- (1.) BY way of this petition under Article 226 of the Constitution of India, the petitioner has challenged order dated 04.08.2009 passed by respondent No.2District Appropriate Authority as well as order in appeal dated 24.09.2009 passed by respondent No.3State Appropriate Authority.
(2.) THE facts which can be culled out from the record of the petition are that the petitioner, a medical practitioner, is having a clinic, namely, Chiranjivi Hospital and Sonography Clinic at Shihor, Dist. Bhavnagar and got registered his clinic as well as his sonography machine under the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Act, 1994 (for short 'the Act') in the year 2006, certificate of which is annexed with the present petition. It is a matter of record that on 16.01.2009 the District Appropriate Authority decided to carry out surprise check at various clinics and accordingly the clinic of the petitioner was checked. It appears that the main reason for such surprise check was increase of male birth ratio. Record shows that panchnama came to be prepared and the sonography machine of the petitioner came to be sealed. The said proceedings were followed by show cause notice dated 17.01.2009, which indicates that there was breach of Rules 17(1), 17(2), 9(1), 9(4), 10, 9(8) of the Preconception and Prenatal Diagnostic Techniques (Prohibition of Sex Selection) Rules, 1996 (for short 'the Rules'). It is also provided in the show cause notice that under subsection (3) of Section 20 of the Act, appropriate authority suspended the registration of the petitioner with immediate effect. It further appears that the petitioner immediately gave reply to the show cause notice by communication dated 19.01.2009. Record further indicates that thereafter special meeting of PNDT Advisory Committee, Bhavnagar, was held on 20.01.2009 wherein cases of four doctors, including that of the petitioner, were considered and the committee advised that a criminal complaint be filed against the petitioner. It is also a matter of record that the said order was challenged by the petitioner by way of filing an appeal as provided under Section 21 of the Act, which came to be registered as Appeal No.2 of 2009. The appellate authority disposed of the said appeal on the ground that final order is yet to be passed and while disposing of the said appeal directed District Appropriate Authority, Bhavnagar to consider the reply filed by the petitioner and to take final decision under Section 20(2) of the Act. It appears that after the appeal came to be disposed of, the appropriate authority by order dated 19.05.2009 passed an order whereby the registration of the petitioner's clinic was cancelled in exercise of powers under Section 17(4)(a) of the Act. It further appears that the petitioner filed an appeal against the aforesaid order, which came to be partly allowed by order dated 08.06.2009 by the appellate authority wherein following observations are made: "In view of the foregoing reasons, the appeal filed by the appellant is partly allowed to that extent only. The Appropriate Authority, Bhavnagar is directed to place the matter before the Advisory Committee for its advice and then pass the order as it deems fit under section 20(2) of the Act within a period of thirty days from the receipt of this order."
(3.) AFTER the proceedings came to be referred back to the appropriate authority, as aforesaid, it passed the impugned order dated 04.08.2009 relying upon the earlier order dated 19.05.2009 of the Appropriate Authority, the State Appropriate Authority's order in appeal dated 08.06.2009, the office note of Advisory Committee, Bhavnagar dated 31.07.2009 and the letter of Chairman of the Advisory Committee, Bhavnagar dated 31.07.2009. Being aggrieved by the said order, the petitioner approached the appellate authority under Section 21 of the Act by filing an appeal, which came to be registered as Appeal No.6 of 2009, which came to be dismissed vide order dated 24.09.2009. Hence, the present petition. It may be noted that this Court on 04.02.2010 passed the following order in the present petition: "RULE returnable in the last week of April 2010. It is pointed out that in identical matters the concerned authority has taken a contrary view. Further, since the sonography machine has been sealed since last one year, and since the registration has also been canceled, it will not be appropriate to continue the same. This penalty seems to be beyond the maximum permissible penalty under the law. In that view of the matter, the impugned orders passed by the authority are ordered to be kept in abeyance till the final outcome of this petition. Direct service is permitted.";