# Dr. Gauri Shankar Gupta & Ors v. The State of U.P. and Ors

- **Citation:** (2013) 2 ILRA 717
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2013-05-31
- **Bench:** Sunil Ambwani, Anjani Kumar Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dr-gauri-shankar-gupta-ors-v-the-state-of-u-p-and-ors-42571
- **Pages:** 4

## Headnote

718 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Sri Praveen Shukla

Constitution of India, Art. -226- Prayer for
transgression from Ayurvedic to allopathic
Branch-denied by chief medical officerheld-proper-petitioner to continue their
practice in their branch having decree of
B.A.M.S. organic compound of human bodyneither taught nor practiced-can not be
allowed-petition dismissed.

Held: Para-12
It is difficult for us to believe that the
petitioners,
who
obtained
degrees
in
Ayurveda medicine in the years 19821983,have acquiredknowledge of Allopathic
Medicine. It will be extremely dangerous to
allow them to prescribe and to treat human
beings with Allopathic medicines. They have
a right to practice in their own branch of
medicine. The transgression into other
branches
of
medicine
proposed
by
petitioners is not permissible to them, in law.

Case Law discussed:
WA No. 1260 of 2006(A); AIR 1999 SC 468;
(2000) 5 SCC 80; 2004(2) ESC (All) (DB) 976;
2004 ESC (5)1; 2001 (2) JIC 744 (All); (1996)
4 SSC 332; (2013) 4 SCC 252

## Text

2 All] Dr.Gauri Shankar Gupta and Ors.Vs. The State of U.P. and Ors.
717
the same principle in Raj Narain and others
Vs. Deputy Director of Consolidation,
2009(106) RD 98 has held that if the entire
material was available before the Deputy
Director
of
Consolidation,
instead
of
remanding the matter, he should himself
have considered the matter on merit and
decided the same. The order of remand was
held to be unsustainable.

19. Althoughit is settled that
mutation proceeding is fiscal in nature
and the orders passedtherein do not decide
the right and title of the parties, therefore,
the orders passed therein being summary
in nature, writ petition would not be
maintainable but here in this case since
there is jurisdictional error, therefore, the
writ petition would lie against such orders
where the revisional court has failed to
exercise the jurisdiction vested in it.It
may also be noticed that although the
orders deciding the mutation case do not
decide the right and title of the parties.
The judgments rendered therein arenot
binding upon the courts deciding the title
of the matter but it may be kept in mind
thatthe person whosename is recorded in
the revenue record can transfer the land
through registered sale deed, gift deed
etc.In case the sale deed is executed only
because of recording of name without
there being any valid title,the remedy, for
the aggrieved person, would be to file a
suitbut for cancellation of sale deed, not
for declaration of right which would
consume a very long time and in the
meantime even the nature of the land may
be changed. Further the possession
wouldbe enjoyed by the persons in whose
favour an order of mutation has been
passedor the transferee without there
being any validtitle and the person having
validtitlewill becomea looser for the years
together and in some cases if the land has
gone in the hands of mafia or musclemen,
the rightful owner may not be able to get the
fruit of litigation during his life time.These
contingencies and situations of the cases,
although,maynot have legal weight butthe
factual matrix and the reality of the same
cannot bebrushed aside while entertaining
writ petitions against the orders passed in
mutation cases.

20. So far as this case is concerned,
as I have held that the revisional court has
failed to exercise the jurisdiction vested in
it, therefore, the impugned order dated
10.5.2013cannot be sustained in the eye
of law.The writ petition succeeds and is
allowed. The order dated 10.5.2013
passed
by
the
Additional
District
Magistrate
(Finance
and
Revenue),
Jaunpur in Revision No. 31 of 2012-13
(Radhey Shyam and others vs. Hari Cold
Storage Pvt. Ltd., Jaunpur) is hereby
quashed.The revisional court is directedto
decide the revision after hearing both the
sides expeditiously in accordance with
law
without
granting
any
unnecessaryadjournment to the learned
counsel for the parties.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.05.2013

BEFORE
THE HON'BLE SUNIL AMBWANI, J.
THE HON'BLE ANJANI KUMAR MISHRA, J.

Civil Misc. Writ Petition No. 32023 Of 2013

Dr. Gauri Shankar Gupta & Ors...Petitioners
Versus
The State of U.P. and Ors.... Respondents

Counsel for the Petitioner:
Sri Vijay Prakash
Counsel for the Respondents:
C.S.C., A.S.G.I., Sri J.K. Tiwari
718 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
Sri Praveen Shukla

Constitution of India, Art. -226- Prayer for
transgression from Ayurvedic to allopathic
Branch-denied by chief medical officerheld-proper-petitioner to continue their
practice in their branch having decree of
B.A.M.S. organic compound of human bodyneither taught nor practiced-can not be
allowed-petition dismissed.

