Madras High Court: In a writ petition filed by Tamil Nadu Ayush Sonologist Association (AYUSH Doctors) for declaring that doctors holding degrees such as BHMS, BUMS, BAMS, BSMS, and BNYS obtained from recognised institutions and have undergone certificate course in ultrasonogram are fully qualified to carry out various diagnostic procedure and ultrasonogram / ultrasound technique on pregnant women, as long as they do not undertake sex selection before or after conception which is prohibited under the Pre-natal Diagnostic Techniques (Regulation and Prevention of Misuse) Act, 1994 (‘PC & PNDT Act, 1994’) and misuse the pre-natal diagnostic techniques for sex determination leading to female foeticide, S.M.Subramaniam, J. held that;
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Doctors who do not possess the specialised qualification as contemplated under the Central Act and Rules are ineligible to practice and they cannot be allowed to carry out such diagnostic procedures.
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Merely prescribing syllabus for diagnostic procedure or ultra sonogram/ultrasound techniques cannot be considered as a qualification within the meaning of the PC & PNDT Act.
Issues:
Whether the Doctors holding degrees BHMS, BUMS, BAMS, BSMS, BNYS obtained from recognised institutions are qualified for carrying out various diagnostic procedures and Ultra Sonogram/Ultrasound techniques on pregnant women?
The Court took note of Act, 1994 and the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (‘PC& PNDT Rules, 1996’) and said that Schedule I to the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training) Rules, 2014 stipulates “Syllabus” as Fundamentals in Abdomino Pelvic Ultrasonography: Level one 6 Months Course for M.B.B.S Doctors. Therefore, the AYUSH Doctors must possess the qualifications as prescribed under the Central Rules issued pursuant to the provisions of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 2003. 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 noted that as far as the Tamil Nadu Clinical Establishments (Regulations) Rules, 2018 (‘TNCE Rules 2018’) is concerned, it is about clinical establishments, which all are regulated. However, for carrying out the diagnostic procedures and Ultra Sonogram/Ultrasound techniques, the Act, 1994, which is a Central Act, will prevail over and the Rules framed thereunder in exercise of the powers conferred by Section 32 of the Act 1994 must be satisfied for the purpose of granting permission to the AYUSH Doctors to carry out various diagnostic procedures and Ultra Sonogram/Ultrasound techniques on pregnant women.
Therefore, it is not sufficient that a person is a qualified Doctor as contemplated under the Tamil Nadu Rules. The eligible criteria to declare as a qualified Doctor as contemplated under the Rules 2018 must be holistically read along with the provisions of the Special Act and Rules i.e., the PC & PNDT Rules, 1996. The general term defined in the Tamil Nadu Act about qualified Doctors is to be construed as general definition and as far as this specialised diagnostic procedures and ultra sonogram/ultrasound techniques on pregnant women are concerned, it is a special diagnostic procedure or treatment to be provided. Therefore, the special qualifications prescribed under the Central Act and the Rules, must be scrupulously followed by the competent authorities. Thus, all qualified Doctors are not qualified under the provisions of the PC & PNDT Act 1994, and the Rules framed thereunder.
Further, the Court said that the general definition of qualified Doctors cannot be followed, since the special qualifications are prescribed under the Central Act, which is 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.
Thus, it was held that the qualified Doctors, who possess the specialised qualifications under the provisions of the Central Act and the Rules alone is eligible to carry out diagnostic procedure and ultra sonogram/ultrasound techniques on pregnant women and all other Doctors, who do not possess the specialised qualification as contemplated under the Central Act and Rules are ineligible to practice and they cannot be allowed to carry out such diagnostic procedures.
Further, the Court held that merely prescribing syllabus for diagnostic procedure or Ultra Sonogram/Ultrasound techniques cannot be considered as a prescribed qualification within the meaning of the Central Act and Rules.
Whether the members of the Tamil Nadu Ayush Sonologist Association (AYUSH Doctors) qualified under the provisions of the Statutes and Rules in force?
The Court held that the AYUSH Doctors if at all qualified under the provisions of the Central Act and Rules framed thereunder, are entitled to be construed as qualified Doctors within the meaning of the Central Act for carrying out various diagnostic procedures and Ultra Sonogram/Ultrasound techniques on pregnant women.
[Tamil Nadu Ayush Sonologist Association v Union of India, 2023 SCC OnLine Mad 3563, Order dated 26-05-2023]
Advocates who appeared in this case :
For Petitioner: Senior Counsel Nalini Chidambaram;
For Respondents: Senior Panel Counsel S.S.Pajani Radja, Additional Government Pleader T.Arunkumar, Advocate K.Vellaya Raj.