WP(C) Nos. 6654 & 6826/2007 Page 1 of 25 IN THE HIGH COURT OF DELHI AT NEW DELHI W.P.(C) 6654/2007 Reserved on: 29th April 2010 Decision on: 5th July 2010 DR. K.L.SEHGAL ..... Petitioner Through: Mr. Praveen Khattar, Advocate versus OFFICE OF DISTRICT APPROPRIATE AUTHORITY ….. Respondent Through: Ms. Zubeda Begum, Addl. Standing Counsel with Ms. Sana Ansari, Advocates W.P.(C) 6826/2007 DR. SONAL RANDHAWA ..... Petitioner Through: Mr. Ravi P. Mehrotra with Mr. M.L. Mehra and Mr. Vibhu Tiwari, Advocates versus UNION OF INDIA & ORS ..... Respondents Through: Mr. Amiet Andlay, Advocate for R-2 Mr. Maninder Singh, Senior Advocate with Mr. Gaurav Sharma and Mr. J.P. Karunakaran, Advocates for MCI. CORAM: JUSTICE S. MURALIDHAR 1. Whether reporters of local paper may be allowed to see the judgment? No 2. To be referred to the reporter or not? Yes 3. Whether the judgment should be referred in the digest? Yes JUDGMENT 05.07.2010 1. These two writ petitions raise important questions of law concerning interpretation of Section 2(p) of the Pre-conception and Pre-natal WP(C) Nos. 6654 & 6826/2007 Page 2 of 25 Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 [hereafter “the PNDT Act”] which defines “sonologist or imaging specialist”. 2. First, the brief facts in each of the writ petitions may be noticed. W.P. (C) 6654 of 2007 – Dr. K.L. Sehgal 3. The Petitioner in Writ Petition (C) No. 6654 of 2007 is Dr. K.L. Sehgal who runs the Dr. Sehgal‟s Polyclinic & Diagnostics Imaging Clinic in New Delhi. He obtained an MBBS degree from the Ranchi University in 1977. He got registered from the Delhi Medical Council (DMC) in 2001. The registration has been renewed from time to time and is currently valid till 4th December 2011. Dr. Sehgal states that he is a registered medical practitioner within the meaning of Section 2(m) of the PNDT Act. Dr. Sehgal claims that he is also a sonologist within the meaning of Section 2(p) of the PNDT Act. He claims that he has undergone a six months training course in Sonography between 14th February 2002 to 2nd September 2002 at the Institute of Ultrasound Training which is a training centre for ultrasound training recognised by the Indian Medical Association-Academy of Medical Specialties (IMA- AMS) and the Federation of Obstetric & Gynaecological Societies of India (FOGSI). He states that during the course of training he had gained experience of handling more than 100 cases of Ultrasonography under the supervision of Dr. J.S. Randhawa, M.D. (Radiology). The certificate issued by the said Institute has been annexed to the petition. WP(C) Nos. 6654 & 6826/2007 Page 3 of 25 4. In April 2002, Dr. Sehgal applied for grant of PNDT registration for setting up an ultrasound clinic under the name of `Dr. Sehgal‟s Clinic‟. He was granted a certificate on 1st May 2002 with registration No. 348. The certificate was valid for a period of five years up to 30th April 2007. By a letter dated 21st February 2007 from Respondent No. 1, i.e., the Office of District Appropriate Authority (hereafter `the Authority‟) under the PNDT Act, Dr. Sehgal was asked to submit the necessary documents for renewal of the PNDT registration. In response to the said notice on 28th February 2007 Dr. Sehgal submitted an application for renewal enclosing the certificate of his six months training. He stated that he had been regularly performing sonography tests for the last five years. 5. Dr. Sehgal states that he did not receive any response till the expiry of 90 days thereafter i.e. 29th May 2007. According to him, in terms of Rule 8 (6) of the PNDT Rules, the registration should be deemed to have been renewed on the expiry of 90 days. Rule 8 (6) of the PNDT Rules reads as under: “In the event of failure of the Appropriate Authority to renew the certificate of registration or to communicate rejection of application for renewal of registration within a period of ninety days from the date of receipt of application for renewal of registration, the certificate of registration shall be deemed to have been renewed.” 6. It is submitted that on 22nd June 2007, Dr. Sehgal received a letter dated 25th May 2007, which according to him was posted on 21st June WP(C) Nos. 6654 & 6826/2007 Page 4 of 25 2007, by which he was informed that his application for renewal of registration had been rejected on the ground of “non-submission of documents from a qualified Radiologist.” Dr. Sehgal protested stating that in terms of Section 3(1) (b) of the PNDT Act, any person who was registered as a medical practitioner and had one year‟s experience in sonography, was eligible to run an ultrasound clinic. 