Punjab-Haryana High Court
Dr. Kiran Garg vs State Of Punjab And Another on 28 May, 2013
Author: Rajiv Narain Raina
Bench: Rajiv Narain Raina
CWP No.5323 of 2012
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CWP No.5323 of 2012
Date of Decision: 28.05.2013
Dr. Kiran Garg
..... Petitioner
Versus
State of Punjab and another
..... Respondents
CORAM:- HON'BLE MR. JUSTICE RAJIV NARAIN RAINA
Present: Mr. Naresh Kumar Joshi, Advocate,
for the petitioner.
Mr. Premjit Singh Hundal, AAG, Punjab.
Ms. Anju Arora, Advocate,
for respondent No.2.
1. To be referred to the Reporters or not? Yes
2. Whether the judgment should be reported in the Digest? Yes
RAJIV NARAIN RAINA, J.
The only issue which has crystalized after hearing elaborate arguments on either side addressed by Mr. Naresh Kumar Joshi, learned counsel appearing for the petitioner and Ms. Anju Arora, learned counsel appearing for the private respondent and Mr. Premjit Singh Hundal,AAG, Punjab is whether the impugned order dated 12.01.2012 (P-10) passed by Mr. Satish Chandra, I.A.S, Principal Secretary, Health & Family Welfare, Government of Punjab, Chandigarh is extramural and without jurisdiction.
The impugned order has set aside the order of the State Appropriate Authority passed under the provisions of the Pre-conception & Pre-Natal Diagnostic Technique (Prohibition of Sex Selection) Act, 1994 Mittal Manju 2013.07.24 10:01 I attest to the accuracy and integrity of this document Chandigarh CWP No.5323 of 2012 -2- (for short "the PC & PNDT Act"). The State Appropriate Authority in its order dated 19.01.2007 (P-6) has found no violation of any of the provisions of the PC & PNDT Act or the rules framed thereunder in its elaborate and detailed order. It is recorded in the order that State Appropriate Authority had reserved its order on 31.10.2006 but later on a representation received from respondent No.2 - Dr. Sham Lal Thukral, retired SMO who was the Sub Divisional Appropriate Authority under the Act when the basic orders in this case were passed, the matter was kept pending to hear him. The Appellate Authority rightly questioned the locus standi of Dr. S.L. Thukral in a case in which he was not a party but in larger interest heard him. During the course of arguments, it transpired that the wife of Dr. S.L. Thukral is also running a Nursing Home equipped with ultra sonography facility in the same city in Civil Lines, Bathinda. A case under the PC & PNDT Act was registered against the Thukrals for violation the provisions of the Act and they were arrested by the police and remained in judicial lock up as well. There appears apparently to be personal rivalry between the two Nursing Homes of the petitioner and the second respondent and his wife. The Appellate Authority, went on to hear Dr. S.L. Thukral before pronouncing final orders in favour of the petitioner.
The Principal Secretary, Health & Family Welfare, Punjab re- opened the matter on a representation submitted by respondent-Dr. S.L. Thukral which was subject matter of Crl. Misc. No.7081-M of 2011 filed by by the latter against the order of the State Appropriate Authority dated 19.01.2007 which was disposed of on 17.03.2011 with a direction to decide his representation. The Principal Secretary, Health & Family Welfare, Mittal Manju 2013.07.24 10:01 I attest to the accuracy and integrity of this document Chandigarh CWP No.5323 of 2012 -3- Punjab, however, proceeded and set aside the appellate order.
Mr. Naresh Kumar Joshi, learned counsel appearing for the petitioner in his challenge to the order passed by the Principal Secretary, Health & Family Welfare, Government of Punjab, Chandigarh submits that the impugned order is patently without jurisdiction since the power exercised is not traceable to the PC & PNDT Act where the State Appropriate Authority is the final appellate authority with no further provision for appeal and revision etc. much less to ignite his jurisdiction on a representation by a third party.
