Case BriefsHigh Courts

Chhattisgarh High Court: Sam Koshy P, J., allowed the petition and quashed the impugned orders imposing a moratorium on the establishment of new Pharma colleges and institutions for 5 years.

The facts of the case are such that the petitioners are a private unaided Self Financing Institution and a part of charitable trust which has educational institutions which impart other educational courses with an intention of the opening of an institution imparting courses of Pharmacy i.e. B. Pharm (Bachelor Pharmacy courses) and D. Pharm (Diploma of Pharmacy courses) approached the PCI wherein they were informed of the impugned moratorium order. The Pharmacy Council of India i.e. PCI has put a moratorium on the opening of new Pharmacy Colleges for running Diploma as well as Degree courses in Pharmacy for a period of 5 years beginning from the Academic Session 2020-21. The validity and legality of these two orders/resolutions is under challenge in the present writ petition.

It was remarked that in the State of Chhattisgarh, there is admittedly lack of basic medical facilities and basic infrastructure required for providing the medical facilities to the general public particularly in the Semi-Urban, Rural and the Interior Areas of the State. There is an acute shortage of Doctors, Paramedical Staff and People with Pharmacy background and in the backdrop of the COVID-19 Pandemic; the State has also witnessed the alarming need and necessity of Doctors, Paramedical Staffs and People with Pharmacy background throughout the State of Chhattisgarh, particularly into the Rural and Interior Areas which are predominantly tribal belts. Thus, the State of Chhattisgarh has its own peculiar demands and necessities when it comes to issues relating to health, medical and Pharma care. Thus the blanket moratorium imposed by the PCI would further create a vacuum in the field of Pharma Care in the State of Chhattisgarh.

Reasons/ submissions for challenge

  1. If it is a regulation framed and issued by the PCI under Section 10 of Pharmacy Act, it needs to be published in an official Gazette failing which, it cannot be accepted to be a regulation in terms of Section 10, and in turn would not have a force of law.
  2. The power conferred upon the PCI to regulate the profession of Pharmacy would not automatically include the power to prohibit as well.
  3. The two orders being violative of Article 14 of the Constitution of India as it has led to ex facie discrimination particularly in the light of the relaxation that was given in the impugned order.
  4. The impugned order is violative of Article 19(1) (g) of the Constitution of India as it infringes the right of the petitioners of practicing any profession or to carry on any occupation, trade or business i.e. establishment of an educational institution in the instant case.
  5. The resolution passed by the respondent Pharmacy council is also violative of Section 10 & Section 11 of the Pharmacy Act as there has been no consultation done with Central Government or the State of Chhattisgarh or any of the State Government before imposing the said ban.

Submissions by Respondent PCI

  1. The very purpose of having the Pharmacy Act was to to regulate the institutions imparting pharmacy courses and it includes the power of prohibition in the event circumstances so require.
  2. It was a policy decision of the PCI to impose moratorium and the decision was to ensure that legislative object of regulating entry into the profession of Pharmacy with minimum standard of education is fulfilled.
  3. The resolutions passed by the Pharmacy Council have been duly communicated to the Government of India, Ministry of Health who have till now not raised any objection in respect of the two resolutions.
  4. The policy decision imposing a moratorium of 5 years would itself review its decision so far as the extending of the moratorium is concerned. Since almost 2 ½ -3 years have already passed there is no scope of judicial interference at this juncture. Thus, as the moratorium is only for 5 years, it would establish that it is not an absolute prohibition.
  5. Various statutory expert bodies, officials and representatives of the Central Govt. and each of the State Pharmacy Council, each of the State Govt. have taken the decision. Therefore, for all practical purposes it has to be presumed that it has all the concurrence and approval of the Central Govt. as also of the State Govt.

The Court remarked the very object and reason behind framing of the Pharmacy Act, 1948 was to ensure that only persons with a minimum standard of professional education should be permitted to practice the profession of pharmacy.

