D.K.Seth - (1.) IN this case, in support of the leave, the petitioner had submitted Medical Certificate granted by Registered Ayurved Medical Practitioner. A dispute has been raised by reason of employer's refusal to recognise the said certificate in support of the leave. By means of this petition, the action of the employer in not recognising the Medical Certificate produced by the petitioner has been challenged by the petitioner.
(2.) MR. O. P. Misra, learned counsel for the petitioner, contends that the Medical Certificate granted by a Registered Ayurved Medical Practitioner is to be treated at par with the Certificate granted by a Registered Allopathic Medical Practitioner. He relies on a Government Order dated 27.10.1950 and Section 39 (2) of the U. P. Indian Medicine Act, 1939, hereinafter referred to as 'the Act'. According to him, the respondent cannot refuse to recognise the Certificate produced by him and thereby refuse the leave, Mr. Satish Chaturvedl, learned counsel for the respondents, on the other hand, contends that in view of the Fundamental Rules, the petitioner is bound to produce a Certificate acceptable to the Government who is the employer in the present case. He refers to Rule 81B (2) Chapter X of the Fundamental Rules relating to medical leave wherein it has been provided that a Government servant to whom these rules apply may be granted leave on medical certificate and such certificate should be obtained from such medical authority as the Governor may by general or special order specify in that behalf. According to him, the medical certificate referred to therein should be a Medical Certificate by Registered Allopathic Practitioner. Therefore, according to him, the petitioner cannot have the leave sanctioned on production of medical certificate from the Ayurvedic Registered Medical Practitioner. The said Fundamental Rules referred to by Mr. Chaturvedi runs as follows : "A Government servant to whom these rules apply may be granted leave on medical certificate not exceeding twelve months in all during his entire service. Such leave shall be given only on production of a certificate from such medical authority as the Governor may by general or special order specify in this behalf and for a period not exceeding that recommended by such medical authority. Provided that when the maximum period of twelve months is exhausted further leave on medical certificate not exceeding six months in all during entire service recommendations of a medical board : Provided further that in all cases, in which Government servant may have before the date of application of these rules to them availed of leave on medical certificate under Fundamental Rule 81B and Subsidiary Rule 157 or 157A, as the case may be, and half the period of such leave availed of under Subsidiary Rule 157, shall be taken into account in calculating the leave due to them under this rule. (2) No leave may be granted under this rule unless the authority competent to sanction. leave is satisfied that there is a reasonable probability that the Government servant will be fit to return to duty on the expiry of the leave applied for."
(3.) THE said medical certificate as appearing in the Fundamental Rule does not qualify the medical certificate in any manner. THErefore, the said medical certificate is to be treated a medical certificate within the meaning of the Act after the said Act had come into force. According to Section 2 (v) "Practitioner" means a practitioner of an Indian system of medicine. Section 2 (vii) defines "Register" means the register of Vaidyas and Hakims, surgeons and midwives maintained under Section 25. THEn "Registered Practitioner" defined in Section 2 (viii) means a practitioner whose name is for the time being entered in the register. "Vaidya" as defined in clause (x) means a practitioner of Ayurvedic system of medicine and surgery while "Hakim" as defined in clause (xi) means a practitioner of Unani Tibbi system of medicine and surgery. Section 25 provides for maintenance of Register prescribing the Registrar shall maintain a register of Vaidyas and Hakims Practising in Uttar Pradesh in the prescribed form. Section 39 lays down : 139. Qualified practitioner's certificates.-Notwithstanding anything contained in any law for the time being in force : (1) THE expression "legally qualified medical practitioner" or "duly qualified medical practitioner" or any word importing that a person is recognised by law as a medical practitioner or member of medical profession shall, in all Acts in force in the Uttar Pradesh and in all Acts of the Central Legislature (in their application to the Uttar Pradesh) in so far as such Acts relate to any of the matters specified in List II or List III in the Seventh Schedule to the Government of India Act, 1935, be deemed to include a registered practitioner. (2) A certificate required under any law or rule having the force of law from any medical practitioner or medical officer shall be valid, if such certificate has been granted by a registered practitioner. (3) A registered practitioner shall be eligible to hold any appointment as a physician, surgeon or other medical officer in any Ayurvedic or Unani dispensary, hospital supported by or receiving a grant from the State Government or in any public establishment, body or institution dealing with such system of medicine. (4) A registered practitioner shall be entitled to- (a) sign or authenticate a birth or death certificate required by any law or rule to be signed or authenticated by a duly qualified medical practitioner ; (b) sign or authenticate a medical or physical fitness certificate required by any law or rule to be signed or authenticated by a duly qualified medical practitioner ; (c) give evidence at any inquest or in any Court of law as an expert under Section 45 of the Indian Evidence Act, 1872, on any matter relating to medicine, surgery or midwifery." Sub-section (1) of Section 39 prescribes that Vaidyas and Hakims who are registered practitioners are to be included within the expression "legally qualified medical practitioner" or "duly qualified medical practitioner" recognised by law as a medical practitioner or member of medical profession in all Acts in force in the Uttar Pradesh and in all Acts of the Central Legislature in their application to the Uttar Pradesh in so far as such Acts relate to any matters specified in List II or List III in the Seventh Schedule to the Government of India Act which is similar to List II and List III of our present Constitution. While subsection (2) prescribes that a certificate required under any law or rule having the force of law from any medical practitioner or medical officer shall be valid if such certificate is granted by a Vaidya or Hakim. Sub-section (3) prescribes that the said registered practitioners shall be entitled to hold posts in hospitals or any public establishment including those receiving grants from the State Government. While sub-section (4) entitles such registered practitioners even to give evidence at any inquest in any Court of law as an expert under Section 45 of the Indian Evidence Act, on any matter relating to medicine, surgery or midwifery. Therefore, it is apparent that Vaidyas and Hakims who are registered medical practitioners within the meaning of the Act are treated at per with other registered medical practitioners in view of sub-section (1) of Section 39 read with sub-section (4) thereof and their certificate has been brought at par by reason of sub-section (2) thereof. In addition, by Government Order No. 2046BV-1206-48, dated 27.10.1950, medical certificates granted by registered Vaidyas and Hakims have been directed to have the same effect with those granted by registered practitioners of allopathic system. The said Government Order is quoted below : "Subject :-Acceptance of Medical Certificates granted by Vaidyas and Hakims. The Medical Certificates granted by the registered Vaidyas and Hakims will in effect be treated at par with those granted by the registered practitioners of the allopathic system." Therefore, it is crystal clear that a certificate granted by registered practitioner as defined in the Act shall have the same effect of that of a certificate granted by a practitioner under the Allopathic system. Therefore, the certificate submitted by the petitioner in support of his leave cannot be ignored and is to be recognised for the purpose of sanction of leave to a Government servant, in view of its having the same force with that of one granted by registered medical practitioner of Allopathic system.;