The High Court
Case Details
Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 11-Mar-2024 16:15:25 IN THE HIGH COURT OF ORISSA AT CUTTACK W.P.(C) No. 27587 OF 2022 (An application under Articles 226 and 227 of the Constitution of India) ********* Subhranshu Mohan Dash .... Petitioner -versus- State of Odisha and others Advocate for the Parties …. Opp. Parties For Petitioner For Opposite Parties : Mr. Lalit Kumar Maharana, Advocate : Mr. Amiya Kumar Mishra, Additional Government Advocate (For Opposite Party Nos.1 to 5) Mr. Amitav Tripathy, Advocate (For Opposite Party No.6) CORAM: JUSTICE K.R. MOHAPATRA
Decision
-------------------------------------------------------------------------- Heard and disposed of on 05.03.2024 --------------------------------------------------------------------------- JUDGMENT 1. This matter is taken up through hybrid mode. 2. Petitioner in this writ petition seeks to assail the order dated 5th September, 2022 (Annexure-25) passed by the State Appellate Authority in Appeal Case No.1 of 2021 filed under Pre-Conception and Pre-Natal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1994 (for brevity, ‘the Rules’). Petitioner also prays for setting aside the order dated 23rd February, 2021 (Annexure-12) passed by the Collector & District Magistrate-cum-District Appropriate Authority, consequential Form-‘C’ dated 23rd February, 2021, which was communicated W.P.(C) No. 27587 OF 2022 Page 1 of 8 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 11-Mar-2024 16:15:25 // 2 // vide letter dated 15th March, 2021. He also prays for a direction to renew the registration of the Petitioner’s Clinic. 3. Short point for consideration in this case is regarding veracity of the observation of the State Appellate Authority that it has no jurisdiction to decide the appeal, as the Petitioner approached the State Appellate Authority directly without invoking the remedy under Rule 19(2) of the Rules by filing an appeal before the State Appropriate Authority. 4. Briefly stated the case of the Petitioner as borne out from the writ petition is that renewal of registration of the Petitioner’s Diagnostics Centre, namely, Sanjibani, Plot No.151, Ekamra Marg, Ganganagar, Unit-6, Bhubaneswar (for brevity ‘the Diagnostics Centre’) was refused and rejected by the Collector and District Magistrate-cum- District Appropriate Authority under the Rules, vide order dated 23rd February, 2021 (Annexure- 12) on the ground that the Proprietor (the Petitioner) and the performing Doctor did not maintain the mandated records as required under the Rules and also contravened the provisions of the Rules. It is alleged that the District Appropriate Authority rejected the application for renewal of the registration of the Diagnostics Centre on the inspection report submitted by the District and State Inspecting and Monitoring Team. State Inspecting and Monitoring Team was nominated by the State Appropriate Authority, vide its letter No. 549 dated 24th October, 2019 (part of Annexure-3 series). Thus, the State Appropriate Authority should not be the judge of its own cause. As such, an W.P.(C) No. 27587 OF 2022 Page 2 of 8 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 11-Mar-2024 16:15:25 // 3 // appeal assailing the order of the District Appropriate Authority (Annexure-12) was filed before the State Appellate Authority directly. The said Appeal was not disposed of for a long period for which the Petitioner approached this Court in W.P.(C) No.14804 of 2021, which was disposed of vide order dated 11th June, 2021 (Annexure-17) with following direction:- “The grounds raised herein and after perusal of the provision of the PC & PNDT Rules involved herein, for the opposite party no.4 in the Appeal at Annexure- 14 is not hearing the appeal proceeding, the ground raised herein is not sustainable. This Court finds no sustainable ground in entertaining the Writ Petition, which is dismissed accordingly. However, considering the further request of Mr. Dash, learned counsel for the petitioner that the appeal may be directed to be disposed of within a time frame fixed by this Court, this Court directs the Appellate Authority to undertake the entire exercise involving appeal at Annexure-14 and conclude the same within a period of four months but however involving the appellant as well as party likely to be affected.” Accordingly, the Special Secretary to Government in Health and Family Welfare Department communicated the Petitioner vide letter No.25044 dated 7th September, 2021 (Annexure-18) that Additional Chief Secretary to Government-cum-State Level Authority would hear the appeal on 13th September, 2021 at 5.00 PM in his Conference Hall. Accordingly, the Petitioner appeared and participated in the hearing of the appeal. A written note of submission was also filed before the State Appellate Authority for consideration. Since appeal was not disposed of within a reasonable period, an additional written note of submission was also filed by the Petitioner. However, the appeal was not W.P.(C) No. 27587 OF 2022 Page 3 of 8 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 11-Mar-2024 16:15:25 // 4 // disposed of and was kept pending. Thus, the Petitioner, vide his letter dated 31st January, 2022 (Annexure-20) requested the State Appellate Authority to dispose of the appeal failing which he would be constrained to take appropriate steps for redressal of his grievances. Since the said request was not paid any heed, the Petitioner again moved this Court in W.P.(C) No.15627 of 2022 which was disposed of on 30th August, 2022 (Annexure-24) observing as under:- There is a joint submission by the learned counsel “2. for the Parties that hearing of the proceeding involved herein is already undertaken and as appearing in the the Health & Family Welfare communication of Department, an undertaking is made to pass the final order at least within one week. For the decision taken place and recorded herein above, this Court finds, no further order is required to be passed involving the present litigation, which is disposed of accordingly.” However, the appeal of the Petitioner was taken up and the impugned order dated 5th September, 2022 (Annexure-25) was passed and the said order was communicated to the Petitioner vide letter dated 7th September, 2022 (Annexure-25). 