Dr. Ramesh Kumar Yadav vs The State Of Rajasthan
2022 Latest Caselaw 2836 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR (1) S.B. Civil Writ Petition No. 16799/2021 Anil Choudhary S/o Ram Chandra Choudhary, Aged About 64 Years, 90 Shanti Nagar, Sirohi, Rajasthan. 307001.

----Petitioner Versus

1. The State Of Rajasthan, Through Principle Secretary, Medical Health And Family Welfare Department, Government Of Rajasthan, Government Secretariat, Jaipur.

2. The State Appropriate Authority, Pre-Conception And Pre Natal Diagnostic Techniques Prohibition Of Sex Selection Act, Rajasthan Jaipur Through Its Chairperson.

3. The Director, Medical Health And Family Welfare Department, Swasthya Bhawan, Jamnalal Bajaj Marg, Jaipur Rajasthan.

4. The Rajasthan University Of Health Sciences, Through Its Registrar, Sector 18, Kumbha Marg, Pratap Nagar Tonk Road Jaipur Rajasthan.

----Respondents Connected with (2) S.B. Civil Writ Petition No. 16412/2021 Dr. Anil Kumar Surana S/o Shri Sunder Lal Surana Age- 51 years, B/C- Jain, R/o Marothi Chouk, Nokha, District- Bikaner.

Versus 1 The State of Rajasthan through The Principal Secretary, Department of Medical Health and Family Welfare, Government of Rajasthan, Secretariat Jaipur, Rajasthan. 2 The Director, Department of Medical Education, Govt. of Rajasthan, Jaipur (Raj.) 3 Additional Director (Administration) Cum Joint Secretary, Department of Medical Education, Directorate, Medical Education bhawan, Govind Marg, Jaipur (Raj.) 4 The Chariman, State Appopriate Authority, Pre-conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, Rajasthan Jaipur.

5 The Director, Medical Health and Family Welfare Department, Swasthaya Bhawan, Jamnalal Bajaj Marg,

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Jaipur, Rajasthan.

6 The Convener, Competency Based Test-2021, Rajasthan University Of Health Sciences, Sector-18, Kumbha Marg, Pratap Nagar, Tonk Road, Jaipur, Rajasthan. 7 The Rajasthan University Of Health Service, Through Its Registrar, Sector 18, Kumbha Marg, Pratap Nagar, Tonk Road, Jaipur, Rajasthan.

----Respondents (3) S.B. Civil Writ Petition No. 16418/2021

1. Dr. Varun Bhatra S/o Shri Ashok Sharma, Aged About 38 Years, By Caste Brahmna, R/o Neer Sagar Colony, Jay Singh Pura Turn, Bhankrota, Jaipur (Raj.).

2. Dr. Rajesh Gupta S/o Shri Radhe Shyam Gupta, Aged About 50 Years, By Caste Agarwal, R/o 1/44, S.f.s., Mansarowar, Agarwal Farm, Jaipur (Rajasthan).

3. Dr. Nirish Agarwal S/o Shri Babulal Gupta, Aged About 41 Years, By Caste Agarwal, R/o A-20, Ganesh Nagar, New Sanganer Road, Sodhala, Jaipur (Raj.).

----Petitioners Versus

1. State Of Rajasthan, Through The Principal Secretary, Department Of Medical Health And Family Welfare, Government Of Rajasthan, Secretariat, Jaipur, Rajasthan.

2. The Director, Department Of Medical Education, Govt. Of Rajasthan, Jaipur (Raj.).

3. Additional Director (Administration) Cum Joint Secretary, Department Of Medical Education, Directorate, Medical Education Bhawan, Govind Marg, Jaipur (Raj.).

4. The Chairman, State Appropriate Authority, Pre-

Conception And Pre-Natal Diagnostic Techniques (Prohibition Of Sex Selection) Act, Rajasthan, Jaipur.

5. The Director, Medical Health And Family Welfare Department, Swasthaya Bhawan, Jamnalal Bajaj Marg, Jaipur, Rajasthan.

6. The Convener, Competency Based Test-2021, Rajasthan University Of Health Sciences, Sector-18, Kumbha Marg, Pratap Nagar, Tonk Road, Jaipur.

