Relief from PNDT TRAINNING. Read why Medical Geneticist are excluded from Training -Adv. ROHiT ERANDE. ©
A Doctor having experience of two years or more in the field Pre-natal Diagnostic Techniques falls within the definition of “Medical Geneticist”
Held by Hon. Jammu & Kashmir High Court.
Adv. ROHiT ERANDE.
Case Details : WP(C) No.2199/2022
Dr. Kuldeep
Chander Sharma and another...Petitioner(s)
Facts in short :
1.
The
petitioner No.1 Dr. is MBBS and M.S. Surgery
and claims to possess
an extensive professional experience of more than 50 years, which includes experience of almost 30 years
in the field of sonography. Petitioner No.2 is also MBBS and claims to possess
an experience of 15 years in
the field of sonography.
2.
The petitioners are aggrieved
and have called in question
notification bearing No.DHS5/PNDT/9288-99 dated 26th
September, 2022 issued by respondent No.2
[“the impugned notification”], by virtue of which a decision has been taken by the respondents to conduct an examination as per the Pre- conception and Pre-natal Diagnostic Techniques (Prevention of Sex
Selection) (Six Months Training) Rules, 2014, as amended by (Amendment) Rules,
2020 [“2014 Rules”]. (PCPNDT
Act and Rules)
3.
The impugned notification has been
assailed primarily on the ground that
the same is in violation of the PCPNDT Act , 1994 [“1994 Act”] and the Rules framed thereunder. The petitioners
essentially seek a direction to the respondents
not to put MBBS doctors having experience of two years in the field of sex selection and pre-natal
diagnostic techniques to Competency Based
Test (CBT) as, in terms of Section 2(g) of the 1994 Act, they are exempted and are not required to qualify such test.
4.
the petitioners claimed that that they are running their ultrasound
clinics/imaging centres pursuant to the registration
granted by the appropriate authority (Chief Medical Officer) under Section 19(1) of the said Act.
The Certificates of registration passed on by the learned counsel
for the petitioners in the open
court, which are taken on record, clearly
indicate that right from the year 2012,
the petitioners are operating their ultrasound clinics/imaging centres pursuant to
valid registration granted by the appropriate authority under the 1994 Act.
5.
The
short point that was raised
by the learned counsel for the petitioners for consideration in this
petition is that by being MBBS and having
more than two years experience in the field of Pre-natal Diagnostic Techniques, the petitioners are medical
geneticists, a term that is defined in Section 2(g) of 1994 Act, which came to be extended
to the Union Territory of J&K w.e.f.
31.10.2019 when the Jammu & Kashmir Re- organization Act,
2019 was enforced. It is argued that
a medical geneticist is not required
to undertake any competency based test to be conducted by the respondents under 2014 Rules. The impugned notification,
which calls upon all registered
medical practitioners including the petitioners to fill application form accompanied with required documents and
examination fee of Rs.10,000/-, is clearly
not sustainable in law.
Defense by the Respondents :
6.
As per the Respondents, the Petition
should get dismissed on the ground that as under Rule 6(2) of the 2014 Rules, all existing registered medical practitioners,
who are conducting ultrasound procedures
in a Genetic Clinic or Ultrasound Clinic or Imaging Centre on the basis of one year experience or six
months training are exempted from undertaking
the training under the 2014 Rules provided they are able to qualify the competency based assessment
specified in Schedule-II of the Rules.
Strong reliance is also placed by the respondents on the directions of Hon’ble
the Supreme Court
passed in Writ Petition (Civil)
No.349/2006 titled Voluntary Health Association of Punjab v. Union of
India and others on 08.11.2016,
whereby Hon’ble the Supreme Court has directed all the States and Union Territories to implement the 2014 Rules forthwith considering that the training provided
therein is imperative for realizing the object and purpose of the 1994 Act. It is submitted
that consequent upon the
directions issued by the Supreme Court of India, Directorate Health Services,
Jammu amongst others was requested
by the Department of Health and Medical Education to take
necessary steps for implementing 2014
Rules. As a sequel to the aforesaid steps, the Government Medical College,
Jammu was notified
as institution for imparting six months training to the registered medical
practitioner under the training programme “the
Fundamentals in Abdomino-Pelvic Ultra Sonography” vide S.O. 295 dated 20th June, 2022.
7.
