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Writ Petition No. 132 of 1957, decided on 13th January, 1958.

Medical Institute-- An association‑Government not empowered under any Speck Act to pass order of closure of such institute‑Interference with fundamental rights.

Interference with fundamental rights‑Mandamus issued.

M. A. Khandaker and Nurul Huq Bhuiya for Petitioner.

B. A. Siddiky, Advocate‑General and K. M. Subhan for Respondents.

This is an application under Article 170 of the Constitution for a writ of mandamus directing the respondents to withdraw or cancel the order contain in Memorandum No. 4750 (9) Medl., dated the 5th August, 1957, sent by the Health Depart ment, Government of East Pakistan, to the District Magistrate, Dacca, and to forbear from giving effect to that order.

2. The petitioner is the Secretary of the Dacca National Medical Institute. This Institute was registered in 1926 under Act XXI of 1860. The object for which the Institute was estab lished is stated in the Memorandum of Association as follows :

" To establish, maintain and conduct an institution in the town of Dacca for imparting education in the allopathic system of medicine exclusively, Homoeopathy being for the time retained as an optional subject only."

The Association, therefore, started a school to train up students upto the standard of Licenciate Examination of the Medical Faculty with a 4 years' course. This school also started a hospital of 112 beds with a view to obtain affiliation of the Medical Faculty of the University. The Additional District Magistrate of Dacca along with his Memorandum No. 7313 MDL/7, dated 9‑8‑57 forwarded a copy of the following letter to the Superintendent of the Dacca National Medical School

"From : Secretary, Health.

To : The District Magistrate, Dacca.

No. 4750 (9) Medl., dated 5‑8‑56.

Admission of students in your school is stopped by Govern ment order AAA please do not admit any more student.

Memo No. 7313 MDL/7. Dated 9‑8‑57.

Copy forwarded to the Superintendent of Dacca National Medical School for information and necessary action please.

(Sd.) Illegible 9‑8‑57.

Addl. District Magistrate (C), Dacca."

Hence the Secretary to the Governing Body of the Institute obtained this Rule for cancellation of the order contained in the above Memorandum.

3. Mr. M. A. Kasem, Deputy Secretary, Health and Local Self‑Government Department, Government of East Pakistan, has affirmed an affidavit‑in‑opposition on behalf of the Government. He has contended that as the School has not received the recogni tion of the Medical Faculty, the students who pass from the School are not entitled to practise western medical science and that the said School by granting certificates to the students are acting in contravention of section 5 of the Medical Degrees Act (Act VII of 1860). He has further stated that this School did not receive recognition of the East Pakistan Council of Medical Registration because they did not fulfil the minimum requirement for such recognition, as would appear from the resolutions passed by the Council on 26‑9‑51 and 15‑9‑53.It is further asserted that the standard maintained by the School is far below the standard required for affiliation to the State Medical Faculty and, as such, the students who come out of this School practise as quacks to the grave detriment of the public and jeopardise the national health. He further justified the order stopping admission in to this school in these words :‑ .

" . . . . . . that the Government of East Pakistan had decided to standardise and bring uniformity in the medical education in the interest of public health and on the recommen dation of Pakistan Medical Council, Bhore Committee Report, and on public demand. As a step forward, to carry out these recommendations, the Government has stopped admission into the Government Medical Schools. The Government has already opened a new Medical College at Chittagong and another at Rajshahi is on the way. The Dacca National Medical Insti tute was not a recognised institution of the State Medical Faculty as it did not have the requisite requirements and standard of efficiency needed for affiliation. Its existence and function was to the detriment of the public and was violative of Medical Degrees Act 1916."

4. Mr. M. A. Khandaker, the learned Advocate 'for the petitioner, has contended that the order of the Government is illegal as it interferes with the fundamental right of the petitioner under Article 10 of the Constitution which confers on every citizen the right to form association subject to reasonable restric tions imposed by law in the interest, 4f public order.

