Punjab-Haryana High Court
Dr. Pardeep Mahendru vs State Of Haryana And Others on 28 August, 2012
Author: Surya Kant
Bench: Surya Kant
CWP No. 6139 of 2011 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
1. CWP No. 6139 of 2011(O&M)
Dr. Pardeep Mahendru
..... Petitioner
Versus
State of Haryana and others
..... Respondents
2. CWP No. 1688 of 2012
Dr. Pardeep Mukhi
..... Petitioner
Versus
State of Haryana and others
..... Respondents
3. CWP No. 1689 of 2011
Dr. RK Singla
..... Petitioner
Versus
State of Haryana and others
..... Respondents
CWP No. 6139 of 2011 -2-
4. CWP No. 1730 of 2012
Dr. Monika
..... Petitioner
Versus
State of Haryana and others
..... Respondents
Date of decision: 28.8.2012
CORAM: HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR.JUSTICE R.P. NAGRATH
PRESENT: Mr. Inderjit Sharma, Advocate for the petitioner
(in all cases).
Mr. RD Sharma, DAG, Haryana.
Mr. Gurmail Singh, Advocate for respondent No. 5
(in all cases).
SURYA KANT, J. (ORAL)
This order shall dispose of CWP Nos. 6139 of 2011; 1688, 1689 and 1730 of 2012 as the point in issue is common in nature. The facts have been extracted from CWP No. 6139 of 2011 (Dr. Pardeep Mahendru Vs. State of Haryana and others).
(2) The petitioner impugns the order dated 27.9.2010 (Annexure P-11), whereby his claim to use Ultra-sound Machine, has been turned down after observing that the use of Ultra-sound Machine or Sonography by a BAMS (Ayurvedic) Degree holder has been expressly banned by the State Government vide notification dated CWP No. 6139 of 2011 -3- 12.4.2004 (Annexure P-9). The petitioner, with a view to earn eligibility to use Ultra-sound Machine, also challenges the constitutional validity of Section 2 (m) of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (in short PNDT Act), besides a direction that BAMS Doctors (Ayurvedic) should be permitted to use Ultra-Sound Machines like MBBS qualified doctors. (3) It is not in dispute that the claim of BAMS Doctors (Ayurvedic) like the petitioner has been considered at length and rejected by a learned Single Judge of this Court in CWP No. 14759 of 2009 (Dr. Devender Bohra Vs. State of Haryana and others) decided on 27.4.2010. The basic distinction between MBBS and BAMS Degree (Ayurvedic), the provisions of PNDT Act along with relevant expressions like "Sonologist", "Medical Practitioner" etc. have been referred to and considered by learned Single Judge in extenso while dismissing the claim of BAMS doctors.
(4) The petitioner, however, draws the distinction and urges that there was no challenge to the provisions of the PNDT Act or Rules in the above stated writ petition hence, the additional issue, namely, vires of Section 2 (m) of the PNDT Act, which defines "registered medical practitioner", deserves independent consideration by us. However, he does not dispute that the other related issues have been gone into by the learned Single Judge in Dr. Devender Bohra's case cited (supra).
(5) It would be apposite at this stage to reproduce Section 2(m) of the PNDT Act which defines "registered medical practitioner" and CWP No. 6139 of 2011 -4- reads as follows:-
"registered medical practitioner" means a medical practitioner who possesses any recognized medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956 and whose name has been entered in a State Medical Register".
(6) The petitioner's contention is that only those medical practitioners who possess recognized medical qualification as defined in Clause (h) of Section 2 of the Indian Medical Council Act, 1956 and whose names are entered in a State Medical Register, have been recognized as "registered medical practitioner" under the PNDT Act, which amounts to hostile discrimination with BAMS Degree holders, hence the above-reproduced definition does not stand to the touchstone of Article 14 of the Constitution of India.
(7) We have given our thoughtful consideration to the contention raised on behalf of the petitioner. (8) The petitioner does not plead or allege fault with the inclusion of medical practitioners who are qualified under the Indian Medical Council Act, 1956, amongst those who are recognized by PNDT Act. He, while questioning the definition of "registered medical practitioner" under the PNDT Act, in a way, seeks a mandamus to re- write the said definition so as to include "medical practitioners"
recognized/registered under the Indian Medicine Central Council Act, 1970 also. No such writ, in our considered view, in exercise of jurisdiction under Article 226 of the Constitution, can be issued. (9) The MBBS or any other similar qualification based upon CWP No. 6139 of 2011 -5- modern medical science is totally distinct and different from the Ayurvedic system of medicines as is imparted in the BAMS degree course. Whether BAMS degree-holders are professionally capable to use Ultra-sound Machines or not is essentially a question which falls within the domain of the subject-experts. The fact that the legislature in its wisdom did not include in the 'registered medical practitioners' under PNDT Act except those who are possessing recognized medical qualifications under the Indian Medical Council Act, 1956, is a decision based upon intelligible criteria and satisfies the test of reasonable classification.
(10) For the reasons aforestated, coupled with those assigned by this Court in Dr. Devender Bohra's case (supra), we do not find any merit in these writ petitions, which are accordingly dismissed.
( SURYA KANT ) JUDGE August 28, 2012 ( R.P. NAGRATH ) rishu JUDGE