Issue 1

Whether the two resolutions of the PCI can be considered to be regulation under Section 10 of the Pharmacy Act and if be made applicable in the entire country, then the requirement as is otherwise laid down under Section 11 has been met or not?

The plain reading of Sections 10 and 11 would clearly indicate that the regulations under Section 10 must get the approval of the Central Govt. so as to make it enforceable.

The Court observed that In the instant case admittedly there is no such official approval received from the Central Govt. at the first instance nor is there any such notification published in the official Gazette by the State Govt. In the absence of either the approval from the Central Govt. or the required notification under Section 11 by the State Govt., it would be difficult to presume that a resolution passed by the Central Council automatically becomes enforceable. It was further observed that Once when the resolutions are made applicable for the entire country, the same gets a colour of subordinate legislation and it cannot be treated as directory nor can the requirement as is envisaged under Section 10 & 11 be treated as directory.

Issue 2

Does the Pharmacy Council of India have the power to pass Regulation of the nature of moratorium for the establishment of new Colleges and Institutions imparting the pharmacy courses?

After perusing various provisions of the Pharmacy Act, it is evidently clear that nowhere does the Act empower the Pharmacy Council of India to take decisions banning the individuals in establishing new Institutions with an aim of imparting the courses relating to pharmacy or the power to ban or restrict establishment of new colleges for Pharmacy.

The Court observed that since the impugned orders create a prohibition having the effect of affecting substantive and fundamental rights enjoined with the institutions or entities intending to open new pharmacy institutions, therefore they need to derive authority from the parent enactment or the rules framed thereunder. It is trite law that whenever substantive obligation, rights or interests are being impaired or adversely affected by the decisions/orders of delegatee under enactment or through any piece of subordinate legislation, then its source must be traced within express provisions in the four corners of the parent enactment, in the absence of which, it cannot be sustained.

The Court in regards to the arguments of violation of constitutional provisions observed that any restriction and embargo so far as establishment and commencement of educational institutions are concerned; the same can only be imposed by State. Thus, such, regulations and resolutions in the nature of executive instructions issued by the PCI amounts to impingement upon the fundamental right of citizen and or a juristic person.

The Court thus held “two resolutions under challenge in the present writ petition Annexure P-3 and P-4 dated 17.07.2019 and 09.09.2019 are also not sustainable in the eye of law and the same deserves to be and are accordingly quashed/set aside with consequences to follow.” [Chouksey College of Pharmacy v. Pharmacy Council of India, 2022 SCC OnLine Chh 762, decided on 22-04-2022]


Appearances

For Petitioners: Mr. Siddharth R. Gupta and Mr. Pranjal Agrawal

For Respondents: Mr. Rajkumar Mishra and Mr. Tushar Dhar Diwan


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsTribunals/Commissions/Regulatory Bodies

National Consumer Disputes Redressal Commission (NCDRC): The Coram of Dr S.M. Kantikar (Presiding Member) and Binoy Kumar (Member) while allowing an application for transfer expressed that,

“…it is true that the doctors are busy and conscious about their duties towards the patient, but they are not exempted from the legal proceedings and duty bound to attend the court proceedings (physical or virtual mode) either through their Counsel or on their own.”

Instant petition was a transfer application to transfer the complaint from the State Commission, Chhattisgarh to the State Commission, Odisha.

Analysis and Decision

The OPs were running a Medical Centre for more than 2 decades. They have digitalization and communication facilities like WIFI/internet which may be used for e-filing/virtual proceedings.

Coram expressed that, it is true that the doctors are busy and conscious about their duties towards the patient, but they are not exempted from the legal proceedings and duty-bound to attend the court proceedings (physical or virtual mode) either through their Counsel or on their own.

The Statement of Objects and Reasons of the Act 1986 speaks of “speedy and simple redressal to consumer disputes”. This is the case of alleged medical negligence which needs a holistic approach after giving fair opportunities to the parties on both sides, instead of taking a technical approach, Commission added.

