Dr. Devender Bohra vs State Of Haryana And Others on 27 April, 2010

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

Civil Writ Petition No.14759 of 2009

Date of decision: 27.04.2010

Dr. Devender Bohra .Petitioner versus State of Haryana and others Respondents

CORAM: HON’BLE MR. JUSTICE K. KANNAN ——

Present: Mr. Anil Ghanghas, Advocate, for the petitioner. Mr. Ravi Dutt Sharma, Deputy Advocate General, Haryana, for the respondents. —–

1. Whether reporters of local papers may be allowed to see the judgment? Yes.

2. To be referred to the reporters or not? Yes.

3. Whether the judgment should be reported in the digest? Yes. —– K.Kannan, J

I. The subject of challenge suspension of registration

1. The petitioner challenges the order of suspension of registration of a sonogram installed in the hospital run by the petitioner and sealing of the equipment. By the impugned notice issued on 27.11.2008, the petitioner had been directed to make an arrangement of qualified Sonologist as per the provisions of the Pre-conception and Pre- Natal Diagnostic Techniques (Prohibition of Sex Selection) Act (hereinafter called the ‘PNDT Act’). The suspension notice was subject of a challenge in appeal to a Government under Section 21 before the appropriate authority and it was dismissed by order dated 13.03.2009. The suspension notice and the order passed in the appeal are the matters in challenge through this writ petition. By an ordinance issued in 2009 Civil Writ Petition No.14759 of 2009 -2- called the Pre-conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Haryana Validation Ordinance, 2009, the appropriate authority had been notified and it validated all acts done in the name of appropriate authority even prior to the date of the notification. The ordinance is also the subject of challenge but no arguments were advanced and I proceed to dispose of the writ petition only in so far as it contains the challenge to the order of suspension of the registration under the PNDT Act. II. The basis of challenge- MBBS degree is no different from BAMS for the purpose of registration

2. It is an admitted fact that at the time when the registration of the equipment was made in the hands of the petitioner, there had been a medical practitioner, who had held a medical qualification recognized under the Indian Medical Council Act but subsequently he had resigned from the petitioner’s hospital and there had been no Sonologist or imaging specialist resulting in the suspension of the licence. The petitioner’s challenge is on the basis that he had a medical qualification recognized by the Central Council of Indian Medicines and according to the petitioner, as a person, who has a BAMS (Bachelor in Ayurvedic Medicine & Surgery) qualification, he shall be permitted to have the registration in the same manner as the person, who has a MMBS (Bachelor of Medicine and Bachelor of Surgery) degree. The petitioner complains that the suspension of licence amounted to gross breach fundamental right to equality and operated as discriminatory. According to the petitioner, the equipment is necessary for the very same reason as an allopath practicing medicine and the petitioner could not be denied Civil Writ Petition No.14759 of 2009 -3- the right of registration and the use of the equipment. III. The scheme of PNDT Act relating to registration 3. Significantly the writ petition does not challenge the vires of the Act or the rules which have been framed thereunder. The challenge, however, is to a notification issued under Section 17(2) with retrospective effect which also was not pressed at the time of arguments. The Act imposes a system of registration of persons having the equipment to prevent the prevalent misuse by securing the data that could be collected by the user of the equipment for foeticide. The declared object of the Act is to provide for the prohibition of sex selection, before or after conception and for regulation of pre-natal diagnostic techniques for the purposes of detecting genetic abnormalities or metabolic disorders or chromosomal abnormalities or certain congenital malformations or sex-linked disorders and for the prevention of their misuse for sex determination leading to female foeticide and for matters connected therewith or incidental thereto. It is not denied that the petitioner has installed an elector sonogram in his hospital which is capable in carrying out “pre-natal diagnostic procedure”. The Act seeks to regulate the functioning of genetic counselling centres, genetic laboratories or genetic clinics by imposing restrictions of the user of a sonogram for conducting activities relating to certain pre-natal diagnostic techniques. The regulation includes the necessity of having to employ a person, who shall possess the qualifications, as may be prescribed and restricts also the place where any pre-natal diagnostic technique is conducted. Section 3-A specifically prohibits a person Civil Writ Petition No.14759 of 2009 -4- including a specialist in the field of infertility from conducting the sex selection of a woman or a man or of both or on any tissue, embryo, conceptus, fluid or gametes derived from either or both of them. Section 3-B contains the prohibition on sale of ultrasound machine, etc., to persons, who are not registered under the Act. The need for registration of a person, who possesses an ultrasound machine is obviously to ensure that the sex identification which is possible through the ultrasound machine is done in a controlled area of persons, who use it for appropriate diagnostic purposes, for detecting certain abnormalities which are specified under Section 4(2) of the PNDT Act. The said provision states:- “No pre-natal diagnostic techniques shall be conducted except for the purposes of detection of any of the following abnormalities, namely:- (i) chromosomal abnormalities; (ii) genetic metabolic diseases; (iii) haemoglobinopathies; (iv) sex-linked genetic diseases; (v) congenital anomalies; (vi) any other abnormalities or diseases as may be specified by the Central Supervisory Board.” IV. The relevant Rules relating to registration Persons who shall be appointed

