MANISH SANKALCHAND PATEL Vs APPROPRIATE AUTHORITY UNDER PNDT ACT & DIST.MAGISTRATE

SCA/24356/2007 5/5 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 24356 of 2007
======================================
MANISH SANKALCHAND PATEL
Versus
APPROPRIATE AUTHORITY UNDER PNDT ACT & DIST.
MAGISTRATE
======================================
Appearance :
Mr. Nikhilesh J. Shah for the petitioner
Mr. Sunit Shah, Government Pleader, with Ms. Reeta Chandrana, AGP, for
respondent.
======================================
CORAM :HONOURABLE MR.JUSTICE A.S.DAVE
Date : 17/10/2007
ORAL ORDER
1 In the present petition under Article 226 of the Constitution of India, the
petitioner prays for issuance of writ of mandamus to quash and set aside
communication dated 17th July 2007 and order dated 31st July 2007, by which
the application for sonography renewal registration came to be rejected.
2 For rejecting the application of the petitioner for renewal of registration, the
District Magistrate, Sabarkantha, at Himatnagar, the sole respondent herein,
has relied upon the aspect about non-production of certificate of the petitioner
having qualification of M.D. Gynaecology and the Registration of Medical
Council of Gujarat/Indian Medical Council.
3 Mr. Nikhilesh Shah, learned counsel for the petitioner, has relied on the
provisions of the Pre-conception and Pre-natal Diagnostic Techniques
[Prohibition of Sex Selection] Act, 1994 [for short, ‘the Act’], more particularly
Gujarat High Court Case Information System http://gujarathc-casestatus.nic.in/gujarathc/showoj.jsp?side=C&casetyp…
1 of 4 10/22/2011 7:29 PM
the definitions provided under Section 2, clause (m) ‘registered medical
practitioner’, clause (g) ‘medical geneticist’ and clause (p) ”sonologist or
imaging specialist’ and submitted that the aforesaid provisions do not envisage
any registration. According to him, nowhere, it is prescribed that, for
Certificate of Registration for Sonography, a registered medical practitioner
should possess a Post-Graduate qualification and that too with the registration
of Medical Council of Gujarat/Indian Medical Council. The learned counsel
for the petitioner has relied on the Pre-Conception and Pre-Natal Diagnostic
Techniques [Prohibition of Sex Selection] Rules, 1996 and particularly Rule 3
thereof, which provides for the qualification of the employees, the requirement
of equipment , etc. for a Genetic Counselling Centre, Genetic Laboratory,
Genetic Clinic, Ultrasound Clinic and Imaging centre and, according to the
learned counsel for the petitioner, the petitioner is in no way concerned with
any other center or laboratory, but he is running a genetic clinic and, according
to that, the applicable rule is sub-rule (3) of Rule 3. Sub-rule (3) of Rule 3
reads as under:
?S(3) (1) Any person having adequate speace and being or employing:
[a] Gynaecologist having experience of performing at least 20
procedures in chorionic villi aspirations per vagina or per abdomen,
chorionic villi biopsy, amniocentesis, cordocentesis foetoscopy, foetal
skin or organ biopsy or foetal blood sampling, etc., under supervision of
an experienced gynaecologist in these fields, or
[b] 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
[c] A medical geneticist,
may set up a genetic clinic/ultrasound clinic/imaging centre.??
According to the learned counsel for the petitioner, the entire provision of
clause (b) of sub-rule [3](1) of Rule 3 of the Rules, which emphasises
‘Registered Medical Practitioner having Post-Graduate degree’, is worded with
disjunctives, namely, ?Sdegree or diploma or six months training or one year
experience in sonograph or image scanning??, and, therefore, registration of a
Registered Medical Practitioner having Post-Graduate Degree is not
warranted. So far as the petitioner is concerned, he is having degree in
Medicine, MBBS, from the Gujarat University and, according to him, he is a
registered Medical Practitioner. Not only that, but he is also having prescribed
qualification of Post Graduation from Russian State University of Medicine in
Obstetrics and Gynaecology. In view of the above, according to the learned
counsel for the petitioner, the reason assigned by the respondent for rejection
of the application of the petitioner for renewal of registration is absolutely
arbitrary, unreasonable and contrary to the Rules and the provisions of the Act