4.1 Mr. Maharana, learned counsel for the Petitioner further submits that while disposing of the appeal, it was observed by the State Appellate Authority that the Petitioner directly approached the State Appellate Authority instead of approaching the appropriate forum, i.e., State Appropriate Authority as per the provisions of the Rules. As such, the Appellate Authority disposed of the appeal giving liberty to the Petitioner to file appeal before the State Appropriate Authority under the Rules. W.P.(C) No. 27587 OF 2022 Page 4 of 8 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 11-Mar-2024 16:15:25 // 5 // 4.2 Mr. Maharana, learned counsel also submits that since the State Inspecting and Monitoring Team was nominated by the Director, Family Welfare, who is the State Appropriate Authority, and the District Appropriate Authority passed the order on such report, approaching the State Appropriate Authority would have been an empty formality, as the Director of Family Welfare, Odisha could not be the judge of its own cause. Thus, the appeal was filed directly before the State Appellate Authority instead of State Appropriate Authority. This aspect was completely brushed aside by the State Appellate Authority while adjudicating the appeal. The appeal filed by the Petitioner was not disposed of on merit. Hence, he prays for setting aside the impugned order under Annexure-25 and to direct the State Appellate Authority to consider the appeal afresh on merit giving opportunity of hearing. 5. Mr. Mishra, learned AGA vehemently objects to the above submissions. It is his submission that the Director, Family Welfare, Odisha being the State Appropriate Authority though nominated the members of State Inspecting and Monitoring Team, but the said team does not have any role in the adjudicating process of the appeal. The report submitted by the team is only taken into consideration along with other materials in the process of adjudication. He also relied upon the gazette notification dated 16th August, 2007 (Annexure-B/5 to the counter affidavit) of the Health and Family Welfare Department, Government of Odisha and submits that the State Appropriate Authority is a multi-member body consisting of Director, Family W.P.(C) No. 27587 OF 2022 Page 5 of 8 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 11-Mar-2024 16:15:25 // 6 // Welfare, Odisha, Joint/Deputy Secretary to Government in Law Department and Sabarmati Sambhav (NGO). It being a statutory adjudicating body cannot be circumvented alleging that it should not be the judge of its own cause. Be that as it may, the report submitted by the inspecting team was considered by the adjudicating authority giving opportunity of hearing. Thus, the allegation of the Petitioner is not correct. He, therefore, submits that the Petitioner should approach State Appropriate Authority under Rule 19 (2) of the Rules, 1996, if he feels aggrieved by the decision of the District Appropriate Authority. 6. Considering the submission made by learned counsel for the parties and on perusal of record, it appears that the State Inspection and Monitoring Team was nominated by the Director, Health and Family Welfare-cum-State Appropriate Authority on 24th October, 2019 (Annexure-3), as a part of its function of monitoring procedure, which inspected the Diagnostics Centre of the Petitioner along with the District Inspecting and Monitoring Team. But the report by itself is not conclusive in nature. It is a piece of material submitted by the team nominated by the State Appropriate Authority, which shall be considered by the District/State Appropriate Authority while adjudicating the matter taking into consideration the materials available on record including the report of the State Inspection and Monitoring Team. Amongst other, the Director, Family Welfare, Odisha has the responsibility to monitor the Ultrasound Units in the State for effective implementation of the provisions of the Act. For effective monitoring of the Ultrasound Units, the Director, W.P.(C) No. 27587 OF 2022 Page 6 of 8 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 11-Mar-2024 16:15:25 // 7 // Family Welfare is required to nominate a team for inspection and monitoring. The team constituted for Inspection and Monitoring has no role to play in considering an application for registration or renewal of registration and also in adjudication of the appeal under the Act and Rules. Thus, the allegation of the Petitioner that State Appropriate Authority cannot be the judge of its own cause is imaginary and has no legal basis. Thus, the same does not hold good. 6.1 However, the State Appellate Authority, while disposing of the appeal gave liberty to the Petitioner to approach the State Appropriate Authority by filing appeal under Rule 19 (2) of the Rules. It has also been observed that the State Appropriate Authority shall condone the delay in filing the appeal and hearing of the appeal should be as per the provisions of the Act and Rules. Since record of the appeal is available with the State Appellate Authority, it shall transfer the entire case record concerning the Petitioner’s Diagnostics Centre, i.e., Sanjibani Diagnostics Centre to the State Appropriate Authority within a period of two weeks from the date of production of certified copy of this order and the State Appropriate Authority, in turn, shall issue notice to the Petitioner to appear and participate in the hearing of the appeal. The appeal in question shall be disposed of as expeditiously as possible, preferably within a period of three months from the date of service of notice/appearance of the Petitioner before the State Appropriate Authority giving opportunity of hearing to the parties concerned. The Petitioner W.P.(C) No. 27587 OF 2022 Page 7 of 8 Signature Not Verified Digitally Signed Signed by: SASANKA SEKHAR SATAPATHY Designation: A.R.-CUM-SR. SECRETARY Reason: Authentication Location: HIGH COURT OF ORISSA CUTTACK Date: 11-Mar-2024 16:15:25 // 8 // shall co-operate with the State Appropriate Authority for disposal of the appeal within the period as stipulated above. 7. With the aforesaid observation and direction, the writ petition is disposed of. 8. Interim order dated 14th November, 2022 passed in IA No.14286 of 2022 stands vacated. 9. As requested, a copy of this order shall be made available to Mr. Mishra, learned AGA for communication and compliance. Issue urgent certified copy of the judgment on proper application. s.s.satapathy (K.R. Mohapatra) Judge W.P.(C) No. 27587 OF 2022 Page 8 of 8