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CASE NO.:

Appeal (civil) 4643 of 2003

PETITIONER:

Bihar State Council of Ayurvedic and Unani Medicine

RESPONDENT:

State of Bihar & Ors

DATE OF JUDGMENT: 01/11/2007

BENCH:

B.N. AGRAWAL & P.P. NAOLEKAR

JUDGMENT:

J U D G M E N T

WITH

CIVIL APPEAL NOS. 4644-4645 OF 2003

Dr.Sudhir Kumar Singh & Ors. \005 Appellants

vs.

State of Bihar & Ors. \005 Respondents

AND

CIVIL APPEAL NO. 4646 OF 2003

Ashok Kumar & Ors. \005 Appellants

vs.

State of Bihar & Ors. \005 Respondents

P.P. Naolekar, J.:

1. The brief facts of the case are that six

petitioners in CWJC No. 7253 of 1998 before the Patna High

Court who had obtained GAMS (Graduate of Ayurvedic Medicine

and Surgery) degree from the State Faculty of Ayurvedic and

Unani Medicines (for short \023the Faculty\024) established

under Section 17 of the Bihar Development of Ayurvedic and

Unani Systems of Medicine Act, 1951 (for short \023the 1951

Act\024) were not permitted to appear in the examination for

admission in Post Graduate Course in Ayurved leading to

award of Degree of Doctor of Medicine in Ayurved. It was

the case of the petitioners that they had passed the GAMS

examination conducted by the Faculty under the 1951 Act and

were conferred GAMS degree by the Faculty and, thus, they

were qualified to appear in the examination for obtaining

the Degree of Doctor of Medicine in Ayurved. After service

of notice, the respondents entered appearance and the State

filed reply wherein the stand taken by the State was that

GAMS Degree obtained by the petitioners in 1997 was not

valid and recognized degree because according to the letter

dated 4.7.1998 sent by the Secretary, Central Council of

Indian Medicine (for short \023CCIM\024), GAMS course was no

longer recognized by the CCIM. The respondent-CCIM alleged

that in accordance with the requirements of the Indian

Medicine Central Council Act, 1970 (for short \023the 1970

Act\024), CCIM had prescribed regulations providing for BAMS

(Bachelor of Ayurvedic Medicine and Surgery) course at

graduate level and MD(Ay.) course at post-graduate level,

and only the course prescribed by CCIM is to be conducted

by the universities and the prescribed degree can only be

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awarded by them as per the 1970 Act. It was also the case

of the respondents that after the Bihar Indigenous Medical

Educational Institution (Regulation and Control) Act, 1982

(for short \023the 1982 Act\024), the GAMS degree could only be

recognized if it is conferred on the students who had

studied from the colleges recognized under the 1982 Act.

2. On the pleadings of the parties, the High Court

considered the case on the aspect whether the Faculty under

the 1951 Act has unqualified right to grant affiliation to

such institutions or colleges which are not following the

BAMS course prescribed by CCIM through regulations under

the 1970 Act and further whether the provisions of the 1982

Act which seek to regulate institutions imparting training

in Ayurvedic and Unani Systems of Medicine shall cover and

regulate even those institutions which have been granted

affiliation by the Faculty. The High Court held that the

system of course for GAMS had come to an end for quite some

time and BAMS course has been followed as per the

regulations of CCIM; hence, only on the basis of a

continued entry in the Second Schedule of the 1970 Act

which recognized GAMS degree, which is in the view of the

High Court is archaic, no right can be found in the person

or institution to ignore the course validly prescribed by

the competent authority-CCIM. The High Court further held

that the 1982 Act aims at curing a rampant evil in

concerned colleges in the State of Bihar and hence the

State Government was given control in the matter of making

queries into the standard of educational institutions

teaching Indian system of medicine, and thereafter

proceeding for recognition of the institution under the

1982 Act. It was held that when the petitioners who

obtained GAMS degrees had studied in the educational

institutions which have not followed course prescribed by

CCIM, the statutory central authority, and further when

such institutions have been run in total contravention and

violation of the 1982 Act, they are not entitled to for

issuance of any writ from the court.

3. Another writ petition being CWJC No. 825 of 1998

filed by Pramila Kumari & Ors. in the Patna High Court

challenged the order whereby they had not been allowed to

compete in the selection for appointment to the post of

Ayurvedic Medical Officer on the basis that they were the

holders of GAMS degree from the Bihar State Faculty, which

was claimed to be a recognized degree by the CCIM. The

petitioners sought relief that they be permitted to fill up

the forms and to take part in the examination and further

for declaration that GAMS degree granted by the Faculty was

equivalent to BAMS degree granted by a recognized

University of the State.

4. The learned Single Judge differed with the view

taken by the court in CWJC No. 7253 of 1998 and held that

Faculty has been created under the 1951 Act, much prior to

the promulgation of the 1982 Act, the powers under the 1951

Act of granting GAMS degree by the Faculty is also

recognized under the 1970 Central Act as per Second

Schedule thereof. The court was also concerned with the

fate of the students who had been conferred GAMS degree by

a body created under the 1951 Act and the degree has been

saved by recognizing it under the 1970 Central Act. In

this view, the matter was directed to be placed before a

Division Bench after necessary orders of Hon\022ble the Chief

Justice.