Mr. Joshi further submits that the order passed by this Court in Crl. Misc. No.7081-M of 2011 in Dr. Sham Lal Thukral vs. State of Punjab & others in which a direction was issued to the authorities to decide the representation made by Dr. Thukral cannot be taken as an expression of opinion on the question of jurisdiction of the Principal Secretary, Health & Family Welfare, Government of Punjab, Chandigarh to enter upon and decide the representation as ordered in terms of the decision in Crl. Misc. No.7081-M of 2011 in view of the ex-parte order passed by this Court. He submits that the present petitioner was not heard before the order was passed and is therefore, not bound by it and the petitioner would have a subsisting right to question the jurisdiction of the Principal Secretary, Health & Family Welfare, Government of Punjab, Chandigarh to enter upon the case and sit virtually in appeal without any statutory authority.
The provision of appeals is provided under the PC & PNDT Act, 1994 and the PC & PNDT Rules, 1996. Mr. Joshi points out to the following observations made by the Principal Secretary in the order Mittal Manju 2013.07.24 10:01 I attest to the accuracy and integrity of this document Chandigarh CWP No.5323 of 2012 -4- impugned:-
"There were some merits in their arguments that section 21 empowers only the Scan Centres to file an appeal and not to the Govt. Officers or private person. However, rule 19 says that anybody can file an appeal at district level but in unsatisfied condition provision has been made for filing an appeal before the State Govt. In any case this controversy is set to rest by the the Hon'ble High Court in its order dated 17/3/2011 in Crl. Misc. No.7081-M of 2011 Dr. Sham Lal Thukral versus State of Punjab vide which the State Govt. has been directed to decide the representation within a period of one month. I, accordingly treat the representation of Dr. Sham Lal Thukral as one of the appeals against the order of State Appropriate Authority dated 19.01.2007. The main appeal has already been filed b District Appropriate Authority dated 16.04.2007. I propose to dispose-off both these appeal through this order and comply with the orders of Hon'ble High Court dated 17.03.2011."
(underlining for emphasis) It would then be appropriate to reproduce the provisions of Sections 20 and 21 of the PC & PNDT Act:-
"20. Cancellation or suspension of registration.- (1) The Appropriate Authority may suo moto, or on complaint, issue a notice to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic to show cause why its registration should not be suspended or cancelled for the reasons mentioned in the notice.
(2) If, after giving a reasonable opportunity of being heard to the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic and having regard to the advice of the Advisory Committee, the Appropriate Authority is satisfied that there has been a breach of the provisions of this Act or the rules, it may, without prejudice to any criminal action that it may take against such Centre, Laboratory or Clinic, suspend its registration for such period as it may think fit or cancel its registration, as the case may be.
(3) Notwithstanding anything contained in sub-sections (1) and (2), if the Appropriate Authority is of the opinion that it is necessary or expedient so to do in the public interest, it may, for reasons to be recorded in writing, suspend the registration of any Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic without issuing any such notice referred to in sub-section (1). Mittal Manju 2013.07.24 10:01 I attest to the accuracy and integrity of this document Chandigarh CWP No.5323 of 2012 -5-
21. Appeal.- The Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic may, within thirty days from the date of receipt of the order of suspension or cancellation of registration passed by the Appropriate Authority under section 20, prefer an appeal against such order to -
(i) the Central Government, where the appeal is against the order of the Central Appropriate Authority; and
(ii) the State Government, where the appeal is against the order of the State Appropriate Authority, in the prescribed manner."
It would also be profitable to reproduce the provisions of Rule 19 of the Pre-conception & Pre-Natal Diagnostic Technique (Prohibition of Sex Selection) Rules, 1996:-
"19. Appeals.- (1) Anybody aggrieved by the decision of the Appropriate Authority at sub-district level may appeal to the Appropriate Authority at district level within 30 days of the order of the sub-district level Appropriate Authority.
(2) Anybody aggrieved by the decision of the Appropriate Authority at district level may appeal to the Appropriate Authority at State/UT level within 30 days of the order of the district level Appropriate Authority.
(3) Each appeal shall be disposed of by the District Appropriate Authority or by the State/Union Territory Appropriate Authority, as the case may be, within 60 days of its receipt.