7. Dr. Sehgal claims to have submitted an application dated 11th July 2007 under the Right to Information Act, 2005 (“RTI Act”) seeking the precise reasons for the rejection of his application. By a letter dated 3rd August 2007, the Authority provided the following information to him: “2. Now, in Feb. 2007, you had submitted application for renewal of PNDT registration. The file had been sent to higher authorities for guidelines (copy of file noting is attached as Annexure I-3). Guidelines were received from the Directorate of Family Welfare in minutes of meeting (attached as Annexure-4). On the above mentioned basis your application for renewal has been rejected. 3. You have also stated that you have been regularly doing ultrasonography from last 5 years (again ref. your letter no. nil dated 28.02.2007). It will be counted towards “Self Experience” & in the PNDT Act & Rules there are no guidelines regarding the registration of registered medical practitioner on the basis of Self Experience: as because any experience without the supervision of any competent authority is not counted, i.e. treats only as “Self Experience”.” WP(C) Nos. 6654 & 6826/2007 Page 5 of 25 8. The rejection of Dr. Sehgal‟s application is assailed on the following grounds: (a) that with the rejection not having been communicated to Dr. Sehgal within a period of 90 days from the date of his application, i.e., 28th February 2007, there was a deemed renewal under Rule 8 (6) of the PNDT Rules. (b) that under Rule 3(1) (b) an ultrasound clinic can be run by a registered medical practitioner having six months training or one year experience in sonography. Since Dr. Sehgal satisfies this requirement, he was eligible to set up an ultrasound clinic. In any event, Dr. Sehgal submitted a certificate from a qualified radiologist that he had undergone training in sonography and therefore, the ground for non-renewal was contrary to the record. (c) The rejection of the application on the ground that five years‟ experience by Dr. Sehgal‟s ultrasound would be a “self-experience” and therefore would not be counted towards the experience under the PNDT Act, was clearly arbitrary. The guidelines of the Directorate of Family Welfare do not indicate that in a similar situation the certificate of registration should not be renewed. It only indicated that the issue was still under consideration and till such time the PNDT Act was to be strictly followed. 9. The response of the Authority under the PNDT Act is that the Institute, in which Dr. Sehgal claims to have undergone training, is not recognised by the Government of India or any competent authority. The WP(C) Nos. 6654 & 6826/2007 Page 6 of 25 Institute was recognised only by private institutions which could be termed as `NGOs‟ and the experience gained was no experience because anybody could approach private institutes and get certificates without satisfying the basic criteria of being trained to use the ultrasound apparatus. A radiologist has to be one from an institute recognised by the Government of India. It is submitted that since the PNDT Act and Rules framed thereunder do not specify the institutes and individuals from where the training/experience had to be undergone, the application was placed before an Advisory Committee comprising of technical experts. It is submitted that the grant of registration as sonologist under the PNDT Act is a matter of policy. The absence of clear-cut guidelines is acknowledged. It is stated that a response is awaited to the letter written to the Government of India in this regard on 20th November 2007. It is pointed out that Dr. Sehgal not being a Sonologist or an Imaging Specialist/Radiologist could not be qualified to run an ultrasound clinic. On behalf of Dr. Sehgal, it is pointed out that unless there is a requirement in the PNDT Act or the Rules that the training should be obtained from a recognised institute, the rejection of Dr. Sehgal‟s application was ultra vires the PNDT Act and Rules. W.P. (Civil) 6826/2007 – Dr. Sonal Randhawa 10. The facts in Writ Petition (C) No. 6826 of 2007 are that the Petitioner, Dr. Sonal Randhawa, holds an MBBS degree from the University of Agra and has been registered under the DMC since 18th September 2006. It is stated that in 2007 she completed American WP(C) Nos. 6654 & 6826/2007 Page 7 of 25 Registry for Diagnostic Medical Sonography (ARDMs) certifying examinations as Specialist in Obstetrics and Gynecology. As far her experience in Sonography is concerned, it is stated that she has worked as a registered Sonologist under PNDT in Rohini (North-West Dist.) for three years. She has training and worked under Dr. J.S. Randhawa MD (Radio diagnosis) who is a qualified and experienced Radiologist and Ultrasonologist from 1998-2001. She claims to have completed a Visiting Fellowship in Diagnostic Ultrasound and Echocardiography from 26th March 2007 in the Department of Radiology, Thomas Jefferson University Hospital and Jefferson Medical College, Philadelphia in USA. It is stated that in February 2003 Dr. Randhawa completed the two year course on ultrasound training under the IMA (AMS) from 4th January 2001 to 10th February 2003. She also worked as a Consultant Ultrasonologist at the government approved Gupta Hospital in Delhi from 16th July 2001 to 31st March 2005. 