, This is an appeal by special leave against the judgment dated November 8, 1968 of a Division Bench of the High Court of Bombay allowing a petition under articles 226 and 227 of the Constitution of India and declaring that sub-s. (5) of s. 17 of the Maharashtra Medical Practitioners Act, 1961 (hereinafter referred to as the Act) is ultra vires of article 14 of the Constitution of India.

The facts are not in dispute and may be shortly stated. The respondent hails from Uttar Pradesh. In 1940 he obtained the degree of "Ayurved Shastri" from the All India Adarsh Vidwat Parishad, Kanpur. On November 12, 1940 his name was listed by the Board of Indian Medicine, Uttar Pradesh, in the register of Vaids and Hakims. He practised as a Vaid in Agra thereafter upto 1955 when he migrated to Bhopal where he was registered as an Ayurvedic Doctor by the Medical Council of the Government of Bhopal under the Bhopal Medical Practitioners Registration Act, 1935. He migrated to Bombay in 1962 and started practising there as an Ayurvedic Doctor. However, in the meantime, i.e., on November 23, 1961, the Act came into force, except for Chapter VI thereof which came into operation on November 1, 1966. The respondent's application for registration as a medical practitioner made to the Committee of the Medical Board of Unani System of Medicine under sub-s. (5) of s. 17 of the Act (although none of the clauses of that sub-section had anything to do with it) was rejected and his appeal filed to the Board was also dismissed on September 30, 1964.

Clause (ii) of the said sub-s. (5) with which we are concerned provides that any person not being a person qualified for registration under sub-ss. (3) or (4) who proves to the satisfaction of the Committee appointed under sub-s. (6) "that he was on the 4^th day of November 1941 regularly practising the Ayurvedic or the Unani System of Medicine in the Bombay area of the State, but his name was not entered in the register maintained under the Bombay Medical Practitioners Act, 1938" shall be entitled to have his name entered in the register on making an application on the prescribed form, on payment of a fee of Rs. 10/- and production of such documents as may be prescribed by the rules. The expression "Bombay area of the State of Maharashtra" is defined in sub-s. (6) of s. 3 of the Bombay General Clauses Act to mean "the area of the State of Maharashtra excluding the Vidarbha region and the Hyderabad area of that State."

A contention was raised before the High Court on the strength of Rukmani Hoondraj Hingorani v. The Appellate Authority under the Maharashtra Medical Practitioners Act, 1961 that sub-s. (5) of s. 17 of the Act fell foul of article 14 of the Constitution, and that contention was accepted. We may usefully refer to the following observations made in the decision just above cited:

"Confining our attention, however, to medical

practitioners practising in the Bombay area of the

State, we find it difficult to appreciate why the right

of enlistment should have been restricted to those who

were regularly practising on 4^th November 1951, `in the

Bombay area of the State'. Since the object of the

Legislature was to allow medical practice by those less

qualified persons who were too old to choose

alternative means of livelihood, it was clearly open to

the Legislature to provide that a person must have been

practising for a certain number of years, or from

before a particular date, in order that his name may be

included in the list. It was thus open to the

Legislature to provide that, out of unregistered and

unlisted medical practitioners who were practising in

the Bombay area of the State, only those would be

entitled to have their names included in the list who

were practising regularly from before the 4^th of

November, 1951. It is, however, not possible to find

any rational basis for the provision that medical

practitioners in the Bombay area of the State, in order

to be entitled to enlistment, must not only have been

practising regularly from 4^th November, 1951, but must

have been practising on that day `in the Bombay area of

the State'. The provision that medical practitioners

must have been practising on 4^th November, 1951 in the

Bombay area of the State has no rational nexus with the

object of the Legislature which was to ensure that

medical practitioners, who were not fully qualified but

who were too old to choose alternative means of

livelihood, should not be deprived of their practice.

In order to illustrate the discriminatory nature

of the provision contained in s. 18(2)(b)(ii), we shall

take imaginary instances of five persons who were all

practising in the Bombay area of the State at the time

of their applications under s. 18 (i.e., on or before

31^st March, 1965) and who were not already enlisted and

were not entitled to registration under the Act. Let us

suppose that one of them, A, was practising

continuously in Bombay City from 1950 to 1963, when he

applied under s. 18 of the Act. Since on 4^th November,

1951 he was practising regularly 'in the Bombay area of

the State', he is clearly entitled to have his name

included in the list. Let us take another person B who

practised in Poona from 1950 to 1954 and in Bombay City

from 1954 to 1963 when he applied under s. 18. He is

also entitled to enlistment because Poona falls in the

Bombay area of the State. We may then take the instance

of C who practised in Nagpur from 1950 to 1954 and in

Bombay City from 1954 to 1963. He would not be entitled

to have his name included in the list, because on 4^th

November, 1951 he was regularly practising in Nagpur

which, though situated in Maharashtra, is not included

in the Bombay area of the State. We will next take the

instance of D who practised in Baroda, then a part of

the Bombay State, from 1950 to 1954 and thereafter in

Bombay City from 1954 to 1963. He is also not entitled

to enlistment, since Baroda in out side the State of

Maharashtra. Similar would be the position of another

person E who practised in Bhopal from 1950 to 1954 and

then in Bombay City from 1954 to 1963. No rational

explanation can be given of why A and B should receive

the said concession from the Legislature and should be

able to continue their practice and why C, D and E

should not receive the concession and should be

deprived of their practice."

We find ourselves in complete agreement with these observations which were made in relation to sub-clause (ii) of clause (b) of sub-s. (2) of s. 18 of the Act. The provisions of that sub-clause being in pari materia with sub-s. (5) of s. 17 of the Act, they apply fully to that sub-section which must therefor be held to be violative of article 14 of the Constitution. Accordingly we have no hesitation in upholding the impugned judgment and dismiss this appeal, but with no order as to costs as the respondent has not appeared before us to contest it.

N.V.K. Appeal dismissed.