# Mohan Lal v. The State of U.P. and

- **Citation:** (2004) 2 ILRA 439
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-04-27
- **Case number:** Special Appeal No. 320 of 2004
- **Bench:** M. Katju, R.S. Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohan-lal-v-the-state-of-u-p-and-40397
- **Pages:** 11

## Headnote

(A) Constitution of India, Article 21Right to life- Includes right to get
medical treatment- Right to practice
medicine-Mere registration with Medical
Council of India or with Board of Indian
Medicine, UP or Homoeopathic Medical
Council etc. not sufficient to allow to
practice- Medical degree from a genuine
and recognized Medical College also
necessary- Medical Councils directed to
be strict to scrutinize genuine or take
medical
degree
before
registration-
quacks.

Under the law only a registered medical
practitioner who has a degree from a
recognized and genuine medical college
alone can practice medicine. Even if a
person has got himself registered with
the Medical Council of India or with the
Board
of
Indian
Medicine,
UP
or
Homeopathic Medical Council or some
other such body, he cannot be allowed to
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
440
practice
on
the
strength
of
that
registration/certificate alone. He must
further have a medical degree from a
genuine and recognized Medial College.
We think it necessary to say this because
what is often happening is that persons
who do not have a degree from genuine
and recognized Medical Colleges get
themselves registered with the Medical
Council, etc. by some irregular methods
and manipulation, and then they claim
that they have a right to practice
medicine.

Para 12

We are informed that the Indian Medical
Council
of
India,
Board
of
Indian
Medicine, U.P. Homoeopathic Central
Council etc. are not strict in examining
the applications of persons who want to
be registered as medical practitioners,
and often they register persons with fake
medical degrees or degrees of Medical
Colleges which are not genuine or
recognized. We give a direction to all
these
Medical
Councils
(whether
Allopathic, Homoeopathic, Ayurvedic or
Unani) that in future they must be very
strict and carefully scrutinize whether
the medical degree of the applicant is
from a genuine and recognized Medical
College or not and they should refuse to
grant registration where if finds that the
degree
is
not
of
a
genuine
and
recognized Medical College.
Para 17

(B)
Contempt
of
Courts
Act-1972
Contempt jurisdiction- In exercise of ,
High Court can suo motu exercise writ
jurisdiction
by
giving
directions
in
exceptional and rare cases in case of
pressing urgency or alarming situations.

He
submitted
that
in
contempt
jurisdiction the learned Single Judge can
either
punish
the
contemnors
for
contempt or discharge them, but he
cannot issue directions as if he was
sitting in writ jurisdiction. In our opinion
it is no doubt true ordinarily a judge who
is sitting in contempt jurisdiction should
not issue directions as if he was sitting in
the writ jurisdiction. However, in our
opinion, in exceptional and rare cases he
can do so, particularly if there is some
pressing urgency or alarming situation
as is prevailing in U.P. in the medical
profession.

Pa

## Text

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2 All] Dr. Ravindra Kumar Goel and others V. State of U.P. and another
439
a statutory contract, a writ will lie not
only
on
the
above
mentioned
(constitutional) ground but will also lie on
the ground that there is violation of the
statutory provisions relating to that
contract. In other words, in the case of a
non-statutory contract, a writ will only lie
on constitutional grounds, but in the case
of a statutory contract, a writ will lie on
both grounds viz. constitutional as well as
statutory grounds. This is really the
essential distinction between the cases of
a statutory and non-statutory contract.
Hence it cannot be said that no writ will
lie in the case of a non-statutory contract.

17. It may be noticed that the
decisions of Supreme Court referred to
above in which it was held that a writ will
lie in contractual matters do not appear to
relate to a statutory contract. They appear
to be related to non-statutory contracts, or
at least no distinction was made in those
decisions between statutory and nonstatutory contracts but yet it was held that
a writ will lie. We are of the considered
opinion, therefore, that the decisions of
the Full Bench of this Court in Shiv
Mohan Lal Vs. The State of U.P. and
others (supra) and U.P. Sasta Galla
Vikreta Parishad Vs. State of U.P. and
others (supra) and the decision in Har
Charan Sharma Vs. Nagar Panchayat
(supra) require reconsideration by a larger
Bench of this Court as we are of the
opinion
that
they
were
incorrectly
decided. Let the papers of this case be laid
before Hon'ble the Chief Justice for
constitution of a larger Bench of this
Court for the deciding the following
questions:

"1. Whether a writ will lie even in
the matter of non-statutory contract?

