Dr. Prabha Shankar vs The State Of U.P. And 4 Others

HIGH COURT OF JUDICATURE AT ALLAHABAD 

Court No. – 39

Case :- WRIT – C No. – 56031 of 2013

Petitioner :- Dr. Prabha Shankar
Respondent :- The State Of U.P. And 4 Others
Counsel for Petitioner :- Vijai S. Sinha
Counsel for Respondent :- C.S.C.

Hon’ble V.K. Shukla,J.
Hon’ble Suneet Kumar,J.
Petitioner Dr. Prabha Shankar is before this Court with a request to quash the order dated 4.4.2013 (annexure no. 1 to the writ petition) wherein the request of petitioner for running of ultrasound center has been turned down.
Petitioner has come up before this Court with the mention that petitioner has got to his credit degree of Ayurvedacharya (BAMS) from Kameshwar Singh Darbhanga Sanskrit Viswavidyalaya and petitioner has proceeded to mention that he has proceeded to got himself registered with the Board of Indian Medicine U.P. with registration no. 40868 dated 10.04.1989 in the capacity of Vaidya. Petitioner has further proceeded to mention that petitioner has worked with one Dr. Kulbir Handa, formerly Lecturer in Radiology at Medical College, Kanpur, as Ultrasound Associate and has performed routine ultrasound. Petitioner submits that with the aforesaid qualifications he is in a position to run the ultrasound center and his submission is that he has established ultrasound center and has been running the aforementioned ultrasound center and his grievance before this Court is that he has moved an application for registration of the aforementioned ultrasound center and earlier same has been registered and he has been requesting to take decision on his renewal application then on 4.4.2013, the same has been refused on the ground that petitioner’s qualification is not at all in consonance with the qualifications, as are provided for under Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, and, accordingly, petitioner is before this Court.
Shri Vijay S. Sinha, learned counsel for the petitioner, submitted that once in the past petitioner has been accorded permission to run the ultrasound center in question w.e.f. 2007 to 2012, then there is no occasion to have refused the renewal of the running of the aforementioned ultrasound center and that too without affording any opportunity of hearing and, as such, action taken is per-se bad.
Countering the said submission learned Standing Counsel on the other hand contended that on the face of it petitioner is not at all eligible to be permitted to run the ultrasound center and his center in question is clearly in the teeth of the provisions as contained under the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 and coupled with this petitioner does not fulfill the requisite minimum eligibility criteria prescribed by the Indian Medical Council Act, 1956 under Section 2 wherein recognized qualification has been provided for and, in view of this, no interference should be made by this Court.
From the own showing of petitioner, he has to his credit Ayurvedacharya (BAMS) degree issued from Kameshwar Singh Darbhanga Sanskrit Viswavidyalaya and after acquiring the said degree petitioner has got himself registered as a Vaidya with the Board of Indian Medicine U.P. with registration no. 40868 dated 10.04.1989. Petitioner submits that he has been running Ballia X-ray Center, Hospital Road, Ballia and has also proceeded to mention that before starting the aforementioned ultrasound center in the year 1995 he had obtained requisite qualification by undergoing training under Dr. Kulbir Handa, who has run Dr. Handa X-Ray & Imaging Center at New Delhi.
The question to be considered by this Court is as to whether petitioner can be presumed to be a qualified medical practitioner entitled to run ultrasound center under Section 2 (p) of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994, which proceeds to mention that Sonologist or Imaging Specialist means a person, who possess any one of the medical qualification recognized under the Indian Medical Council Act, 1956 or who possesses a post-graduate qualification in ultrasonography or imaging techniques or radiology. In the present case petitioner possesses only BAMS degree and it is not at all the case of the petitioner that it is one of the prescribed medical qualification recognized under the Indian Medical Council Act, 1956 for acting as Sonologist or Imaging Specialist. Under Indian Medical Council Act, 1956, Section 2 (f) defines “medicine” as modern scientific medicine in all its branches and includes surgery and obstetrics and Section 2 (h) talks of recognized medical qualification, as any one of the medical qualifications, included in the schedule. The qualification as acquired by the petitioner, is nowhere mentioned in the schedule of Indian Medical Council Act, 1956. Section 11 of the aforementioned Act 1956 proceeds to mention that medical qualifications granted by any university or medical institution in India which are included in the First Schedule shall be recognized medical qualification for the purpose of said Act. Central Government has to accord permission for recognizing such qualification also which are not there in First Schedule. In Second Schedule, medical qualifications granted by countries with which there is scheme of reciprocity, are treated as recognized medical qualifications under Section 12. Section 13 talks of recognition of medical qualification whose qualifications are not included in the First Schedule or Second Schedule. Neither in the First Schedule nor in the Second or Third Schedule, BAMS degree of petitioner has been recognized under Indian Medical Council Act, 1956. Reliance made by the petitioner on the provisions of Indian Medicines Central Act, 1970 is neither here nor there.
In view of this, once a categorical finding has been returned that petitioner does not fulfill the eligibility criteria to run ultrasound center, then this Court cannot come to rescue or reprieve of the petitioner, and even giving of opportunity would not have helped the petitioner.
Writ petition is dismissed, accordingly.
Order Date :- 8.10.2013
Shekhar

 

 

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Author: savedaughters19

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