Dr. Percy S/O. Savakshaw Jilla v. State Of Maharashtra Others

B.P. Dharmadhikari, J.

Heard Adv. Mr. R.S. Deshmukh, for the petitioner; learned Addl. G.P. Mr. K.B. Chaudhary, for respondent nos.1 to 4, and Adv. Mr. N.B. Khandare, for respondent nos.5 and 6.

2. Upon instructions, Adv. Mr. R.S. Deshmukh, for the petitioner, states that if this Court finds that alternate remedy is available to the petitioner, petitioner is ready and willing to take recourse to it.

3. Adv. Mr. Deshmukh submits that remedy of filing appeal under Section 21 of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 [For short, "the Act"] is only against an order of suspension or cancellation of registration of the establishment. He submits that in the present matter, there is no such order and hence remedy of appeal under Section 21 is not available. His contention is, remedy of appeal under Rule 19 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 [For short, "the Rules"] is not enlargement of appeal provided under Section 21 of the Act, and Rule 19, therefore, must be read as subject to Section 21.

4. Adv. Mr. N.B. Khandare, for respondent nos.5 and 6, and learned Addl. G.P. Mr. K.B. Chaudhary, for respondent nos.1 to 4, submit that remedy of appeal Section 21 is an independent remedy. Remedy of appeal under Rule 19 is self-sufficient and an independent remedy which has got no bearing on appeal under Section 21 of the Act. Adv. Mr. Khandare submits that various orders / decisions or actions taken under the Rules, like Rule 12, can be subjected to appeal under Rule 19 of the Rules.

5. We have perused provisions of the Act, as also, provisions of the Rules.

6. The Act places Section 21 in Chapter VI, which deals with 'Registration of Genetic Counselling Centres, Genetic Laboratories and Genetic Clinics'. Section 18 requires registration of such centres or laboratories or clinics. Section 19 deals with 'Certificate of registration' and then Section 20 provides for 'Cancellation or suspension of such registration' by appropriate authority, either suo motu or on complaint. It is in this background, that Section 21 is the last Section in that Chapter. Section 21 itself permits only the Genetic Counselling Centre, Genetic Laboratory or Genetic Clinic, to prefer appeal against an order of suspension or cancellation of registration passed by appropriate authority. Thus, appeal is contemplated against an order passed under Section 20 and appellate authority is the Central Government or the State Government, as the case may be.

7. The 1996 Rules, to which our attention has been invited, provide for appeals in its last Rule i.e. Rule 19. It deals with various aspects, like the minimum qualifications of employees, the requirement of equipment, etc. for a Genetic Counselling Centre, Genetic Laboratory, Genetic Clinic, Ultrasound Clinic and Imaging Centre. It also regulates sale or distribution of ultrasound machines / imaging machines vide Rule 3A. Under Rule 4, it prescribes procedure for registration of such centres. Rule 5 prescribes 'Application Fee'. Rule 6 is about grant of certificate of registration. Rule 7 then speaks about 'Validity of registration', and Rule 8 is about 'Renewal of registration'. Rule 9 prescribes about records, its maintenance and preservation. Rule 10 imposes condition for conducting pre-natal diagnostic procedures. Rule 11 is obligation to afford all reasonable facilities for inspection of a place, equipment and records to the Appropriate Authority or to any other person authorized by the Appropriate Authority. Rule 12 deals with 'Procedure for search and seizure'. Rule 13 is about 'Intimation of changes in employees, place or equipment. Rule 14 speaks about 'Conditions for analysis or test and pre-natal diagnostic procedures'. Rule 17 casts certain obligations of such Counselling Centres, Laboratories or Clinics, and they have to display prominently for the information of public, certain material / text as laid down in Rule 17. Rule 18 is about Code of Conduct to be observed by persons working at Genetic Counselling Centres, Genetic Laboratories, Genetic Clinics, Ultrasound Clinics, Imaging Centres, etc.

8. Thus, Rules, therefore, show that appropriate authority discharging these duties is required to take various decisions and against those decisions, an appeal has been provided for in Rule 19. Rules do not contemplate suspension or cancellation of registration. Thus, remedy of appeal provided under Rule 19 has got no bearing on remedy of appeal prescribed under Section 21. Both are independent and operate in distinct fields. We, therefore, find no substance in the contention of Adv. Mr. Deshmukh, that Rule 19 needs to be construed in the light of Section 21 of the Act.

9. The petitioner has, therefore, got remedy of filing appeal under Rule 19 of the Rules.

10. Adv. Mr. Deshmukh, however, has pointed out that appeal needed to be filed within 30 days and the Rules / Act do not contain any procedure for condonation of delay. We find that in Rule 19, Sub-Rule 4, the authority has been empowered to condone the delay. Here again, Sonography Machines are put under seal and that seal continues till date. Thus, cause of action is continuous one.

11. In this situation, we grant liberty to the petitioner to file appeal under Rule 19 of the Rules and direct the Appellate Authority to decide the same within a period of three weeks after the same is filed. Needless to mention, that all other contentions raised in the petition are not looked into by this Court and, therefore, same are kept open for further consideration at appropriate juncture.

12. With the liberty, as indicated above, and observations, present petition is disposed of. No costs.

13. Parties to act upon authenticated copy of this order. Authenticated copy expedited.