2. Whether a writ will lie in cases
relating to fair price shops e.g. grant,
cancellation, suspension, etc. of fair price
shops."
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 27.4.2004

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Special Appeal No. 320 of 2004

Dr. Ravindra Kumar Goel and others

 ...Petitioners
Versus
State of U.P. and another ...Respondents

Counsel for the Appellants:
Sri Chandan Sharma
Sri Suneet Kumar

Counsel for the Respondents:
C.S.C.

(A) Constitution of India, Article 21Right to life- Includes right to get
medical treatment- Right to practice
medicine-Mere registration with Medical
Council of India or with Board of Indian
Medicine, UP or Homoeopathic Medical
Council etc. not sufficient to allow to
practice- Medical degree from a genuine
and recognized Medical College also
necessary- Medical Councils directed to
be strict to scrutinize genuine or take
medical
degree
before
registration-
quacks.

Under the law only a registered medical
practitioner who has a degree from a
recognized and genuine medical college
alone can practice medicine. Even if a
person has got himself registered with
the Medical Council of India or with the
Board
of
Indian
Medicine,
UP
or
Homeopathic Medical Council or some
other such body, he cannot be allowed to
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
440
practice
on
the
strength
of
that
registration/certificate alone. He must
further have a medical degree from a
genuine and recognized Medial College.
We think it necessary to say this because
what is often happening is that persons
who do not have a degree from genuine
and recognized Medical Colleges get
themselves registered with the Medical
Council, etc. by some irregular methods
and manipulation, and then they claim
that they have a right to practice
medicine.

Para 12

We are informed that the Indian Medical
Council
of
India,
Board
of
Indian
Medicine, U.P. Homoeopathic Central
Council etc. are not strict in examining
the applications of persons who want to
be registered as medical practitioners,
and often they register persons with fake
medical degrees or degrees of Medical
Colleges which are not genuine or
recognized. We give a direction to all
these
Medical
Councils
(whether
Allopathic, Homoeopathic, Ayurvedic or
Unani) that in future they must be very
strict and carefully scrutinize whether
the medical degree of the applicant is
from a genuine and recognized Medical
College or not and they should refuse to
grant registration where if finds that the
degree
is
not
of
a
genuine
and
recognized Medical College.
Para 17

(B)
Contempt
of
Courts
Act-1972
Contempt jurisdiction- In exercise of ,
High Court can suo motu exercise writ
jurisdiction
by
giving
directions
in
exceptional and rare cases in case of
pressing urgency or alarming situations.

He
submitted
that
in
contempt
jurisdiction the learned Single Judge can
either
punish
the
contemnors
for
contempt or discharge them, but he
cannot issue directions as if he was
sitting in writ jurisdiction. In our opinion
it is no doubt true ordinarily a judge who
is sitting in contempt jurisdiction should
not issue directions as if he was sitting in
the writ jurisdiction. However, in our
opinion, in exceptional and rare cases he
can do so, particularly if there is some
pressing urgency or alarming situation
as is prevailing in U.P. in the medical
profession.

Para 19

(C) Constitution of India-Article 226Principles
of
transfer-Policy
matter-
within domain of Government-Hence
direction by Single Judge in this regard,
held to be mere by recommendation and
not
binding
directive
on
State
Government.

Para 24

In our opinion it is correct to say that the
principles of transfer are policy matters,
and they should ordinarily be decided by
the State Government and not by this
Court. Hence we modify direction no. 8
contained in the judgment of the learned
Single Judge, and we hold that this
directive
shall
be
treated
as
a
recommendation rather than a binding
directive on the State Government.

(D) Constitution of India, Article 226Writ Jurisdiction-Direction issued that a
doctor having a degree in a particular
branch
of
medicine
should
not
be
allowed to do practice in other systems
of medicine.

We further direct that a doctor who has
a degree in a particular branch of
medicine, say Ayurvedic or Unani should
not be allowed to do practice other
system of medicine, e.g. Alloathic unless
the law permits it. We feel it necessary
to issue this direction because often it is
found that a person who has a degree in
Ayurvedic
or
Unani
is
practicing
Allopathic medicine, which in our opinion
is illegal.

