SUREN VIJAY THENGE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) By this Writ Petition under Article 226 of the Constitution of India, the petitioner challenges circular dated 07.10.2013 issued by the Commissioner of Transport, Maharashtra State to the extent it bars medical practitioners having the qualification of Bachelor of Ayurvedic Medicine and Surgery B.A.M.S. from being authorized to issue medical certificate of fitness in terms of Rule 5 of the Central Motor Vehicles Rules, 1989.

(2.) The petitioner who has obtained the degree of B.A.M.S. has been duly registered with the Maharashtra Council of Indian Medicine and has been issued a certificate of registration in that regard. According to the petitioner as per notification dated 25.11.1992, the State Government has held Ayurvedic practitioners eligible to practice modern system of medicine known as allopathic system of medicine. In view thereof, medical practitioners holding the degree of B.A.M.S. were entitled to issue a medical certificate in terms of Rule 5 of the Central Motor Vehicles Rules, 1989 (hereinafter referred to as "the Rules of 1989"). According to the petitioner by a circular dated 17.10.2012, registered medical practitioners holding the degrees of B.H.M.S. & D.H.M.S. were held ineligible for issuing medical fitness certificate under Rule 5 of the Rules of 1989. The said circular was challenged in this Court vide Writ Petition No.144 of 2013 and by order dated 15.04.2013, the challenge in that regard was turned down.

(3.) Shri Ajit Pitale the learned Counsel appearing for the petitioner submitted that the circular dated 7.10.2013 which bars registered medical practitioners holding the degree of B.A.M.S. from issuing a medical certificate of fitness is contrary to the provisions of Section 8(3) of the Motor Vehicles Act, 1988 (for short, "the said Act") as well as Rule 5 of the Rules of 1989. It is submitted that the petitioner being a registered medical practitioner by virtue of being issued a requisite certificate of registration by the Maharashtra Council of Indian Medicine and he being entitled to practice modern system of medicine in terms of provisions of Section 8(3) of the said Act read with Rule 5 of the Rules of 1989, the petitioner was entitled to issue a medical certificate as stipulated. The learned Counsel for the petitioner submitted that the respondent No.2 while issuing the impugned circular has not given proper consideration to the aforesaid legal position and as a result of issuance of said circular the right of a registered medical practitioner holding the degree of B.A.M.S. to issue such medical certificate has been taken away. According to the learned Counsel, the same is not permissible in law. It is further submitted that as registered medical practitioners were competent to practice modern system of medicine, they were eligible to issue aforesaid certificate. The impugned circular had the effect of curtailing the right of the petitioner to practice modern system of medicine despite being a registered medical practitioner. It was, therefore, submitted that the said circular to the extent it held registered medical practitioners holding the degree of B.A.M.S. ineligible to issue a medical certificate for the purpose of Rule 5 of the Rules of 1989 was thus required to be set aside.