Madhya Pradesh High Court
Dr. Dinesh Kumar Singh vs The State Of Madhya Pradesh on 1 March, 2021
Equivalent citations: AIRONLINE 2021 MP 428
Author: Nandita Dubey
Bench: Nandita Dubey
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W.P. Nos. 17369/2020 & 17381/2020
HIGH COURT OF JUDICATUTE AT JABALPUR (M.P.)
SINGLE BENCH : HON'BLE JUSTICE NANDITA DUBEY
Writ Petition No.17369/2020
Dr. Dinesh Kumar Singh
Vs.
State of M.P. & others
Writ Petition No.17381/2020
Dr. Pankaj Shrivastava
Vs.
State of M.P. & others
____________________________________________________
Ms. C.V. Rao, learned counsel for the petitioner.
Shri Swapnil Ganguly, learned Dy. Advocate General
with Shri Pradeep Sahu, Panel Lawyer for the
respondent/State.
Arguments heard on : 07.01.2021
Order delivered on : 01.03.2021
ORDER
Regard being had to the similitude of the question involved, on the joint request of the parties, the matters are analogously heard and decided by this 2 W.P. Nos. 17369/2020 & 17381/2020 common order. The facts are taken from W.P. No.17369/2020.
2. Petitioner, presently posted as Gynecologist in the District Hospital, Shahdol is aggrieved by the order dated 22.10.2020, passed by the Chief Medical and Health Officer, Shahdol, whereby his application under Pre- conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short the Act of 1994) for renewal of certificate of registration of Sonography Centre has been rejected and registration of his Sonography Centre has been cancelled, on the ground that in view of the order dated 07.08.2013, issued by the State Government, Public Health and Welfare Department, Bhopal, the doctors employed in government service cannot be granted licence/registration under Section 4(3) of the Madhya Pradesh Upcharyagriha Tatha Rujopchar Sambandi Sthapanaye (Registrikaran Tatha Anugyapan) Adhiniyam, 1973 (for short the Act of 1973).
3. The undisputed facts as as follows :- In the year 2013, the petitioner applied for registration of ultrasound centre/sonography centre under the Act of 1994. The Appropriate Authority exercising the powers under Section 3 W.P. Nos. 17369/2020 & 17381/2020 19(1) of the Act of 1994, granted certificate of registration for a period of five years, i.e., from 29.04.2013 to 28.4.2018 vide registration certificate Annexure P-1. The petitioner applied for renewal of the certificate of registration in the month of February, 2018, before the Appropriate Authorityalongwith the relevant documents and requisite fees. However, by the order impugned passed by the respondent No.4 his application for renewal of certificate of registration of sonography centre/ultrasound clinic was rejected and registration of sonography centre was cancelled and his sonography centre/clinic was sealed.
4. Ms. C.V. Rao, learned counsel for the petitioner contended that the order dated 07.08.2013, on the strength of which the application of petitioner for renewal is arbitrarily rejected is under challenge in W.P. No.15509/2013 and W.P. No.391/2016 and this Court vide order dated 13.09.2013 has granted stay on the effect and operation of the said order. Further order dated 07.08.2013 is contradictory to the order dated 11/13.01.1999 and 15.09.2000 which permits the government doctors to do private practice in their home/clinic after duty hours. It is stated that the registration certificate was granted to the petitioner on 29.04.2013, for a period of five years, when 4 W.P. Nos. 17369/2020 & 17381/2020 the order dated 07.08.2013 was already in existence, hence, there is no justification in rejecting the renewal application on the basis of same order. It is further urged that before cancellation of registration, the procedure prescribed under Section 20 of the 1994 Act and Rule 8 of 1996 Rules has not been followed.