Para 28
Case law discussed:
(2000) 5 SCC 80
AIR 1995 SC 92 JT 1995 (i) SC 637
AIR 1958 All. 154 (DB)
AIR 1959 All. 675 (DB)

(Delivered by Hon'ble M. Katju, J.)

1. This case reveals the wide spread
malpractices which are going on in the
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2 All] Dr. Ravindra Kumar Goel and others V. State of U.P. and another
441
State of U.P. regarding medical practice
by unauthorized persons (quacks) who
often have bogus degrees/certificates from
bogus/fictitious so called medical colleges
in various parts of the country.

2. This appeal has been filed against
the order of the learned single Judge dated
28.1.2004. We have heard learned counsel
for the parties and have perused the said
order in great detail.

3. The impugned order of the
learned single Judge reveals the great
concern of the learned single Judge about
the alarming and widespread malpractice
prevailing in the state of Uttar Pradesh in
the medical field. In fact the matter had
come up before the Supreme Court in
D.K. Joshi vs. State of U.P. (2000) 5
SCC 80. Copy of said judgment has been
filed as Annexure-1 to the Special
Appeal. In that case it was brought to the
notice of the Supreme Court that
unqualified persons are carrying on
medical profession in the State of Uttar
Pradesh.
The
Supreme
Court
was
distressed to note that inspite of the
direction to the U.P. Government to check
this malpractice the District Magistrate
and the Chief Medical Officers in the
State had not taken effective steps to stop
this menace which is hazardous to human
life. The Chief Medical Officers only
forwarded the names of the unauthorized
medical practitioners to the District
Magistrates but no follow up action was
taken. It was also noted that after being
warned
the
unqualified/unregistered
Doctors have shifted to neighbouring
districts. The Supreme Court therefore
issued several directions in paragraph 6 of
the said judgement to stop the carrying on
of medical profession in U.P. by the
unqualified/unregistered persons and in
addition to take the following steps:-

(i) All District Magistrate and the Chief
Medical Officers of the State shall be
directed to identify., within a time
limit to be fixed by the Secretary, all
unqualified medical practitioners and
to initiate legal actions against these
persons immediately.

(ii) Direct all the District Magistrates and
the Chief Medical Officers to monitor
all legal proceedings initiated against
such persons.

(iii) The Secretary, Health and Family
Welfare Department shall give due
publicity to the names of such
unqualified/unregistered
medical
practitioners so that people do not
approach such persons for medical
treatment.

(iv) The Secretary, Health and Family
Welfare Department shall monitor the
actions
taken
by
all
District
Magistrates and all Chief Medical
Officers of the State and issue
necessary directions from time to time
to
these
officers
so
that
such
unauthorized persons cannot pursue
their medical profession in the State.

4. It appears that thereafter a
contempt petition was moved before the
Supreme Court alleging that the directions
of the Court have not been complied with.
By its orders dated 8.10.2001 the
Contempt petition was dismissed with the
direction that petitioner should move the
High Court for the relief sought for. The
petitioner then filed contempt petition no.
820 of 2002 in which notices were issued
to
the
respondents
namely
Chief
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
442
Secretary, UP Secretary, Health and
Family
Welfare,
District
Magistrate,
Meerut and Chief Medical Officer,
Meerut. Other authorities were also
impleaded as parties and were required to
take action. The successive Principal
Secretaries, Medical Health, UP have
filed their affidavit including the action
taken and the reports of the Chief Medical
Officers. The Court also directed the
Director General of Police to submit his
report.

5. During the pendency of the
contempt petition the Court also directed
inspection of the Community Health
Centre at Karaon and Shankergarh,
district Allahabad to verify the complaints
regarding unauthorized practitioners. In
the report submitted by the Director,
Medical Health, UP it was stated that the
Community
Health
Centre
are
not
providing adequate medical care which
was almost absent in the rural areas. The
Doctor are not attending their duties and
the medical equipments are either not
available or are non functional. The para
medical staff is wholly insensitive. Some
Doctors managing long tenures at their
postings have entered into a close nexus
with
unauthorized
practitioners.
The
Medical Council of India was also
impleaded and it filed its affidavit.
Relevant extract of the affidavit has been
quoted by the learned single Judge in his
order.