11. On 5th April 2006 Dr. Randhawa applied for registration as a sonologist under the PNDT Act in the West District of the National Capital Territory of Delhi. Dr. Randhawa had already been recognized and registered as a Sonologist with the Rohini (North-West Zone) and Dwarka (South-West Zone) under the PNDT Act since the last seven years. On 10th July 2006 Dr. Randhawa submitted all necessary documents as directed by the Appropriate Authority in support of her application. Since no reply was forthcoming, Dr. Randhawa filed an application on 14th July 2006 under the RTI Act. On 2nd August 2006 the District Appropriate Authority under the PNDT Act (West District) sent WP(C) Nos. 6654 & 6826/2007 Page 8 of 25 a communication to the Director, Directorate of Family Welfare, GNCTD stating that Dr. Randhawa did not submit documents in support of her application to be registered as an ultrasonologist and therefore her application could not be considered. Dr. Randhawa preferred an appeal on 21st August 2006 with the Director, PNDT, Ministry of Health and Family Welfare with reference to her application dated 14th July 2006 under the RTI Act. In response to this, a letter was written by the Ministry of Health and Family Welfare, PNDT Division on 15th September 2006 stating that the PNDT Act or Rules do not categorically specify the institutions/individuals from where the training or experience has to be acquired. At the meeting of the State Level Multi-Member Appropriate Authority under the PNDT Act held on 6th December 2006 Dr. Randhawa‟s case was discussed and her request for registration was not acceded to. Dr. Randhawa applied to the Ministry of Health and Family Welfare on 19th December 2006. However, she did not hear any response to the said letter. In the meanwhile she kept pursuing her request for information under the RTI Act. By an order dated 19th June 2007 the Central Information Commission (CIC) directed the Directorate of Family Welfare to provide information to Dr. Randhawa within ten days. The Directorate of Family Welfare sent a letter dated 5th July 2007 to the Petitioner stating that her request for registration as a sonologist could not be acceded by the State Advisory Committee under the PNDT Act and that “training in Ultrasound needs to be examined and recognized by the competent authority.” 12. Dr. Randhawa has assailed the refusal of registration on the ground WP(C) Nos. 6654 & 6826/2007 Page 9 of 25 that the reasons therefore were arbitrary and unreasonable. The observation that training in ultrasound needed to be examined and recognized by the competent authority, was a bald one. Even though the PNDT Act and Rules do not provide the procedure for undergoing training/experience or identify persons eligible to provide such registration, there was no justification in simply rejecting the request for registration. Stand of the Medical Council of India 13. In the present cases, the counter affidavit filed by the Respondent is more or less similar. However, in addition to the reply of the Respondent Appropriate Authority, an affidavit has been filed on behalf of Respondent No. 6 Medical Council of India (MCI). Referring to the decisions in Dr. Preeti Srivastava v. State of MP (1999) 7 SCC 120, State of Punjab v. Dayanand Medical College (2001) 8 SCC 664 and State of Madhya Pradesh v. Gopal D. Tirthani (2003) 7 SCC 83, it is submitted that the MCI Regulations made under the Indian Medical Council Act, 1956 (`IMC Act‟) are binding and mandatory. It is stated that a „recognized medical qualification‟ as defined under Section 2 (h) of the IMC Act means any of those medical qualifications included in the Schedules to the IMC Act. 14. Under Section 33 read with Section 20 of the IMC Act after obtaining prior approval from the Central Government, the MCI framed the Postgraduate Medical Education Regulations, 2000. As per Regulation 10, the period of training for the award of a degree of Doctor WP(C) Nos. 6654 & 6826/2007 Page 10 of 25 of Medicine (M.D.)