Bihar State Council of Ayurvedic and Unani Medicine vs State of Bihar & Ors

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Bihar

6. State Faculty of Ayurvedic Graduate in Ayurvedic G.A.M.S. From 1953 and Unani Medicines, Medicine and Surgery onwards. Patna, Bihar.

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Under the 1970 Act, the State Faculty established under the Bihar State Council of Ayurvedic and Unani Medicines (appellant in LPA No. 463 of 2000 and appellant in Civil Appeal No. 4643 of 2000) is empowered to confer a degree of Graduate in Ayurvedic Medicine and Surgery (GAMS) from 1953 onwards. It is an admitted fact that the 1951 Act has not been repealed by the 1970 Central Act nor it is the submission of any counsel appearing for respective parties that the provisions of the 1951 Act, in regard to conferment of GAMS degree, are repugnant to the provisions of the 1970 Act. The Second Schedule in the 1970 Act itself recognizes the GAMS degree given by the State Faculty of Ayurvedic and Unani Medicines, Patna, Bihar from 1953 onwards and thus it cannot be said that the course prescribed by the Faculty for conferment of a degree of GAMS is de-recognised under the 1970 Act. The 1970 Act read with regulations made thereunder prescribes course for conferment of a degree of BAMS by a University, whereas the 1951 Act prescribes course for conferment of a GAMS degree by State Faculty. Degree conferred by a university and degree conferred by a faculty are different for which separate courses have been prescribed. The 1951 Act having not been repealed by the 1970 Act, or till the Second Schedule is not amended de-recognising the degree of GAMS, the degree of GAMS given by the State Faculty will remain intact. No amendment has been brought about till today whereby the degree of GAMS given by the State Faculty is de-recognised under the 1970 Act. The 1951 State Act with its rules and regulations, is a complete code for recognizing and granting affiliation to indigenous medical institutions by the Faculty, provide the course of study in the institutions, and regulate the functioning of the institutions affiliated to the Faculty. The Faculty while exercising its powers has to abide by the conditions laid down in the rules and regulations.

12. The 1951 State Act is consistent with the 1970 Central Act in regard to granting of the GAMS degree, as the degree granted under the 1951 State Act is still recognized under the 1970 Central Act. The 1951 State Act and the 1970 Central Act are complementary to each other. The Faculty comes under the definition of `medical institution under Section 2(f) of the 1970 Central Act and GAMS degree awarded by the Faculty is a recognised medical qualification under Section 14 of the 1970 Central Act. The Second Schedule of the 1970 Act grants authority to the Faculty to grant GAMS degree. The High Court has, therefore, clearly committed an error in holding that after the BAMS degree has been introduced, GAMS degree issued by the Faculty was de-recognised or not in operation after the 1970 Act came into force.

13. The question, however, is whether with the introduction of the Bihar Indigenous Medical Educational Institution (Regulation and Control) Act, 1982, the students who have studied in the colleges which were not recognized under the said 1982 Act could be conferred with GAMS degree by the Faculty, and if such degrees are conferred what shall be the fate of the degrees conferred on such students? We would also be required to consider the effect of the Indian Medicine Central Council (Amendment) Act, 2003, particularly Sections 13A, 13B and 13C which have been substituted by way of amendment in the 1970 Act and came into force on 7.11.2003, on the degrees conferred on the students who have studied in the colleges which have not sought or have not been given permission as required under Section 13C of the 1970 Act to open the college or continue the college, by the Central Government.

14. It is urged by the learned counsel for the appellants that the colleges which are affiliated to the Faculty under the 1951 Act do not require any approval from the State Government to start or to continue the educational institution or to run the courses of study in indigenous system of medicine leading to the degree, diploma etc., as included in Second Schedule of the 1970 Act, as the 1951 Act is a self-contained code. Whereas, it is the submission of the learned counsel for the respondents that after the Ordinance of 1981 and the Act of 1982 came into force, all colleges which are affiliated to the Faculty or which have to be opened after the Ordinance of 1981 and the Act of 1982 came into force, require permission of the State Government for opening or continuing the colleges or institution running the colleges, imparting education in indigenous system of medicine. If any college or the educational institution running the college continues the educational facility, imparting education in indigenous system of medicine leading to the degree, diploma etc., as included in the Act of 1982 without permission, would run the risk to their students of not being conferred with a recognized degree and penalties provided under the 1982 Act. The counsel further submits that after the introduction of 1982 Act the power of the Faculty to grant affiliation is circumscribed by the requirement of the State Governments permission to open the college imparting education in Ayurvedic and Unani systems of medicine.