6. The learned single Judge after
considering the matter in detail issued the
following directives:-

"(1) All the Hospitals, Nursing Homes,
Maternity Homes, Medical Clinics,
Private
Practitioners,
practicing
medicine and offering medical and
health care services, Pathology Labs,
Diagnostic
Clinics,
whether
run
privately or by Firms, Societies,
Trusts, Private Limited or Public
Limited Companies, in the State, shall
register themselves with the Chief
Medical Officer of the District where
these
establishments
are
situate,
giving full details of the medical
facilities
offered
at
these
establishments, the names of the
registered and authorized medical
personnel practicing, employed or
engaged by them, their qualifications
with proof of their registrations, the
Para Medical staff employed or
engaged and their qualifications on a
form (for each category) prescribed
by the Principal Secretary, Medical
Health
and
Family
Welfare,
Government of U.P. The prescribed
proforma with true and accurate
information
shall
be
submitted,
supported by an affidavit of the
person
providing
such
medical
services or the person in charge of
such establishment sworn before a
Notary
Public.
The
required
information shall be submitted for
registration by all these persons, on or
before 30.4.2004.
(2) The Principal Secretary, Medical
Health and Family Welfare, UP shall
publish the information requiring all
these persons to obtain registrations
alongwith the directions given in this
order, and the prescribed proforma, in
all leading newspapers of the State, at
least three times, in the month of
February, 2004.
(3) Any change or addition in the
particulars submitted shall be notified
within
thirty
days
and
the
registrations shall be renewed every
year before 30th April of the year.
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2 All] Dr. Ravindra Kumar Goel and others V. State of U.P. and another
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(4) On and from 1.5.2004, all those
persons who have not furnished the
information and obtained registration
with the Chief Medical Officers of the
District,
shall
be
taken
to
be
practicing unauthorisedly and the
Chief
Medical
Officers,
shall
scrutinize and forthwith report the
matter to the Superintendent/Senior
Superintendent of Police of the
District with information to this Court
to conduct raids and to seal the
unauthorized premises/establishment.
All
the
authorized
person/establishments, who fail to
obtain registration, will have liberty
to apply only to this Court to explain
the delay and to seek permission to
continue with their medical practice
/profession.
(5) All those medical practitioners who
desire to offer medical services in the
State, in future, shall be required to
submit the details in the aforesaid
proforma for registration as above
with the Chief Medical Officer of the
district before they start medical
practice.
(6) All the institutions/establishments/
colleges awarding medical degrees in
the
State
shall
apply
and
get
themselves
registered
with
the
Principal Secretary, Medical health
and Family Welfare, U.P. with full
particulars of their authorization to
confer such degrees/certificates, on or
before 30.4.2004.
(7) The
newspapers
and
magazines,
published
in
Uttar
Pradesh
are
restrained
from
publishing
advertisements
by
and
from
unauthorized medical practitioners,
persons
to
give
proof
of
the
qualifications and registrations. The
breach shall be taken to aid and abet
illegal activities violative of Magic
Remedies
(objectionable
Advertisement) Act, 1954 and other
relevant legislations.
(8) The principal Secretary, Medical
Health
and
Family
Welfare,
is
directed to ensure that no medical
officer in the Government service is
posted beyond three years in any
district, and that all para medical staff
serving
in
the
Primary
Health
Centre/Community
health
Centre/District Hospitals and other
hospitals run by Government of U.P.
for more than five years, shall be
transferred from the Centre/hospital.
Any doctor in employment of State
Government offering their services to
the authorized medical practitioners
shall face immediate disciplinary
action by the State Government, and
shall be prosecuted for aiding and
abetting such unauthorized practice.

7. The learned single Judge in his
order has observed that the above
directions shall be strictly complied with
and breach of these orders shall be treated
as contempt of court and punished
accordingly. The learned single Judge has
further directed that the respondents shall
continue to identify and prosecute the
unauthorized medical practitioners. He
observed that there is a large gap between
identification of the unauthorized medical
practitioners and the prosecution launched
against them so far.