/Master of Surgery (M.S.) shall consist of three completed years including the period of examination. For the award of a postgraduate diploma there shall be two completed years of training including the period of examination. The specialties in which postgraduate degrees/diplomas can be awarded are prescribed in the schedule to the said Regulations. At serial no. 24 under A i.e., qualification for M.D. specializations of the Schedule is Radio Diagnosis and under F i.e., for diplomas at serial nos. 21 to 23 are Radio Diagnosis, Radio Therapy and Radiological Physics. It is submitted that Dr. Randhawa Diagnostics where Dr. Sonal Randhawa is purported to have conducted ultrasounds regularly under the supervision of Dr. J.S. Randhawa is not a recognized medical institute under the IMC Act, and is not included in the Schedule to the IMC Act. The said Institute of ultrasound training is also not included in the list of institutes recognized/permitted by the MCI to conduct any postgraduate courses in Radio-Diagnosis or Ultrasound. The course offered on ultrasound by the said Institute is not a recognized medical qualification for the purposes of the IMC Act. Subsequent Developments 15. After the filing of this petition a meeting was held in the Directorate of Family Welfare on 9th January 2008 in which the following decisions were taken: “i) Now onwards registration should be allowed to only the persons qualified in Radiology (ii) Specialists may be allowed Ultrasound in their own specialty. For example a WP(C) Nos. 6654 & 6826/2007 Page 11 of 25 Gynecologist with Post Graduate qualification can do level 1 scan for gross anomalies and monitoring of pregnancy. (iii) Registration of existing clinics registered on basis of training/experience from private place should not be cancelled. At the same time they should be given show cause notice regarding non MCI qualification/experience and a stricture should be written on their registration certificate. (iv) Renewal of such clinics should be allowed till court judgment regarding qualification/experience or any other clarification in this regard from Govt. of India. (v) No new registration should be given on basis of non MCI recognized qualification. (vi) practice of giving training/experience by one Doctor to other fellow Doctor should be stopped. (vii) Directions issued by Hon‟ble Court should be followed further in this regard. (viii) A file may be sent to the legal department and legal opinion on this matter be obtained.” 16. It is submitted that once the above decisions came to be published, it met with a stiff opposition and an agitation among the fraternity of doctors. The State Advisory Committee which thereafter met on 22nd July 2008 decided to discard the earlier changes. This happened while it considered an appeal of Dr. Rahul Kumar in which it passed the following order: “Instant appeal has been filed by Dr. Rahul under Section 19(2) of the act against rejection of application for registration vide order dated 13.06.08 passed by the CDMO, North West District. The sole reason for rejection of application is consequent upon the issuance of certain instructions from State Advisory Committee, according to which the kind of training as was being given by private Pos Graduate Doctors was termed as not valid as per Medical Council of India WP(C) Nos. 6654 & 6826/2007 Page 12 of 25 norms and it was considered that practice of giving training/experience by one Doctor to other fellow Doctor should be stopped. Considering the above said the case of the Appellant was rejected for the reason that he had obtained the Post Graduate Diploma in Sonography from the Global Open University which was not listed as recognized Institute for awarding Medical qualification as required. However, it is informed that in the subsequent meeting of the Advisory Committee dated 22.07.08 it was considered that registration of new Centers under PC & PNDT Act may be resumed on the basis of qualification as prescribed under the provision of Act on the basis of Experience/Training as laid down in the Act as per practice prior to 9.1.08. Since now the previous restrictions as imposed have been done away, as stated above, in the meeting of State Advisory Committee. It is agreed by both the parties that the case of the Appellant may be reconsidered if his case is otherwise found fit on the basis of merits. The matter is accordingly remanded back to the District Authority for reconsideration in terms of the above.” (emphasis supplied) 17. It is pointed out by Dr. Randhawa that pursuant to the above decision Dr. Rahul Kumar was granted registration as was evident in the reply given under the RTI Act on 24th October 2008. Accordingly, it is submitted that Dr. Randhawa has been meted out a differential treatment which is unwarranted. 