In WP No. 33547 - 33549 of 2017 -MADR HC- ‘When Special Act holds the field, notified general rules can’t be adopted for purpose of granting permission for carrying out diagnostic procedures on pregnant women’: Madras High Court rejects AYUSH association’s plea seeking permission to carry out Ultrasounds, Sonograms  
Justice S.M. Subramaniam [26-05-20223]

Read Order: Tamil Nadu Ayush Sonologist Association v. Union of India

Simran Singh

New Delhi, May 27, 2023: The Madras High Court has dismissed a petition by the Tamil Nadu Ayush Sonologist Association, referring to its members as AYUSH doctors who have undergone certificate course in Ultra Sonogram, claiming that they are fully qualified to carry out various diagnostic procedures and Ultra Sonogram/Ultrasound techniques. The High Court said the petitioner's Association was not able to establish any acceptable ground for the purpose of granting the relief sought in the present writ petitions.

A Single-Judge Bench of Justice S M Subramaniam held that qualified Doctors, who possessed the specialised qualifications under the provisions of the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (Act of 1994) and Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 framed thereunder alone were eligible to carry out diagnostic procedure and Ultra Sonogram and Ultrasound techniques on pregnant women and all other Doctors, who did not possess the specialised qualification as contemplated under the said Act and Rules were ineligible to practice and could not be allowed to carry out such diagnostic procedures.

The petition sought a declaration to:

1. Declare that doctors holding BHMS, BUMS, BAMS, BSMS, and BNYS degrees obtained from recognised institutions and who have undergone certificate course in ultra sonogram were fully qualified to carry out various diagnostic procedure on pregnant women as long as they did not undertake sex selection before or after conception which was prohibited under the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (Act of 1994) and misuse the pre-natal diagnostic techniques for sex determination leading to female foeticide.

2. Declare the aforementioned courses to be eligible to sign the Ultrasound Diagnostic reports under Form F of the Pre-conception and Pre-Natal Diagnostic Test or Procedure by Genetic Clinic or Ultra Sound clinic or Image Centre.

3. Forbear the Appropriate Authority constituted under the Act of 1994 from exercising power under Section 20 (3) of Act of 1994 and suspending the registration of any Genetic Counselling Centre, Genetic Laboratory, Genetic Clinics and hospitals for permitting doctors who had undergone the aforementioned courses from recognised institutions in the state of Tamil Nadu and Certificate Course in ultra sonogram to do ultra sonogram on pregnant women without misusing the Pre-natal diagnostic techniques for sex determination.

In the matter at hand, the members of the petitioner's association were referred to as AYUSH doctors who had undergone certificate course in Ultra Sonogram who were allegedly fully qualified to carry out various diagnostic procedures and Ultra Sonogram/Ultrasound techniques. The Government of India, Ministry of Health and Family Welfare had issued notification dated 01-11-2013 clarifying to the Secretary of Government of Indian State and UT regarding practice of Gynaecology and Obstetric and diagnostic Ultrasonography by ISM Graduates.

Issues

1.  Whether the Doctors holding degrees viz., BHMS, BUMS, BAMS, BSMS, BNYS obtained from recognised institutions were qualified for carrying out various diagnostic procedures and Ultra Sonogram and Ultrasound techniques on pregnant women.

2. Whether the members of the petitioner's association, AYUSH Doctors were qualified under the provisions of the Statutes and Rules in force.

Analysis

The Bench navigated through the provision of Act of 1994, Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (Rules of 1996) and Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training) Rules, 2014 (Rules of 2014) and stated that the members of the petitioner's association must possess the qualifications as prescribed under the said Rules. “Mere prescription of general subject in the course of Ultra Sonogram would be insufficient to satisfy the minimum requirements as contemplated under the Special Act.”

The Court stated that for carrying out the diagnostic procedures and Ultra Sonogram and Ultrasound techniques, the Act of 1994, being a Central Act, would prevail over and the Rules framed thereunder in exercise of the powers conferred by Section 32 of the Act of 1994 must be satisfied for the purpose of granting permission to the AYUSH Doctors to carry out various diagnostic procedures and Ultra Sonogram on Ultrasound techniques on pregnant women.

The Court was of the view that it was not sufficient to be qualified as a doctor which was contemplated under the Tamil Nadu Clinical Establishments (Regulations) Rules 2018[1]  (Tamil Nadu Rules). The eligibility criteria contemplated under the Tamil Nadu Rules must be holistically read along with the provisions of the Act of 1994 and Rules of 1996.

“The general term defined in the Tamil Nadu Act about qualified Doctors was to be construed as general definition and as far as this specialised diagnostic procedures and Ultra Sonogram or Ultrasound techniques on pregnant women were concerned, it was a special diagnostic procedure or treatment to be provided and therefore, the special qualifications prescribed under the said Act and Rules must be scrupulously followed by the competent authorities.” It was thus held that all qualified Doctors were not qualified under the provisions of the Act of 1994 and the Rules framed thereunder.

The Bench stated that the general definition of qualified Doctors could not be followed, since the special qualifications were prescribed under the Act of 1994, which was a Special Act for carrying out various diagnostic procedures. “When the Special Act is holding the field, then the general rules notified i.e., Tamil Nadu Clinical Establishments (Regulations) Rules 2018 cannot be adopted for the purpose of granting permission to carrying out various diagnostic procedures and Ultra Sonogram/Ultrasound techniques on pregnant women.”

The Bench was of the view that merely prescribing syllabus for diagnostic procedure or Ultra Sonogram or Ultrasound techniques could not be considered as a prescribed qualification within the meaning of the Act of 1994 and Rules of 1996. The Doctors qualified and specialised in the field as prescribed under the provisions of the said Act and Rules alone were eligible to carry out diagnostic procedures and Ultra Sonogram or Ultrasound techniques on pregnant women.