5. The judgment of the learned Single Judge in CWJC

No. 7253 of 1998 was challenged by filing LPA No. 451 of

2000 by only one petitioner, namely, Dr. Sudhir Kumar Singh

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and other petitioners were impleaded in the case as

respondents. Also the Bihar State Council of Ayuyrvedic

and Unani Medicine aggrieved by the judgment in CWJC No.

7253 of 1998, filed another letters patent appeal which was

registered as LPA No. 463 of 2000. CWJC No. 825 of 1998

was placed along with the LPAs before the Division Bench

for decision. The writ petitioners re-asserted their

submissions before the Division Bench that they had

completed the course of GAMS degree and passed examination

conducted by the Faculty under the 1951 Act. As per Second

Schedule of the 1970 Act, a central Act, which contains

State-wise entries, entries Nos. 6 to 9A relate to the

institutions/universities of Bihar which recognize GAMS

degree under entry No. 6 from 1953 onwards. It was

submitted that as the degree conferred on the writ

petitioners is a recognized degree on the basis of the said

entry in the 1970 Act, they were entitled to appear for

entrance test to the post-graduate course and also for

consideration for appointment to the post of Ayurvedic

Medical Officers on the basis of GAMS degree which they

were holding.

6. The Division Bench agreed with the reasoning

adopted by the learned Single Judge in CWJC No 7253 of 1990

and held that under the scheme of the 1970 Act as well as

the Bihar Indigenous Medical Educational Institution

(Regulation and Control) Ordinance, 1981 which was replaced

by Bihar Act 20 of 1982, the CCIM was authorised to

prescribe the course of studies in the system of medicine

so that the Indian system of medicine may maintain

uniformity and standard of teaching all over the country,

which has been sought to be achieved by the regulations

framed under the 1970 Act. The Division Bench also agreed

with the learned Single Judge that the course of study of

GAMS had come to an end and had been replaced by BAMS

course, much before the writ petitioners acquired their

GAMS degree. The Court approved the decision of the

learned Single Judge whereby he had come to the conclusion

that the 1982 Act has been enacted to regulate the

indiscriminate opening of indigenous medical institutions

in the State by persons of bodies registered under the

Societies Registration Act, 1960 and had in fact

commercialized the system of education in indigenous

medicine; therefore, the institutions which are not

recognized by the State under the 1982 Act could not impart

the study in Ayurvedic medicine. It was held that the

State authorities under the 1982 Act have rightly taken the

follow-up action. On these findings being arrived at by

the Division Bench, no merit was found in the LPAs and the

writ petition, which were dismissed by the Division Bench.

Aggrieved by the order dated 12.12.2001 passed by the

Division Bench in the LPAs and the WP, the appellants,

namely, Bihar State Council of Ayurvedic and Unani Medicine

(in Civil Appeal No.4643/2003), Dr. Sudhir Kumar Singh &

Ors. (in Civil Appeal Nos. 4644-46 of 2003) and Ashok Kumar

Singh & Ors. (in Civil Appeal No. 4646 of 2003) are before

us by special leave.

7. It is an admitted fact before us that the writ

petitioners have studied from Ramjee Prasad, Ram Kumari

Devi @ Marni Devi Ayurvedic Medical College & Hospital,

Fatuha and Shrihari Shakuntalayam Ayurvedic Medical

College, Muzaffarpur, Bihar. The said colleges were

granted affiliation by the Faculty on 19.8.1995 with

retrospective effect from the session commenced in 1992 and

they are recognized under the 1951 Act.

8. The Bihar Development of Ayurvedic and Unani

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Systems of Medicine Act, 1951 received the assent of the

President on 12.9.1951 and the assent was first published

in the Bihar Gazette, Extraordinary, dated 17.10.1951.

This Act was enacted to provide for the development of the

ayurvedic and Unani systems of medicine, to regulate their

teaching and practice, and to control the sale of

indigenous medicinal herbs and drugs in the State of Bihar.

In exercise of powers under Section 3, the State Government

shall, by notification, constitute a Council to be called

the Bihar State Council of Ayurvedic and Unani Medicines,

which shall consist of a President and the Members

mentioned in clauses (a) to (n) of Section 3(1). Under

Section 17 of this Act, the Council shall establish a State

Faculty of Ayurvedic and Unani Medicines for the purposes

of the Act which shall consist of a Chairman and the

Members enumerated in clauses (a) to (d) of Section 17(1).