5. Per contra, Shri Swapnil Ganguly, learned Dy. Advocate General for the respondent/State, contended that the Hon'ble Supreme Court in W.P. No. 349/2006 (Voluntary Health Association of Punjab Vs. Union of India) has given certain directions regarding steps to be taken by the State Government and the authorities for mapping of all the registered and unregistered Ultrasound Songagrahpy Clinics in three months time. In compliance of the directions of the Supreme Court, the Government of M.P., Department of Health Services has issued a notification on 01.03.2017 (Annexure R-1), which makes it mandatory to apply for grant/renewal of licence through online mode only. It is stated that the petitioner has applied for renewal of the licence through offline mode, because as per the online mode, there is no provision for application by any government doctor unless the same is registered under Act of 1973. It is further urged that in the present case, since 5 W.P. Nos. 17369/2020 & 17381/2020 the petitioner was lacking registration under the said Act of 1973, therefore, he was incapacitated to apply through online mode as only centres registered under the 1973 Act can apply through online mode. It is stated that District Advisory Committee after due consideration and deliberation has rightly rejected the petitioner's offline application for renewal of certificate.
6. It is stated that the High Court did not stay the order dated 07.08.2013 but only directed not to take any coercive steps against the persons like petitioners in pursuant to the said order. Since the petitioner is in government service, in view of order dated 07.08.2013, he cannot be registered under the Act of 1973 or granted licence for running a Sonography Centre under the Act of 1994. It is contented that no show cause notice or opportunity of hearing was required to be given to the petitioner, as the licence of petitioner has already expired on 28.04.2018, hence, the provision of Section 20 of the Act of 1994, will not apply in the present case.
7. Heard the learned counsel for the parties at length and perused the documents on record. 6
W.P. Nos. 17369/2020 & 17381/2020
8. Before adverting to the rival contentions, it is apposite to reproduce the relevant Sections of the 1994 Act and 1996 Rules which have a bearing on the present case.
Sections 20 and 30 of the Act of 1994 which prescribes the procedure for cancellation/suspension of seizure are reproduced as under :-
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).
30. Power to search and seize records, etc.--
(1) If the Appropriate Authority has reason to believe that an offence under this Act has been or is being committed at any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other place, such Authority or any 7 W.P. Nos. 17369/2020 & 17381/2020 officer authorised in this behalf may, subject to such rules as may be prescribed, enter and search at all reasonable times with such assistance, if any, as such Authority or officer considers necessary, such Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic or any other place and examine any record, register, document, book, pamphlet, advertisement or any other material object found therein and seize and seal the same if such Authority or officer has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act. (2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974) relating to searches and seizures shall, so far as may be, apply to every search or seizure made under this Act.
Rule 3 of 1996 Rules provides for the qualification of employees and requirement of equipments for setting up an ultrasound clinic, which is reproduced as under :-
3. The qualification of the employees, the requirement of equipment etc., for a Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre shall be as under:
(1) Any person being or employing:-
(i) a gynecologist or a pediatrician having six months experience or four weeks training in genetic counseling, or
(ii) a medical geneticists, having adequate space and educational charts/ models/ equipments for carrying out genetic counselling may set up a genetic counselling centre and get it registered as a genetic counselling centre.
(2) (a) Any person having adequate space and being or employing--
(i) a Medical Geneticist and
(ii) a laboratory technician, having a B.Sc. degree in Biological Sciences or a degree or diploma in medical laboratory course with at least one year experience in 8 W.P. Nos. 17369/2020 & 17381/2020 conducting appropriate prenatal diagnostic techniques, tests or procedures. may set up a genetic laboratory.
(b) Such laboratory should have or acquire such of the following equipments as may be necessary for carrying out chromosomal studies, bio-chemical studies and molecular studies:--
(i).......
(ii)......
(iii).....
(3)(1) Any person having adequate space and being or employing:-
(a) Gynaecologist having experience of performing at least 20 procedures in chroinic villi aspirations per vagina or per abdomen, chroinic 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 or imaging specialist or Registered Medical Practitioner having Post-Graduate degree or diploma or six months training duly imparted in the manner prescribed in the "the Pre-conception and Pre-
natal Diagnositc Techniques (Prohibition of Sex Selection) (Six Months Training) Rules, 2014, or
(c) A medical geneticist, may set up a genetic clinic/ultrasound clinic/imaging centre.
