#PCPNDT : Why should a Doctor suffer non renewal of License when the Govt. has not held the competency based assessment test or the six month training ? : Adv. Rohit Erande ©

 #PCPNDT : Why should a Doctor suffer for non renewal of License, when the Govt. has not held the competency based assessment test or the six month training ? : 

Adv. Rohit Erande. ©

In these Pandemic days, Hon. Delhi High Court came to the rescue of Doctor underlying the importance of Ultrasound etc in the growing need of non-covid facilities. 

Details of the Case :

North Delhi Multi Speciality Hospital V/s. Union of India, W.P.(C) 726/2020 and CM APPL. 2138/2020, 13267/2020, Date of order -04/06/2021.

Coram : Hon. Justice Pratibha Singh

Order Link : https://indiankanoon.org/doc/57546052/

Facts of the case in short :

1. The Petition has been filed by Dr. Sarika Aggarwal, MBBS "i.e. a registered medical practitioner as per the PCPNDT Act. , the Proprietor of the Petitioner Hospital. The Grievance of the Petitioner was that she was running  the diagnostic and imaging centre since 29th November, 2013, however  Upon the completion of five years, she had applied for renewal of the said registration in 2019, however vide the impugned order dated 30th July 2019, the renewal has not been granted by the DAA/DM (North), GNCTD.

2. The Petitioner placed on record an affidavit showing as to how the center is being run since 2014, i.e., the details of the staff who were employed and as to who was the Sonologist who was conducting the ultrasound and other testing procedures.

3. In the meantime the Petitioner filed an application for urgent hearing as her livelihood was at stake for want of renewal of her License.

4. In response, it was alleged by the Respondent that the said registration and license for running the center was incorrectly & inadvertently granted by the authorities concerned as the Petitioner is not properly qualified to run the ultrasound center in view of the provisions of PCPNDT Act and rules framed therein.

Held :

5. Hon. Court heard the parties at length and went through the Rules amended in 2014 with Prospective effects, which introduced the compulsory training of 6 months. Further the Rule no.9 provided that the existing medical practitioners who were providing ultrasound services could either undergo a six months' training or qualify in a competency based assessment.

6. The Hon. High Court relied on the judgements of Division Bench of Delhi high Court as well as of Hon. Supreme Court, which involved the question of validity of 2014 rules and mandatory training. hon. Apex Court, in its order dated 08th Nov.2016, passed  the case of Voluntary Health Association of Punjab v. Union of India and others,  categorically directed the States and the Union Territories to implement forthwith, the training period as also the competency test, under the 2014 Rules. Thereafter, pursuant to the order passed by the Supreme Court in the SLP in the case of Union of India v. Indian Radiological and Imaging Association and ors. dated 14th March 2018, the Ministry of Health & Family Welfare, Government of India, issued letter dated 31st May 2018, bearing no. F.12011/25/2015-PNDT (Pt.). Vide the said letter, the Union of India had categorically asked the States/UTs to make necessary arrangements for holding the competency based test of all existing registered medical practitioners, in a time frame on an urgent basis. It was also directed that there should be timely completion of the six months training of all those MBBS graduates who intended to perform ultrasound/ other procedures within the PCPNDT Act and Rules.

7. On this background, it was observed that insofar as the existing practitioners are concerned, they could either take the competency test or undergo 6 months' training. Moreover, under Rule 6(2) of the 2014 Rules, the clear benefit was given to existing registered medical practitioners, who were conducting ultrasound procedure before the Rules were notified. It was also held that as the Petitioner - Doctor got the license after 2014 when the Rules came into effect, clearly the Petitioner would also be entitled to benefit of the exemption under Rule 6(2). As is clear from the facts above, she also has considerable experience in running the diagnostic and imaging center which was duly licensed by the GNCTD.

8. Her Ladyship further observed that during the pandemic, a substantial number of hospitals have been converted into COVID hospitals and establishments and There is a growing need for non-COVID facilities also to provide day-to-day services such as ultrasound etc. especially for Pregnant Women.

9. hon. court also considered the fact that the Petitioner is running the ultrasound machine in 15 bed nursing home, for last 5 years and the Govt counsel also confirmed that no complaints have been filed against the Doctor especially under PCPNDT Act.

10. Thus the Court observed that as  there is no averment as to when the training period of six months  will be initiated by the State, and the Petitioner, during the pandemic situation, cannot be stopped from operating the center, when the State has itself not initiated the procedure of the training period, as it is required to by the 2014 Rules, as also the direction of the Supreme Court and the Union of India and thus the Petitioner was permitted to use the ultrasound Machine. However it was clarified that this judgment is not to be taken as a precedent and Petitioner was directed to keep the record of the machine and submit it and further to follow PCPNDT Act and rules. 

Important relief to Doctors , especially in these Covid days. This judgment might help in other similar cases. Generally Doctors hardly except judgment in their favor under PCPNDT Act, isn't it ?

Thanks and Regards

Adv. Rohit Erande. 

Pune.©