affidavits/replies have been filed by the respondent no.4 Director, Health Services (DHS) of the Govt. of National Capital Territory of Delhi (GNCTD) and respondent no. 5 Registrar, Delhi Medical Council (DMC). No replies/counter affidavits have been filed on behalf of the respondent no.1 Principal Secretary (Health), Deptt. of Health and Family Welfare, GNCTD, respondent no.2 Commissioner of Delhi Police, respondent no.3 Drugs Controller, respondent no.6 Principal Secretary (Health), Govt. of India, respondent no.7 Secretary, Medical Council of India, respondent no. 8 CCIM or by the respondent no. 9 Delhi Bharatiya Chikitsa Parishad (DBCP) inspite of repeated opportunities.

Applications for impleadment were filed by All India Indian Medicine Graduates Association (Regd.) (AIIMGA), by the NGO Sankalp, by the Delhi Integrated Medicine Practitioners‟ Association (DIMPA), by the Central Association of Medical Practitioners (Regd.) (CAMP), by the Masih-Ul-Mulk Hakim Ajmal Khan Memorial Foundation and Dhanwantri Ayurvedic Research Society for Health. Vide orders dated 30th January, 2013 and 25th February, 2013 the applications of AIIMGA, DIMPA and of CAMP were allowed. None appeared for the other applicants to press impleadment.

3. We, on 7th May, 2015 heard the counsel for the petitioner, counsel for the respondent no.9 DBCP and the counsel for the respondent no.5 DMC. No arguments were addressed either on the part of the counsel for the Union of India or on the part of the counsel for the GNCTD. Though counsels stated that they will within one week file written submissions and accordingly liberty was given to all counsels to file written submissions within one week but only the petitioner, respondent no.5 DMC, respondent no.9 DBCP, respondent no.10 AIIMGA and respondent no.12 CAMP have filed written submissions. None of the other counsels also addressed any arguments. We accordingly reserved judgment. Further developments were ascertained on 29th January, 2016.

4. It is the case of the petitioner:-

(i) That it is an Association of registered medical practitioners of Allopathic System of Medicine and is affiliated to the Indian Medical Association;

(ii) that the Central Government has enacted the Indian Medical Council Act, 1956 (MCI Act), the Indian Medicine Central Council Act, 1970 (Indian Medicine Act) and the Homoeopathy Central Council, Act, 1973 (Homoeopathy Act) with the object of defining the different systems of medicine in order to ensure that the medical practitioners of one system of medicine do not transgress in the field of another system of medicine;

(iii) DBCP is a Statutory Body for registration and regulation of the practitioners of Indian System of Medicine in NCT of Delhi;

(iv) however the practitioners of the Indian System of Medicine and who are members of DBCP, have been illegally indulging in the practice of prescribing Allopathic Medicines despite being not registered, neither in the State Medical Register maintained under the Delhi Medical Council Act, 1977 (DMC Act) or nor in the Indian Medical Register maintained under the MCI Act and despite the judgment of the Supreme Court in Dr. Mukhtiar Chand Vs. State of Punjab (1998) 7 SCC 579;

(v) However the respondent authorities have not taken any steps for preventing so and which jeopardizes the health of the citizens and residents of the city;

(vi) the act of the practitioners of Indian System of Medicine, of prescribing allopathic drugs, makes them practitioners of Allopathic System of Medicine and which they are not entitled to;

(vii) That the act of the practitioners of Indian System of Medicine, of prescribing allopathic drugs, is nothing but an act of quackery endangering the life of the residents of the city;

(viii) That though a representation was made to the respondent authorities in this regard but to no avail;

(ix) that though the respondent no.4 DHS of GNCTD published an advertisement dated 14th June, 2009 clarifying that only the persons registered with the respondent no.5 DMC can practice in Allopathic System of Medicine and no practitioner of Ayurvedic/Unani/Homoeopathic medicine is permitted to practice in the Allopathic System of Medicine and that the persons registered with DBCP shall practice only Ayurvedic/Unani/Siddha/Tibb, but DBCP on 21st June, 2009 published an advertisement to the effect that GNCTD had no authority to limit the rights of its members;

(x) That DBCB relies on Section 2(h) of DBCP Act defining "integrated medicine" to claim that its members are entitled to prescribe allopathic drugs and practice the Allopathic System of Medicine;

(xi) that a Notification dated 19th May, 2004 has also been issued by the respondent no.8 CCIM clarifying Section 2(1)(e) of the Indian Medicine Act to the effect that the qualified practitioners of Ayurvedic/Unani/Siddha/Tibb are eligible to practice respective Systems of modern scientific medicine;

(xii) that Section 2(h) of the DBCP Act and the Notification dated 19th May, 2004 of the respondent no.8 CCIM are contrary to Sections 15(2)(b) and 27 of the MCI Act;

(xiii) that though complaints of persons having a Degree in Indian System of Medicine representing themselves as qualified MBBS Doctor were made, but no action taken thereon;

(xiv) that the High Court of Madras vide order dated 12th February, 2010 in W.P.(C) No.2907/2002 titled Dr. K. Abdul Muneer Vs. State of Tamil Nadu had ordered that it is not open to medical practitioners of other systems of medicine to claim right to practice in modern medicine without qualification in the said system and that the practitioners of Indian System of Medicine though entitled to practice Indian System of Medicine cannot practice modern system of medicine;