7. The Rajasthan University Of Health Sciences, Through Its Registrar, Sector-18, Kumbha Marg, Pratap Nagar, Tonk

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Road, Jaipur, Rajasthan.

----Respondents (4) S.B. Civil Writ Petition No. 16888/2021 Dr. Tosher S. Contractor S/o Sorab D. Contractor, Aged About 47 Years, 28 Parsee Chawl, Abu Road, Sirohi, Rajasthan, 307026

----Petitioner Versus

1. The State Of Rajasthan, Through Principle Secretary, Medical Health And Family Welfare Department, Government Of Rajasthan, Government Secretariat, Jaipur.

2. The State Appropriate Authority, Pre-Conception And Pre Natal Diagnostic Techniques Prohibition Of Sex Selection Act, Rajasthan Jaipur Through Its Chairperson.

3. The Director, Medical Health And Family Welfare Department, Swasthya Bhawan, Jamnalal Bajaj Marg, Jaipur Rajasthan.

4. The Rajasthan University Of Health Sciences, Through Its Registrar, Sector 18, Kumbha Marg, Pratap Nagar Tonk Road Jaipur Rajasthan.

----Respondents (5) S.B. Civil Writ Petition No. 17183/2021 Dr. Shyam Sundar Bansal S/o Pyare Lal Bansal, Aged About 70 Years, 24-A-Block, Opposite Guru Dwara Singh Sabha, Ward No.18, Srikaranpur, Sriganganagar.

----Petitioner Versus

1. State Of Rajasthan, Through Principal Secretary, Medical Health And Family Welfare Department, Government Of Rajasthan, Government Secretariat, Jaipur.

2. The State Appropriate Authority, Pre -Conception And Pre Natal Diagnostic Techniques Prohibition Of Sex Selection Act, Rajasthan Jaipur Through Its Chairperson

3. The Director, Medical Health And Family Welfare Department, Swasthya Bhawan, Jamnalal Bajaj Marg, Jaipur Rajasthan.

4. The Rajasthan University Of Health Sciences, Through Its Registrar, Sector 18, Kumbha Marg, Pratap Nagar Tonk

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Road Jaipur Rajasthan.

----Respondents (6) S.B. Civil Writ Petition No. 17365/2021 Dr. Ramesh Kumar Yadav S/o Shri Manohar Singh Yadav, Aged About 69 Years, Resident Of 139, Gandhi Nagar, Lalgarh, Bikaner.

----Petitioner Versus

1. The State Of Rajasthan, Through Principal Secretary, Medical Health And Family Welfare Department, Government Of Rajasthan, Government Secretariat, Jaipur.

2. The State Appropriate Authority, Pre-Conception And Pre Natal Diagnostic Techniques Prohibition Of Sex Selection Act, Rajasthan Jaipur Through Its Chairman.

3. The Director, Medical Health And Family Welfare Department, Swasthya Bhawan, Jamnalal Bajaj Marg, Jaipur, Rajasthan.

4. The Rajasthan University Of Health Sciences, Through Its Registrar, Sector 18, Kumbha Marg, Pratap Nagar, Tonk Road, Jaipur, Rajasthan.

----Respondents

For Petitioner(s) : Mr. Sundeep Bhandawat Mr. Shreyansh Bhandawat Mr. Vivek Sharma Mr. Aditya Singh Rathore for Mr. Pankaj Kumar Gupta For Respondent(s) : Mr. K.S. Rajpurohit, ASG with Mr. Shreyansh Mehta Mr. Lucky Rajpurohit

JUSTICE DINESH MEHTA

Order

21/02/2022

1. As these writ petitions involve common question of facts and

law, they are being decided conjointly. However, for the purpose

of clarity and brevity, facts of S.B. Civil Writ Petition

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No.16799/2021 : Anil Choudhary Vs. State & Ors. are being taken

into consideration.

2. The petitioner, a registered medical practitioner since 1986,

claims to have a certificate of registration issued in terms of Pre-

conception and Pre-natal Diagnostic Techniques (Prohibition of

Sex Selection) Act, 1994 (hereinafter referred to as "the Act of

1994") and the erstwhile Rules framed thereunder.

3. The Central Government enacted Pre-conception and Pre-

natal Diagnostic Techniques (Prohibition of Sex Selection) (Six

Months Training) Rules 2014 (hereinafter referred to as "the Rules

of 2014"), which came into force w.e.f. 2014.

