LexSUBHASHIS BAKSHI AND ANR. versus WEST BENGAL MEDICAL COUNCIL AND ORS.
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A B SUBHASHIS BAKSHI AND ANR. v. WEST BENGAL MEDICAL COUNCIL AND ORS. FEBRUARY 14. 2003 [S. RAJENDRA BABU AND SHIVARAJ. V. PATIL. JJ.] Bengal Medical Act, 1914-Sections 15 and 18-By notification diploma holders having right to treat-Pursuant to litigation they were given right to C treat but not to issue prescriptions or sickness or death certificates-Diploma holders chali'enging the denial of the right-Single Judge of High Court granting the right-Division Bench denying the right holding that they did not possess recognized medical qualification-On appeal, held: Since the right to treat certain diseases is validly held by the diploma holders, the right to issue prescriptions and certificates cannor be detached as the same is imbibed in D the right to treat. By virtue of a notification, appellants who had completed diploma courses of Community Medical Service were having right !o treat. Consequent to round of litigation, State allowed the diploma holders to treat common diseases among rural population while by its another order E diploma holders were not permitted to issue death certificates, sickness certificates or medical fitness certificates required for court cases and the treatment advice and prescription made by them were to be countersigned by BMO and M.0.-in-charge .. F • Appellants challenging the denial of consequential right to treat, such as right to issue prescription or certificates of sickness or deaths, filed writ petition. By virtue of Notification No. I 076 dated 17.5. 1915 read with Sections 15 and 18 of Bengal Medical Act, 1914 they contended that they were entitled to enter their names in the registers of registered practitioner maintained by the Bengal Council of Medical Practitioners. Petition was G allowed in favour of the appellants subject to the condition that they were not allowed to pursue private practice and their only right was to prescribe medicines and issue certificates. In appeal Division Bench of High Court •;acated the writ on the ground that the appellants were not entitled to prescribe medicines or issue the certificates as they did not possess recognized medical qualification; and that the sine qua non for the H I 150 SUBHASHIS BAKSHI r \\/EST BENGAL MEDICAL COUNCii 115 J application and operation of Section 18 are (a) satisfaction of the Council A ~ that any particular qualification is sufficient guarantee for the requisite knowledge or skill for efficient medical practice, (b) report to that effect by the Council to the Go,·ernment, and (c) direction by the Government. on acceptance of such report b~· notification in the Official Gazette. Hence the present appeal. Allon·ing the appeal, the Court 13 HELD: There is no bar to register the name of the appellants in the State Medical Register. The right to prescribe drug of a system of medicine would be synonymous with the right to practice that system of medicine. The appellants are validly holding the right to treat certain diseases. So C their right to issue prescriptions or certificates cannot be detached from their right to treat. Such right to issue certificates or prescriptions is imbibed in the right to treat. One cannot and shall not be separated from the other. Once the right to treat is recognized, then the right to prescribe medicine or issue necessary certificate flo,vs from it. Or else the right to D treat cannot be completely protected. Hence, even assuming for a moment that the Notification is not there, still the appellants' right to prescribe medicine cannot be denied. ln ·that view of the matter, the order of the Division Bench is set aside and that of the Single Judge is restored. 11158-B-DI E Dr. Mukhtiar Chand v. State of Punjob, 11998) 7 SCC 579, relied on. Medical Council of India and Anr. v. State of Rajasthan and Anr., 119961 7 sec 731, impliedly overruled. A.K. Sabhapathy v. State of Kera/a, AIR (1992) SC 1310, referred to. F CIVIL APPELLATE JURISDICTION : Civil Appeal No. 152 of 1994. From the Judgment and Order dated 24.8.1992 of the High Court of Calcutta in 0.0.T. 1887 of 1992. R.F. Nariman, B. Sen, Tap Ray Arunabh Chowdhury, Ms Avantika KeS\~ani, R.N. Karanjawala, Ms. Manik Karajawala, G.K. Banerjee, Dilip Sinha, D. Krishnan, D.P. Mohanty, Sinha and Das, Ranjan Mukherjee, L.R. Singh, Amitesh Kumar and Ms. Bharati Anand for the appearing parties. The Judgment of the Court was delivered by G H 1152 SUPREME COURT REPORTS
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