8. We fully agree with the directives
issued by the learned single Judge in the
impugned order dated 28.1.2004, except
for the modification we are making in
direction no. 8. Rather we share his
concern with even greater emphasis. An
alarming situation has arisen throughout
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
444
the State of U.P. (and perhaps in many
other States) due to this widespread
practice of quackery which is hazardous
to the health and life of the public, apart
from driving out the genuine doctors, just
as bad coins drive out good coins from
circulation. We are informed that in U.P.
the number of quacks is several times
(perhaps 10 times or more) than the
genuine doctors.

9. Apart from what the learned
single Judge has stated in the impugned
order we would like to say that on earlier
occasions we have found in several cases
that persons coming from the State of
Bihar are doing medical practice in Uttar
Pradesh and when we enquired from them
about their medical degrees they produced
degrees/certificates, which appeared to us
to be fake.

10. It is reported that in the State of
Bihar all kinds of fake and phony
institutions have mushroomed in which
degrees are available for sale. In one case
the Court directed investigation into 110
educational institutions in Bihar (so called
medical colleges, engineering colleges,
etc.) and it was found that all these 110
institutions exist only on paper. There is
neither land, building, staff, teachers nor
any instruction is being imparted there.
However, for years such bogus teachers
and other employees in these institutions
are drawing salaries from these fake
institutions pretending to be Principal,
teachers, clerks, etc. In a large number of
cases, which have come before us the fake
degrees have been obtained from Bihar. It
is possible that the same malady is going
on in some other States also, where
degrees/certificates are available for sale.

11. The citizens have a right to life
under Article 21 of the Constitution and
this includes the right to get medical
treatment vide JT 1995 (1) SC 637,
Consumer Education And Research
Centre Vs. Union of India 1995 SC 922
wherein the Supreme Court observed
(vide para 26):

"The right to health and medical
care is a fundamental right under Article
21 read with Articles 39 (c) 41 and 43 of
the Constitution. Right to life includes
protection of the health and strength and
minimum requirement to enable the
persons to live with dignity."

12. In U.P. the unauthorized medical
practitioners (quacks) have mushroomed
and spread into every nook and corner.
Such unauthorized medical practitioners
have been befooling the people of Uttar
Pradesh for more than two decades and
have been exploiting them and often
endangering their health. Under the law
only a registered medical practitioner who
has a degree from a recognized and
genuine
medical
college
alone
can
practice medicine. Even if a person has
got himself registered with the Medical
Council of India or with the Board of
Indian Medicine, U.P. or Homeopathic
Medical Council or some other such
body, he cannot be allowed to practice on
the strength of that registration/certificate
alone. He must further have a medical
degree from a genuine and recognized
Medial College. We think it necessary to
say this because what is often happening
is that persons who do not have a degree
from genuine and recognized Medical
Colleges get themselves registered with
the Medical Council, etc. by some
irregular methods and manipulation, and
then they claim that they have a right to
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2 All] Dr. Ravindra Kumar Goel and others V. State of U.P. and another
445
practice medicine. In our opinion to
permit this would be like permitting a
person who has not got an LLB degree
from a genuine and recognized Law
College to practice law just because he
has somehow managed to get himself
enrolled with the Bar Council although he
may be only High School passed.

13. Taking advantage of the poverty
of
the
people
of
the
State
such
unauthorized practitioners are deceiving
them by offering their services on lower
fees. They are often endangering the
health of such people, apart from doing
something which is illegal. We therefore,
fully agree with the directions given by
the learned single Judge by order dated
28.1.2004, as they are salutary and
praiseworthy and were long overdone.

14. In fact many of these directions
were made on suggestions of the parties,
which were deliberately and readily
accepted by Sri R.K. Mittal, Principal
Secretary, Medical Health, U.P. and Dr.
Amrendra
Singh,
Director
General,
Medical Care, U.P. as mentioned in the
impugned order itself.

15. Sri U.N. Sharma learned counsel
for the petitioner has submitted that the
appellants are doing private practice and
they are aggrieved by the first direction
contained in the order dated 28.1.2004 by
which they have been required to get
themselves registered with the Chief
Medical Officer of the district giving full
details as directed. He submitted that the
appellants have already been registered
under the Medical Council of India Act
1986,
the
Indian
Medicine
Central
Council Act, 1970, Homeopathic Central
Council Act, 1973, or Board of Indian
Medicine, UP and hence they should not
be asked to get themselves registered
again.