Under clause (d) of sub-section (2) of Section 17, it

shall be the duty of the Faculty to recognize educational

or instructional institutions of the Ayurvedic and Unani

systems of medicine for purposes of affiliation. Under

clause (b) of Section 17(2), the Faculty is authorized to

hold examination and grant certificates to, and confer

degrees or diplomas on, persons who shall have pursued a

course of study in the institutions affiliated to the

Faculty. Section 37 of this Act authorizes the Council

to establish educational institutions, prescribe courses of

study, etc. subject to the rules as may be prescribed by

the State Government in this behalf. Section 37 clothes

the Council with power to establish its own educational or

instructional institutions for the purpose of conducting

courses of Ayurvedic and Unani systems of medicine. Under

Section 54, the Council is authorized to make regulations

subject to the provisions of the Act and the rules made by

the State Government.

9. Looking into the aforesaid provisions, it is

clear to us that the Council constituted by the State

Government under the 1951 Act shall establish a State

Faculty under Section 17 which shall have the authority to

recognize educational or instructional institutions of

Ayurvedic and Unani systems of medicine, to conduct

examinations of the persons studying in such affiliated

institutions, and to grant certificates and confer degrees

or diplomas.

10. Under Section 54 of the 1951 Act, the Council has

framed regulations called the Bihar Development of

Ayurvedic and Unani Systems of Medicines Regulations, 1959.

Regulation 16 thereof provides for courses of study for the

Degree (Graduate of Ayurvedic Medicine and Surgery) (GAMS).

Thus, the Faculty established by the Council under the 1951

Act has been authorized to recognize the educational

institutions or instructional institutions of Ayurvedic and

Unani Systems of Medicine and affiliate them to the

Faculty. The Faculty is also authorized to conduct

examinations and confer degree of GAMS.

11. The Indian Medicine Central Council Act, 1970

(Central Act) provides for constitution of a Central

Council of Indian Medicine (CCIM) and the maintenance of a

Central Register of Indian Medicine and for matters

connected therewith. This Act was enacted by the

Parliament and came into force on 21.12.1970. Introduction

to this Act reads as under:

\023To consider problems relating to the Indian

system of medicine and Homoeopathy a number of

Committees were appointed by the Government of India,

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which had recommended that a statutory Central Council

on the lines of the Medicinal Council of India for

modern system of medicine should be established for

the proper development of these systems of medicine

(Ayurveda, Siddha and Unani). In June, 1966 the

Central Council of Health at its 13th meeting, while

discussing the policy on Ayurvedic education,

recommended the setting up of a Central Council for

Indian system of medicine to lay down and regulate

standards of education and examinations,

qualifications and practice in these systems. On the

basis of the above recommendations the Indian Medicine

Central Council Bill was introduced in the

Parliament\024.

Sections 13A, 13B and 13C with their sub-sections have been

substituted by the Indian Medicine Central Council

(Amendment) Act, 2003 (No. 58 of 2003) w.e.f. 7.11.2003,

which prescribe for the permission for establishment of new

medical colleges, new courses of study, etc.; non-

recognition of medical qualifications in certain cases; and

time for seeking permission of the Central Government for

certain existing or new medical colleges. We shall deal

with these Sections in detail when we take up the

submissions of the counsel of the effect of these Sections

on the GAMS degree conferred on the students prior to

coming into force of Amending Act 58 of 2003. Section 14

falling in Chapter III of the 1970 Central Act provides for

recognition of the medical qualifications granted by any

university, board or other medical institution in India

which are included in the Second Schedule. The Second

Schedule provides for the recognized medical

qualifications, i.e. degrees/diplomas, awarded by the

States/Boards/Faculties/Universities before the

constitution of the Central Council of Indian Medicine.

Under the 1970 Act, the CCIM is competent to prescribe the

minimum standard of education including curriculam and

syllabi as well as other requirements like hospital,

library, students hostel, staff for college, staff for

hospital, library, herbal garden, requirements of various

departments of colleges, etc. The Second Schedule

prescribes the institutions/colleges and the medical

qualifications which are recognized under the Act for the

different States. For the State of Bihar, item No. 6 of

the Second Schedule reads as under:

\023----------------------------------------------------------------------------------------

-----------------

Name of Universities, Board Recognised Medical Abbreviation Remarks

or Medical Institution Qualifications for

Registration

--------------------------------------------------------------------------------------------

-------------

xxx xxx xxx

Bihar

6. State Faculty of Ayurvedic Graduate in Ayurvedic G.A.M.S. From 1953

and Unani Medicines, Medicine and Surgery onwards

.

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Patna, Bihar.

xxx xxx xxx

\024

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\022 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

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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 Government\022s 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

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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 :-

\023Whereas, 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;\005\024

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

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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

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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

\023the Amending Act\024) 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:

\02313A. 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

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(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.

xxx xxx xxx

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

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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.\024

22. For the purposes of the 1970 Act, `Indian

medicine\022 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\022 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

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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

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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:

\023\005The 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\005.\024

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:

\023 .. 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. \005\024

Further, in the case of State of Punjab v. Sat Ram Das, AIR

1959 Punj. 497, the Punjab High Court held that:

\023To avoid absurdity or incongruity,

grammatical and ordinary sense of the words can,

in certain circumstances, be avoided.\024

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 institution\022s 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

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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 \021on or before\022 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.