PCPNDT : Can licenses be renewed when court cases are pending ?

Can Licenses required for running genetic / ultrasound clinics be renewed when the cases under PCPNDT Act are pending ? - Hon. Rajasthan High Court said "NO", whereas Hon. Bombay High Court and Punjab and Haryana High Court have  decided in favour of Doctors stating that such applications can be made subject to provisions of the Act.

Hon. Rajasthan High Court was dealing with various similar petitions filed by no. of aggrieved Doctors whose licenses required to run the clinics were not renewed as cases were pending against them. 
Case Details :
Dr. Rajesh Gaur V/s. State of Rajasthan & ors.
Civi. W.P.no. 5858/2015, deiced on 22/10/2018
HON'BLE MR. JUSTICE VIJAY BISHNOI 
Judgement Link :
https://indiankanoon.org/doc/47312283/

Facts in Short :
1.Various  Doctors from Rajasthan approached Hon'ble high Court as thier applications to renews the licenses to run clinic were rejected and not renewed subsequently after 2015 owing to the provision of clause-(ii) of sub-rule (4) of Rule 18-A of the Rules of 1996.

2.The  Rule 18-A(4)(ii), which was inserted in the Act Vide amendment dated 24.4.2014, reads as under :
"18-A. Code of Conduct to be observed by Appropriate Authorities.- xxxxx (4) All the Appropriate Authorities including the State, District and Sub-district notified under the Act, inter-alia, shall observe the following conduct (20 of 26) for registration and renewal of applications under the Act, namely -
(i) dispose of the application for renewal and new registration within a period of seventy days from the date of receipt of application;
(ii) ensure that no application for fresh registration or renewal of registration is accepted if any case is pending in any court against the applicant for violation of any provision of the Act and the rules made thereunder."

3. It was tried to be argued on behalf of Petitioners Doctors that as per rule-8 it is mandatory for the appropriate authority to hold an enquiry to satisfy itself regarding the statutory compliance  and  as per sub-rule (3) of Rule 8 of the Rules of 1996, after enquiry and taking into consideration the advice of the advisory committee, if the appropriate authority is satisfied that the registration of the applicant cannot be renewed, then, the appointing authority is required to provide opportunity of hearing to the applicant and then only his application for renewal of registration can be rejected. However this Mandatory provision was not followed under the garb said rule18-A(4)(ii).

4. The Doctors tried to take the shelter under the Division Bench judgments of Hon. Bombay High Court Civil Writ Petition No.4478/2015 (Maharashtra State Branch of  IRIA MSBIRIA, Mumbai V/s. union of India and others) (Link : https://www.iria.in/dynamic/news/Aurangabad%20High%20Court%20Judgement.pdf  ), decided on May 05, 2015 
and S.B. Civil Writ Petition No.6979/2015 (Dr. Sudhir s/o Mahadeorao Nimakar V/s. The State of Maharashtra), decided on 13 th August, 2015. 
Their Lordships of Bombay High Court relying on the statement made by The learned Assistant Solicitor General (ASG) for the Union of   India   that  said  Rule   18­A   (4)(ii) incorporated   with   effect   from   28.1.2015 shall not be construed as a total prohibition on the appropriate authority   to   receive   an   application   for   renewal   or   fresh registration, gave reliefs to Doctors whose registration application were refused solely on the ground that criminal cases are pending and directed AA to complete the procedure as per law and complete the enquiry. 

4. However his Lordship of Hon. Rajasthan High Court did not agree with the judgments of Bombay high Court and refused to give any reliefs to Petitioners Doctors. the Project Director, PCPNDT , Jaipur was asked to file the affidavit on the stand taken by Ld. ASG in Bombay High Court and in the affidavit said Director stated that there are no such written guidelines recovered from the Central and  the object of statue will be frustrated and we cannot interpret the provision to frustrate the objective of the Law. his Lordship observed that the word "pending"used in Rule 18-A (4)(ii) of the Rules of 1996 does not mean that charges have actually been framed or trial commenced.

5. Surprisingly the judgements of hon'ble Bombay High Court have been followed by Hon. Punjab and Haryana High court in the cases of Kanwal Raj V/s. Union of India , (See the link https://indiankanoon.org/doc/37805437/) and Rattan Multispeciality Hospital and Diagnostic Center V/s. state appellate Authority, (see the Link : https://indiankanoon.org/doc/112614121/).

6. The cases filed under PCPNDT Act are treated with the same standard. Meaning even if Form F is incomplete with minor details still its an offense which is treated at par with the serious offense of sex determination. There should be distinction to that effect. Hon' Bombay high Court in various earlier case has held that mere mistakes in Form F cannot call for criminal action.
See the links :
http://pcpndtreliefs.blogspot.com/2017/04/filling-of-f-forms-is-clerical-work-to.html
http://pcpndtreliefs.blogspot.com/2017/04/the-omissions-of-nature-not-to-mention.html
7. If we want to achieve the main object of PCPNDT Act i.e. to save Girl child, then shouldn't society change its mind set ?  
Merely  saying on paper that यत्र नार्यस्तु पूज्यन्ते रमन्ते तत्र देवताः  meaning where women are honored, divinity blossoms there is not going to help. Those Doctors who want to determine the Sex will do it even after completing all the F Form and other formalities. Therefore it is said that ,IF MEN ARE PURE LAWS ARE USELESS AND IF MEN ARE CORRUPT LAWS ARE BROKEN.

8. As far as state of Rajasthan is concerned, said Decision of Jodhpur bench is binding on them. Where as for Maharashtra and Punjab & Haryana, they are bound by thier own High Court judgments, wherein Doctors will require to fulfill the necessary requirements. 
But isn't is strange the law office of the Union of India i.e. ASG makes a statement, which is accepted in one high court and refused in other one. To set the controversy at rest, the Central Govt. should notify in writing.

Thanks and Regards

Adv. Rohit Erande
Pune. ©

Comments

  1. Monica23 April 2019 at 02:18

    The judgments of the Hon Rajasthan high court have been stayed by the DB and are now listed before the chief justice

    ReplyDelete

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