15. Under the 1951 Act, Section 17 provides for the establishment of the Faculty. Sub-section (2) of Section 17 provides : it shall be the duty of the Faculty to prescribe the course of study and curricula for general instructions, or special refresher courses, in institutions affiliated to the Faculty. By virtue of clause (d) of sub-section (2) of Section 17, the Faculty is to recognize educational or instructional institutions of the Ayurvedic and Unani systems of medicine for purposes of affiliation. The manner in which the affiliation is to be given is provided in Chapter II of the 1959 Regulations whereunder an application for affiliation of an institution shall be made to the Registrar, State Council of Ayurvedic and Unani Medicines, Bihar. After the application is received for affiliation, the Faculty will scrutinize the application and if it is satisfied on the basis of the material supplied in the application or otherwise that the institution proposed to be affiliated has nearly fulfilled or is likely to fulfill all the conditions imposed by the Council established under the Act and is likely to run efficiently, it would depute an Inspector to visit the institution, make inquiry and report back to the Faculty. After the completion of the inquiry and submission of the inspection report, the Faculty shall give recognition to the institution either permanently or provisionally for a limited period or may reject it. The decision of the Faculty shall be communicated to the institution concerned as soon as possible. It is clear from the aforesaid provisions that the Faculty under the 1951 Act has been empowered with the power to affiliate institutions which are imparting education in Ayurvedic and Unani systems of medicine.

16. The Bihar Indigenous Medical Educational Institution (Regulation and Control) Ordinance, 1981 which provides for regulation and control of educational institutions of indigenous system of medicine in the State of Bihar was promulgated on 16th November, 1981. Preamble to the Ordinance reads as under :-

Whereas, the Legislature of the State of Bihar is not in session ;

And, whereas, the Governor of Bihar is satisfied that inspite of repeated warnings from Government through Press Notes and Notices unregulated and indiscriminate opening of Indigenous Medical Educational Institutions in this State by persons or bodies registered under the Societies Registration Act, 1960 or otherwise without providing for adequate teaching facilities is hampering the cause of Indigenous Medical Education and is highly detrimental to the interest of students, admitted to such institutions after charging heavy capitation fee or donation and as such the circumstances exist which render it necessary to prescribe for regulation and control on the opening of College or Institutions of Indigenous System of Medicine in the State of Bihar;

17. The Ordinance was later replaced by introduction of the Act, viz., the Bihar Indigneous Medical Educational Institution (Regulation and Control) Act, 1981 (Act 20 of 1982) which came into force on 21st January, 1982. Section 3 of the Act requires the Governing Body or Organizing Committee or any body or institution intending to start medical course of study of indigenous system of medicine, along with requisite information regarding the study, to apply to the State Government in the Health Department.

