2019 (4) TMI 1998 - HC - Indian Laws

Forbearance to practice as a Sonologist - Fundamental rights - primary contention of the respondent is that the petitioner is not a qualified sonologist - Effect of subsequent incorporate rules - name of petitioner was not endorsed in the centre's license - breach of provisions of Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 - HELD THAT - The petitioner herein has been practicing as a Sonologist right from the year 1997. She had undergone the certificate course in diagnostic ultrasound imaging conducted by K.G.Hospital from 15.04.1996 to 11.05.1996. The respondent is therefore not justified in judging the writ petitioner's credentials on the strength of subsequently incorporated Rules. The impugned order is also rather non speaking. It only states that the petitioner has breached the Pre-conception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994. This is rather a vague ground. Only in the counter, the issue as regard the writ petitioner's qualification has been brought up. It is well settled that an order will have to be tested on the basis of what it contains. An order cannot be improved by a subsequently filed counter affidavit. The petitioner's right to practise as a sonologist is a fundamental right guaranteed under Article 19(1)(g) of the Constitution of India. The order was passed way back on 08.06.2018. For the last several months, the writ petitioner could not practice as a Sonologist. It is true that when she was practicing in Krishna MRI and CT Scan Centre, her name was not endorsed in the centre's license, but then it is only a technical omission. Even assuming that there is a fault on the part of the writ petitioner she has suffered enough. The petitioner has made out a case for grant of relief. Petition allowed.

Summary

Issues:
1. Qualification of the petitioner as a sonologist.
2. Validity of the impugned order dated 08.06.2018 forbidding the petitioner from practicing as a sonologist.
3. Interpretation of Rule 3-(3)(1)(3) of Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996.
4. Violation of the petitioner's fundamental right under Article 19(1)(g) of the Constitution of India.

Analysis:

1. The petitioner, a registered medical practitioner, had been practicing as a Sonologist since 1997 and had relevant certification. The respondent contended that the petitioner was not qualified as a sonologist based on Rule 3-(3)(1)(3) of the Pre-Conception and Pre-Natal Diagnostic Techniques Rules, 1996. However, the petitioner's qualifications and experience were deemed sufficient, and reliance on subsequently incorporated rules was considered unjustified.

2. The impugned order dated 08.06.2018, which restrained the petitioner from practicing as a sonologist, was found to be non-speaking and vague in citing the breach of the Pre-conception and Prenatal Diagnostic Techniques Act, 1994 as the reason. The court emphasized that an order must be assessed based on its content and cannot be bolstered by subsequent counter affidavits. The petitioner's inability to practice for several months was considered a significant hardship, and the technical omission of not having her name endorsed in the center's license was deemed insufficient to justify the restriction.

3. Rule 3-(3)(1)(3) of the aforementioned Rules was analyzed, emphasizing that the petitioner's long-standing practice as a Sonologist and relevant certifications outweighed any alleged non-compliance with the rule. The court noted that the petitioner's credentials were established through certifications and practical experience, rendering the respondent's contentions regarding qualification untenable.

4. Upholding the petitioner's fundamental right to practice as a sonologist under Article 19(1)(g) of the Constitution of India, the court quashed the impugned order, allowing the writ petition. The petitioner's case for relief was acknowledged, and the order restricting her practice was deemed unjust, thereby securing her right to continue working as a sonologist.