Case Note & Summary
These three writ petitions challenged the orders of the competent authority refusing to receive applications for renewal of licenses to run ultrasound sonography clinics of the petitioners. The sole ground for refusal was the restriction imposed under Rule 18A of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996. The petitioners, who were medical practitioners, sought renewal of their licenses, but the authority declined to accept their applications citing Rule 18A. The legal issue was whether Rule 18A is mandatory or directory. The court relied on a Division Bench decision in Dr. Sudhir Nimakar v. State of Maharashtra, which had already considered the nature of Rule 18A and held that it is directory, not mandatory. Consequently, the competent authority cannot refuse to receive renewal applications solely on the ground of non-compliance with Rule 18A. The court allowed the petitions, quashed the impugned orders, and directed the competent authority to receive and consider the renewal applications on their own merits, without being influenced by the earlier refusal. The court also ordered that the renewal applications be decided within four weeks from the date of receipt of the order.
Headnote
A) Medical Law - Pre-Natal Diagnostic Techniques - Rule 18A of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 - Directory Nature - The Division Bench of the Bombay High Court in Dr. Sudhir Nimakar v. State of Maharashtra held that Rule 18A is directory and not mandatory, and therefore the competent authority cannot refuse to receive an application for renewal of license solely on the ground of non-compliance with Rule 18A. The court directed the authority to consider the renewal application on its own merits. (Paras 4-5)
B) Medical Law - License Renewal - Ultra Sound Sonography Clinic - Competent Authority's Duty - The competent authority must receive and consider renewal applications even if there is non-compliance with Rule 18A, as the rule is directory. The authority should not refuse to entertain the application on that ground alone. (Paras 3-5)
Issue of Consideration
Whether the restriction imposed under Rule 18A of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 is mandatory or directory, and whether the competent authority can refuse to receive an application for renewal of license to run an ultrasound sonography clinic solely on the ground of non-compliance with Rule 18A.
Final Decision
The court allowed the writ petitions, quashed the impugned orders refusing to receive renewal applications, and directed the competent authority to receive and consider the renewal applications on their own merits, without being influenced by the earlier refusal. The renewal applications were to be decided within four weeks from the date of receipt of the order.
Law Points
- Rule 18A of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules
- 1996 is directory
- not mandatory
- renewal of license cannot be refused solely on ground of non-compliance with Rule 18A
- competent authority must consider renewal application on merits
Case Details
2017 LawText (BOM) (02) 14
Writ Petition No. 329 of 2017, Writ Petition No. 265 of 2017, Writ Petition No. 784 of 2017
Mr. R.N. Dhorde, Senior Counsel i/by Mr. V.R. Dhorde for petitioner in WP 329/2017 and WP 265/2017; Mr. K.K. Ingole Patil for respondent no. 1 in WP 329/2017 and WP 265/2017; Mr. V.S. Kadam for petitioner in WP 784/2017; Mr. R.K. Ingole Patil for respondent no. 1 in WP 784/2017; Mr. S.R. Yadav Lonikar, AGP for respondent no. 2 in WP 784/2017
Dr. Miss Minal Shelke @ Dr. Minal w/o Anand Patil, Dr. Gayatri Shriram Deshmukh @ Dr. Minal w/o Dr. Shivaji J. Wadekar, Dr. Pramod Rajaram Zunjare
The Medical Officer & Appropriate authority, Nanded Waghala Municipal Corporation; The State Appropriate Authority, Saint Jorge Hospital, Mumbai
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Nature of Litigation
Writ petitions challenging refusal of competent authority to receive applications for renewal of license to run ultrasound sonography clinics.
Remedy Sought
Petitioners sought quashing of the orders refusing to receive renewal applications and direction to the competent authority to consider the applications on merits.
Filing Reason
The competent authority refused to receive renewal applications solely on the ground of restriction under Rule 18A of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996.
Previous Decisions
The Division Bench of the Bombay High Court in Dr. Sudhir Nimakar v. State of Maharashtra had held that Rule 18A is directory and not mandatory.
Issues
Whether Rule 18A of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 is mandatory or directory.
Whether the competent authority can refuse to receive an application for renewal of license solely on the ground of non-compliance with Rule 18A.
Submissions/Arguments
Petitioners argued that Rule 18A is directory and not mandatory, relying on the Division Bench decision in Dr. Sudhir Nimakar v. State of Maharashtra.
Respondents did not contest the legal position; the court noted that the only ground for refusal was Rule 18A.
Ratio Decidendi
Rule 18A of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 is directory and not mandatory. Therefore, the competent authority cannot refuse to receive an application for renewal of license to run an ultrasound sonography clinic solely on the ground of non-compliance with Rule 18A. The authority must consider the renewal application on its own merits.
Judgment Excerpts
These petitions challenge the order of the competent authority in refusing to receive application for renewal of license to run ultra sound sonography clinic of petitioners.
The only ground on which the renewal application has been refused is restriction imposed under Rule 18A of the Pre Conception and PreNatal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996.
The Division Bench of this Court in the case of Dr. Sudhir Nimakar Vs. The State of Maharashtra and another, Writ Petition No. 6979/2015 had an occasion to consider the nature of restriction imposed by the Rule 18A and it observed ... that Rule 18A is directory and not mandatory.
Procedural History
The petitioners filed writ petitions in the Bombay High Court challenging the orders of the competent authority (Medical Officer & Appropriate Authority, Nanded Waghala Municipal Corporation) refusing to receive their applications for renewal of licenses to run ultrasound sonography clinics. The court heard the petitions finally by consent of counsel and delivered judgment on 24 February 2017.
Acts & Sections
- Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996: Rule 18A