(xv) that the High Court of Gujarat also, vide order dated 12th June, 2001 in Special Civil Application No.511/1983 titled Gujarat State Branch of Indian Medical Association Vs. State of Gujarat has observed that diploma holders in Nature Cure and Hygiene cannot be treated as “medical practitioners” and cannot be allowed to practice in the Allopathic System of Medicine; (xvi) that the High Court of Allahabad also in order dated 6th September, 2001 in W.P.(C) No.5896/2000 titled Dr. Mehboob Alam Vs. State of Uttar Pradesh has observed that Allopathic System of Medicine is not included in the definition of Indian System of Medicine and that a person holding a qualification recognized under the Indian Medicine Act in the system of Indian Medicine commonly known as Ashtang Ayurveda, Siddha or Unani Tibb is entitled to practice only in the discipline in which he has acquired qualification and not authorized to practice in Allopathic System of Medicine; (xvii) that the High Court of Himachal Pradesh also vide order dated 20th July, 2007 in Criminal Revision No.90/2001 titled Sukhdev Chand Vs. State of Himachal Pradesh has directed that only a registered medical practitioner can stock, sell or exhibit for sale drugs falling under the ambit of Drugs & Cosmetics Act, 1940 (Drugs Act); and, (xviii) that the High Court of Allahabad vide order dated 27th April, 2004 in Special Appeal No.320/2004 has also directed the State Government to ensure that the right to health of citizens is not affected by the practice of unauthorized medical practitioners.

5. The respondent no.5 DMC in its counter affidavit/reply has supported the petition.

6. The respondent no.4 DHS, GNCTD in its reply/counter affidavit has stated that it has its own Unit of Anti-Quackery Cell in alliance with DMC and DBCP and Police and which conducts survey / surveillance of the clinics and any clinic found to be run by fake doctor is being inspected and action being taken there against and that DHS, GNCTD is actively playing its role against fake doctors.

7. The applications for impleadment aforesaid are by the associations of the practitioners of Indian System of Medicine or by NGOs/Trusts also concerned with the practice of Indian System of Medicine. They, in their applications have inter alia stated:-

(i) that the instant petition has not been filed in public interest but out of professional jealousy and to circumvent the orders dated 11th March, 1997 and 9th March, 2005 passed in a similar writ petition being W.P.(C) No.2728/1996 filed by Delhi Medical Association;

(ii) That the DBCP Act authorizes the practitioners of Indian system of medicine to have the practice of modern scientific system of medicine in as much as they are taught and trained in integrated course of medicine;

(iii) DBCP has already issued a clarification to the said effect to the DMC;

(iv) that the Indian Medicine Act empowers the CCIM to supplement Indian System of Medicine with modern advances by notifications from time to time;

(v) that the Delhi Government also vide Notification dated 10th February, 1961 issued in pursuance to Rule 2 (ee) of the Drugs and Cosmetics Rules, 1945 (Drugs Rules) has declared persons who (a) have passed the final professional examination of the five years Degree course of the Board of Ayurvedic & Unani Systems of Medicine; or (b) possesses a diploma from an institution imparting four years training in integrated medicine recognized by the said Board; or (c) have passed a condensed course prescribed by the said Board; or (d) has at least 15 years‟ regular professional practice; or (e) holds a diploma of Bhishagacharya Dhanvantri or Kamil-e-tib-o-Jarahat of the said Board, as a person practicing modern scientific system of medicine for the purpose of Drugs Act;

(vi) that the dicta of the Supreme Court in Dr. Mukhtiar Chand (supra) also permits the practitioners of Indian System of Medicine to practice the modern system of medicine;

(vii) that the Indian Medicine Act and the DBCP Act give right to practitioners registered with DBCP to practice integrated medicine which includes modern scientific medicine;

(ix) that the High Court of Madras on 2nd November, 2010 in Crl. O.P. (M.D.) No.11994/2010 titled Dr. S. Arockia Vargheese Vs. Sub Inspector of Police quashed the proceedings/FIR against the practitioners of Indian System of Medicine;

(x) that the High Court of Karnataka also on 23rd March, 2000 in Crl. P. No.408/2000 titled Dr. Sudarshan Aithal PK Vs. State of Karnataka held that persons who possess Degrees of BAMS, BIMS and BUMS are entitled to practice the integrated system of medicine which includes modern scientific medicine including surgery and obstetrics; and,

(xi) that as per the DBCP Act those who have obtained Degrees in Unani and Ayurvedic medicine are also entitled to practice, use, administer and prescribe modern medicines because they have undergone a course in modern medicine.

We may notice that AIIMGA has also filed a counter affidavit but with the same pleas as aforesaid.

8. The NGO Sankalp however in its application for impleadment has pleaded,

(i) that the qualified doctors are not inclined to serve in rural areas or in slums or the economically weak and backward areas resulting in unskilled unregistered health practitioners practicing in such areas;

(ii) Even otherwise the country does not have sufficient number of qualified doctors, considering the size of its population;

(iii) that some countries have tried the programmes of barefoot doctors, village doctors, basic and primary health providers to provide healthcare facilities to rural and economically backward areas and slums etc.; and,

(iv) That the applicant has initiated the programme of training of unskilled unregistered locally available health practitioners who can be used in similar programmes in the country.

9. We have considered the aforesaid pleas and the contentions of the counsels who addressed arguments as well as the written submissions filed before us.

