USMAN Vs. SECRETARY, HEALTH & FAMILY WELFARE DEPARTMENT

JUDGEMENT

(1.) The petitioner claims to be a Homeopath, practicing the system of medicine continuously and regularly in the erstwhile Malabar region. The petitioner relies on Exhibits P1 and P2 certificates to further his case. The petitioner also has produced a certificate at Exhibit P3 dated 01.05.1976, wherein it is certified that he has undergone home-study course in Homeopathy and Biochemistry and passed the examination held in April, 1976. The petitioner relies on Exhibits P4 to P6 judgments and places special reliance on Exhibit P6 and argues that the Division Bench judgment binds this Court insofar as the declaration made. The petitioner also relies on Sec. 15(3)(c) of the Homeopathy Central Council Act, 1973, which reads as under:

(2.) The additional 5th respondent, who was impleaded on our specific directions has filed a detailed counter affidavit. They contend that they have been requesting the State Government to bring in appropriate enactment to have a list of persons who are entitled to practice Homeopathy, referable to any person who has been practicing for five years prior to 1973. Exhibit P-4 is a decision of the year 1987, wherein this Court noticed the submission of the State that a unified Kerala Medical Practitioners Bill is under consideration. Exhibit P-5 in the year 1992, reiterated what was stated in 1987. Exhibit P-6 is a judgment of the year 2006. Therein it was once again noticed that for the Travancore-Cochin area, there is a Register maintained under Sec. 23(1)(2) of the Travancore-Cochin Medical Practitioners Act, 1953; but in Malabar area the said enactment was and is not applicable. There was a specific direction in the aforesaid judgment, relying on an earlier judgment of another Division Bench in K.H.M.G. Assn. Vs. State of Kerala, ((2005 (3) KLT 620). That was a public interest litigation filed by an association of qualified Homeopaths, against permitting unqualified persons from practicing Homeopathy. The extracted portion therein is again extracted by us, since we cannot but notice that the Government has been alarmingly lethargic in taking steps to further the intention of having a unified legislation for the last more than three decades: "Taking into account the entire facts, we are of the view that there are sufficient justifications for exempting those category of persons. Petitioners have not established in what manner they have been discriminated. Further, it is stated by the Government Pleader that the State Government is intending to bring a suitable legislation covering all aspects of medical practice. The Kerala Medical Practitioners Bill, 1996 has been taken with the Central Government for getting prior clearance for introducing the bill in the State Legislature. As and when the proposed legislation is enacted the entire scenario in respect of the dispute regarding the medical practitioners will be cleared of all doubts and misconceptions. We are of the view that if petitioners have got a case that anybody is violating the express provisions of the Central Act as well as the State Act, it is always open to them to point out the same before the Government and in such an event, the Government shall take appropriate action. Counsel however, brought to our notice that Ext.P19 representation has already been filed by the petitioner before the Government. The Government shall take note of the grievance of the petitioners and take appropriate remedial measure". The petitioner prays for a similar order of status-quo till an enactment is brought in and a Register commenced and maintained by the State Government.

(3.) We are not convinced that a similar order can be passed at this distance of time, merely for reason of the lethargy on the part of the State in bringing out an enactment and opening a Register. Further, we have to notice that even the contentions raised in the counter affidavit of the additional 5th respondent, in consonance with the Act of 1973, are, for permitting continuance of a Homeopath who has been practicing Homeopathy for five years prior to 1973. The petitioner's certificates at Exhibits P1 and P2 are not possible of reliance. There is no provision by which a Homeopath could issue a certificate of practice under him and mere association with a qualified person cannot confer a right to practice medicine without qualifications. Further there is nothing produced to show that the person who has certified Exhibit P-1 itself is a Certified Homeopath. As to Exhibit P-2, it cannot be comprehended as to how a Tahsildar is enabled to issue a certificate of practice. Exhibit P2 issued on 22. 04.1998 merely states of an enquiry, revealing that the petitioner had been practicing Homeopathic System of Medicine for a period of 10 years prior to 1978. No law is shown to us as sanctioning such an enquiry.