18. Section 5 contemplates that on receipt of an application for permission to open the medical course of study of indigenous system of medicine, the State Government would cause the inspection of the body, agency, college or institution by the Central Council of Indian Medicine (CCIM) or Inspector appointed by the State Government to see whether the conditions laid down by the CCIM constituted under Section 3 of the 1970 Act are fulfilled or not. Section 6 further provides that on completion of the inspection the State Government in the Health Department will seek permission of the Government of India and the CCIM of India for granting permission to the starting of the course of medical studies in indigenous system of medicine by the applicant. Section 7 postulates that to all private medical colleges and medical institutions in indigenous system of medicine, preparing or intending to prepare students for study in indigenous system of medicine leading to degree, diploma, etc. and which have not been permanently affiliated to any University in the State of Bihar, the provisions of the 1982 Act shall apply. The 1982 Act has been made applicable to all private medical colleges and medical institutions which are not permanently affiliated to any University in the State of Bihar. By virtue of Section 9, the institutions which have been functioning without prior permission or approval of the State Government are required to apply for such permission within a period of one month from the date of coming into force of the 1982 Act. This Section prohibits admission of the students in such institutions till the grant of permission by the Government. It also provides that in case the application is not moved within the stipulated period or the State Government refuses permission, they will be deemed to have been established in contravention of the provisions of the Act. Section 10 provides for penalty and a person contravening any of the provisions of the Act is made liable for punishment with a fine which may extend to Rs. 10,000/- and imprisonment for a term which may extend upto three years. In case of continuing contravention, such person shall be liable to pay a further fine which may extend to Rs.1,000/- per day after the date of the first conviction for the period during which he is proved to have persisted in such contravention. The offence is made non- bailable and cognizable. As per Section 11, if the application moved for permission to start medical course of study of indigenous system of medicine either under Section 3 or Section 9 is refused as the institution or college is not found eligible or does not qualify for permission, it is incumbent on the organizer of such institution to close it down within a period of three months of refusal of permission. Section 15 gives authority to the State Government to seize the accounts of an institution contravening the provisions of the Act. From these provisions, it is apparent that after introduction of the 1981 Ordinance and the 1982 Act, the Governing Body or the Organizing Committee or any body or institution intending to start any course of study in indigenous system of medicine is required to seek permission of the State Government to open a private medical college or medical institution for admitting the students to be conferred with a degree, diploma, etc., as included in the Second Schedule of the 1970 Act. It is only the Governing Body or the Organising Committee or any body or institution which has been permanently affiliated to any University in the State of Bihar is exempted from the provisions of the 1981 Ordinance or the 1982 Act. Institutions already imparting education in indigenous system of medicine are required to take permission after coming into force of the 1982 Act.

19. The Act provides for imposition of the fine and imprisonment for any person who contravenes any of the provisions of the 1981 Ordinance or the 1982 Act. If the permission is refused, the institution will be closed down. Section 13 of the Act further authorizes the State Government to authorize any officer to enter into the premises of the institution contravening the provisions of the 1981 Ordinance or the 1982 Act for the purposes of inspection and carrying into effect the provisions of the Ordinance or the Act. Such officer may be empowered to close down the institution and to lock and seal it. The Act also provides provision for seizure of the accounts by the State Government of an institution contravening the provisions of the Ordinance or the Act. The Act arms the State Government with various powers including the penal powers. Although the colleges were opened in the year 1992 without the authority or the permission of the State Government as required under the Act, no steps have been taken by the State of Bihar, and the students admitted in the two institutions which were affiliated with the Faculty were conferred with the GAMS Degree. After reading the provisions of the Act, it is apparent to us that the 1982 Act is supplementary to the 1951 Act. The 1951 Act although provides for the inspection of the institutions which have to be affiliated to the Faculty, does not lay down that the conditions laid down by the CCIM are to be followed and adhered to. That has been provided under the 1982 Act. So the colleges or the institutions which want to impart education in the indigenous system of medicine have not only to follow the conditions laid down by the Faculty or the Council under the 1951 Act, but also under the 1982 Act. The college or the institution after the Act came into force cannot continue without the permission of the State Government as contemplated in the 1982 Act.

20. We have examined the provisions of the 1982 Act. The counsel for the State or the University could not point out as to what shall happen to the degrees given to the students who studied in the colleges which have been affiliated with the Faculty but without permission under the 1982 Act. We do not find any provision in the 1982 Act which takes away the degree already granted to the students conferred by the Faculty, recognized under the 1951 Act, and is being accepted to be a recognized degree under the 1970 Act. Therefore, by virtue of introduction of the 1982 Act, it cannot be said that the degrees conferred on the students who have studied in the colleges which have not been granted permission by the State Government as required under the 1982 Act, will be ipso facto illegal and could not be given effect to. However, we make it clear that any body, agency, college or institution which has not sought permission from the State Government would not be granted affiliation by the Faculty under the 1951 Act and the State Government shall take appropriate steps under the 1982 Act if any body, agency, college or institution is/are functioning without the permission of the State Government as required under the 1982 Act.