10. The MCI Act constitutes the Medical Council of India. Section 2(f) thereof defines medicine as "modern scientific medicine in all its branches and includes surgery and obstetrics but does not include veterinary medicine and surgery" and Section 2(e) thereof defines a medical institution as an institution which grants degrees, diplomas or licences in medicine. Section 10A thereof prohibits establishment of a medical college and commencement of a new or higher course of study or training or increase in admission capacity by the medical college except with the previous permission of the Central Government. Section 10B thereof provides that medical qualification granted to any student by any medical college established without such permission of the Central Government or in a course of study or training not sanctioned by the Central Government shall not be a recognized medical qualification for the purposes of the said Act. Section 11 thereof provides that only those medical qualifications granted by a university or medical institution included in the Schedule to the said Act shall be recognized medical qualifications for the purposes of the Act. Section 15 entitles only those persons possessing qualifications included in the Schedules to the Act to be eligible for enrolment on any State Medical Register. Section 21 provides for maintenance of a Register of medical practitioners to be known as the Indian Medical Register containing the names of all persons who are enrolled on any State Medical Register and who possess any of the recognized medical qualifications. Section 27 confers the persons whose names are contained in the Indian Medical Register with a right to practice as a medical practitioner in any part of India and to recover expenses/charges in respect of medicaments or other appliances or fees.

11. As would be obvious from above, though the MCI Act defines “medicine” as meaning modern scientific medicine but does not define, modern scientific medicine‟. We have been unable to find any other inkling thereof in the MCI Act. However we find that at the time of enactment of the MCI Act or its predecessor law i.e. the Indian Medical Council Act, 1933, there was already in force, as it continues today, the Indian Medical Degrees Act, 1916 which was enacted to ban conferring of degrees or issuing of certificates, licences etc. to practice western medical science by persons other than those specified in the schedule thereto and notified by State. The same defined western medical science to mean the western methods of allopathic medicine, obstetrics and surgery - the Homoeopathic, Ayurvedic and Unani system of medicine were excluded from its purview. Although Homoeopathic, Ayurvedic or Unani system was not expressly excluded from the definition of modern scientific medicine in the MCI Act or its predecessor law, yet a perusal of the Schedules thereto makes it abundantly clear that those systems of medicines were / are not within the scope of the MCI Act or its predecessor law.

12. Though the petition claims reliefs with respect to practitioners of homoeopathy also but as the narrative aforesaid would show, the petition is directed against the practitioners of Indian System of Medicine and not against practitioners of Homoeopathic System of Medicine. So much so that the Central Council of Homoeopathy constituted under the Homoeopathy Act has not even been impleaded as respondent to the petition. The arguments also were confined to the practitioners of Indian System of Medicine only. We as such are in this proceeding not dealing with the reliefs claimed vis-à-vis homoeopathy.

13. While the western medical science or the modern scientific system of medicine had been so regulated by the Indian Medical Degrees Act, predecessor law of MCI Act and the MCI Act, there was no law to regulate or govern the Indian System of Medicine viz. Ayurveda, Siddha & Unani Medicine. The Indian Medicine Act was enacted therefor and to inter alia set up CCIM on the analogy of MCI, for the Indian System of Medicine and constitutes CCIM as an equivalent body to the MCI under the MCI Act, with the same functions, powers etc. Provisions of the Indian Medicine Act are pari materia to the MCI Act. The same, in Section 2(1) (e) thereof defines Indian Medicine as under:-

"(e) Indian Medicine" means the system of Indian medicine commonly known as Ashtang Ayurveda, Siddha or Unani Tibb or Sowa-Rigpa whether supplemented or not by such modern advances as the Central Council may declare by notification from time to time."

The recognized medical qualifications under the said Act are the qualifications in Indian Medicine included in the Schedule to the said Act. The said Act also provides for the maintenance of a "Central Register of Indian Medicine" of persons qualified in Indian Medicine and of a "State Register of Indian Medicine" of persons entitled to practice the Indian System of Medicine in the State.

14. While the MCI Act and the Indian Medicine Act are Central laws, the DBCP Act is an enactment of the Legislative Assembly of the NCT of Delhi enacted to provide for the maintenance of the State Register of Indian Medicine and for establishment of DBCP and the DMC Act is also an enactment of the Legislative Assembly of NCT of Delhi, enacted to provide for maintenance of State Register (within the meaning of the MCI Act) and for establishment of DMC.

15. Though analysis of the provisions of the MCI Act read with DMC Act on the one hand and the provisions of the Indian Medicine Act read with DBCP Act on the other hand, in our mind, leaves no manner of doubt whatsoever that the two operate in distinct fields / territories i.e. the MCI Act and the DMC Act in the field /territory of modern scientific medicine or what has come to be known as Allopathic System of Medicine in all its branches including surgery / obstetrics but not including veterinary medicines and surgery and the Indian Medicine Act and DBCP Act in the field / territory of Indian System of Medicine commonly known as Ashtang Ayurveda, Siddha or Unani Tibb, sowa/rigpa but the practitioners/supporters of practitioners of Indian System of Medicine, relying on- (i) the words "whether supplemented or not by such modern advances as the Central Council may declare by notification from time to time" in the definition of "Indian Medicine" in Section 2(1)(e) of the Indian Medicine Act; ii) Rule 2(ee)(iii) of the Drugs Rules read with the Notification dated 10th February, 1961 of the Delhi Government; iii) the definition of "integrated medicine" in Section 2(h) of the DBCP Act read with Notification dated 19th May, 2004 of the CCIM, claim that the practitioners of Indian System of Medicine registered in the State Register of Indian Medicine Act i.e. under the DBCP Act and having qualification of integrated medicine are also entitled to practice modern system medicine, the practice whereof is otherwise governed by the MCI Act.

16. It was the contention of the counsel for the petitioner that the DBCP Act being a State law cannot go beyond the Central law i.e. the Indian Medicine Act. Reliance was placed on Dr. Mukhtiar Chand supra.