Held: Para-12
It is difficult for us to believe that the
petitioners,
who
obtained
degrees
in
Ayurveda medicine in the years 19821983,have acquiredknowledge of Allopathic
Medicine. It will be extremely dangerous to
allow them to prescribe and to treat human
beings with Allopathic medicines. They have
a right to practice in their own branch of
medicine. The transgression into other
branches
of
medicine
proposed
by
petitioners is not permissible to them, in law.

Case Law discussed:
WA No. 1260 of 2006(A); AIR 1999 SC 468;
(2000) 5 SCC 80; 2004(2) ESC (All) (DB) 976;
2004 ESC (5)1; 2001 (2) JIC 744 (All); (1996)
4 SSC 332; (2013) 4 SCC 252

(Delivered by Hon'ble Sunil Ambwani, J.)

1. We have heard Shri Vijay Prakash,
learned
counsel
appearing
for
the
petitioners. Shri J.K. Tiwari, Standing
Counsel appears for the State respondents.
Shri Praveen Shukla has accepted notice
on behalf of Union of India-respondent
no.6.

2.
By
this
writ
petition,
the
petitioners have prayed for following
reliefs:-

"i) issue a writ, order or direction in
the nature of certiorari quashing the
impugned
Government
Order
dated
8.6.2012 in pursuance whereof Chief
Medical Officer, Amroha has issued the
order dated 10.5.2013 as contained in
Annexure No.1 to this writ petition.

ii) issue a writ, order or direction in the
nature of mandamus commanding the
opposite parties not to interfere in the
practicing of the petitioners as medical
practitioners in modern medicine (Allopathic
Medicine including the surgery) in any
manner whatsoever and further the opposite
parties may be restrained from taking any
coercive steps against the petitioners in
pursuance to the Government Order dated
8.6.2012 or for any other reason whatsoever
may be.

(iii) issue a writ, order or direction in
the nature mandamus commanding the
opposite parties particularly opposite party
No.7 to enter the name of the petitioners in
the State Medical Register maintained by the
opposite party No. 7 as defined under
Section 2 (k) of the Act No.102 of 1956.

(iv) issue any other writ, order or
direction, which this Hon'ble Court may
deem think fit and proper under the facts
and circumstances of the case.

(v) cost of the writ petition may be
awarded in favour of the petitioners.

3. The petitioners claim to be
qualified practitioners in Indian Medicine
and have obtained B.A.M.S. degrees,
which
authorise
them
to
practice
Ayurveda, a branch ofIndian Medicine.
They are enrolled with the Indian
Medicine Council, U.P. which authorises
them to practice Indian Medicine in the
State of UP. Their right to practice Indian
medicines is recognised by the Indian
Medicine Central Council Act, 1970.

4. The petitioners have relied upon the
syllabus of the BAMS examination compiled
2 All] Dr.Gauri Shankar Gupta and Ors.Vs. The State of U.P. and Ors.
719
by Central Council of Indian Medicine to
authorise them to treat patients and prescribe
Indian medicine including modern medicine
in accordance with the advances made by the
Indian medicines and to perform surgical
operations. It is stated that the petitioners
have studied the advances made in the
modern medicine, which also includes the
Allopathic Medicine and that having
acquired the knowledge in its use and thus
they are entitled to practice and prescribe
Allopathic Medicines as well.

5. The petitioners are aggrieved by
the orders passed by the Principal
Secretary, Government of UP dated
8.6.2012 in which while issuing directions
to take action against unqualified and
unauthorised medical practitioners the
State Government has also directed that
where
the
medical
practitioners
in
Ayurveda, Homeopathy, Unani, Siddha
and
Tibbi
are
found
prescribing
Allopathic and Modern Medicines, a first
information report should be lodged
against them. They should also be
restrained from running any diagnostic
centres, which are connected with tests
for sex determination.

6. The petitioners are also aggrieved
by the orders passed by the Chief Medical
Officer, Amroha dated 10.5.2013 by
which
the
petitioners
have
been
prohibited
to
prescribe
Allopathic
Medicines
in
compliance
with
the
Government Orders dated 8.6.2012.

7. Learned counsel for the petitioners
submits that the petitioners have acquired
the knowledge by studying the modern
medicine in their discipline, on the
strength of which they are entitled to
prescribe the Allopathic Medicines. They
have relied upon the notification issued by
the Indian Medicine Central Councildated
8.4.2002, by which they have been
authorised to prescribe modern medicine
on the advances made in their branch of
medicine.

