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2010 Supreme(Guj) 305
2010 (3) GCD 2452 (Guj) (DB)
Hon’ble Mr. Chief Justice S.J. Mukhopadhaya &
Hon’ble Mr. Justice K.M. Thaker
Association of Pathologist of Bhavnagar & Ors.
Versus
Secretary Health Department & Ors.
Special Civil Application No. 7999 of 19981—Decided on 17/09/2010
Appearance :
Mr. Prakash K. Jani, for the Petitioners No. 1, 3-18.
Mr. A.M. Raval, for the Petitioner No. 1.
Deleted, for the Petitioner No. 2.
Mr. J.B. Pardiwala, for the Petitioners in SCA No. 17485/2006.
Tanna Associates, for the Petitioners in SCA No. 6715/2008.
Mr. Premal S. Rachh, for the Petitioners in SCA No. 8211/2008.
Mr. Shirish Joshi, for the Petitioners in SCA No. 8193/20092008.
Government Pleader, for the Respondents No. 1 - 2.
Rule Served, for the Respondents No. 3 - 6.
Tanna Associates, for the Respondents No. 4, 8 in SCA No. 7999/1998.
Mr. J.F. Shah, for the Respondent No. 5.
Mr. Mehul S. Shah, for the Respondent No. 7.
Mr. Suresh M. Shah, for the Respondent No. 7.
Mr. Sachin D. Vasavada, for the Respondents No. 9 in SCA No. 7999/1998.
Mr. Sachin D. Vasavada, for Respondents No. 21 in SCA No.17485 of 2006.
Mr. Mitul K. Shelat, for the Respondent-Gujarat Medical Council.
Point in Issue :
Whether unqualified laboratory technician claiming as qualifier can run the Pathological Laboratories within State of Gujarat?
Headnote:Head Note :
[Indian] Medical Council Act, 1956 — Sections 2(F), 26, 30, 15(2), 2(K), 2(J) and 10 A read with 33 — Gujarat Medical Council Act, 1963 — Gujarat Medical Practitioners Act, 1967 — Section 2(2) — Gujarat Medical Council Act, 1967 — Section 16(3) — New Medical Colleges Regulations, 1993 — Laboratory of Pathology — Running of — By unqualified laboratory technicians — Claim for prohibition — Sustainable — Respondents are directed to ensure prohibition.
Held :
The Laboratory Technicians being not Pathologists, cannot run any laboratory independently. They cannot directly give any report to any patient or any other individual, or to any institution or practicing doctor, without the authentication of the same by the pathologist registered with the Medical Council. Though it is open to any person or institute to run a pathology laboratory, but no report can be issued without the signature or counter signature of the practicing pathologist recognized by the Medical Council of India. The Respondents are directed to ensure that no pathology laboratory is run by any unqualified person or institute having no recognized pathologists registered with the Medical Council. However, if such pathological laboratory is run by a pathologist registered with the Medical Council, or if such pathological laboratory engages a pathologist registered with the Medical Council, the respondents may allow such laboratory to run. Individual Laboratory Technician cannot be allowed to run pathological laboratory independently without engaging a pathologist registered with the Medical Council. [Para 33]
Law Laid Down :
Unqualified laboratory technicians can not be allowed to run Pathological Laboratories within the State of Gujarat.
S.J. Mukhopadhaya, CJ.—In these cases, as a common question of law is involved and almost similar prayers have been made or opposed, they were heard together and disposed of by this common judgment.
2. The writ petition in Special Civil Application No. 7999 of 1998, was preferred by the Association of Pathologists for prohibiting the 5th Respondent-United Clinical Laboratory, Kalanala, Bhavnagar and other persons from running laboratory of pathology in the State of Gujarat with further prayer to direct other Respondent-Officers of the State to take legal and criminal action against the persons who are running laboratory of pathology without requisite qualifications. Thus, a prayer was made to ensure that no such laboratory is allowed to operate without qualified pathologists.
3. Subsequently, North Gujarat Pathologists Association preferred the writ petition in Special Civil Application No. 17485 of 2006, by way of public interest litigation with a grievance that unqualified laboratory technicians, claiming themselves to be qualified pathologists, are running various pathological laboratories within the State of Gujarat.
4. It followed by another writ petition preferred by the Association of Self Employed Owners (Para Medical) of Private Pathology Laboratories of Gujarat in Special Civil Application No. 6715 of 2008. In this case, they have challenged the order dated 19.4.2008 passed by the State of Gujarat whereby, giving reference to the pendency of the public interest litigation, the Chief District Health Officers of the State have been informed about the affidavit filed by the Gujarat Medical Council and directed that all those laboratories within their districts not registered with the Gujarat Medical Council be stopped from functioning forthwith.
5. Another writ petition has been preferred by Gujarat Association of Pathologist and Microbiologist by way of public interest litigation in Special Civil Application No. 8211 of 2008 with prayer for direction to the Respondents to restrain the unqualified persons from running pathological laboratory and to restrain the 1st Respondent from constituting any committee to permit the Lab Technicians to run independent pathological laboratory.
6. It followed by a writ petition preferred by Anand People’s Medicare Society and others in Special Civil Application No. 8193 of 2009 against the order dated 19.4.2008, which is also challenged in the other case. A declaration has been sought for that the courses run by the 1st and the 2nd petitioners and the similar courses run by other University are same and similar and are at par with the courses run by other Medical Colleges so far as the subject of Pathology is concerned and thereby Graduates and Post Graduates in Pathology known as B.Sc. in Medical Laboratory Technology and M.Sc. in Medical Laboratory Technology are entitled to practice as independent Pathologists.
7. For proper appreciation of the case, it is desirable to refer B.Sc. Medical Laboratory Technology and M.Sc. Medical Laboratory Technology as ‘Laboratory Technicians (Pathology)’. Those who have passed MBBS with Pathology are referred to as ‘Doctors in Pathology’.
8. It is not in dispute that the Laboratory Technicians (Pathology) are not registered with the Medical Council of India or the Gujarat Medical Council, whereas the Doctors in Pathology who have obtained MBBS qualification are registered with the Medical Council of India/Gujarat Medical Council. Thus, who are against the practice by Laboratory Technicians (Pathology), on their behalf, similar plea has been taken. The other two petitioners who have challenged the Government decision dated 19.4.2008 have taken a common plea that the Laboratory Technicians (Pathology) are also entitled for practice.
9. As the question involved in the writ petitions has a direct bearing with the health of human being, we have entertained the public interest litigation filed on behalf of certain Associations.
Stand of Pathologists’