18. Learned counsel appearing for Dr. Randhawa pointed out to the stand of the MCI in a reply dated 3rd March 2008 to an application made under the RTI Act by one Sagar Saxena that “courses like IVF, WP(C) Nos. 6654 & 6826/2007 Page 13 of 25 Laparoscopy, Lasik Surgery, Ultrasound, Bariatric surgery, do not come within the purview of MCI.” In a reply given to one Dr. Diwan Singh on 14th August 2008 in response to a query as to “who is a sonologist as defined in the PNDT Act as per the MCI guidelines,” it was stated that the matter is “outside the purview of Medical Council of India.” Submissions of counsel 19. This court has heard the submissions of Mr. Ravi P. Mehrotra, the learned counsel for Dr. Sonal Randhawa and Mr. Praveen Khattar learned counsel appearing for Dr. K.L. Sehgal, Ms. Zubeda Begum and Mr. Amiet Andley learned counsel appearing for Respondent No. 2 Appropriate Authority, GNCTD and Mr. Maninder Singh, learned Senior counsel appearing for the MCI. 20. While counsel for Appropriate Authority GNCTD reiterated the submissions noticed hereinbefore, Mr. Maninder Singh learned Senior counsel for the MCI urged that the provisions of the PNDT Act have to be interpreted in such a manner that the word `or‟ appearing in Section 2(p) has to be read as `and‟. He relied upon the judgment of the Supreme Court in Prof. Yashpal v. State of Chhattisgarh AIR 2005 SC 2026, and in particular para 40 thereof. He pointed out to the growing menace of female foeticide and the apparent failure of the PNDT Act to check the alarming sex ratio which is directly traceable to the indiscriminate use of the pre-natal diagnostic tests and unethical practices of the registered medical practitioners. He submitted that unless the PNDT Act is interpreted to require a sonologist to be a WP(C) Nos. 6654 & 6826/2007 Page 14 of 25 qualified specialist with experience in a recognized institute, the unchecked unethical practices adopted by diagnostic clinics cannot possibly be stopped. He urged this Court to take a proactive approach in the matter and adopt an interpretation that would advance the purpose of the legislation. Reliance is also placed on the decisions in Dr. A.K. Sabhapathy v. State of Kerala AIR 1992 SC 1310; Gopinder Singh v. Forest Department of Himachal Pradesh 1990 (Supp) SCC 272; and M/s Entertainment Network (India) Ltd. v. M/s Super Cassette Industries Ltd. JT 2008 (7) SC 11. Meaning of ‘sonologist’ under Section 2 (p) PNDT Act 21. The question that arises for consideration is the meaning that should be given to the expression `sonologist‟ as defined under Section 2(p) of the PNDT Act. Section 2 (p) reads as under: “2(p) “Sonologist or Imaging Specialist” means a person who possesses any one of the medical qualifications recognized under the Indian Medical Council Act, 1956 or who possesses a post-graduate qualification in ultrasonography or imaging techniques or radiology.” 22. The definition of the word `sonologist‟ does support the submission of the learned counsel for the Petitioners that as long as the person concerned possesses “one of the medical qualifications recognized under the Indian Medical Council”, he could be a sonologist. The word `or‟ only makes the possessing of “a post-graduate qualification in ultrasonography or imaging techniques or radiology” an alternative WP(C) Nos. 6654 & 6826/2007 Page 15 of 25 qualification. It appears that prior to the insertion of Section 2(p) in the PNDT Act certain amendments were proposed. The suggested definition of „sonologist‟ as proposed reads as under: “Sonologist/Imaging Specialist” means a person who possesses any one of the medical qualifications recognized under the Indian Medical Council Act 1956, and/or a post graduate qualification in ultrasonography/ imaging technique/radiology and who is certified for performing sonography” (emphasis supplied) 23. Despite the above suggestion, when the amendment was ultimately enacted the word `and‟ appears to have been dropped. The present definition requires a post-graduate qualification only in the alternative. 24. How the definition under Section 2(p) has been understood is reflected in Rule 3 of the PNDT Rules which reads as under: “The qualifications of the employees, the requirement of equipment etc. for a Genetic Counseling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre shall be as under: xxxxx (3)(1): Any person having adequate space and being or employing xxxxx (b) a Sonologist, Imaging Specialist, Radiologist or Registered Medical Practitioner having Post Graduate degree or diploma or six months training or one year experience in sonography or image scanning, xxxxx may set up a genetic clinic/ultrasound clinic/imaging centre.” WP(C) Nos. 6654 & 6826/2007 Page 16 of 25 25. In Prof. Yashpal v. State of Chhattisgarh, the Supreme Court, in the context of recognition of institutions for the purposes of affiliation to a university, observed that the word `or‟ can sometimes be read as `and‟ when the literal meaning of the word would produce “unintelligible or absurd” results. However, the same cannot be said of the present definition. This is because if one were to read the word `or‟ as `and‟, then the following words which indicate that the person should be possessing any one of the medical qualifications recognized under the IMC Act are rendered redundant. If the submission of the MCI is to be accepted, the definition ought to mean that a sonologist or an