(2) The Genetic Clinic/ultrasound clinic/imaging centre should have or acquire such of the following equipments, as may be necessary for carrying out the tests or procedures :-
(a) equipment and accessories necessary for carrying out clinical examination by an obstetrician or gynaecologist;
(b) an ultra-sonography machine including mobile ultrasound machine, imaging machine or any other equipment capable of conducting foetal ultrasonography;
(c) appropriate catheters and equipment for carrying out chorionic villi aspirations per vagina or per abdomen;
(d) appropriate sterile needles for amniocentesis or cordocentesis;9
W.P. Nos. 17369/2020 & 17381/2020
(e) a suitable foetoscope with appropriate accessories for foetoscopy, foetal skin or organ biopsy or foetal blood sampling shall be optional.
(f) equipment for dry and wet sterilization;
(g)equipment for carrying out emergency procedures such as evacuation of uterus or resuscitation in case of need;
(h) genetic works station.
(3) Each medical practitioner qualified under the Act to conduct ultrasonography in a genetic clinic/ ultrasound clinic/imaging centre shall be permitted to be registered with a maximum of two such clinics/centres within a district. The consulting hours for such medical practitioner, shall be clearly specified by each clinic/centre.
Rules 4, 6 and 7 of the 1996 Rules provides for the procedure for grant of certificate of Registration and its validity period, which are reproduced as under :-
4. Registration of Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging centre.:-
(1) An application for registration shall be made to the Appropriate Authority, in duplicate, in Form A, duly accompanied by an affidavit containing--
(i) an undertaking to the effect that the Genetic Centre/ Laboratory/ Clinic/ Ultrasound Clinic/ Imaging Centre/ Combination thereof, as the case may be, shall not conduct any test or procedure, by whatever name called, for selection of sex before or after conception or for detection of sex of foetus except for diseases specified in section 4 (2) nor shall the sex of foetus be disclosed to any body; and
(ii) an undertaking to the effect that the Genetic Centre/Laboratory/Clinic/ Combination thereof, as the case may be, shall display prominently a notice that they do not conduct any technique, test or procedure etc., by whatever name called, for detection of sex of foetus or for selection of sex before or after conception.
(iii) The registration of a genetic clinic shall also include the registration of each and every genetic clinic offering 10 W.P. Nos. 17369/2020 & 17381/2020 pre-natal diagnostic facilities as part of a mobile unit and such a vehicle has to be registered as a mobile genetic unit.
(2) The Appropriate Authority, or any person in his office authorised in this behalf, shall acknowledge receipt of the application for registration, in the acknowledgment slip provided at the bottom of Form A, immediately if delivered at the office of the Appropriate Authority, or not later than the next working day if received by post.
6. Certificate of registration.--
(1) The Appropriate Authority shall, after making such enquiry and after satisfying itself that the applicant has complied with all the requirements, place the application before the Advisory Committee for its advice. (2) Having regard to the advice of the Advisory Committee the Appropriate Authority shall grant a certificate of registration, in duplicate, in Form B to the applicant. One copy of the certificate of registration shall be displayed by the registered 1[Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound clinic or Imaging centre] at a conspicuous place at its place of business:
Provided that the Appropriate Authority may grant a certificate of registration to a Genetic Laboratory or a Genetic Clinic to conduct one or more specified pre-natal diagnostic tests or procedures, depending on the availability of place, equipment and qualified employees, and standards maintained by such laboratory or clinic.
(2)A (a) One copy of the certificate of registration shall be displayed by the registered mobile medical unit inside the vehicle at a conspicuous place.
(b) The certificate of registration for such unit, shall clearly specify the following -
(I) the area of its operation, which shall not exceed the district wherein it is registered;
(II) the number of portable machines installed and being used in the vehicle;
(III) the make and model number of the portable machine;
(IV) the registration number of the vehicle;11
W.P. Nos. 17369/2020 & 17381/2020 (V) full address of the service provider for the mobile medical unit;
(2)B The portable equipment used for conducting pre-natal diagnostic test shall be an integral part of the mobile medical unit and such equipment shall not be used outside such unit under any circumstances.
(2)C In case of a breakdown of the vehicle or for any other reason due to which the registered unit cannot be used as a Genetic Clinic, the Appropriate Authority has to be informed within a period of seven days.