21. It is then contended by the learned counsel for the State that after the coming into force of the Indian Medicine Central Council (Amendment) Act, 2003 (for short the Amending Act) on 7th November, 2003, if any medical college established on or before the commencement of the Amending Act does not seek permission of the Central Government within the period of three years from the said commencement, the medical qualification granted to any student of such medical college shall not be deemed to be a recognized medical qualification for the purposes of the 1970 Act. It is submitted that the two colleges from where the appellant-students were educated having not sought permission from the Central Government under the 1970 Act, the GAMS degree conferred on them shall not be a recognized medical qualification for the purposes of the 1970 Act, as a result whereof they are not eligible for admission for higher course of study or for employment on the basis of the GAMS degree conferred on them which is not a recognized medical qualification. For this proposition, the learned counsel for the State has relied upon the provisions of Sections 13A, 13B and 13C which have been introduced by Amending Act of 2003. For a better understanding of the contentions, the relevant portions of the Sections are reproduced hereunder:

13A. Permission for establishment of new medical college, new course of study, etc.--(1) Notwithstanding anything contained in this Act or any other law for the time being in force,--

(a) no person shall establish a medical college; or

(b) no medical college shall--

(i) open a new or higher course of study or training, including a post-graduate course of study or training, which would enable a student of such course or training to qualify himself for the award of any recognised medical qualification; or

(ii) increase its admission capacity in any course of study or training including a post-graduate course of study or training, except with the previous permission of the Central Government obtained in accordance with the provisions of this section.

Explanation 1.--For the purposes of this section, "person" includes any University or a trust, but does not include the Central Government.

Explanation 2.--For the purposes of this section, "admission capacity", in relation to any course of study or training, including post-graduate course of study or training, in a medical college, means the maximum number of students as may be fixed by the Central Government from time to time for being admitted to such course or training.

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13B. Non-recognition of medical qualifications in certain cases.--(1) Where any medical college is established without the previous permission of the Central Government in accordance with the provisions of section 13A, medical qualification granted to any student of such medical college shall not be deemed to be a recognised medical qualification for the purposes of this Act. (2) Where any medical college opens a new or higher course of study or training including a post-graduate course of study or training without the previous permission of the Central Government in accordance with the provisions of section 13A, medical qualification granted to any student of such medical college on the basis of such study or training shall not be deemed to be a recognised medical qualification for the purposes of this Act.

(3) Where any medical college increases its admission capacity in any course of study or training without the previous permission of the Central Government in accordance with the provisions of section 13A, medical qualification granted to any student of such medical college on the basis of the increase in its admission capacity shall not be deemed to be a recognised medical qualification for the purposes of this Act.

13C. Time for seeking permission for certain existing medical colleges.-- (1) If any person has established a medical college or any medical college has opened a new or higher course of study or training or increased the admission capacity on or before the commencement of the Indian Medicine Central Council (Amendment) Act, 2003, such person or medical college, as the case may be, shall seek, within a period of three years from the said commencement, permission of the Central Government in accordance with the provisions of section 13A.

(2) If any person or medical college, as the case may be, fails to seek permission under sub- section (1), the provisions of section 13B shall apply, so far as may be, as if permission of the Central Government under section 13A has been refused.

