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2022 DIGILAW 607 (RAJ)

Anil Choudhary S/o Ram Chandra Choudhary v. State of Rajasthan Through Principle Secretary, Medical Health And Family Welfare Department

2022-02-21

DINESH MEHTA

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JUDGMENT : 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 No.16799/2021 : Anil Choudhary v. 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 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. v. 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. v. The State of Chhattisgarh & Ors. 8. Mr. v. 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. v. 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 there against, 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. 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 v. 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 v. 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. 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 v. 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 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 v. 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 v. 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 restrained the authorities from taking penal action against such medical practitioners, who have put in practice not less than 15 years. 19. (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 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 v. 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 v. 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. 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. 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. v. 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. v. 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' training in compliance of sub-rule (2) of Rule 6 of the Rules of 2014. 29. All interlocutory applications stand disposed of accordingly.