17. The counsel for the respondent no.5 DMC while supporting the petitioner contended that the definition of „integrated medicine‟ in the DBCP Act cannot expand the scope of Indian System of Medicine under the Indian Medicine Act. Attention was invited to the letter dated 24th November, 2008 issued by the DMC to the DBCP to the effect that the term „integrated medicine‟ in association with Indian System of Medicine was misleading. DMC in its written submissions also has contended that it is the MCI Act which regulates the practice of modern scientific system of medicine i.e. allopathy and which is different from Indian System of Medicine under the Indian Medicine Act and Homeopathy System of Medicine under the Homeopathy Act. It was further contended that to practice the modern scientific system of medicine, entry of name in the Indian Medical Register under the MCI Act is necessary and the practitioners of Indian System of Medicine being not possessed of the qualifications recognized in the Schedules to the MCI Act are not entitled to have their names entered in the Indian Medical Register and consequently not entitled to practice the modern scientific system of medicine.

18. Per contra, the counsel for the respondent no.9 DBCP besides reading the dicta of the Supreme Court in Dr. Mukhtiar Chand in his favour has contended that registration of a practitioner of Indian System of Medicine in Delhi has necessarily to be under the State law of Delhi and in exercise of which power the DBCP Act has been enacted and any person registered under the DBCP Act is entitled to practice Indian System of Medicine supplemented by such modern advances as CCIM may declare by notification. It was further contended that such courses in Indian System of Medicine are providing teaching and training in modern advances and CCIM has issued the requisite notification and the practitioners of Indian System of Medicine are thus entitled to practice modern medicine.

19. It is unfortunate that inspite of Notification issued by the CCIM and vires of provisions of the DBCP Act enacted by the Legislative Assembly of Delhi being challenged in the present proceedings and being subject matter of consideration, neither the CCIM nor Government of National Capital Territory of Delhi have bothered to disclose their stand in the matter.

20. We find the Supreme Court in Dr. Mukhtiar Chand (supra) also to have lamented on the said aspect. It is observed in para 11 of the said judgment that the stand taken by the Central Government therein also showed utter bewilderment inasmuch as the authority which framed the rule did not appear to be interested in supporting the legality and validity of the rule nor did it want to do away with the rule wholeheartedly.

21. Having bestowed our consideration to the contentions aforesaid we are of opinion that the words „modern advances as the CCIM may declare by notification from time to time‟ in the definition of Indian Medicine in Section 2(1)(e) of the Indian Medicine Act are not capable of taking Indian Medicine to boundaries beyond the essentials of Indian System of Medicine as otherwise defined as Ashtang, Ayurveda, Siddha, Unani etc or of converting Indian System of Medicine to modern scientific system of medicine or Allopathic system of medicine as defined in the MCI Act and the Indian Medical Degrees Act. To hold otherwise would blur the otherwise well defined boundaries between the two systems of medicine. Supreme Court, in Dr. Mukhtiar Chand supra held that the systems of medicine generally prevalent in India are Ayurveda, Sidha, Unani, Allopathic and Homoeopathic; in the Ayurveda, Sidha and Unani systems, the treatment is based on the harmony of the four humours whereas in the Allopathic system of medicine treatment of disease is given by the use of a drug which produces a reaction that itself neutralizes the disease.

22. Those who argue that the words "modern advances" in the definition of Indian Medicine can only mean Allopathic medicine are under erroneous belief that Indian system of Medicine is static or incapable of any modern advances. Undoubtedly the Indian System of Medicine is of much ancient vintage than the Allopathic system of medicine (again per Dr. Mukhtiar Chand supra) but the same has been evolving over the ages and there is nothing to suggest that the same is incapable of any „modern advances‟. The words „modern advances as declared by CCIM‟ in the definition of Indian Medicine are only to enable inclusion in the schedule to Indian Medicine Act of the qualifications in such advances to enable the holders thereof to get their names entered into the Central Register of Indian Medicine.

23. The Indian Medicine Act though like the MCI Act sets up CCIM, provides for regulating education in Indian System of Medicine and recognition of qualifications therein and maintenance of Central Register of Indian Medicine but also envisages constitution by law of „Board‟ by the State Governments inter alia to regulate registration of practitioners of Indian Medicine in the State. The DBCP Act is enacted to provide for the constitution of DBCP as such „Board‟ for the NCT of Delhi and for preparation and maintenance of register of practitioners of Indian medicine for Delhi. Vide sub-section 17(3) thereof, only persons possessing qualifications mentioned in the Schedules to the Indian Medicine Act are entitled to have their names entered in the said Register and to practise Indian System of Medicine in the State. The DBCP Act nowhere envisages prescribing a qualification in Indian System of Medicine (or for that matter in any other system of medicine). We may highlight that even under the Indian Medicine Act, the right to amend the Schedules thereof listing the recognised medical qualifications in Indian Medicine is only of the Central Government and not of CCIM constituted thereunder or for that matter of the State Government.

24. The definitions of „Bharatiya Chikitsa‟, „integrated medicine‟ and„practitioner‟, in Section 2(b), (h) and (k) of the DBCP Act, are as under:

"(b) "Bharatiya Chikitsa (Indian Medicine)" means Astang Ayurved Siddha and Unani Tibb supplemented or not with modern advances in modern scientific system of medicine in all its branches including surgery and obstetrics;

(h) "Integrated medicine" means conjoint, concurrent study, training and practice in Ayurved/Siddha/Unani Tibb and Modern Scientific System of Medicine in all its branches including surgery and obstetrics."

(k) "Practitioner" means a medical practitioner who practices the Bharatiya Chikitsa Paddhati (Indian Systems of Medicine)".