22. For the purposes of the 1970 Act, `Indian medicine is a system of Indian medicine commonly known as Ashtang Ayurveda, Siddha or Unani Tibb. Section 2(ea) of the 1970 Act defines `medical college to mean a college of Indian medicine where a person undergoes a course of study or training which will qualify him for the award of a recognized medical qualification. Section 13A(1) prohibits any person to establish a medical college; and a medical college to open a new or higher course of study or training including a post-graduate course of study or training, which would enable the students of that medical college for the award of any recognised medical qualification or to increase its admission capacity except with the previous permission of the Central Government obtained in accordance with the provisions of Section 13A. Sub-sections (2), (3), (4), (5), (6), (7), (8) and (9) of Section 13A lay down the manner in which the Central Government is to be approached for establishment of a new medical college or for opening of a new higher course of study or increasing admission capacity and how it would be dealt with. Section 13B postulates that where any medical college is established or an established medical college opens a new higher course of study or training or where any medical college increases its admission capacity in any course of study or training without the permission of the Central Government, the medical qualification granted to any student of such medical college or the higher course of study or training or admission in the increased capacity in any course of study, would not be a recognized medical qualification for the purposes of the Act. Section 13C, however, provides a breathing time to the medical colleges which have been established on or before the commencement of the Amending Act of 2003 without the permission of the Central Government to get such permission within a period of three years from the commencement of the Act. Therefore, the colleges or the institutions which have not obtained the permission of the Central Government may do so within a period of three years from the commencement of the Act to save the medical qualification conferred on the students of such medical colleges from the rigour of Section 13B of the 1970 Act. However, as per sub-section (2) of Section 13C, if any person or medical college fails to seek permission within three years of commencement of the Act, qualification granted to any student of such medical institution shall not be a recognised medical qualification and it shall be deemed that permission to open or start a new course or increase strength of students was refused by the Central Government. Medical colleges opened on or before the coming into force of the Amending Act of 2003 are necessarily required to take permission within three years to save the recognized medical qualification of the students. On their failure, the medical qualification conferred on the students shall come to naught. Under Section 13A, a person who establishes a medical college or a medical college opens a new higher course of study or increases the admission capacity is required to move an application for permission of the Central Government. For obtaining permission as required under Section 13A, every person or medical college is required to submit a scheme in such form with requisite fee, containing such particulars as provided under sub- section (3) of Section 13A. The Central Government on receipt of such application may require the applicant to submit such other particulars as may be considered necessary. The Central Government after considering the scheme and recommendations of the Central Council and after obtaining such other particulars as felt necessary, may approve the scheme with such conditions which are considered necessary. The Central Government may also disapprove the scheme. Sub-section (6) of Section 13A provides that where within a period of one year from the date of submission of scheme to the Central Government, no order is communicated by the Central Government to a person or medical college, such scheme shall be deemed to have been approved by the Central Government in the form in which it was submitted. From the aforesaid provisions, it is apparent that an application seeking permission for opening a medical college has to be moved by a person which also includes the university or a trust or a medical college or those which are already running the medical college when the Amending Act came into force. Section 13A nowhere provides that the students who have studied in the medical colleges would be eligible to seek permission of the Central Government under that Section. Section 13A or Section 13B or Section 13C nowhere contemplates moving of an application by the students to take steps under Section 13A. In such a situation, the question arises what shall happen to the degrees conferred on the students who have studied in the medical colleges established prior to the commencement of the Amending Act where the Governing Body or Organising Committee or any body or institution does not take any step for seeking permission of the Central Government and the period prescribed under Section 13C of three years has expired or where the institution has been closed down immediately after the commencement of the Amending Act of 2003 and, therefore, no body is interested in seeking permission of the Central Government.

23. The provisions of Sections 13A, 13B and 13C of the 1970 Act as introduced by the Amending Act of 2003, if given retrospective operation, the medical qualification acquired from the study in the medical colleges which have been opened prior to the commencement of the Amending Act of 2003 and conferred medical qualification on the students who studied in such medical colleges, the degrees so conferred in the absence of the permission of the Central Government would be non est though there is no fault on the part of the students who have studied in the institutions which are recognized and affiliated to the Faculty under the 1951 Act.

24. In our opinion, where the legislature has used words in an Act which if generally construed, must lead to palpable injustice and consequences revolting to the mind of any reasonable man, the court will always endeavour to place on such words a reasonable limitation, on the ground that the legislature could not have intended such consequence to ensue, unless the express language in the Act or binding authority prevents such limitation being interpolated into the Act. In construing an Act, a construction ought not be put that would work injustice, or even hardship or inconvenience, unless it is clear that such was the intention of the legislature. It is also settled that where the language of the legislature admits of two constructions and if construction in one way would lead to obvious injustice, the courts act upon the view that such a result could not have been intended, unless the intention had been manifested in express words. Out of the two interpretations, that language of the statute should be preferred to that interpretation which would frustrate it. It is a cardinal rule governing the interpretation of the statutes that when the language of the legislature admits of two constructions, the court should not adopt the construction which would lead to an absurdity or obvious injustice. It is equally well settled that within two constructions that alternative is to be chosen which would be consistent with the smooth working of the system which the statute purported to be regulating and that alternative is to be rejected which will introduce uncertainty, friction or confusion with the working of the system. [See Collector of Customs v. Digvijaysinhji Spinning & Weaving Mills Ltd. (1962) 1 SCR 896, at page 899 and His Holiness Kesvananda Bharati v. State of Kerala, AIR 1973 SC 1461].