16. In our opinion this argument is
misconceived. The object of the direction
given by the learned single Judge to get
registration done with the Chief Medical
Officer was not that there is any need to
get some statutory registration under the
Indian Medical Council Act or some other
Statute. The purpose was to find out who
were the unauthorized practitioners so
that such persons can be stopped from
doing illegal medical practice in the State.
We see nothing objectionable in the
direction of the learned single Judge that
all medical practitioners must register
themselves with the Chief Medical
Officer of the district. In fact, to our mind
such a step was long overdue, and the
time has surely come when the authorities
must strictly check the medical degrees,
registration certificate etc. of those who
are doing medical practice in Uttar
Pradesh, since a large number of quacks
are illegally doing medical practice in the
State.

17. As already observed above, if
the Chief Medical Officer finds that the
person concerned does not have a medical
degree from a genuine and recognized
Medical College then his medical practice
must be stopped immediately even if he is
registered with a Statutory body like the
Medical Council of India. We are
informed
that
the
Indian
Medical
Council of India, Board of Indian
Medicine, U.P. Homoeopathic Central
Council etc. are not strict in examining
the applications of persons who want to
be registered as medical practitioners, and
often they register persons with fake
medical degrees or degrees of Medical
Colleges which are not genuine or
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
446
recognized. We give a direction to all
these
Medical
Councils
(whether
Allopathic, Homoeopathic, Ayurvedic or
Unani) that in future they must be very
strict and carefully scrutinize whether the
medical degree of the applicant is from a
genuine and recognized Medical College
or not and they should refuse to grant
registration where if finds that the degree
is not of a genuine and recognized
Medical College.

18. In fact it may be pointed out that
the Supreme Court had itself issued
directions in D.K. Joshi's case (supra) that
the Secretary, Health and Family Welfare,
U.P. shall take all steps necessary to stop
carrying on of medical profession in the
State of Uttar Pradesh by unqualified or
unregistered persons. In addition the
Supreme Court also directed all District
Magistrate and Chief Medical Officers to
identify
the
unqualified/unregistered
medical practitioners and to take legal
proceedings against them. We regret to
say that despite these directives of the
Supreme Court they have not been carried
out by authorities.

19. Sri U.N. Sharma, learned
counsel for the petitioner then submitted
that the learned Single Judge has no right
to give such a direction for registration of
the medical practitioners before the Chief
Medical Officer since he was only
exercising
contempt
jurisdiction.
He
submitted that in contempt jurisdiction the
learned Single Judge can either punish the
contemnors for contempt or discharge
them, but he cannot issue directions as if
he was sitting in writ jurisdiction. In our
opinion it is no doubt true ordinarily a
judge
who
is
sitting
in
contempt
jurisdiction should not issue directions as
if he was sitting in the writ jurisdiction.
However, in our opinion, in exceptional
and rare cases he can do so, particularly if
there is some pressing urgency or
alarming situation as is prevailing in U.P.
in the medical profession.

20. In S. Barrow vs. State of U.P.
AIR 1958 Allahabad 154, a Division
Bench of this Court held:
"Article 226 of the Constitution does
not confine the powers of courts to
issuing prerogative writs in cases where a
party makes an application for the
purpose, and the words of Article 226 are
wide enough to authorize the High Court
to quash an order suo motu."

Thus the High Court has power to
issue writs suo motu without any
application.

21. In Smt. Abida Begam vs.
R.C.E.O., AIR 1959 Allahabad 675 a
Division Bench of this Court held:
"It may not be possible for us to
grant a decree in the suit, but in spite of
that fact, we think that this Court has
jurisdiction under Article 226 of the
Constitution to grant the relief as against
the defendant no. 1, even though this
matter had not come in its writ
jurisdiction on an application under
Article 226. "

22. It may be mentioned that in
Abida Begam's case (supra) the Division
Bench was deciding a special appeal
against the judgement of a learned single
Judge who had decided a second appeal
under Section 100 C.P.C. Thus the Court
was not exercising writ jurisdiction but
the
jurisdiction
of
second
appeal.
However, it was observed that even in
such a jurisdiction in certain exceptional
cases the Court can issue writs. Thus the
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2 All] Dr. Ravindra Kumar Goel and others V. State of U.P. and another
447
decision in Abida Begam's cases the
Court can issue writs. Thus the decision in
Abida Begam's case (supra) is an
authority for the proposition that in
exceptional cases a Judge sitting in a
particular jurisdiction can issue a directive
relating to another jurisdiction so as to do
justice.