(3) If, after enquiry and after giving an opportunity of being heard to the applicant and having regard to the advice of the Advisory Committee, the Appropriate Authority is satisfied that the applicant has not complied with the requirements of the Act and these rules, it shall, for the reasons to be recorded in writing, reject the application for registration and communicate such rejection to the applicant as specified in Form C. (4) An enquiry under sub-rule (1), including inspection at the premises of the Genetic Counselling Centre, Genetic Laboratory Genetic Clinic, Ultrasound clinic or Imaging centre, shall, be carried out only after due notice is given to the applicant by the Appropriate Authority.
(5) Grant of certificate of registration or rejection of application for registration shall be communicated to the applicant as specified in Form B or Form C, as the case may be, within a period or ninety days from the date of receipt of application for registration. (6) The certificate of registration shall be non- transferable. In the event of change of ownership or change of management or on ceasing to function as a Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound clinic or Imaging centre, both copies of the certificate of registration shall be surrendered to the Appropriate Authority.
(7) In the event of change of ownership or change of management of the 1[Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound clinic or Imaging centre], the new owner or manager of such Centre, Laboratory or Clinic shall apply afresh for grant of certificate of registration.
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W.P. Nos. 17369/2020 & 17381/2020
7. Validity of registration.--
Every certificate of registration shall be valid for a period of five years from the date of its issue.
Rule 8 of 1996 Rules prescribes the procedure for renewal of registration, which is reproduced as under :-
8. Renewal of registration.
(1) An application for renewal of certificate of registration shall be made in duplicate in Form A, to the Appropriate Authority thirty days before the date of expiry of the certificate of registration. Acknowledgment of receipt of such application shall be issued by the Appropriate Authority in the manner specified in sub-rule (2) of rule 4.
(2) The Appropriate Authority shall, after holding an enquiry and after satisfying itself that the applicant has complied with all the requirements of the Act and these rules and having regard to the advice of the Advisory Committee in this behalf, renew the certificate of registration, as specified in Form B, for a further period of five years from the date of expiry of the certificate of registration earlier granted.
(3) If, after enquiry and after giving an opportunity of being heard to the applicant and having regard to the advice of the Advisory Committee, the Appropriate Authority is satisfied that the applicant has not complied with the requirements of the Act and these rules, it shall, for reasons to be recorded in writing, reject the application for renewal of certificate of registration and communicate such rejection to the applicant as specified in Form C. (4) The fees payable for renewal of certificate registration shall be one half of the fees provided in sub-rule (1) of rule 5. (5) On receipt of the renewed certificate of registration in duplicate or on receipt of communication of rejection of application for renewal, both copies of the earlier certificate of registration shall be surrendered immediately to the Appropriate Authority by the 1[Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic Ultrasound clinic or Imaging centre]. (6) In the event of failure of the Appropriate Authority to renew the certificate of registration or to communicate rejection of application for renewal of registration within a 13 W.P. Nos. 17369/2020 & 17381/2020 period of ninety days from the date of receipt of application for renewal of registration, the certificate of registration shall be deemed to have been renewed.
9. The provisions contained in Sections 20 and 30 of the Act of 1994 provides that Appropriate Authority may suo motu or on a compliant can cancel the registration and seize and seal the records, but before doing so, show cause notice and opportunity of hearing is necessary to be given to the affected persons.
10. A conjoint reading of Rules 3, 4 and 6 makes it clear that before granting a certificate of registration under Rule 6, the Appropriate Authority shall make an enquiry and after having satisfied itself that the applicant has complied with all the requirement as prescribed under Rules 3 and 4, place the same before the advisory committee for its advice and on the basis of that advice shall grant the certificate of registration under Rule 6 which shall be valid as per Rule 7 for five years from the date of registration.
11. Sub-rule 3 of Rule 8 prescribes that application of renewal is to be made in duplicate in Form A to the appropriate authority, 30 days before the expiry of the 14 W.P. Nos. 17369/2020 & 17381/2020 certificate of registration. Sub-rule 2 and 3 of Rule 8 further provides that the Appropriate Authority after holding an exquiry and after being satisfied that requirement of Act of 1994 and Rules, 1996 have been complied with or not either renew the certificate for a further period of five years from the date of expiry of certificate granted earlier or reject the same with reasons to be recorded in writing and communicate the same to the applicant. Sub-rule (6) of Rule 8 is a deeming provision and provides that in the event of failure of Appropriate Authority to renew the certificate or communicate the rejection of the application for renewal of a registration within a period of 90 days from the date of receipt of application, the registration shall be deemed to have been renewed. Sub-rule (2) further clarified that during the pendency of the renewal of the registration certificate upto the date of communication of rejection, the holder of certificate of registration sought to be renewed is entitled to continue to operate on the basis of existing certificate of registration.