4. The pre-natal diagnostic technique itself could be carried out only, if a person who is qualified, undertakes such an examination, records in writing certain conditions which are spelt out under Clause (3) of Section 4. Section 5 prohibits the communication of the sex of the foetus, which is again intended to prevent the misuse of such information. Section 6 prohibits the determination of sex by any genetic counselling centre or genetic laboratory or genetic clinic. The provisions Civil Writ Petition No.14759 of 2009 -5- of the Act are carried through the rules of the year 1996 and Rule 3 specifies the qualification of employees for 3 classes namely, (i) genetic counselling centre; (ii) genetic laboratory and (iii) genetic clinic/ ultrasound clinic/imaging centre. For each one of these classes, the Rules specify the respective qualifications of persons, who shall be employed. A genetic counselling centre could not be established without a gynaecologist or a paediatrician or a medical geneticist. A genetic laboratory shall have a person, who is either a medical geneticist or a lab technician having certain degrees. A genetic clinic/ultrasound clinic/ imaging centre shall have a gynaecologist having experience of performing at least 20 procedures and a Sonologist, Imaging specialist, Radiologist or Registered Medical Practitioner having Post-Graduate degree or diploma or six months training or one year experience in sonography or image scanning or there shall be a medical geneticist. The expressions “medical geneticist”, “Gynaecologist”, “Sonologist”, “Medical Practitioner” have all been defined. A “medical geneticist” is defined under Section 2(g) as follows:- ” “medical geneticist” includes a person who possesses a degree or diploma in genetic science in the fields of sex selection and pre-natal diagnostic techniques or has experience of not less than two years in any of these fields after obtaining- (i) any one of the medical qualifications recognised under the Indian Medical Council Act, 1956 (102 of 1956); or (ii) a post-graduate degree in biological sciences;” A “Sonologist” or a “Imaging specialist” is defined under Section 2(p), which reads as follows:- ” “sonologist or imaging specialist” means a person who possesses any one of the medical qualifications recognised Civil Writ Petition No.14759 of 2009 -6- under the Indian Medical Council Act, 1956 (102 of 1956) or who possesses a post-graduate qualification in ultrasonography or imaging techniques or radiology;” Appendix to the Rules sets out the forms under which the certificate of registration shall be issued. Form-A which is a form of application for registration of an ultrasound clinic/imaging centre requires a declaration that the organization that installs the equipments has understood the provisions of the Act and all the employees have also been explained under the Act and the Rules. Form-B is the certificate of registration issued for a particular period of time and Form-C is for rejection of application for grant/renewal of registration; Form-D specifies the form of maintenance of records by genetic counselling centre; Form-E by the genetic laboratory and Form-F for genetic clinic/ultrasound clinic/imaging centre. V. Government notification permitting use of the machine by a BAMS degree holder is irrelevant for testing the competence for obtaining registration under the relevant rules

5. The attempt of the petitioner’s counsel was to show that the Indian Medical Council Act and the Indian Medicine Central Council Act of 1970 fulfill the same object and, therefore, even a person registered as a practitioner under Indian Medicine Central Council Act shall also be competent to install a sonogram. The entire submissions of the counsel appearing for the petitioner are misdirected in assuming that since two enactments contained a same objective namely of constituting a medical council and for maintenance of certain registration of practitioners, there cannot be a discrimination between the practitioners of Indian Medicine and practitioners of Allopathic system. If the Act Civil Writ Petition No.14759 of 2009 -7- requires the possession of certain degrees and if the petitioner does not possess the same, there ends the issue and the question of allowing the petitioner to continue the registration does not arise. It is a simple open and shut case of a petitioner, who is not a ‘medical practitioner’ and who is not therefore registered under the Indian Medical Council Act of 1956. If the admitted position is that his name has not been registered in the State Medical register and the Act read with the rules specifically require that the person, who possesses the equipment to have such a certain qualification, then the petitioner could have no further argument to advance. I have already outlined three classes of organizations mentioned under Rule 3 and the prohibition of sale of ultrasound machine to any such organization which is not registered under the Act. It may be that a practitioner under the Indian medicine system may have a requirement for detection of foetus abnormalities for appropriate treatment, but if the Act requires the person to have a particular qualification to possess the sonogram, it will be futile to question the legislative wisdom in a reply to a notice for suspension of registration that he should be treated as competent to make use of the equipment for the purpose of registration. Without a challenge to the provisions of the Act or the Rules themselves, the petitioner has no legs to stand. The petition is wholly misconceived, for, even at the time of arguments, the learned counsel made a dogged insistance in pressing for a parity in treatment of a medical practitioner registered under the Indian Medical Council Act and a practitioner registered under the Indian Medicine Central Act. The right to use an ultrasound machine by a BAMS degree Civil Writ Petition No.14759 of 2009 -8- holder through a notification issued by the Deputy Secretary, Health on behalf of the Secretary to Government, Haryana, on 12.04.2004, is used by the petitioner to justify that if he had been permitted to use the ultrasound machine by the notification, the respondents would be estopped from passing impugned order. A notification by the State allowing the user cannot expand the legislative intent or the Rules which have been framed under the Act. The notification must be understood in the strictest sense of making possible a practitioner of Indian medicine having a BAMS degree to assess the values or interpreting the imaging secured through the ultrasound machines. It cannot be used for legitimizing even the possession of the equipment without a registration under the relevant rules or claim that registration must be made de hors the rules. The notification issued by the Government in the year 2004 is no more than a certification of competence to use the modern technological innovations and it cannot displace the requirement of Rule 3 of the PNDT Act.

6. The writ petition is frivolous and it is dismissed with cost assessed at Rs.10,000/-.

(K.KANNAN) JUDGE

27.04.2010. sanjeev

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