And the Notification dated 19th May, 2004 of supra of CCIM as under:

"In exercise of the power conferred by 2(1)(e) of the Indian Medicine Central Council Act, 1970 thereby Central Council of Indian Medicine notify that:-

The Indian Medicine Central Council Act, 1970 is very clear with regard to definition of Indian Systems of Medicine of which reads as follows:-

"Indian Medicine" means the system of Indian Medicine commonly known as Ashtang Ayurveda, Siddha or Unani Tibb whether supplemented or not by such modern advances as the Central Council may declare by notification from time to time.

To clarify the word "Modern Advances" the Council at its meeting held on 23rd March 2003 has passed the resolution and defined Indian Medicine as under:-

"This meeting of the Central Council hereby unanimously resolved that in clause (e) of Sub-section 2(1) of the IMCC Act, 1970, the word „Modern Advances‟be read as advances made in various branches of Modern Scientific medicine in all its branches of internal medicine, surgery, gynaecology and obstetrics, anaesthesiology, diagnostic procedures and other technological innovation made from time to time and declare that the courses and curriculum conducted and recognized by the Central Council of Indian Medicine are supplemented with such "modern advances". It is further clarified that the right of practitioners of Indian Systems of Medicine are protected under Indian Medicine Central Council Act, 1970 under section 17(3)(b) which states as under :-

"Nothing contained in Sub-section (2) shall affect 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 practitioners of Indian Medicine enrolled on a state register of Indian Medicine"

The Government of India from time and again have asked the Council to improve the syllabus by including subjects with regard to National Programmes like National Malaria eradication programme, TB, Leprosy, Family Welfare Programme, RCH Programme, Immunisation Programme, Aids, Cancer etc. and accordingly the Council has strengthened the Syllabus of all the system of Medicine. The institutionally qualified practitioners of Ayurveda, Siddha, Unani Tibb are eligible to practice respective Systems with modern Scientific medicine including Surgery and Gynaecology obstetrics, Anaesthesiology, ENT, ophthalmology etc. based on the training and teaching."

are to be seen in the said light. What the State legislature or the DBCP Act or the CCIM is incapable of doing or what is beyond the scope and ambit of their powers or functions cannot be attributed to them or read into aforesaid. We may here add that though the DBCP Act has defined integrated medicine ‟but no reference thereto is to be found in any of the other provisions thereof or in any substantive provision of Indian Medicine Act. Only in the Schedules to the Indian Medicine Act the same is mentioned as one of the recognized qualifications in Indian medicine which some of the Institutes imparting teaching therein are empowered to grant.

25. We are thus of the opinion that the definition of „Indian Medicine‟ in the Indian Medicine Actor of „integrated medicine‟ in DBCP Act or the Notification dated 19th May, 2004 of the CCIM cannot be read as entitling those registered in the State register of Indian Medicine maintained by DBCP to practise modern scientific system of medicine in any form regulated by the MCI Act and the DMC Act.

26. As far as Rule 2(ee) of the Drugs Rules and the Notification dated 10th February, 1961 of the Delhi Government thereunder are concerned, we do not feel the need to deal therewith as the said issue was squarely covered by Dr. Mukhtiar Chand supra. We however set out herein below the Notification dated 10th February, 1961:

"No.F.21(2)60-M&PH:- In pursuance of the provisions of sub- clause (iii) of Clause (ee) of rule 2 of the Drugs Rule, 1945, the Chief Commissioner, Delhi is pleaded to declare each person who

(a) has passed the final professional examination of the five years degree course of the Board for Ayurvedic and Unani systems of Medicine, Delhi

(b) possess a diploma from a institution imparting four year‟s training in integrated medicine recognized by the said

(i) has passed the condensed course prescribed by the said Board or

(ii) has at least fifteen year‟s regular professional practice: or

(e) holds diploma of Bhishagacharya Dhanwantari (Diploma in Indian Medicine and Surgery) or Kamil-i-tib-jarahat) (Diploma in Indian Medicine & Surgery) of the said Board. as a person practising the modern scientific system of medicine for the purposes of the Drugs Act, 1940."

27. The counsel for the petitioner as well as the counsel for the respondent No.9 DBCP as aforesaid relied on Dr. Mukhtiar Chand supra. Supreme Court therein was concerned with (i) declarations made by the State Governments under Clause (iii) of Rule 2(ee) of the Drugs Rules defining "Registered medical practitioners" and under which declaration the Vaids/Hakims were claiming right to prescribe Allopathic drugs covered by the Drugs Act; and, (ii) the claims of Vaids/Hakims who had obtained degrees in integrated courses to practice Allopathic system of medicine. Supreme Court observed that the said questions were of general importance and practical significance because they not only relate to the right to practice medical profession but also the right to life which includes health and well being of a person. We, on a reading of said judgment, cull out the following propositions therefrom.

A. That the MCI Act (which repealed the Indian Medical Council Act, 1933) regulates modern system of medicine; the Indian Medicine Act regulates Indian medicine and the Homoeopathic Act regulates practice of Homoeopathic medicine. B. That a person who does not have knowledge of a particular system of medicine but practices in that system is a quack and a mere pretender.

C. The Drugs Act was enacted to regulate import, manufacture, distribution, sale of drugs to curb the evil of adulteration and production of substandard drugs posing a serious threat to the health of the community; at the time of its enactment in 1940 it was not intended to apply to Ayurvedic, Siddha or Unani drugs which were brought into its purview only by Act 13 of 1964. Section 33which falls in Chapter-IV of Drugs Act empowers Central Government to make Rules for the purpose of giving effect to the provisions of Chapter-IV which deals with manufacture, sale and distribution of drugs. Section 33A says that Chapter-IV shall not, except as provided in the Act, apply to Ayurvedic, Siddha or Unani drugs.