It is, thus, the stand of the respondents that only a qualified registered medical practitioner having a
Post Graduate degree or diploma or six months training duly imparted in the manner prescribed under
the 2014 Rules or a medical
geneticist only can be engaged in genetic clinic, ultrasound clinic or Imaging centre. It is submitted
that in terms of Rule 6(2) of the 2014 Rules, all existing registered
medical practitioners who are conducting ultrasound procedures in genetic clinic or Ultrasound Clinic or Imaging
Centre on the basis of one year experience or six months
training are exempted
from undertaking such training
under 2014 Rules provided they are able to qualify the competency based assessment
test. It is submitted that in the cases
of those registered medical practitioners, who fail to clear the test, six months
training envisaged under the 2014 Rules would be imperative.
Held :
1. After
going through the arguments and the material placed on record, his Lordship
held that a medical geneticist’, as defined in Section 2(g) of the 1994 Act, is not required to undertake any training
or qualify competency based assessment
/test (CBT) as specified in Schedule
II of the 2014 Rules.
2. The
petitioners and those doctors, who possess one of the medical qualifications recognized under the Indian
Medical Council Act, 1956 and have
experience of not less than two years in the field of sex selection or pre-natal
diagnostic techniques, would fall within the ambit of term “medical
geneticist” and, therefore, shall not be under an obligation to undergo
any training or competency based assessment test. They are exempted
from the operation of 2014 Rules. The view I have taken and the conclusions I have drawn herein above are
based upon a plain but careful reading of the relevant
provisions of 1994 Act and the Rules framed thereunder.
The
Court referred to various Definitions
under the Act
(g)
“Medical Geneticist” includes a person
who possesses a degree or diploma
in genetic science
in the fields of sex selection and pre-natal diagnostic techniques or has experience of not less than two years
in any of these fields after obtaining----
(i)
any
one of the medical qualifications recognized under the Indian Medical Council Act,
1956 (102 of 19560; or
(ii)
a post-graduate degree in biological sciences;
(i)
“registered medical practitioner”
means a medical practitioner who
possesses any recognized PNDT Act,
1994 & Amendments edical
qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956, (102 of
1956.) and whose name has been entered in a State Medical
Register;
(n) ………………………….
(o) …………………………..
(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 postgraduate qualification in ultrasonography or imaging techniques or radiology;”
3.
The Court further observed that from a fair and clear reading of Rule 3(3)(1)
reproduced herein above,
it is abundantly clear that any person
having adequate space and
being or employing any of the following categories is entitled to set up a Genetic
Clinic/Ultrasound clinic/Imaging Centre:-
i) Gynaecologist having experience of
performing atleast 20 procedure in the fields indicated in Clause (a); or
(ii)
A sonologist or imaging specialist or
registered medical practitioner having
Post Graduate degree or diploma or six months training duly imparted
in the manner prescribed under 2014 Rules; or
(iii)
A medical
geneticist.
It
is, thus, beyond any pale of doubt that a medical geneticist, as defined in Section 2(g) of the 1994 Act, is a person qualified to set up Genetic Clinic/Ultrasound Clinic/Imaging
Centre and a medical geneticist, as defined
in Section 2(g), would include
a person, who possesses following
qualifications:-
i)
Degree or Diploma in genetic science
in the fields of sex selection
and pre-natal diagnostic techniques; or
ii)
A person possessing one of the medical
qualifications recognized under the Indian Medical
Council Act, 1956 and possesses
experience of not less than two years in any of these fields i.e. either
in sex selection or in pre-natal diagnostic techniques; or
iii)
A post-graduate degree in biological
sciences with experience of not less
than two years in the fields of either sex selection or pre- natal diagnostic
techniques.
4.
Viewed thus, this Court has no doubt
in mind that the petitioners, who possess
MBBS qualification, do possess one of the medical qualifications recognized under the Indian Medical
Council Act, 1956.
Since both the petitioners have been operating their ultrasound clinics
and undertaking, amongst others,
pre-natal diagnostic procedures for the last
several years, as such, possess the experience of not less than two
years in the field of pre-natal
diagnostic techniques. The petitioners would, thus, clearly fall within the definition of “medical geneticist as
given in Section 2(g) of 1994 Act and, therefore, qualified to set up a genetic clinic/ultrasound clinic/imaging centre in
terms of Rule 3 (3)(1)(c) of the 1996
Rules.
5.