12. Section 20 of the Act and Rules 7 and 8 mandates that before rejecting an application for renewal under Rules 8(3) or cancelling the registration, the Appropriate Authority must make an enquiry, give the 15 W.P. Nos. 17369/2020 & 17381/2020 applicant an opportunity of hearing, satisfy himself to reach to a conclusion that applicant has not complied with any of the provisions of Act of 1994 and the 1996, Rules. Further, reasons are required to be furnished in writing and communicated to the applicant.
13. In the instant case, the application for renewal of registration was filed on 13.03.2018, i.e., before 30 days of the expiry of the certificate of registration granted earlier alongwith the requisite fees as prescribed under the Rule 8. The rejection order was passed on 22.10.2020 after a period of 31 months. Under the circumstances, by the fiction introduced by the Rule 8(6), the registration of petitioner's sonography centre is deemed to be renewed for all purposes for a further period of five years, starting from the date of expiry of the certificate granted earlier.
14. The contention of respondent/State that petitioner's offline application could not be considered in the light of notification dated 01.03.2017, that was issued in compliance of direction dated 04.03.2013 passed by the Supreme Court in W.P. No. 349/2006, making it mandatory to apply online is misconceived and has no merits as the order dated 04.03.2013, no where directs the authority to 16 W.P. Nos. 17369/2020 & 17381/2020 accept renewal application through online mode only. Further, the Acts and Rules no where prescribes that application is to be filed through online mode only. The respondents have fairly admitted that as per the online mode there is no provision for application by a doctor employed in government service.
15. The reasons mentioned in the impugned order dated 22.10.2020 makes it clear that there is no allegation that the petitioner has breached any of the provisions of the Act of 1994 or 1996 Rules nor is it their case that renewal is not in public interest or that it has been cancelled because some criminal offence has been committed by the petitioner/Centre. Rather a perusal of note sheet dated 20.08.2020 (Annexure R-4) reveals that though petitioner was found entitled for conduction/doing sonography under the PC & PNDT Act, 1994, this application was rejected for the sole reason that petitioner could not be registered under the Act of 1973 and has not applied through online mode. Admittedly, petitioner, who is in government service since 1981 was not registered under the Act of 1973, when he was earlier granted certificate of registration for the Sonography centre/clinic in the year 2013. Further, the PC & PNDT Act, 1994, no where 17 W.P. Nos. 17369/2020 & 17381/2020 prescribes that an applicant applying for renewal of certificate of registration under PC & PNDT Act, 1994 has to be compulsorily registered under the Act of 1973.
16. Further, vide order dated 13.09.2013, this Court in pending W.P. No. 15509/2013 and order dated 14.10.2016 in W.P. No. 391/2016 has already restrained the respondent authorities from taking any coercive action against similarly situated persons. It is not in dispute that petitioner is also similar situated. The operative part of the order dated 13.09.2013, passed in the pending W.P. No.15509/2013 is extracted herein below :-
".....no coercive steps be taken against the persons like petitioners pursuance to the impugned order dated 07.08.2013 till the next consideration of this interim prayer"
Under the circumstances, the respondents could not have rejected the offline application filed by the petitioner.
17. Once the registration is deemed renewed, it will run its full course and can only be cancelled as per the provision prescribed under Section 20 of the Act of 1994. In the peculiar facts and circumstances of the case, in the 18 W.P. Nos. 17369/2020 & 17381/2020 opinion of this Court, non-consideration of the application of petitioner and subsequent cancellation of his registration is done without application of mind, in a routine manner and cannot stand judicial scrutiny.
18. Resultantly, the impugned orders dated 22.10.2020 are quashed. The petitions are allowed. No cost.
(Nandita Dubey)
Judge
01/03/2021
gn Digitally signed by GEETHA NAIR
Date: 2021.03.01 15:53:12
+05'30'