Who can practice as Registered Ayurveda, Unani Practitioner? Delhi HC defines eligibility for NExT exam

New Delhi: In a recent judgment, the Delhi High Court bench has ruled that only a student who has a BAMS/BUMS degree has the right to obtain a license as a Registered Ayurvedic or Unani Medical Practitioner. "The plea of the petitioners that they should not be subjected to the requirement of undertaking and clearing the NExT before they are granted a license to practice and have themselves registered as Ayurvedic or Unani medical practitioners has, therefore, necessarily to fail," the bench stated while dismissing the petition filed by the students.

The HC bench comprising Justice C Hari Shankar clarified, "Prior to obtaining the BAMS/BUMS degree, the student has no right to practice as a registered medical practitioner. A student who is undergoing the BAMS/BUMS course, towards obtaining the BAMS/BUMS degree, therefore, cannot claim any such right."

"The question of whether the student would clear all papers as would entitle her, or him, to be conferred the BAMS/BUMS degree is itself an imponderable at that point of time. It is only, therefore, after clearing all papers, and being awarded the BAMS/BUMS degree, that the student can claim any right to be granted a licence to practice as a registered medical practitioner," the bench noted in the order dated 22.04.2024.

The Court made this observation while considering the plea by the petitioners who are currently pursuing their Bachelor of Ayurvedic Medicine and Surgery (BAMS) and Bachelor of Unani Medicine and Surgery (BUMS). They challenged the requirement of clearing the National Exit Test (NExT) before obtaining the license to practice as a registered medical practitioner.

Approaching the HC bench, the petitioners sought a declaration that this requirement mandatory under Section 15(1)1 of the National Commission for Indian System of Medicine Act, 2020 (NCISM Act) would not apply to them, as they joined their BAMS and BUMS courses before the Section 15(1) was brought into force on 11 June 2021.

Therefore, the point of consideration before the HC bench was whether a student who had joined the undergraduate course in an Indian System of Medicine before 11 June 2021 would be required to undertake the NExT before she, or he, was given a license to practice as a registered medical practitioner.

The petitioners were admitted to the BAMS and BUMS courses in August 2021 after clearing the NEET-UG and/or State level entrance exams. They had to undergo the courses for 4.5 years, followed by a 12-month internship. At the time of their enrollment into the said courses, BAMS/BUMS programmes were governed by the Indian Medicine Central Council Act, 1970, (IMCC Act) Section 17(1)2 of which provided that a medical qualification included in the Second, Third or Fourth Schedule to the IMCC Act, would be a sufficient qualification for enrolment on any State Register of Indian Medicine.

So, the IMCC Act did not require a BAMS/BUMS Graduate to undertake any further examination before being eligible for enrolment on the State Register to be entitled to practice as an Ayurvedic or Unani Medical Practitioner.

Consequently, the NCISM Act was enacted on 20 September 2020 and it was published in the Official Gazette on 21 September 2020. However, the proviso to Section 1(3)3 of the NCISM Act provided that different dates could be appointed for different provisions of the Act and that a reference in any such provision to the commencement of the NCISM Act would be construed as a reference to the coming into force of that provision.

Accordingly, Section 15 of the NCISM Act, which stated that "a common final year undergraduate examination be known as National Exit Test" shall be held for granting licence to practice as Ayurvedic/Unani medical practitioner and for enrolment in the State or National Register, came into force on 11 June 2021. Section 15(3)4 stipulated that the NExT shall become operational on such date, within three years from the date on which the NCISM Act came into force, as may be notified by the Central Government.

With effect from 11 June 2021, therefore, the IMCC Act stood repealed and Section 15 of the NCISM Act came into force. Aggrieved by this, the petitioners argued that the IMCC Act, which was in force on the date when the petitioners got enrolled in their BAMS/BUMS courses, did not envisage the requirement of any intervening examination having to be undertaken between the acquisition, by them, of their BAMS/BUMS degrees. Therefore, they argued that their right to practice as Ayurvedic or Unani practitioners consequent to obtaining their BAMS/BUMS degrees, should be automatic as was envisaged by Section 17 of the IMCC Act and not subject to the petitioners clearing the NExT, as envisaged by Section 15(1) of the NCISM Act.

The petitioners relied on Section 47(1) of the NCISM Act, which stipulated that a student who was studying for a degree in any medical institution immediately before the commencement of the NCISM Act would continue to study and complete her course for obtaining the degree concerned in the same institution, which would hold the requisite examination for the student in accordance with the syllabus as existed before the commencement of the NCISM Act, and further envisaged the award of degree under the NCISM Act on the completion, by the student, of her BAMS/BUMS course in the said institution.