23. Learned counsel for the
appellant then objected to the directive
no. 8 in the impugned order dated
28.1.2004. By that directive the Principal
Secretary, Medical Health, U.P. was
directed to ensure that no Medical Officer
in the Government Service is posted
beyond three years in any district and that
all para medical staff serving in Primary
Health
Centre/Community
Health
Centre/District Hospital for more than
five years shall be transferred from that
hospital and any Government doctor
offering service to unauthorized medical
practitioners shall face disciplinary action
and shall also be prosecuted.

24. In our opinion it is correct to say
that the principles of transfer are policy
matters, and they should ordinarily be
decided by the State Government and not
by this Court. Hence we modify direction
no. 8 contained in the judgment of the
learned Single Judge, and we hold that
this directive shall be treated as a
recommendation rather than a binding
directive on the State Government.
However, we would like to say that we
fully agree and share the concern of the
learned Single Judge in this connection.
Obviously what motivated the learned
Single Judge in issuing such a direction
was that several government doctors
managed their place of posting in big
cities for long period as they have
connection with high ups, and such
government doctors often run their private
clinics also where they spend most of the
time instead of attending their duties in
Government hospitals. Hence it is obvious
that what the learned Single Judge
intended to say was that this practice
should be stopped as it would not be fair
to other doctors who do not have
connections with high ups and remain
posted in the rural areas for a long time.
We fully agree with the learned Judge that
there should be fair treatment to all
government doctors and transparency in
the matter.

25. Hence we direct the State
Government to frame a scheme regarding
transfer and posting of the government
doctors so as to ensure fair treatment to
everyone and no special benefit to those
who have contacts with high ups. This
scheme framed by the Statement must not
only provide for fair treatment to all
government doctors in the State regarding
their transfer and posting, but also ensure
that sufficient number of doctors are
posted in rural areas in rotation, since
presently the position is that even those
who are technically posted in rural areas
often do not go to rural areas except, say,
for one or two days in a month for the
sake of formality and they hardly stay
there one or two hours and then come
back to the cities. Because of this practice
quacks have mushroomed in the rural
areas because there are no government
doctors usually available in the rural
areas. This is not fair to the people in the
rural areas who are the majority in our
country. The State Government must not
only do posting of government doctors in
rotation to rural areas but also ensure that
those who are posted in rural areas really
work there during their official hours. For
this purpose the State Government must
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2004
448
provide
for
suitable
residential
accommodation commensurate to the
status of doctors near the family health
center/community health center where
they are posted. Also such residential
accommodation must be provided water,
electricity and other basic essential
facilities. In the absence of these it is
unrealistic to expect the Government
doctors to remain in rural areas for a long
period. Apart from that, we are of the
opinion that the doctors who are posted in
the rural areas should be given some
adequate allowances because they have to
usually maintain double establishment
since their wives and children usually
remain in cities because their children are
studying in schools there.

26. The Scheme mentioned above
should ensure that there should be rotation
between those who are posted in urban
areas and those who are posted in rural
areas so that a person who is posted for,
say, three or four years in a city should
thereafter be sent for 3 or 4 years to a
rural area. Such a scheme would be fair to
gall
government
doctors
who
are
conniving with the unauthorized medical
practitioners
(quacks)
shall
face
disciplinary action and the scheme framed
by the government should also remove the
possibility of the Government doctors in
developing contacts with the quacks.

27. We request the learned Single
Judge (Hon'ble Sunil Ambwani, J.) who
passed the impugned order to monitor the
scheme framed by the State Government
as
directed
above.
Hon'ble
Sunil
Ambwani, J. is requested to list the case
before himself, say, after every two
months and call for a progress report from
the State Government regarding the
progress made in the last two months. We
feel that this is necessary otherwise mere
directives given by the Court are often
forgotten
unless
they
are
regularly
mentioned. The State Government must
ensure that the doctors posted in the rural
areas regularly work there, and if they do
not do so then disciplinary action should
be taken against them.