and the impugned order deserves to be quashed and set aside.
Gujarat High Court Case Information System http://gujarathc-casestatus.nic.in/gujarathc/showoj.jsp?side=C&casetyp…
2 of 4 10/22/2011 7:29 PM
4 Mr. Sunit Shah, learned Government Pleader, submits that clause (b) of
sub-rule [3](1) of Rule 3 of the Rules specifically stipulates with the wordings
?SRegistered Medical Practitioner having Post-Graduate degree?? and that
cannot be read with a disjunctive. He further submits that, admittedly, the
petitioner has not produced Certificate of Post Graduation and the Registration
of Medical Council of Gujarat/Indian Medical Council. Therefore, according
to the learned Government Pleader, the rejection of application for renewal of
registration is just and proper and no interference is called for.
5 Having heard learned advocates for the parties, considering the facts and
circumstances of the case and on a plain interpretation of clause (b) of sub-rule
[3](1) of Rule 3 of the Rules, it is clear that the said provision prescribes the
qualification of Sonologist, Imaging Specialist, Radiologist or Registered
Medical Practitioner having Post-Graduate degree, followed by disjunctive ‘or’
namely ?Sdiploma or six months training or one year experience in
sonography or image scanning??, which is alternative to Registered Medical
Practitioner having Post-Graduate degree. Admittedly, the petitioner is not
possessing qualification of Post-Graduation and the degree of post-graduation
qualification from Russia is not recognized by the Indian Medical Council.
Earlier, the petitioner was working with Jalaram Arogya Seva Trust Hospital
under whom sonography registration application filed by the petitioner as
gynaecologist was registered, but when it came to the notice of the appropriate
authority that the petitioner is not holding qualification as recognized by the
Indian Medical Council as well as under the Act, the same is not renewed and
even no documentary evidence in this regard is produced before the Authority.
It is also borne out from the record that the petitioner left the service of
Jalaram Arogya Seva Trust Hospital where he was registered under the Act
with the appropriate authority at an earlier point of time and, thereafter, he left
the service of the said Hospital and did not inform the concerned Authority
and, therefore, the requisite experience is not considered.
6 Further, since the petitioner is not having recognized qualification under the
Indian Medical Council, he cannot be recognized as gynaecologist and,
therefore, for operating genetic clinic, he is not qualified under the Act, where
Rule 3(1) mentions different qualification, namely, [i] gynaecologist with 20
sonography experience under the Senior Gynaecologist or [ii] radiologist or
registered medical practitioner with the Indian Medical Council with 100
sonography procedure experience under the supervision of a similarly
qualified person. The petitioner is not having any of the requisite requirements
under Rule 3 of the Rules and, therefore, the case of the petitioner cannot be
considered for sonography renewal registration. As per the definition of
Section 2(f) of the Act, ‘gynaecologist’ means a person, who possesses a
post-graduate qualification in gynaecology and obstetrics. In the present case,
the petitioner has obtained the said post-graduate qualification from Russian
State University of Medicine in Obstetrics and Gynaecology and no evidence
is produced that the said degree is recognized by the Indian Medical Council.
Neither the petitioner is Sonologist or Imaging Specialist as defined under
Section 2(p) of the Act. In that view of the matter, the respondent is justified in
Gujarat High Court Case Information System http://gujarathc-casestatus.nic.in/gujarathc/showoj.jsp?side=C&casetyp…
3 of 4 10/22/2011 7:29 PM
holding that the petitioner does not possess requisite qualification to become
eligible for sonography renewal registration.
7 Considering the above, there is no substance in the present petition and the
petition is required to be rejected.
8 In the result, the petition fails and is rejected. Rule is discharged with no
order as to costs.
(ANANT S. DAVE, J.)
(swamy)

Top
Gujarat High Court Case Information System http://gujarathc-casestatus.nic.in/gujarathc/showoj.jsp?side=C&casetyp…
4 of 4 10/22/2011 7:29 PM

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s