MP HC Gives Go-Ahead For Conducting Competency-Based Evaluation Test Under Prohibition Of Sex Selection (Six Months Training) Rules

The Indore bench of the Madhya Pradesh High Court has directed the Public Health and Family Welfare authorities to conduct the Competency Based Evaluation test in confirmation with the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training) Rules, 2014.

The test had been previously stalled by earlier interim orders of the High Court because of the pendency of the petition which had challenged the constitutional validity of Rule 3(3)(b) of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 and Rule 6 and Rule 9 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training) Rules, 2014.

The division bench of Justice Vivek Rusia and Justice Binod Kumar Dwivedi observed, “respondents are directed to complete the examination process initiated vide notification dated 12.10.2023. It is made clear that this examination will not come in the way of the members of petitioner No.1/society working as Sonologists.”

In the present petition, the petitioner had challenged the legality and constitutional validity of Rule 3(3)(b) of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 and Rule 6 and Rule 9 of the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training) Rules, 2014. It is alleged that the members of Petitioner No. 1 society were qualified for registration under Rule 6 of 1996 Rules as Sonologists because each one of them was a registered medical practitioner and had six months training or one-year experience in sonography from imaging scanning as provided under this Rule before 10.1.2014. Thus, a vested right accrued to the members of petitioner No.1 society as Sonologist to carry on their profession under Article 19(1)(g) of the Constitution as they were holding the qualifications under the 1996 Rules at the relevant time.

It was submitted that the members of petitioner No. l society have vested rights accrued to them under the 1996 Rules then in force in which under Rule 3(3)(b) there was no requirement of undergoing any six months training and passing the examination as provided in 2014 Rules on the basis of certificate of registration granted to them before 10.1.2014. Thus, it was argued that any changed eligibility criteria prospectively cannot affect acquired vested rights as per Rule 3(3)(b) of 1996 Rules as existed before 10.1.2014.

It was further submitted that by the subsequent amendment in the Rules, no eligibility condition can be changed or imposed in violation of fundamental rights under Article 19(1)(g) of Constitution of members of petitioner No.1 society.

Rule 9 of 2014 Rules had stated that the criteria has to be made prospective and says that these Rules shall come into force with immediate effect in case of new registrations, but later on, in the Rules existing, registered medical practitioners were also included for the purposes of six months training and passing of competency based examination from any Government Medical College before 1 January, 2017, otherwise the registration will not be renewed. Thus, the restriction imposed by the Rules retrospectively to the members of petitioner No.1 society already practicing was alleged to be arbitrary and unreasonable.

Earlier, in 2016, the M.P. Medical Science University, Jabalpur had issued a notification declaring the examination (Theory & Practical Examinations) which was stayed by the High Court vide order dated July 13, 2016.

Thereafter, defying the aforesaid interim order, the respondents had again issued fresh notification dated June 16, 2017, which was also stayed by the High Court on July,2017. Thereafter, through notification dated October 12, 2023, respondents again sought to conduct the Competency Based Evaluation (CBE). Thereafter the high court had on October 19, 2023 further stayed the said examination during the pendency of the present writ petition.

Thereafter, applications were filed by the Doctors who had completed their six months training nominated for "Fundamental Abdomino Pelvic Ultrasonography: Level 1 and aspiring to appear in the Competency Based Evaluation test (CBE). The counsel for the respondents and the interveners submitted that on account of the interim orders passed in this petition, they were unable to appear in the examination in order to register themselves for performing sonography.

The counsel for the petitioners submitted that the members of petitioner No.1/society are qualified for registration under the Rules of 1996 as Sonologists as each one of them was registered medical practitioner and had six months training or one-year experience in sonography. Therefore, this vested right accrued to them cannot be taken away by compelling them to undertake six months training as provided in the Rules of 2014.

Thus, the counsel for the petitioners prayed that the interest of members of petitioner No.1 society should be protected by observing that the impugned Rule 3(3)(b) of Rules of 1996 and Rules 6 & 9 of the Rules of 2014 shall not come in the their way during the pendency of the petitions and simultaneously, the respondents may be directed to conduct the examination Competency Based Evaluation test (CBE) in confirmation with the Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) (Six Months Training) Rules, 2014.

Thus, considering the submissions made by the parties, the court directed the respondents to complete the examination process. The court also clarified that the said examination would not affect the members of petitioner No.1/society already working as Sonologists.

Case Title: Malwa Sonologist Society Thru. Dr. John Joseph And Others Vs Union Of India Thru. Ministry Of Health And Family Welfare And Others, WP No. 1408 of 2016

Click Here To Read/Download Order