Having discussed the qualification of
a person seeking to register his ultrasound
clinic as a genetic clinic under the 1994 Act, it is time to advert to 2014 Rules. 2014 Rules, are framed by
the Central Government in the exercise of the powers conferred by Clause (i) of Sub Section (2) of Section
32 of the 1994 Act. For quick reference, Section
32(2)(i) is reproduced hereunder:-
“32.
Power to make rules.- 1. The Central Government may make rules for carrying out the
provisions of this Act.
2.
In particular and without prejudice to the generality of the foregoing power,
such rules may provide for—
(i) the minimum qualifications for persons employed
at a registered Genetic
Counselling Centre, Genetic Laboratory or Genetic Clinic under clause
(2) of section 3;”
6.
At this stage, it would be apposite to
set out Section 3(2) of the 1994 Act, which reads as under:-
“3. Regulation of Genetic Counselling Centres, Genetic Laboratories and Genetic Clinics------on and from the commencement of this Act,----
(1)
………………………………..
(2)
no Genetic Counselling Centre or
Genetic Laboratory or Genetic Clinic shall
employ or cause to be employed or take services of any person, whether
on honorary basis or on payment who
does not possess qualifications as may be prescribed.”
7. The
Court referred to 2014 rules, especially the
Rule (6) which lay down the eligibility Test
“6. Eligibility for training.-(1)Any
registered medical practitioner shall be eligible for undertaking the said six months
training.
(3)
The
existing registered medical
practitioners, who are conducting ultrasound procedures in a Genetic Clinic
or Ultrasound Clinic or Imaging Centre
on the basis of one year experience or six month training are exempted from undertaking the said training
provided they are able to qualify the competency based assessment specified
in Schedule II
(3) If a medical practitioner fails to
clear the said competency based exam, they shall be required
to undertake the complete six months training,
as provided under these rules,
for the purpose
of renewal of registrations.”
8.
From a reading of Rule 6 in
conjunction with Section 3 of 1994 Act and
definition of “medical geneticist” given in Section 2(g) thereof as also Rule 3 of the 1996 Rules, it becomes
abundantly clear that six months training
under 2014 Rules is required for the registered medical practitioner other
than a Medical Geneticist, a Sonologist or Imaging Specialist, and a gynecologist
having experience of performing atleast 20 procedures in 20 procedures in chorionic villi aspirations per vagina or per abdomen,
chorionic villi biopsy, amniocentesis, cordocentesis foetoscopy, foetal
skin or organ biopsy or foetal blood
sampling etc., under supervision of an experienced gynaecologist in these fields.
9.
The Court further observed even a registered medical
practitioner except the exempted class aforementioned
are exempted from undertaking six months training under the 2014 Rules provided they are able to qualify the competency
based assessment as specified in
Schedule II. Even such medical practitioners
have an option that in case they fail to clear competency based test in
three attempts, they shall undertake
complete six months training.
10.
Viewed from any angle and appreciating the issue in the light of clear
picture emerging from reading
of various sections
of 1994 Act and the Rules framed thereunder,
it is crystal clear that a medical geneticist is neither required to undertake any training under the 2014
Rules nor is required to qualify the competency
based assessment, as specified in Schedule II of the 2014
Rules. It is also beyond any pale of doubt that a person possessing any
of the medical qualifications
recognized under the Indian Council Act and having
experience of two years or more in the field Pre-natal Diagnostic Techniques falls within the definition of
“Medical Geneticist”. On the basis of documents
on record and the certificates of registration of their ultrasound clinics with specific approval
to carry out pre-natal diagnostic procedures therein
issued by the appropriate authority from time to time
during the last more than a decade, it can be said with certainty that the petitioners have acquired more than two
years experience in the field of pre-natal
diagnostic techniques. Pre-natal diagnostic techniques, as defined in Section 2(j) of 1994 Act, include all
pre-natal diagnostic procedures and pre-natal diagnostic tests.
This judgment is the ray of hope for many doctors
across the Country. This Act is often referred to as the draconian Act by the
Medicos. It is really unfortunate that a Senior Doctor, in this case, with 50
years of experience had to knock the doors of the Court. The Government at
least should consult the concerned Doctors or their associations before making
such rules which have greater impact directly or indirectly on the end user.
Thanks and Regds
Adv. Rohit Erande
PUNE.
Comments
Post a Comment