Amethi Ultrasound Center Kawa Road Amethi Thru. Its Owner Mohd. Kalim and Another Vs Appropriate Authority/ State Appellate Authority Under P.C.P. N.D.T Act Thru. Chairman and 3 Others

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Neutral Citation No. - 2024:AHC-LKO:22078

Court No. - 5

Case :- WRIT - C No. - 585 of 2024 Petitioner :- Amethi Ultrasound Center Kawa Road Amethi Thru. Its Owner Mohd. Kalim And Another Respondent :- Appropriate Authority/ State Appellate Authority Under P.C.P. N.D.T Act Thru. Chairman And 3 Others Counsel for Petitioner :- Anurag Narain Srivastava Counsel for Respondent :- C.S.C.

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Hon'ble Abdul Moin,J.

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Heard Sri Anurag Narain Srivastava, learned counsel for the petitioner and Sri Shailendra Kumar Singh, learned Chief Standing counsel assisted by Sri Saharsh Srivistava, learned Additional Chief Standing counsel appearing on behalf of the State-respondents.

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In pursuance to the order of this Court dated 05.03.2024, Sri Shailesh Kumar Srivastava, Director General, Family Welfare, Uttar Pradesh, Jagat Narain Road, Lucknow is present in Court.

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Personal affidavit filed today in Court by Sri Shailesh Kumar Srivastava, Director General, Family Welfare, Uttar Pradesh, Jagar Narain Road, Lucknow be kept on record.

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With the consent of learned counsels appearing on behalf of the contesting parties, the instant writ petition is being finally decided.

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At the very outset, an unconditional apology has been extended to the Court which has led to the Court to summon the Director General, Family Welfare, Uttar Pradesh, Lucknow in person. The apology is accepted.

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In paragraph 13 of the personal affidavit, it has been indicated that a letter has been sent by the Director General for WRIT - C No. - 585 of 2024

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identification of the persons who did not send the instructions in time and after their identification, appropriate departmental action shall be initiated against them.

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The Court has perused the said personal affidavit and is satisfied with the action which has been taken by the Director General.

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Both the learned counsels appearing on behalf of the contesting parties state that the facts of the case have already been set forth in the order dated 22.01.2024. For the sake of convenience, the order dated 22.01.2024 is reproduced below:-

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1.Heard.

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2. The contention of learned counsel for the petitioners is that the petitioners are running an ultrasound center in District Sultanpur.

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3. Initially a notice dated 05.09.2023, a copy of which is Annexure-4 to the writ petition, was issued to the petitioners per which it was indicated that (a) no board/display is found pertaining to the petitioners running the ultrasound center, and (b) information as per form F is not being uploaded on the pyaribitiya.in website since January, 2023, which is found to be violative of the provisions of Section 4(3) of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as the 'Act, 1994') and Rule 9(4) and 10(1-A) of the Preconception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (hereinafter referred to as the 'Rules, 1996'), whereby the petitioners were required to show cause as to why registration of ultrasound center be not cancelled.

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4. The petitioners claim to have submitted their reply which did not find favour with the competent authority, who vide order dated 25.09.2023, a copy of which is Annexure-2 to the writ petition, cancelled the registration of ultrasound center. The appeal filed against the said order has also been rejected vide order dated 19.12.2023, a copy of which is Annexure-1 to the writ petition. 5. The legal argument of learned counsel for the petitioners is that the notice itself, apart from being vague, has only referred to two things namely that (a) no display board was affixed over the ultrasound center, and (b) the petitioners are not uploading the details as per for F on pyaribitiya.in website, and have thus violated the provisions of the aforesaid section of the Act, 1994 and the Rules, 1996 from which it emerges that once a notice has been issued only on two grounds as

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such only the said grounds could have been considered while passing the impugned order of cancellation of the petitioners' registration of ultrasound center vide order dated 25.09.2023 but the respondents have gone further while passing the order impugned and have also gone into the aspect that the petitioners have outsourced the diagnostic services which would be beyond ambit of the notice as issued to the petitioners and the grounds on which the petitioners were required to show cause in terms of the notice dated 05.09.2023.

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6. The other legal argument is that the display board was duly affixed on the outside of the complex and besides the shop and the details were being duly uploaded on pyaribitiya.in website even though no order to the said effect as per the provisions of Section 4(3)(v) of the Act, 1994 had been issued by the Board.

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7. Thus, placing reliance on the aforesaid legal arguments, the contention is that the order impugned including the appellate order merits to be quashed.

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8. Sri Rahul Shukla, learned Additional Chief Standing Counsel, prays for and is granted a week's time to seek instructions in the matter.

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9. As such, list this case in the next week as fresh.

