S.C. Agrawal, J. - (1.) This appeal by special leave is directed against the judgment of the High Court of Kerala dated October 14, 1982(reported in AIR 1983 Kerala 24). It raises the question relating to the validity of the first proviso to S. 38 of the TravancoreCochin Medical Practitioners' Act, 1953 (hereinafter referred to as'the State Act) and the order dated September 28, 1978 and notification dated April 13, 1981 issued by the Government of Kerala.
(2.) Section 38 of the State Act reads as under:. "38. Persons not registered under this Act etc. not to practise:- No person other than (i) a registered practitioner or (ii) a practitioner whose name is entered in the list of practitioners published under S. 30 or (iii) a practitioner whose name is entered in the list mentioned in S. 25 shall practise or hold himself out, whether directly or by implication as practising modern medicine, homoeopatnic medicine, or ayurvedic medicine, sidda medicine or such medicine shall practise any other medicine unless he is also a registered practitioner of that medicine. Provided that the Government may, by notification in the Gazette direct that this section shall not apply to any person or class of persons or to any specified area in the State where none of the three classes of practitioners mentioned above carries on medical practice: Provided further that this section shall not apply to a practitioner eligible for registration under this Act who, after having filed the application for registration, is awaiting the decision of the appropriate council or of the Government in case of appeal. Provided also that this section shall not apply to a practitioner eligible for registration under this Act until the period prescribed for applications under S. 23 expires".
(3.) The University of Kerala awards a degree as well as a diploma in Integrated Medicine known as DAM. By notification dated May 4, 1977 issued by the Government of Kerala under the first proviso to S. 38, it was directed that S. 38 of the Act shall not apply to the degree holders of DAM and diploma holders of DAM in practising modern medicine in the State. The Government of Bihar through the Bihar State Board of Homoeopathic Medicine awards a Diploma in Medicine and Surgery called DMS. By order dated September 28, 1978, the Government of Kerala ordered that the said diploma (DMS) awarded by the Government of Bihar will be held in par with the integrated DAM of Kerala University for purpose of continuing in the profession only. The holders of DMS approached the Government with a request to issue of notification similar to notification dated May 4, 1977 to enable them to practise Modern Medicine. The said request was earlier rejected by the Government but ultimately it was acceded and a notification dated April 13, 1981 was issued by the Government of Kerala in exercise Of the power conferred by the first proviso to S. 38 of the State Act whereby it was directed that S. 38 shall not apply to holders of DMS awarded by the Government of Bihar. The aforesaid notifications dated May 4, 1977 and April 13, 1981 and order dated September 28, 1978 were challenged by the appellant before the High Court of Kerala by filing a Writ Petition under Articles 226 of the Constitution. In the said Writ Petition it was submitted by the appellant that after the enactment of the Indian Medical Council Act, 1956 (hereinafter referred to as 'the Central Act'), by Parliament the first proviso to S. 38 of the State Act, being repugnant and in consistent with the provisions of S. 15 of the Central Act, has been rendered void and ineffective and the impugned notifications having been issued in exercise of the power conferred by the said proviso are also void and ineffective. The validity of the first proviso to S. 38 of the State Act was also challenged by the appellant on the ground that it does not contain any guidelines for exercise of the power conferred on the State Government and since it confers arbitrary power on the State Government it is violative of the provisions of Art. 14 of the Constitution.;