25. The court must always lean to the interpretation which is a reasonable one, and discard the literal interpretation which does not fit in with the scheme of the Act under consideration.

26. In series of judgments of this Court, these exceptional situations have been provided for. In Narashimaha Murthy v. Susheelabai, (1996) 3 SCC 644 (at page 647), it was held that:

The purpose of law is to prevent brooding sense of injustice. It is not the words of the law but the spirit and eternal sense of it that makes the law meaningful.

In the case of American Home Products Corporation v. Mac Laboratories Pvt. Ltd. and Another, AIR 1986 SC 137 (at page 166, para 66), it was held that:

 .. It is a well-known principle of interpretation of statutes that a construction should not be put upon a statutory provision which would lead to manifest absurdity or futility, palpable injustice, or absurd inconvenience or anomaly. 

Further, in the case of State of Punjab v. Sat Ram Das, AIR 1959 Punj. 497, the Punjab High Court held that:

To avoid absurdity or incongruity, grammatical and ordinary sense of the words can, in certain circumstances, be avoided.

27. The amendment brought about in the Indian Medicine Central Council Act, 1970, in 2003 by introduction of Sections 13A, 13B and 13C are the provisions for continuance of the institution which has not obtained prior permission of the Central Government and, therefore, time limit of three years has been provided under Section 13C to regularize the institutions affairs as required under the Act by seeking permission of the Central Government. Insertion of Section 13A in the 1970 Central Act in the year 2003 has regulated the opening of an indigenous medical college. The non-obstante clause clearly indicates that a medical institution cannot be established except with the prior permission of the Central Government. Under Section 13B, any medical qualification granted by the colleges established without the prior permission of the Central Government is not a recognized medical qualification. The reasonable reading of Section 13C(1) puts the existing colleges at par with the new colleges as both of them are required to seek permission within three years from the commencement of the Amending Act. The phrase on or before has made it clear that the existing colleges are also required to seek permission and there is no exemption. Section 13C(2) further provides that the medical qualification granted by existing colleges whose establishment has not been recognized by the Central Government, the medical qualification would not be a recognized qualification. Similar requirement is to be fulfilled by the new medical colleges opened, i.e., to seek permission of the Central Government for the medical qualification to be recognized qualification. Thus, new colleges or existing colleges cannot any more grant a recognized qualification without the sanction of the Central Government. Section 13C(2) does not say that the effect of non-permission by the Central Government to the existing colleges after the Amending Act came into force would render the medical qualifications already granted by the existing colleges before the insertion of Sections 13A, 13B and 13C in 2003, un-recognised. The whole spectrum of the amendment brought about by introducing Sections 13A, 13B and 13C indicates that it has an application from the date they have been introduced by an amendment in the 1970 Central Act. The effect of the amendment brought about is clear to us that all the medical colleges which are in existence or the medical colleges which have to be established should compulsorily seek permission of the Central Government within the period provided and on failure to get the permission of the Central Government the medical qualification granted to any student of such medical college shall not be a recognized medical qualification for the purposes of the 1970 Act. The established colleges are also required to seek permission of the Central Government for the medical qualification to be recognized medical qualification but it would not mean that the already conferred medical qualification of the students studied in such previously established medical colleges would not be a recognised medical qualification under the 1970 Act.

28. On a reasonable construction of these Sections, we hold that the provisions of Section 13B whereby the qualification granted to any student of a medical college would not be deemed to be a recognized medical qualification would not apply. When a degree has been legally conferred on the students prior to the commencement of the Amending Act of 2003, it shall be treated as a recognized degree although the medical college has not sought permission of the Central Government within a period of three years from the commencement of the Amending Act of 2003.

29. For the reasons aforesaid, the appeals are allowed. The judgment of the High Court is set aside and we hold that the GAMS degree conferred on the appellant-students shall be treated as a recognized degree for the purposes of taking admission to the higher courses of study and also for the purposes of employment.

30. There shall be no order as to costs.