D. That Rule 2(ee) of the Drugs Rules defines a registered medical practitioner as a person (i) holding a qualification granted by an Authority specified or notified under Section 3 of the Indian Medical Degrees Act, 1916 or specified in the schedules to the MCI Act; or (ii) registered or eligible for registration in a Medical Register of a State meant for the registration of persons practising the modern scientific system of medicine excluding the Homoeopathic system of medicine; or (iii) registered in a Medical Register other than a Register for registration of Homoeopathic practitioners of a State, who although not falling within sub-clause (i) or sub-clause (ii) is declared by a general or special order made by the State Government in this behalf as a person practising the modern scientific system of medicine for the purpose of the Drugs Act or (iv) ..............; or (v) ............ (not relevant).

E. That there is no dispute that categories (i) and (ii) of Rule 2 (ee) of the Drugs Rules relate to practitioner of Allopathic medicine; however the Vaids/Hakims (non-Allopathic doctors) were basing their claim under clause (iii).

F. That vide sub-clause (iii) of Rule 2(ee), a de facto practitioner of modern scientific medicine (Allopathic) and declared so by the State Government is recognised as a registered medical practitioner and is enabled to prescribe drugs covered by the Drugs Act; for the purposes of Clause (iii) of Rule 2(ee) what is required is not the qualification in modern scientific system of medicine but a declaration by a State Government that a person is practising modern scientific system and that he is registered in a medical register of a State (other than a register for registration of Homoeopathic practitioners); the State Governments under Clause (iii) of Rule 2(ee) were entitled to declare the categories of Vaids/Hakims practising modern system of medicine and registered in the State Medical Register to be "Registered medical practitioners" within the meaning of Rule 2(ee) of the Drugs Rules.

G. Drugs can be sold or supplied by a pharmacist or druggist only on the prescription of a "registered medical practitioner" who can also store them for treatment of his patients.

H. The right to practice any profession is no doubt a fundamental right guaranteed under Article 19(1)(g) of the Constitution of India but that right is subject to any law relating to the professional qualifications necessary for practising any profession enacted under Article 19(6); the regulatory measures on the exercise of this right, both with regard to standard of professional qualification and professional conduct have been applied keeping in view not only the right of the medical practitioners but also the right to life and proper health care of persons who need medical care and treatment; there can be no compromise on professional standards of medical practitioners. I. To ensure professional standards required to practice Allopathic medicine, the MCI Act had been enacted which also deals with re-constitution of the MCI and maintenance of an Indian Medical Register for whole of India.

J. Section 2(f) of the MCI Act defines "medicine" to mean modern scientific medicine in all its branches including surgery and obstetrics but not including veterinary medicine and surgery andSection 2(h) thereof defines "recognised medical qualification" as a medical qualification included in the Schedules to the MCI Act.

K. That Section 15 of the MCI Act lays down that qualifications in the Schedules to the Act are sufficient qualification for enrolment on any State Medical Register. Section 15(2)(b) of the MCI Act prohibits all persons from practicing modern scientific medicine in all its branches in any State except a medical practitioner enrolled on a "State Medical Register". "State Medical Register" is defined in Section 2(k) of the MCI Act to mean a register maintained under any law for the time being in force in any State regulating the registration of practitioners of medicine.

L. That the State Medical Register under the MCI Act, in contra-

distinction to the Indian Medical Register, is maintained by the State Medical Council which is not constituted under the MCI Act but is constituted under any law for the time being in force in any State regulating the registration of practitioners of medicine.

M. 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 pre- requisite only for being enrolled on the Indian Medical Register but not for registration in a State Medical Register. N. That holding a recognized medical qualification under the MCI Act cannot be insisted upon 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 possesses recognized medical qualification. O. 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 MCI Act.

P. Section 15(2) of the MCI Act (inserted w.e.f. 16th June, 1964) providing that no person other than a medical practitioner enrolled on a "State Medical Register" shall practice modern scientific medicine in any State obliterates the right of non- allopathic doctors to prescribe drugs by virtue of the declaration issued under the Drugs Rules; however, this does not debar them from prescribing or administering allopathic drugs sold across the counter for common ailments.

Q. The Indian Medicine Act also provides for maintenance of a "State Register of Indian Medicine" and enables all persons who possess qualifications mentioned in Schedules to theIndian Medicine Act to be enrolled in the State Register of Indian Medicine.

R. That a perusal of the Second, Third and Fourth Schedules of the Indian Medicine Act shows that they contain both integrated medicine as well as other qualification; so a holder of degree inintegrated medicine is entitled to be enrolled under Section 17 of the Indian Medicine Act.

S. That by virtue of Section 17(3)(d) of the Indian Medicine Act, the right to practice modern scientific medicine in all its branches is confined to only such persons who possess any qualification included in the Schedules to MCI Act.

T. That all that the definition of Indian Medicine in theIndian                Medicine     Act    particularly    the    words      "whether supplemented or not by such modern advances as the Central Council may declare by notification from time to time" and the notifications / clarifications of the CCIM thereunder and the imparting of theoretical knowledge of modern scientific medicine and training thereunder to holders of degrees in integrated medicine within the schedules to the Indian Medicine Act do is to enable such practitioners of Indian Medicine to make use of the modern advances in various sciences such as Radiology Report, X- Ray, Complete Blood Picture Report, Lipids report, E.C.G., etc. for purposes of practicing in their own system.

U. That however if any State Act (within the meaning of MCI Act) recognizes the qualification of integrated course as sufficient qualification for registration in the State Medical Register of that State, the prohibition of Section 15(2)(b) will not be attracted.

V. That a harmonious reading of Section 15 of MCI Act and Section 17 of the Indian Medicine Act leads to the conclusion that there is no scope for a person enrolled on the State Register of Indian medicine or Central Register of Indian Medicine to practice modern scientific medicine in any of its branches unless that person is also enrolled on a State Medical Register within the meaning of the MCI Act.