(4) If an appeal is not made within the time as prescribed under sub-rule (1), (2) or (3), the Appropriate Authority under that sub-
rule may condone the delay in case he/she is satisfied that appellant was prevented for sufficient cause from making such appeal." It is only a Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic who have a right to appeal under Section 21 of the Act. Therefore, Dr S.L. Thukral, being a private person, and respondent duly represented by Mrs Anju Arora, Advocate; was a person incompetent and had no locus standi to present and press his representation to the State Mittal Manju 2013.07.24 10:01 I attest to the accuracy and integrity of this document Chandigarh CWP No.5323 of 2012 -6- Government against the order of the State Appropriate Authority in a case of suspension of cancellation of registration and for it to be treated as a full fledged appeal/revision. Thukral had no locus standi either before the State Appropriate Authority or this Court.
In view of the above legal framework, this Court has no doubt whatsoever that the impugned order dated 12.01.2012 (P-10) suffers from patent illegality and want of jurisdiction. It is non est and ab initio void. The order is extralegal and extramural. The ex-parte order dated 17.3.2011 passed in Crl. Misc. No.7081-M of 2011 was not intended to be an expression on the question of jurisdiction. In fact the Principal Secretary, Health & Family Welfare, Government of Punjab, Chandigarh was aware of the legal position when he admitted that: "There were some merits in their arguments that section 21 empowers only the Scan Centres to file an appeal and not to the Govt. Officers or private person." and still went on to pass a patently perverse order violating settled rights of the petitioner in appeal at the hands of a disgruntled business rival of the petitioner who had no locus standi to poke his nose before the appellate authority and intervene in the matter. Strangely, he records in the impugned order that the controversy of jurisdiction has been settled by this Court in Crl. Misc. No.7081-M of 2011. The ex-parte order passed in that case reads:
"Present: Ms. Anju Arora, Advocate,
for the petitioner.
***
This petition is disposed of with a direction to the
authorities to decide the representation made by the petitioner within a period of one month."
The Principal Secretary, Health & Family Welfare, Government Mittal Manju 2013.07.24 10:01 I attest to the accuracy and integrity of this document Chandigarh CWP No.5323 of 2012 -7- of Punjab, Chandigarh has deliberately misconstrued the aforesaid order of this Court and has abused his office and authority as a Government servant to cause injury to the petitioner not warranted by law and to expose her to harm at the behest of a third party, a retired Government servant smarting from criminal action against him and his wife under the PC & PNDT Act . I have little doubt that at his level of administrative experience, the Principal Secretary, Health & Family Welfare knew well how this Court sets at rest legal controversies. These are done by reasoned judgments and not orders disposing of petitions with directions to decide representations and that too ex parte without hearing the State or the affected party. It was not legally permissible for him to treat a mere non-statutory representation preferred outside the pale of law as a statutory appeal under the Act and to proceed to decide it as though he were exercising plenary jurisdiction thinking in delusion that he is Court or a quasi judicial authority empowered by statute and under legal obligation to act. I am not sure whether considerations other than law were at play or was he playing footsie with Dr. Thukral. Instead of deciding the representation in the clumsy but laboured manner done he ought to have rejected it outrightly in terms of the Act for want of jurisdiction or lack of authority to decide and to have sought the opinion of the Advocate General, Punjab in the matter or of his more knowledgeable colleagues before proceeding further if he was unable to grope in the dark. The appeal provisions of the Act are so clear as would not admit any ambiguity, to my mind, and to his mind as well because he says in the impugned order that, and to repeat,"There were some merits in their arguments that section 21 empowers only the Scan Centres to file an appeal Mittal Manju 2013.07.24 10:01 I attest to the accuracy and integrity of this document Chandigarh CWP No.5323 of 2012 -8- and not to the Govt. Officers or private person.".
Resultantly, the writ petition is allowed. The impugned order dated 12.01.2012 (P-10) is quashed. The order dated 19.01.2007 passed by the State Appropriate Authority is revived.
It may be noted that this order is confined only to the examination of the impugned order from the point of view of jurisdiction and the merits of the case have neither been examined nor debated before this Court and nothing said in this order other than on the issue of jurisdiction would be taken as an expression on the merits of the case for whatever they may be worth.
(RAJIV NARAIN RAINA) JUDGE 28.05.2013 manju Mittal Manju 2013.07.24 10:01 I attest to the accuracy and integrity of this document Chandigarh