5. By the order complained of, the Government has stopped admission into the School. This School provides a four‑year course for study of certain medical subjects. Hence, after 3 years, this School will cease to function. It is thus clear that by the order the Government is trying to close down this School, and that this is an interference with the fundamental right of the petitioner which is guaranteed by Article 10 of the Constitution cannot be denied.

6. The learned Advocate General appearing for the Govern ment has rightly conceded that if this administrative order of the Government interferes with the fundamental right of a citizen the Court has power to set aside the said order. We have already held that, this order, purports to interfere with the fundamental right of a citizen to form an association. We therefore asked the learned Advocate‑General to refer us to the Act under which the Government purported to act in imposing restrictions on the admission of students into the School. The learned Advocate-- General has been candid enough to say that there is no specific Act empowering the Government to pass the order which they did in this case. He has, however, drawn our attention to the following Acts which have some bearing on the subject : (1) The Bengal Medical Act; 1914 (Act VI of 1914) and (2) The Medical Degrees Act, 1916 (Act VII of 1916). The Bengal Medical Act of 1914 provides for the registration of Medical practitioners in Bengal. The Medical Degrees Act of 1916 was passed to regulate the grant of titles implying qualification in Western medical science, and the. assumption and use by unqualified persons of such titles Section 3 empowers the Government or such other authority as recognised by the Government to confer medical degrees, diplo mas and certificates for practising Western medical science. Section 4 prohibits unauthorised conferment of degrees, licences and certificates. Section 5 lays down punishment for contravention of provisions of section 4.

7. The petitioner's case is that they are teaching Western medical science in the School. Mr. Kasem, the Deputy Secretary, while dealing with paragraphs 4 and 5 of the petition, has stated in paragraph 4 of his affidavit "that the said Medical Institute by giving certificate, to their trainees as admitted in these two para graphs have acted in clear contravention of section 4 of the said Act." This has been vehemently denied by a clerk of the School., who has affirmed the affidavit‑in‑reply on behalf of the petitioner . Further, the assertion of Mr. Kasem in the above‑quoted passage that the petitioner has admitted grant of certificates in para graphs 4 and 5 of the petition is not correct. The learned Advocates‑General has drawn our attention to a printed form of a certificate which according to him is granted by this School. The printed certificate has not been marked as an annexure to the affidavit filed by the Government. Nor is there anything in the affidavit to show that such certificates are‑ granted by the School. If it is assumed that they are granting such certificates, can it, be said that they are thereby contravening provisions of section 4 of the Medical Degrees Act, 1916 The fact remains that so far the Government has chosen not to prosecute them under the said Act. We, therefore, refrain from making any observation whether such certificate contravenes any provision of the Medical Degrees Act or not. Now it is clear from the provisions of the two Acts referred to above that unqualified persons are not entitled to practise as a doctor of Western medical science and if they do so they will be punished. But it cannot be said by any stretch of imagination that they prohibit teaching of Western medical science in any School. These Acts, in our opinion, do not help the respondents.

8. In these circumstances, we hold that the order com plained of invades the fundamental rights guaranteed by Article 10 of the Constitution and that the Government was not entitled to pass the order complained of.

9. Before leaving this case, we may observe that there might be good reasons for apprehension of the Government that the students passing from this School, though not sufficiently qualified, may practise as doctors of medicine. The Government can always take action against them under the Medical Degrees Act of 1916; but because of such apprehension they are not entitled to close down the Institution which is teaching Western medical science by an executive order. If they think that the existence o such a School is not to the interests of the country, they can easily pass the necessary legislation authorising the appropriate authority to close down such institutions. In conclusion, I must confess that I somewhat regret the conclusion which I have reached in this matter, because of the Government decision to discontinue the study for Licentiate Examination of the Medical Faculty; the continuance of this School would mean wastage of much valuable time and money and may adversely affect hundreds of students. It is, however, for the students and their guardians to do what is beneficial for them.

10. In any event, for the reason given above, the order complained of cannot be allowed to stand. We, therefore, make the Rule absolute and issue a writ of Mandamus directing the Government to withdraw or cancel the order complained of.

11. As the Government has not acted mala fide in this case, we make no order as to the cost of this application.

I agree.

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