LexDR. A.K. SABHAPATHY versus STATE OF KERALA AND ORS.
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DR. A.K. SABHAPATHY A v. STATE OF KERALA AND ORS. APRIL 22, 1992 [M. FATHIMA BEEVI ANDS. C. AGRAWAL, JJ.] B Constitution of India, 1950: Article 254-Seventh Schedule-List- ....__,., III-Entry 26-Medical Profession-Central Law-:-State Law-:-Test for deter- mination of Repugna11cy-Wltat iS-Conditions necessary for applicability of - Article 254 discussed. C Doctrine of occupied field. Travancore-Cochin Medical Practitioners Act, 1953: Section 38-First proviso-Medical Practitioner-Practice in allopathic system of medicine-Qualifications a11d conditions for registration-Power of Govern- D ment to grant exemption from--First proviso, to the extent it relates to al- lopathic system of medicine, held inconsistent with and repugnant to sections 15 and 21 of tlie India11 Medical Council Act, 1956. ·. Indian Medical Council Act, 1956: Section 2 (/}-Expression "Modem scie11tific medicine" refers to alloputhic system of medicine-Object of the Act explained. Section 38 of the Travancore-Cochin Medical Practitioners' Act, 1953 provides that no person other than a registered medical practitioner E or a practitioner whose name is entered in the list published under section F 30 or in the list published under Section 25 shall practise modern medicine, homoepathie medicine, ayurvedic medicine, siddha medicine or unani tibbi medicine. It further provides that no person who is not a registered practitioner of any such medicine shall practise any other medicine unless he is also register¢d· practitioner of that medicine. First proviso to the said section empo~ers the State Government to grant G exemption from the application of the section by publishing a Notification in the official gazette. In exercise of the power conferred by the said proviso the Gover.nment of Kerala issued a notification dated May 4, 1977 directing that Section 38 shall not apply to persons hOlding degree and diploma from Keral.a University in Integrated Medicine (DAM) for practising H 653 654 SUPREME COURT REPORTS (1992) 2 S.C.R. A modem medicine in the State. By an order. dated September 28, 1978, Government of Kerala also, ordered that the Diploma in Medicine and Surgery (DMS) awarded by Government of Bihar will be held at par with the integrated DAM of Kerala University and by its notificatioin dated April 13, 1981 the Government directed that section 38 shall not apply to B c holders of DMS awarded by Government of Bihar. The appellant challenged the validity of first proviso to section 38 and the Notifications dated May 4, 1977 and April 13, 1981 issued there· under as well as the order dated 28th September 1978 on the ground ·that the first proviso to Section 38 of the Travancore-Cochin Medical Practitioners' Act, 1953, a State Act,· was void under Article Z54 of the Constitution because it was repugnant to and inconsistent with section 15 of the Indian Medical Council Act, 1956, a Central AcL The High Court of Kerala did not go into the validity of notification D dated May 4, 1977 but it upheld the validity of the first proviso and the order dated September 28, 1978 as well as the notification dated April 13, 1981 by holding (a) that the Central Act does not lay down any qualifica- tion for registration and all that section 15 says is that a person whose E F namP. is n~t seen in the State register shall not practise medicine; (b) the proviso to '$ection 38 does not in terms say that a person whose name is not on the rdQs of the State register in one system can practise another system and it only ~xempts practitioners who want to practise one system without being in the concerned list from the operation of section 38; (c) that neither the Central Act nor the State Act contains any provision which prohibits a person possessing the requisite qualification to practise two systems from getting enrolled on two State rolls and a pra.ctitioner can be a registered practitioner in two registers and the Central Act does not place an embargo on a State from recognising qualifications for the purpose of two systems; ( d) that the definition of medicine contained in section 2(f) of the Central Act would not involve both Homoepathic and G indigenous system of medicine and that the Central Act concern itself only with the allopathic medicine and the modern system contemplated by it is the allopathic medicine. Against the judgment of the Kerala High ·Court appeal was filed in this court. H Allowi
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