8. The petitioners have studied
Ayurveda which is a special branch of
medicine, practiced in India for ages.
They have been awarded degrees in
Ayurveda branch of Indian Medicine
(BAMS)
which
authorises
them
to
practice Ayurveda. Their syllabus did not
include Allopathic medicines nor they
have studied the Pharmacology, which is
the science of Allopathic Medicines. The
medicinesmade
out
of
organic
substancesand inorganic chemicals used
in Allopathy require special knowledge
both in preparation and administering
such medicines as well as their reactions
on the human body, in its use for
treatment. The composition of the organic
compounds of Allopathic Medicines and
its effect on human body is neither taught
nor practiced in any branch of Indian
medicine.

9. The question of inter-disciplinary
interference between different branches of
medicines
has
been
subject
matter
ofconsideration of Supreme Court and of
this Court. The judicial pronouncements
have
repeatedly
prohibited
and
discouraged the practice of prescribing
medicines by persons, who have not
acquired the knowledge and skills in
preparation and prescription of such
medicines and its affects on human body.

10. In National Integrated Medical
Association and another vs. State of
Kerala WA No.1260 of 2006 (A) decided
on 12.12.2006 the High Court of Kerela at
Ernakulam held that the modern advances
720 INDIAN LAW REPORTS ALLAHABAD SERIES [2013
mentioned in Section 2 (e) of the Act of
1970 can only be advanced in Ayurveda,
Siddha and Unani and not Alopathic
medicine. By virtue of Section 15 (2) (b)
of the Indian Medical Council Act, 1956
the
persons
having
the
prescribed
qualifications included in the schedules
alone are eligible to practice modern
medicine. The words "modern medicine"
would be referable to the modern
advances made in the respective fields of
Ayurveda, Siddha and Unani. The Kerela
High Court followed Mukhtar Chand v.
State of Punjab AIR 1999 SC 468. In
support of the observations made by it
and reiterated that modern advances
mentioned in Section 2 (3) of the Act of
1970 cannot be interpreted to mean
Allopathic Medicines.

11. In D.K. Joshi vs. State of UP and
others (2000) 5 SCC 80; Dr. Ravindra
Kumar Goel and others vs. State of UP
and others 2004 (2) ESC (All) (DB) 976;
Provincial Medical Services Association,
UP and others vs. State of UP and others
2004 ESC (5)1; Dr. Behboob Alam vs.
State of UP and others 2001 (2) JIC 744
(All); Poonam Verma vs. Ashwin Patel
and others (1996) 4 SSC 332 and in
Bhanwar Kanwar vs. R.K. Gupta and
another (2013) 4 SCC 252 the Supreme
court and High Courts including this Court
have held that the doctors enrolled in their
branch of medicines should not be allowed
to practice in any other branch. Such
practice would amount to quackery and for
which they can be prosecuted and their
registration is liable to be cancelled. A
doctor qualified in one branch of medicine
cannot be allowed to practice the other
branch of medicine of which he has not
acquired knowledge.

12. It is difficult for us to believe that
the petitioners, who obtained degrees in
Ayurveda medicine in the years 19821983,have
acquiredknowledge
of
Allopathic Medicine. It will be extremely
dangerous to allow them to prescribe and
to treat human beings with Allopathic
medicines. They have a right to practice
in their own branch of medicine. The
transgression into other branches of
medicine proposed by petitioners is not
permissible to them, in law.

13. The writ petition is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.06.2013

BEFORE
THE HON'BLE ARUN TANDON, J.
THE HON'BLE MANOJ KUMAR GUPTA, J.

Civil Misc. Writ Petition No. 32249 Of 2013
with
Civil Misc. Writ Petition No. 32113 of 2013
with
Civil Misc. Writ. Petition No. 32262 of 2013

Nitesh Kumar Srivastava
 ...Petitioner
Versus
High Court of Judicature at Allahabad
and Ors. ...Respondents

Counsel for the Petitioner:
Sri Nitesh Kumar Srivastava
Sri Manvendra Nath Singh

Counsel for the Respondents:
C.S.C., Sri V.P. Mathur
Sri Yashwant Varma, Sri Manish Goyal
Sri A.K. Sinha

Constitution of India-Art. 226- Upper age
limit-appointment of Civil Judge junior
division-petitioner claimed parity of U.P.
Recruitment to service (Age limit) (10th
Amendment Rules 2012)-by which upper
age limit extended from 35 to 40 Yearsheld-Rule 10 of Rule 2001 framed with