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10. Till the next date of listing, the petitioners would not be required to surrender their original registration certificate.

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From a perusal of the aforesaid order it emerges that initially a notice dated 05.09.2023 had been issued to the petitioners indicating that (a) no board/display is found pertaining to the petitioners running the ultrasound center and (b) information as per form F is not being uploaded on the pyaribitiya.in website since January, 2023 which was violative of the provisions of Section 4 (3) of the Pre-conception and Pre-natal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (hereinafter referred to as "Act, 1994") and Rule 9 (4) and 10 (1-A) of the Pre-conception and Pre-natl Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (hereinafter referred to as "Rules, 1996"). The petitioners were required to show cause as to why registration of ultrasound center be not cancelled.

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The petitioners submitted their reply which did not find WRIT - C No. - 585 of 2024

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favour with the competent authority who vide order dated 25.09.2023 cancelled the registration of the ultrasound center. The appeal filed by the petitioners against the said order has also been rejected vide order dated 19.12.2023.

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The argument of the learned counsel for the petitioners is that a perusal of order impugned dated 25.09.2023 by which the registration of the ultrasound center of the petitioners has been cancelled indicates that new grounds have been taken by the respondents while cancelling the registration of the ultrasound center which did not find placed in the show cause notice that had been issued to them.

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Elaborating the same, the contention of the learned counsel for the petitioners is that the cancellation order dated 25.09.2023 indicates that the petitioners have outsourced the work of the center which is a ground which has prevailed for cancellation of the registration of the ultrasound center. However, the said ground did not find placed in the show cause notice and as such, on this ground alone, the impugned order of cancellation and the appellate order merit to be quashed.

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On the other hand, learned Chief Standing counsel on the basis of averments contained in the personal affidavit argues that prior to the inspection, the petitioner had submitted several form F in the office of the opposite party no. 4 i.e Chief Medical Officer, Amethi under Rule 9 (4) of the Rules, 1996. On scruitinization, it was found that some forms have not been filled completely and in referral related Clause 7 (A) of Form F, 'self' has been mentioned wherein in Clause 7 (d) meaning of 'self' has been mentioned which explicitly provides that 'self' referral does

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not mean a client coming to a clinic and requesting for the test or the relatives requesting for the test of pregnant woman, which thus entailed upon the respondents to cancel the registration of the ultrasound center of the petitioners.

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Having heard the learned counsel appearing on behalf of the contesting parties and having perused the records it emerges that a show cause notice had been issued to the petitioners requiring the petitioner to show cause as to why the registration of the ultrasound center be not cancelled. Certain grounds were indicated in the same. The petitioners had submitted their reply which did not find favour with the authority who vide order dated 25.09.2023 cancelled the registration of the ultrasound center. Upon an appeal being filed by the petitioners, the appellate authority has rejected the appeal of the petitioners vide order dated 19.12.2023.

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The argument of the learned counsel for the petitioners is that the cancellation order dated 25.09.2023 cancelling the registration certificate of the ultrasound center of the petitioners is on the grounds which were not even contained in the show cause notice i.e of the ultrasound center doing outsourcing.

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A perusal of the show cause notice, a copy of which is annexure 4 to the writ petition would indicate that the show cause notice had only been issued with respect to two grounds of which none of the grounds pertain to the diagnostic center engaging in outsourcing of work. Thus, once the said ground did not find placed in the show cause notice there could not have been any cancellation on the said ground i.e on a ground to which the petitioners were never put to notice. This aspect of the

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matter has also not been considered by the appellate authority while rejecting the appeal of the petitioners vide order dated 19.12.2023.

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Keeping in view the aforesaid discussion, the writ petition is allowed. The orders impugned dated 25.09.2023 & 19.12.2023, copies are which annexures 2 & 1 to the writ petition are quashed.

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Consequences to follow.

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However, it would be open for the respondents to proceed against the petitioners in accordance with law for any violation of the Act & Rules governing the ultrasound center.

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Order Date :- 13.3.2024

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Pachhere/-

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WRIT - C No. - 585 of 2024

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Digitally signed by :- SATYENDRA SINGH PACHHERE High Court of Judicature at Allahabad, Lucknow Bench

Amethi Ultrasound Center Kawa Road Amethi Thru. Its Owner Mohd. Kalim and Another v. Appropriate Authority/ State Appellate Authority Under P.C.P. N.D.T Act Thru. Chairman and 3 Others

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Amethi Ultrasound Center Kawa Road Amethi Thru. Its Owner Mohd. Kalim and Another v. Appropriate Authority/ State Appellate Authority Under P.C.P. N.D.T Act Thru. Chairman and 3 Others

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