W. That the right to practice modern scientific medicine or Indian system of medicine cannot be based on the provisions of the Drugs Rules and declaration made thereunder by State Governments.

X. That right to prescribe a drug of a system of medicine is a concomitant of the right to practice that system of medicine; therefore in a broader sense, the right to prescribe drugs 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.

Y. That thus the benefit of Rule 2 (ee) (iii) of the Drugs Rule and of the notifications issued thereunder would be available only in those States where the privilege of such right to practice any system of medicine is conferred by the State law under which practitioners of Indian Medicine are registered in the State.

Z. That the position with regard to Medical practitioners of Indian medicine holding degrees in integrated courses is on the same plain inasmuch as if anyState Act recognizes their qualification as sufficient for registration in the State Medical register, the prohibition contained in Section 15(2)(b) of the MCI Act will not apply.

28. Though again, a reading and analysis of the aforesaid judgment, in our mind leaves no manner of doubt that it is the MCI Act which alone governs the practice of modern scientific system of medicine and persons holding qualifications under the Indian Medicine Act even if in „Integrated Medicine‟ as defined in the DBCP Act are not entitled to engage in the field of modern scientific medicine as covered by the MCI Act but the counsels for the practitioners of Indian Medicine and supporters of practitioners of Indian Medicine want to read the judgment aforesaid as laying down that those having qualification of integrated medicine within the meaning of DBCP Act and registered in the Register maintained under the DBCP Act are also permitted and entitled to practice modern medicine.

29. We must admit that a first reading of some of the paragraphs of Dr. Mukhtiar Chand supra particularly the following penultimate paragraph 49 (as reported in SCC):

"49. The upshot of the above discussion is that Rule 2 (ee)(iii) as effected from 14-5-1960 is valid and does not suffer from the vice of want of the legislative competence and the notifications issued by the State Governments thereunder are not ultra vires the said rule and are legal. However, after subsection (2) in Section 15 of the 1956 Act occupied the field vide Central Act 24 of 1964 with effect from 16-6-1964, the benefit of the said rule and the notifications issued thereunder would be available only in those States where the privilege of such right to practise any system of medicine is conferred by the State Law under which practitioners of Indian Medicine are registered in the State, which is for the time being in force. The position with regard to Medical practitioners of Indian medicine holding degrees in integrated courses is on the same plane inasmuch as if any State Act recognizes their qualification as sufficient for registration in the State Medical register, the prohibition contained in Section 15(2)(b) of the 1956 Act will not apply."

(Emphasis added) does cause some confusion. But on a reading of the whole judgment it is clear that the State Medical Register referred to in paragraph 49 aforesaid is the „State Medical Register‟in accordance with the MCI Act and not the „State Register of Indian Medicine‟ in accordance with the Indian Medicine Act. The confusion if any arises from similarity of expressions i.e., the, State register‟ under the MCI Act as well as in the Indian Medicine Act.

However the question of the prohibition contained in Section 15(2)(b) of the MCI Act not applying on registration of the qualification in integrated medicine under the DBCP Act recorded in the State Register of Indian Medicine under the DBCP Act does not arise. Thus what Mukhtiar Chand supra holds is that only if the person holding the degree in integrated courses under the Indian Medicine Act and the DBCP Act is entered in the State Medical Register within the meaning of the MCI Act (and not the „State Register of Indian Medicine‟within the meaning of the Indian Medicine Act) can such a person practice modern scientific system of medicine and prescribe Allopathic drugs.

30. It is not the case of the practitioners of Indian Medicine and/or supporters of practitioners of Indian Medicine that the State Medical register within the meaning of the MCI Act for Delhi records or has recorded the name of any person holding the degree in Indian Medicine Integrated Course. Thus the question of any such person being entitled to practice modern scientific system of medicine in Delhi does not arise.

31. A perusal of the provisions of the DMC Act under which the State Medical Register within the meaning of the MCI Act is maintained for Delhi leaves no manner of doubt that a person holding qualification in Indian Medicine, even if it be a degree in integrated course, cannot be registered thereunder. Section 2(7) of the DMC Act defines "Medical Practitioner" or "practitioner" as "a person who is engaged in the practice of modern scientific system of medicine and all its branches and has qualifications as prescribed in the First, Second or Third Schedule to the Indian Medical Council Act, 1956 (102 of 1956)" and Section 2(8) thereof defines "Medicine" as "modern scientific system of medicine and includes surgery and obstetrics but does not include veterinary medicine or veterinary surgery or the Homoeopathic or the Ayurveda or the Siddha or the Unani system of medicine" and further provides that "the expression "medical" shall be construed accordingly." Section 2(14) thereof defines a "registered practitioner" as "a medical practitioners having registerable qualification as prescribed in the Indian Medical Council Act, 1956 (102 of 1956) whose name is, for the time being, entered in the register, but does not include a person whose name is provisionally entered in the register". Section 15 of the said Act provides for the preparation of the register and sub-Sections (3), (4), (5) and (6) thereof relevant for our purpose are as under:

"(3) Any person who possesses any of the qualifications in the First, Second or Third Schedule to the Indian Medical Council Act, 1956 (102 of 1956) shall subject to any condition laid down by or under the Indian Medical Council Act, 1956, at any time on an application made in the prescribed form to the Registrar and on payment of a prescribed fee and on presentation of proof of his registerable qualification, be entitled to have his name entered in the register.

(4) (a) Every person, whose name was entered on a date prior to 1st May, 1961 in Indian Medical Council Register and continued in such register on the day immediately preceding the appointed day, shall be entitled to have his name continued in the register prepared under this Act.