4. After promulgation of the Rules of 2014, all existing medical

practitioners are required to either undergo training for six months

or to clear the Competency Based Assessment/test in terms of

sub-rule (2) of the Rule 6 of the Rules of 2014.

5. The petitioners have approached this Court with the

grievance that the respondents are taking coercive measures

against them and are restraining them from performing

ultrasonography and genetic counselling, and are threatening to

stop their ultrasound clinic and imaging centres, as they have

neither undertaken six months' training nor have they cleared the

Competency Based Assessment.

6. According to the petitioners, they are not required to

undergo 6 months' training or clear Competency Based

Assessment, as they have more than 15 years of experience and

they have already undertaken training.

7. Despite persuasion, learned counsel for the petitioners were

not able to satisfy the Court as to how the petitioners are

exempted from the applicability of Rule 6 of the Rules of 2014 and

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their main plank to claim exemption, has been, the interim order

dated 07.02.2020, passed by Hon'ble the Supreme Court in

Special Leave to Appeal (C) No(s).3058/2020 : Anil Wasti

& Ors. Vs. The State of Chhattisgarh & Ors., arising out of the

order dated 17.12.2019, passed by the Chhattisgarh High Court in

Writ Application No.612/2019 : Anil Wasti & Ors. Vs. The

State of Chhattisgarh & Ors.

8. Mr. Sundeep Bhandawat, learned counsel alongwith other

counsel appearing for the petitioners submitted that certain writ

petitions came to be filed before the Chhattisgarh High Court with

the plea that the State cannot force the registered medical

practitioners (having undertaken six months' training or having

more than one year's experience), to appear in the Competency

Based Assessment in terms of Rule 6 of the Rules of 2014.

Though Chhattisgarh High Court vide order dated 17.12.2019

refused to grant interim order, however, in an SLP filed

thereagainst, Hon'ble the Supreme Court has granted an interim

order (dated 07.02.2020) and restrained the respondent-State of

Chhattisgarh from taking penal action against such medical

practitioners.

9. Learned counsel argued that since Hon'ble the Supreme

Court is seized of the matter and has passed interim order dated

07.02.2020, the petitioners are also entitled for similar protection.

10. An interim order came to be passed on 08.12.2021 (S.B.

Civil Writ Petition No.16799/2021) in petitioner's favour in the

following terms:-

"1. Issue notice. Issue notice of stay application also.

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2. Mr. Mehta, accepts notice on behalf of the respondents and prays for and granted four weeks' time to file reply.

3. Meanwhile, no penal action shall be taken against the petitioner, who has completed 6 months' training of Ultrasonography before coming into force of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) (six months' training) Rules, 2014.

4. List this case on 13.12.2021."

11. Mr. K.S. Rajpurohit, learned Additional Advocate General

appearing for the respondent - State of Rajasthan while inviting

Court's attention towards the judgment dated 08.11.2016, passed

by Hon'ble the Supreme Court in Writ Petition (Civil) No.349/2006

: Voluntary Health Association of Punjab Vs. Union Of India

& Ors. submitted that the Rules of 2014, when challenged before

Hon'ble the Delhi High Court, were declared ultravires and then,

Hon'ble the Supreme Court in Special Leave Petition(s)

No.16657-16659/2016 : Union of India Vs. Indian

Radiological and Imaging Association and Ors. etc., arising

therefrom, stayed the effect and operation of the judgment of

Delhi High Court vide its detailed interim order dated 14.03.2018.

12. In light of the judgment of Hon'ble the Supreme Court in the

case of Voluntary Health Association of Punjab (supra) and

interim order in the case of Union of India Vs. Indian Radiological

and Imaging Association and Ors. (supra), learned Additional

Advocate General argued that the respondent-State cannot be

restrained from conducting the Competency Based Test.

13. It was also argued that the interim order dated 07.02.2020,

passed by Hon'ble the Supreme Court heavily relied upon by the

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petitioners cannot be read as a precedent, particularly when

Hon'ble the Supreme Court in its judgment in the case of

Voluntary Health Association of Punjab (supra) has

unequivocally held that the Competency Based Test or six months'

training is necessary.