Hence, in view of the above discussion, as per the provisions contained under Section 62 of the Consumer Protection Act, 2019 the transfer application was allowed.

The Commission directed the parties to appear before the State Commission, Odisha on 7-3-2022.[Manasi Mishra v. Aayush Hospital & Maternity Home, 2022 SCC OnLine NCDRC 22, decided on 9-2-2022]


Advocates before the Commission:

For the applicant: Suyash Pande, Advocate

For the non-applicants 1 to 4: Rohini Kumar, Advocate

Case BriefsHigh Courts

Madhya Pradesh High Court: The Division Bench comprising of Sujoy Paul and Arun Kumar Sharma, JJ., held that the Demonstrators and Tutors working in cities/urban areas are to be treated as ‘in-service candidates’ as neither the relevant order nor the rule precludes the Medical Officers working in urban areas or hospitals from benefit of being ‘in-service candidate’. The Bench remarked,

“If we hold that the Demonstrators and Tutors are eligible despite being posted in towns (not covered under difficult, rural or remote areas) as in-service candidates and petitioners are not, it will divide a homogeneous class of ‘in-service candidates’ and will create a class within the class without there being any rationale and justification for the same.”

The interesting conundrum in the instant case was whether the petitioners, MBBS qualified Doctors rendering their services as regular employees in the Department of Health Services, State of M.P. fall in the category of ‘in service candidates’ and whether they have separate channel of entry in P.G. Course as per order dated 19-08-2021 issued by the State Government.

As per the Government order dated 19-08-2021, the reservation/separate channel of entry to the extent of 30% in P.G. Degree Course was made. The order covered Demonstrator, Tutors and the Medical Officers, the category to which present petitioners belonged. Further, as per the as per Rule 2(k) of M.P. Chikitsa Shikisha Pravesh Niyam 2018, the petitioners were covered in the definition of “serving employees”.

The petitioners urged that 30% reservation/separate channel of entry, earmarked for Degree Seats for Demonstrator/Tutors/Medicals Officer which made the petitioners being Medical Officers entitled to such reservation yet they were treated to be eligible only for open seats.

Difficult Area vis-a-vis Difficult Services

Evidently, a policy decision dated 28-03-2021 was issued to provide additional marks/incentive to the serving candidates. However, the benefit of incentive was confined to the candidates working in rural, remote and difficult areas.

Although, Harda and Indore, where petitioners were admittedly working did not fall under the umbrella of “difficult area”, the petitioners argued that the policy was issued in Pre-Covid era and considering the fact that Indore and Harda District Hospitals were also difficult areas where the petitioners were rendering their service 24×7 during Pandemic era, they must be treated to be performing difficult service, and therefore, the benefit of the order dated 28-03-2019 must be extended in favour of petitioners as well. Citing the decision in Malpe Vishwanath Acharya and others Vs. State of Maharashtra, (1998) 2 SCC 1, the petitioners submitted that a provision of law may be valid at the time of its issuance but may lose its relevance by efflux of time. Therefore, the petitioners urged that during Pandemic, since all the Doctors working in District Hospitals became vulnerable and worked at the cost of their and families’ lives, they should be included in the category of difficult posting/area.

Accordingly, the Bench accepted the stand of State that under Regulation 9 (8) of the MCI PG Regulations 2000 emphasis is on ‘difficult area’ and not on ‘difficult services’.

(a) Whether ‘in-service candidates’ includes doctors posted in District Hospital, Harda and Indore respectively?

Opining that a conjoint reading of the Government Order dated 19-08-2021 and the rules leaves no room for any doubt that definition of ‘in-service candidate’ is wide enough to include the medical officers and that admittedly, petitioners were working as Medical Officers in District Hospitals, the Bench held that there was no impediment which deprived the petitioner from right of consideration in Post Graduate Degree Course as a separate channel of entry.