(b) Within a period of three months from the appointed day or such further period as the Government may allow, the Registrar shall publish a general notice in the Official Gazette and in such newspapers, as the Council may select, in such form as may be prescribed, calling upon every person to whom Clause (a) applies, to pay to the Registrar in the prescribed manner the prescribed fee if he desires to have his name on the register under this Act, and shall also send individual notice for a like purpose by registered post to every such person at his last known address in such form as may be prescribed. The name of every such person who pays such fee before the expiry of the period of two months from the date of publication of the general notice in the Official Gazette shall be enlisted on the register.

(5) After the last date for payment of the prescribed fee under Clause (b) of sub-section (4) has expired and the register prepared in accordance with foregoing provisions is ready, the Registrar, shall publish notice in the Official Gazette and such newspapers as the Council may select, about the register having prepared, and the register shall come into force from the date of the publication of such notice in the Official Gazette.

(6) Any person servicing or practising modern scientific system of medicine in Delhi shall be registered with the Council under this Act. Without registration with the Council any person though qualified in modern scientific system of medicine shall be liable for action as specified by the Council."

Though the DMC Act is of comparatively recent origin i.e. of the year 1997 but as aforesaid, it is not the case of the practitioners of Indian Medicine or supporters thereof that the names of any of the practitioner of Indian Medicine even if holding the degree of integrated courses is registered thereunder.

32. In view of the categorical provisions of the DMC Act, need to deal with the judgments/orders of the High Courts of Madras and Karnataka quashing the proceedings/FIR registered against practitioners of Indian Medicine in those States, cited by counsel for DBCP, is not felt.

33. Similarly, in view of the statutory provisions applicable to Delhi i.e. in the DMC Act, which do not allow name of anyone other than those holding the qualifications listed in the Schedules to the MCI Act to be registered in the State Register maintained thereunder and which is essential for practicing modern scientific system of medicine in Delhi, the question of allowing the practitioners of Indian System of Medicine even if holding degree in integrated medicine, to practice modern scientific system of medicine in any form, for the reason of need in rural areas or in the slums or to serve the economically weak and backward areas or for the reason of deficiency in sufficient number of doctors qualified in modern scientific system of medicine does not arise.

34. We also do not find any merit in the challenge to the maintainability of this petition as a PIL or on the ground of the same having been filed for any oblique purpose. Rather, we do find the notification dated 19th May, 2004 of the CCIM as set out hereinabove to be quite misleading and capable of being understood as allowing persons not holding qualification in modern scientific system of medicine to practice the said system of medicine and which is contrary to law and can play havoc with the health and lives of citizens of the city. We remind CCIM that it being a creature of the Indian Medicine Act, does not enjoy any legislative or quasi legislative powers and has to confine itself to the field of Indian System of Medicine only and perform duties and functions as prescribed in the said Act and cannot transgress into the field/territory occupied by the MCI Act.

35. We thus allow this petition-

(A) By declaring that no practitioner of Indian System of Medicine or holding a qualification as listed in the Schedule to the Indian Medicine Central Council Act, 1970, even if it be of in integrated medicine as defined in Section 2(h) of the Delhi Bharatiya Chikitsa Parishad Act, 1998, is entitled to practice modern scientific system of medicine as defined in the Indian Medical Council Act, 1956 read with Indian Medical Degrees Act, 1916 and as has come to be known as Allopathic system of medicine.

(B) By directing all the authorities concerned with enforcement of the provisions of the Indian Medical Council Act, 1956, Delhi Medical Council Act, 1997, Indian Medicine Central Council Act, 1970 and the Delhi Bharatiya Chikitsa Parishad Act, 1998 and/or entrusted with the task of preventing persons not holding qualification as mentioned in the Schedules of the Indian Medical Council Act, 1956 from practicing modern scientific system of medicine, to not allow any person holding qualification in Indian Medicine as described in the Schedule to the Indian Medicine Central Council Act, 1970, even if holding a degree in integrated course as defined in the Delhi Bharatiya Chikitsa Parishad Act, 1998, from practicing modern scientific system of medicine.

(C) By declaring that Section 2(h) of the Delhi Bharatiya Chikitsa Parishad Act, 1998 or any other provision thereof or of the Indian Medicine Central Council Act, 1970 does not permit any person holding qualification in Indian Medicine as prescribed in the Indian Medicine Central Council Act, 1970 even if a degree in integrated course to practice modern scientific system of medicine in terms of Indian Medical Council Act, 1956 read with Indian Medical Degrees Act, 1916 and Delhi Medical Council Act, 1997.

(D) By declaring that the Notification dated 10th February, 1961 of the Delhi Government issued in pursuance to Rule 2 (ee) of the Drugs and Cosmetics Rules, 1945 does not entitle any person not holding a qualification listed in the Schedules to the Indian Medical Council Act, 1956 and whose name is not entered in the State Medical Register under the Delhi Medical Council Act, 1997 to prescribe Allopathic drugs.

(E) By declaring that the Notification dated 19th May, 2004 of the Central Council of Indian Medicine does not entitle the practitioners of Indian Medicine within the meaning of the Indian Medicine Central Council Act, 1970, even if holding degree in integrated medicine within the meaning of the Delhi Bharatiya Chikitsa Parishad Act, 1998 to practice modern scientific system of medicine / Allopathic system of medicine within the meaning of Indian Medical Council Act, 1956 read with Indian Medical Degrees Act, 1916.

Parties are left to bear their own costs.

RAJIV SAHAI ENDLAW, J CHIEF JUSTICE APRIL 8th, 2016