On the other hand, the counsel for the Government Authorities argued that the NExT is not an examination which has to be undertaken in order to obtain the BAMS/BUMS degrees, but is required for the degree holders to obtain a licence to practice as registered Ayurvedic/Unani medical practitioners. It is, therefore, in the nature of a licentiate examination and not an examination which is required to be undertaken for obtaining the BAMS/BUMS degrees.

While considering the matter, the HC bench clarified that Section 15(1) does not require the NExT to be cleared before grant of the BAMS/BUMS degree. The bench opined that the petitioner's counsel misinterpreted the provision, merely stressing the initial words "common final year undergraduate medical examination".

"The immediately following words, "for granting licence to practice as medical practitioner", however, make it clear that the NExT is a licentiate examination, and not a qualifying examination before obtaining the BAMS/BUMS degree. No NExT has, therefore, to be undertaken for obtaining the BAMS/BUMS degree. Ms. Dave, learned Senior Counsel for the Respondent 2, too, acknowledges this position," clarified the bench.

Therefore, the HC bench termed the submission that Section 15(1) envisages NExT as being an examination which has to be undergone for obtaining the BAMS/BUMS degree, as "misconceived".

"Secondly, and therefore, there is no conflict between Section 15(1) of the NCISM Act and Regulation 6(2) of the NCISM Regulations, both of which envisage the NExT as being a licentiate examination, to be undertaken after the BAMS/BUMS degree is obtained, and for being granted a licence to practice Ayurvedic or Unani medicine as a registered medical practitioner. The plea of conflict is also, therefore, without substance," the bench further noted.

The Court clarified that till the award of the BAMS/BUMS degree, there is no change in the protocol to which the students are subjected. It also noted that "Section 47, therefore, is concerned with the award of the BAMS/BUMS degree and not with the grant of licence to practice as a registered Ayurvedic or Unani medical practitioner, whereas Section 15 is not concerned with the award of the BAMS/BUMS degree, but is concerned with the requirement of undertaking the NExT thereafter, for obtaining a licence to practice. The two provisions, therefore, operate in different fields, and the non obstante clause in Section 47 does not in any way affect the applicability of Section 15(1)."

Dismissing the plea, the Court noted that the right to obtain a license to practice as a registered Ayurvedic or Unani Practitioner would be available to the petitioners only after they are awarded their BAMS/BUMS degree.

Clarifying this point, the bench observed,

"On the date when Section 15(1) of the NCISM Act came into force, therefore, no right vested in any of the petitioners to be granted a licence to practice as a registered Ayurvedic or Unani medical practitioner. That right would vest only after the petitioners are conferred their BAMS/BUMS degrees – assuming they are. That stage is yet to reach. Section 15(1) does not, therefore, divest the petitioners of any right which had even accrued, much less vested, in their favour."

The court further upheld the decision to introduce the NExT exam as a test that the BAMS/BUMS graduates must clear before being entitled to a license to practice as a Registered Medical Practitioner.

At this outset, the bench noted,

"The introduction of the NExT is in keeping with the NEP 2020 and is obviously in public interest. It is intended to ensure quality and excellence in persons practising in Ayurvedic and Unani medicine. It is taken on the basis of parliamentary legislation, which is in fact superior to any governmental order or Rule. It falls solely and squarely within the realm of academic policy. Even for that reason, the scope of interference by Courts is heavily circumscribed."

"Besides, while undertaking the BAMS or BUMS courses, the petitioners may have had a fond desire that they would clear the courses and ultimately be awarded BAMS or BUMS degrees, but this cannot translate into a legal right. The right to a license to practice as a registered medical practitioner is a later stage, conditional on obtaining a valid BAMS or BUMS degree. The introduction of the intervening NExT examination, by the NCISM Act and Section 15 thereof cannot, therefore, be invalidated on the principle of legitimate expectation," it further noted.

Noting that none of the petitioners had obtained their BAMS or BUMS degrees on 11 June 2021, the bench clarified that they cannot seek to plead that by that date any right had accrued in their favour, or that they were entitled to the privilege of being granted a licence to practise as registered medical practitioners.

"None of the grounds urged by the petitioners is, therefore, found to be substantial. The plea of the petitioners that they should not be subjected to the requirement of undertaking and clearing the NExT before they are granted a license to practice and have themselves registered as Ayurvedic or Unani medical practitioners has, therefore, necessarily to fail," noted the HC bench.

To view the order, click on the link below:

https://medicaldialogues.in/pdf_upload/delhi-high-court-ayush-236879.pdf

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