Rejecting the argument of the State that the relief claimed by the petitioners was contrary to Medical Council of India (MCI) Regulations and the State Government cannot legislate contrary to the Regulations framed by MCI as prescribing standard of education on Pan India basis is within the domain of MCI, the Bench ruled that there is no Regulation of MCI which deprives the present petitioners for consideration as in-service candidates as the condition of service in “difficult area” as required under Regulation 9(8) is applicable to ‘Diploma Course’ and not the course in question i.e. Postgraduate Degree Course. The Bench stated,

“This argument pales insignificance because present matter does not relate to Diploma Course. Thus, Regulation 9(8) has no application and no other regulation for this purpose is brought to the notice of this Court.”

Since the governing rule (Admission Rules) brought the petitioners within the zone of consideration, the Bench held that the petitioners had a separate channel of entry being Medical Officers in earmarked 30% total seats of Postgraduate Medical Courses.

(b) Whether the petitioners are entitled to get incentive of marks as per circular/order dated 28-03-2019?

The Order dated 28-03-2019 provided for 10% additional marks to the doctors who had their place of posting in the last one and a half year in a ‘difficult area’ as defined under Regulation 9(8). The petitioners, claiming to be serving in difficult situation during pandemic demanded parity with those candidates whose place of service was classified as difficult area and consequently, the petitioner were seeking to get the benefit on 10% incentive marks on that basis.

Accepting the stand of the State was that Regulation 9(8) is very clear that emphasis is on ‘difficult area’ and not on ‘difficult services’ and the area in which petitioners were working were not difficult areas at all, and further observing that the order dated 28-03-2019 was not called in question, the Bench held that the said order is a policy decision taken by the Government which could not be lightly disturbed. The Bench added, the policy decision can be interfered with on limited grounds and when it was not even challenged, it has to be read as such and the Court cannot re-write and insert something which is not there in their policy decision. Accordingly, the claim of the petitioners was rejected with regard to incentive marks.

Conclusion

In view of foregoing analysis, the Bench held the following:

  1. Rules – Definition of ‘in-service candidates’ also includes the Medical Officers working in District Hospital whether or not such Hospital is situated in difficult, remote or rural area. Thus, they are entitled to be considered as special entry under 30%.
  2. MCI Regulations – Regulation 9(8). This regulation is applicable to Diploma Course and not to Degree or Post Graduate Degree Course. No provision was brought to the notice of the Court to show that posting at remote, difficult or rural area is essential to become in-service candidate for Post Graduate Degree Course.
  3. Government – The scope of judicial review is very limited. The Government is best suited to take a policy decision which can be interfered with if shown to be palpably arbitrary, discriminatory or unconstitutional. The order dated 28-03-2019 is not arbitrary, discriminatory or unconstitutional.
  4. ‘Difficult area’ does not include “difficult services” rendered in District Hospital Indore and Harda. Thus, question of grant of incentive marks to the petitioners does not arise.
  5. The petitioners fell in the category of ‘in-service candidates’ for the purpose of Postgraduate Medical Courses and the respondents had erred in not treating them in the said category in the impugned chart/table uploaded on the official website. Accordingly, the impugned entries of the chart/table were set aside.

Consequently, the State Government was directed to treat the petitioners as in-service candidates for Postgraduate Degree Course and consider their claim in accordance with law. [Vijendra Dhanware v. State of Madhya Pradesh, W.P. No.25819 of 2021, decided on 14-01-2022]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For petitioners: Shri Siddharth Gupta, Advocate.

For respondent/State: Shri Piyush Dharmadhikari, Govt. Adv. for respondents 1, 2 and 4.

Shri Anoop Nair, Advocate for respondent 3.

Case BriefsHigh Courts

Orissa High Court: A Division Bench of S. Muralidhar, CJ and A. K Mohapatra, J., issued directions regarding Doctors being attached to Government Health Facilities and carrying on private practice without attending to their duties at the Government Health Facilities.

