RAJASTHAN PRADESH VAIDYA SAMITI Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) AN identical question of law is involved in these writ petitions and it is as to whether even those who are having medical qualifications which include Ayurvedic qualifications although not included in the Second, Third or Fourth Schedule to the Indian Medical Central Council Act, 1970 (for short, the Central Act), have right to registration in grade 'A' or 'B' or have a right to practice Ayurvedic Indian System of Medicine? Item No. 25 of list III (Concurrent List) deals with Education, including technical education, medical education and universities, subject to the provisions of Entries 63, 64, 65 and 66 of List -I, vocational and technical training of labour. It will therefore be clear from the perusal of the aforesaid item 25 of List -Ill of the Constitution that the powers of the State Legislature and Parliament are concurrent but in case the Parliament has jurisdiction to legislate in accordance with entries 63, 64, 65 and 66 of List -I, and any legislature has been made by Parliament the power under item 25 of List -Ill shall not be exercised and if exercised it. shall be subject to the powers of the Parliament under List -I. In exercise of the aforesaid powers contained in item No. 25 of List III (Concurrent List), the State Legislature made the Rajasthan Indian Medicine Act, 1953 (for short the State Act). The term 'Board has been defined Under Section 3(1)(i) of the State Act which means the Board of Indian Medicine, Rajasthan established under Section 4. The term 'enlisted' under Section 3(1)(i) used with reference a practitioner means that the name of such practitioner is for the time being entered in a list. In exercise of the powers under Section 48 of the State Act, Regulations were framed by the Board regulating various matters including registration of Vaidyas etc. Prior to be an entry No. 22 in the Regulations/Rules framed in exercise of the powers vested under Section 48 of the State Act under which persons having qualifications either as Vaidya Visharad or Ayurveda Ratna from Hindi Sahitya Sammelan Prayag were recognised for practising as Vaidya in the State of Rajasthan but under the Regulations published in the Rajasthan Gazette Part IV (Ga) dated January 13, 1964, the new Regulations were framed in supersession of all the earlier Regulations in force and, the schedule was not amended but it cannot be said as to which qualification was to be acquired for registration as Vaidya, which was recognised. It can therefore be taken for the purpose of disposal of these writ petitions that under the State Act the qualifications acquired as aforesaid from Hindi Sahitya Sammelan Prayag were recognised for registration as Vaidya in the State of Rajasthan. It was after the Central Act was passed that to make the Regulations to fall in the line with the Central Act a decision was taken to delete item 22 as aforesaid. A decision was taken by the Board to delete item 22, but it does not appear that the same was notified in the official Gazette.

(2.) IN assailing the decision of the Board deleting the above referred entry 22 from Schedule to the Regulations, Mr. Calla, learned Counsel for the petitioner has contended that the deletion could only be by notification under Section 48 of the State Act and therefore some of the persons who acquired the aforesaid qualifications from the Hindi Sahitya Sammelan It may be stated that some of the petitioners and members of the petitioner society in Writ Petition No. 1767/ 1986, acquired one or other of the aforesaid qualifications from the Hindi Sahitya Sammelan Prayag after the year 1967 and not acquired the qualification in between 1931 to 1967. It is also contended that even under the Central Act the aforesaid degrees acquired by the persons from the Hindi Sahitya Simmelan Prayag from 1931 to 1967 have been recognised and find place in Schedule 2 to the Central Act at S. No. 105. There is no reason why thereafter i.e. after 1967 a departure has been made and the said qualifications are not included in Schedule 2 to the Central Act. The contention of the learned Counsel for the petitioners it that the choice of date and year is arbitrary and has no nexus with the object sought to be achieved and more so when there is no material that there,is difference in the standard of education in 1931 to 1967 and thereafter in the Hindi Sahitya Sammelan Prayag.

(3.) IT is therefore for the Parliament which has power to legislate for item No. 66 of List I. and as stated earlier the power of the State to legislate under item No. 25 of List III, is subject to power of the Parliament to legislate for item No. 66 of the List I, Union List. There can be no dispute that even if it is taken for the purpose of disposal of these writ petitions that the subject falls in the concurrent list once the Parliament has legislated in respect of matters of concurrent list and thereafter any State enactment has come into force, the provisions of which are in conflict with the Central legislature the provisions of State legislature in so far as conflict is concerned, will be, said to be impliedly superseded. A reference in this connection is made to Article 254 of the Constitution of India and under Clause (1) thereof, if any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by the Parliament which the Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then subject to the provisions of Clause (2), the law made by the Parliament whether passed before or after the law made by the Legislature of such State, or as the case may be the existing law, shall prevail and the law made by the Legislature of the State shall to the extent of the repugnancy be void. Under Clause (2) where a law made by the Legislature of a State with respect to one of the matters enumerated in the Concurrent List contains any provision repugnant to the provisions of an earlier law made by the Parliament or an existing law with respect to that manner, then the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State. Proviso to that clause provides that nothing in that clause shall prevent the Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State. Therefore, the Central law having been enacted by the Parliament in so far as the provisions of the State law are repugnant to it the provisions which are repugnant to central law, shall not be valid and will be impliedly repealed. In this connection, though hardly any precedent is necessary, reference is made to the case of Zaverbhai Amaldas v. State of Bombay : [1955]1SCR799 .