28. We further direct that a doctor
who has a degree in a particular branch of
medicine, say Ayurvedic or Unani should
not be allowed to do practice other system
of medicine, e.g. Alloathic unless the law
permits it. We feel it necessary to issue
this direction because often it is found
that a person who has a degree in
Ayurvedic
or
Unani
is
practicing
Allopathic medicine, which in our opinion
is illegal.

29. No doubt many of the directions
issued by the learned Single Judge and by
us are unconventional but extra ordinary
situations require extra ordinary remedies.

30. In view of the above we uphold
the impugned order of the learned Single
Judge with the modification regarding
direction no. 8 as stated above.

31. With this slight modification this
appeal is dismissed.

32. Let a copy of this judgement be
sent by the Registrar General of this Court
to the Chief Secretary, UP Government,
Lucknow, Principal Secretary Medial
Health, Principal Home Secretary, Law
Secretary and Director General of Police,
UP who will ensure compliance of the
directives of the learned single judge and
of this Bench. Copy of this judgement
will also be given to the learned standing
counsel free of cost by tomorrow and he
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2 All] Sadgi Investment Pvt. Ltd. V. State of U.P. and others
449
will communicate it to the aforesaid
authorities forthwith.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.4.2004

BEFORE
THE HON'BLE M. KATJU, J.
THE HON'BLE R.S. TRIPATHI, J.

Civil Misc. Writ Petition No. 14988 of 2004

Sadgi Investment Pvt. Ltd. ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri R.C.Sinha
Sri Arvind Kumar

Counsel for the Respondents:
S.C.

Constitution of India, Article 226-Writ
Jurisdiction-Judicial
review
administrative
functions-scope-Courts
should be slow in such matters-No
interference unless decision is tainted
with illegality, irrationality or procedural
impropriety- Impugned order states that
plot No. 881 is next to main National
Highway and that adjacent plot no. 883
and 884 sought to be acquired are very
important
for
industrial
area-
held
cannot
be
called
arbitrary
considerations-Land Acquisition Act- Ss.
4,6 and 17.

The Supreme Court observed that the
Court will be slow to interfere in such
matters
relating
to
administrative
functions unless the decision is tainted by
any vulnerability enumerated above, like
illegality,
irrationality
and
procedural
impropriety. The famous case, commonly
known as the 'Wednesbury's case', is
treated as the landmark in laying down
various principles relating to judicial
review of administrative or statutory
discretion.

Para 25
From the above standpoint the impugned
decision of the administrative authorities
in the present case (Annexure 1 to the
writ petition) cannot be faulted as it
cannot be said to be so outrageous in
defiance of logic or accepted moral
standards that no sensible person could
have arrived at it. It has been stated
therein that plot no. 881 is next to the
main
National
Highway,
and
that
adjacent plot nos. 883 and 884 are very
important for the industrial area. These
cannot
be
called
arbitrary
considerations.

Para 27
Case law discussed:
W.P. No. 27317 of 2001 decided on 5.3.2004
(1966) 10 SCC 721
W.P. 29031 of 2003 decided on 11.7.2003
2003 (1) AWC 116
W.P. No. 24670 of 2003 decided on 2.7.2003
1993 ALJ 154 (DB)
AIR 1978 SC 515
W.P.No. 15586 of 2001 decided on 4.10.2002
(1994) 6 SCC 651
(2001) 2 SCC 386
JT 1994 (7) SC 551
(2002) 1 UPLBEC 937 (Pr.10)
AIR 1996 SC 11 (Pr. 113)
2002 (4) AWC 3221
(1994) 1 SCC 658
(1997) QB 643 (724)
AIR 1973 SC 1461 (Pr. 1547)
(2003) 2 UPLBEC 1206
(1984) 3 All ER 935

(Delivered by Hon'ble M. Katju, J.)

1. This writ petition has been filed
with a prayer for mandamus directing the
respondents to de- notify the land in
question which was notified under the
Land Acquisition Act. The petition has
also prayed for a writ of certiorari to
quash the impugned notification dated
31.10.2000 under Section 4/17 of the
Land Acquisition Act and the notification
dated 5.10.2002 issued under Section 6
and also the impugned order dated
10.3.2003 passed by the respondent no. 1
copy of which is Annexure 1 to the writ