Delhi High Court - Orders
Dr Abhishek Agarwal vs Govt Of Nct Of Delhi & Anr on 21 April, 2022
Author: Yashwant Varma
Bench: Yashwant Varma
$~151
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 6378/2022 and CM APPLs. 19270-71/2022
DR ABHISHEK AGARWAL ..... Petitioner
Through: Mr.Klenin Devasahaya Vinober,
Advocate.
Versus
GOVT OF NCT OF DELHI & ANR. ..... Respondents
Through: Mr. Karan Bhardwaj, ASC, GNCTD.
CORAM:
HON'BLE MR. JUSTICE YASHWANT VARMA
ORDER
% 21.04.2022
1. This petition has been preferred seeking the following reliefs:-
"a) Respondents to allow Petitioner to practice ultrasonography with Postgraduate Diploma in Medical Radiology and Electrology of CPS Mumbai; and/or
b) Respondents to exempt Petitioner (with 15 years of experience in ultrasonography) from Competency Based Assessment Test under the Pre- Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training) Rules, 2014; and
c) pass such order or orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the present case and in the interest of the Justice."
2. The challenge to the communication issued apprising all of the holding of the Competency Based Assessment under the Pre-Conception & Pre-Natal Diagnostic Techniques Act (PCPNDT) is assailed on the ground that the 2014 Rules have been held and declared to be ultra vires by this Signature Not Verified Digitally Signed By:NEHA Signing Date:25.04.2022 17:47:20 Court. The Court however notes that the said judgment has been stayed by the Supreme Court in a pending special leave petition. Additionally, it becomes relevant to note that while placing the judgment in abeyance, the Court has entered the following observations:-
"16. Parliament which has the unquestioned authority and legislative competence to frame the law considered it necessary to empower the Central Government to frame rules to govern the qualifications of persons employed in genetic counselling centres, laboratories and clinics. The wisdom of the legislature in adopting the policy cannot be substituted by the court in the exercise of the power of judicial review. Prima facie the judgment of the Delhi High Court has trenched upon an area of legislative policy. Judicial review cannot extend to reappreciating the efficacy of a legislative policy adopted in a law which has been enacted by the competent legislature. Both the Indian Medical Council Act, 1956 and the PCPNDT Act are enacted by Parliament. Parliament has the legislative competence to do so. The Training Rules, 2014 were made by the Central Government in exercise of the power conferred by Parliament. Prima facie, the Rules are neither ultra vires the parent legislation nor do they suffer from manifest arbitrariness.
17. For the reasons that we have indicated, we are of the view that the judgment of the Delhi High Court needs to be stayed during the pendency of these proceedings. The judgment of the High Court squarely impinges upon the directions issued by this Court in Voluntary Health Association of Punjab. We direct in consequence that the judgment of this Court in Voluntary Health Association of Punjab shall be strictly enforced by all States and Union Territories untrammelled by any order of any High Court or any other court.
18. Pending final disposal, there shall be a stay of the operation of the judgment and order of the Delhi High Court dated 17-2-2016. The interlocutory applications are disposed of accordingly."
3. By a subsequent order passed on 7 February 2020 in that pending batch, the Supreme Court had further observed that no penal action would be taken against a doctor who had put in practice of not less than 15 years in case he does not take the proposed examination. It was further observed that it would otherwise be open and free for candidates to take the proposed Signature Not Verified Digitally Signed By:NEHA Signing Date:25.04.2022 17:47:20 examination.
4. Viewed in the light of the above, it is manifest that the petitioner does not stand absolved from taking the examination which has been put into motion. Consequently, the prayers as raised in the writ petition would not merit consideration.
5. Consequently, the writ petition fails and shall stand dismissed along with pending applications.
YASHWANT VARMA, J APRIL 21, 2022 rb Signature Not Verified Digitally Signed By:NEHA Signing Date:25.04.2022 17:47:20