14. In support of his argument that the interim order dated

07.02.2020 need not be followed, learned Additional Advocate

General relied upon the judgment of Hon'ble the Supreme Court

rendered in the case of State of Assam Vs. Barak Upatyaka

D.U. Karmachari Sanstha : Civil Appeal No.6492/2002,

reported in (2009) 5 SCC 694, particularly para No.10 of the

judgment and contended that the interim order(s) is/are not

binding.

15. Heard learned counsel for the parties and perused the

material available on record.

16. Upon perusal of the interim order dated 07.02.2020, passed

by Hon'ble the Supreme Court, it is clear that the said order was

passed in an SLP emanating from the order dated 17.12.2019,

passed by Chhattisgarh High Court.

17. It is to be noted that on 17.12.2019, Chhattisgarh High

Court had refused to grant interim order on the basis of the very

same judgment of Hon'ble the Supreme Court rendered in

Voluntary Health Association of Punjab (supra) and interim

order in the case of Union of India Vs. Indian Radiological

and Imaging Association and Ors. (supra). Unequivocal

reference of both these judgments has been made in the said

order of Chhattisgarh High Court.

18. In an SLP filed against such order, Hon'ble the Supreme

Court has passed the interim order dated 07.02.2020 and

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restrained the authorities from taking penal action against such

medical practitioners, who have put in practice not less than 15

years.

19. In the opinion of this Court when the order passed by the

Chhattisgarh High Court dated 17.12.2019 itself refers to the two

orders, which are being relied upon by learned Additional

Advocate General and despite this, Hon'ble the Supreme Court has

intervened and granted interim relief, according to this Court, the

matter is better left to be decided by Hon'ble the Supreme Court.

20. So far as judgment of the Apex Court in the case of State of

Assam Vs. Barak Upatyaka D.U. Karmachari Sanstha (supra) is

concerned, the facts narrated therein clearly show that the interim

orders in the said case were granted by Hon'ble the Supreme

Court in a writ petition filed under Article 32 of the Constitution of

India and dealing with such factual scenario, Hon'ble the Supreme

Court observed that what is binding is the final judgment and not

the interim order.

21. As against this, this Court is faced with interim order dated

07.02.2020, passed by Hon'ble the Supreme Court against the

order passed by the Chhattisgarh High Court, which notices both

the orders of the Supreme Court.

22. Such being the position, pronouncing upon petitioners' rights

on the basis of the judgment of the Apex Court in the case of

Voluntary Health Association of Punjab (supra) and the interim

order passed in Union of India Vs. Indian Radiological and

Imaging Association and Ors. (supra) and ignoring the factum of

pendency of SLP and interim order passed therein would be

against judicial discipline.

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23. While observing that this Court hardly finds substance and

force in petitioners' contention so far as non-applicability of Rule 6

of the Rules of 2014 is concerned, this Court by no stretch of

imagination can hold that the interim order passed by Hon'ble the

Supreme Court is not binding, when the Supreme Court itself is

seized of the matter.

24. Mr. Bhandawat and other counsel appearing for the

petitioners, during the course of arguments, submitted that the

petitions would be governed by the final verdict given by Hon'ble

the Supreme Court in Special Leave to Appeal (c) Petition

No.3058/2020 : Anil Wasti & Ors. Vs. The State of Chhattisgarh &

Ors.

25. This being the position, these writ petitions are allowed and

the interim order(s) (if any) passed by this Court is/are made

absolute.

26. It is hereby declared that the petitioners' rights and/or

obligations to appear in Competency Based Assessment/test shall

be governed by the final verdict to be given by Hon'ble the

Supreme Court in the case Anil Wasti & Ors. Vs. The State of

Chhattisgarh & Ors. (supra).

27. The respondents will, however, be free to hold Competency

Based Assessment/Test in accordance with law for the desirous

candidates.

28. Till the matters are finally decided by Hon'ble the Supreme

Court and/or the interim order passed by the Supreme Court in

case of Anil Wasti (supra) is otherwise modified/vacated, the

respondent-State shall not insist upon the petitioner(s) herein to

appear in Competency Based Assessment or undergo six months'

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training in compliance of sub-rule (2) of Rule 6 of the Rules of

2014.

29. All interlocutory applications stand disposed of accordingly.

(DINESH MEHTA),J 25, 23, 24, 26-28-Ramesh/-

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