The instant petition was filed flagging one of the serious issues regarding Doctors being attached to Government Health Facilities, viz., the District Health Centers (DHCs), the Community Health Centers (CHCs) and the Primary Health Centers (PHCs) and also carrying on private practice without attending to their duties at the Government Health Facilities. This is due to State Government order dated 01-11-2003 permitting Government Doctors to carry on private practice after conclusion of their official duties which has had a detrimental effect on the quality of health care throughout Odisha.

Following directions were issued in this regard:

(i) The Secretary of every District Legal Services Authority (DLSA) will forthwith constitute a four-member team, which will include two lawyers of the panel of DLSA – one of whom preferably should be a woman lawyer – and two para legal volunteers (PLVs), who will undertake a visit in the next week to oneDHH, one CHC and two PHCs in the district at different hours unannounced and record:

(a) Whether all the medical staff including Doctors, Nurses, Ward Staff, who are assigned to that facility are in fact in position and in attendance?

(b) The condition of the concerned facility in terms of cleanliness, sanitation, toilet facilities, power and infrastructure;

(c) Adequacy of stocks of drugs, medicines, equipments; availability of ambulance;

(d) Accessibility (i.e. connectivity by road, availability of public transport to reach the facility)

(e) Ability to deal with emergencies and in that context availability of telephone/internet connectivity

(f) Any other matter of relevance and significance for general availability of quality healthcare

(ii) The general condition of each of such DHH, CHC and PHC will be depicted by the team in their report supported by photographs and video clippings taken on a mobile phone. This will be done over a period of a week at different times, unannounced.

(iii) The district administration and police will extend their full cooperation to the team to carry out their task without hindrance. The Secretary DLSA will co-ordinate with the authorities for this purpose.

(iv) Each of the teams will submit their reports along with video clippings and photographs addressing each of the issues highlighted in para 3 of this order in a pen-drive to the concerned Secretary DLSA on or before 5 pm on 30th November, 2021. The said reports will then be transmitted by each Secretary, DLSA in a sealed cover to this Court by Special Messenger so as to reach this Court positively on or before 5 pm on 3rd December, 2021.

(v) The Secretary, DLSA will reimburse the members of each team for expenses incurred towards transport, secretarial and incidental activity on actual basis. Each of the team members will be paid an honorarium of Rs 1,000/- (Rupees one thousand) for undertaking this exercise. The funds shall be disbursed from the contingency fund available with the District Judge concerned.

The matter is next listed on 15-12-2021. [Chittaranjam Mohanty v. State of Orissa, 2021 SCC OnLine Ori 1966, decided on 17-11-2021]


Arunima Bose, Editorial Assistant has reported this brief.


Appearances:

For Petitioner: Mr Chittaranjan Mohanty (In-person)

For State: Mr L. Samantaray (For Opp Party 1 and 2) and Mr Pradipta Kumar Mohanty (For Opp Party 3)

Case BriefsHigh Courts

Bombay High Court: Holding that mere repeal of the Consumer Protection Act, 1986 by the 2019 Act, without anything more, would not result in the exclusion of ‘health care’ services rendered by doctors to patients from the definition of service, the Division Bench of Dipankar Datta CJ and G.S. Kulkarni, J., expressed that present matter is,

“…a thoroughly misconceived Public Interest Litigation and we have no doubt that it deserves outright dismissal.”

In the instant matter, the Trust sought declaration from this Court that services performed by healthcare service providers are not included within the purview of the Consumer Protection Act, 2019 as well as for mandamus directing all consumer fora within the territorial jurisdiction of this Court not to accept complaints filed under 2019 Act against healthcare service providers.

Further, the petitioning Trust submitted that the 2019 Act having been brought into force upon the repeal of the Consumer Protection Act, 1986, registration of complaints, which were filed against doctors, by the consumer fora in the State of Maharashtra was illegal and shall be declared as such.

Analysis, Law and Decision

In High Court’s opinion, there was no material difference between the definition of service in Section 2(1)(o) of the 1986 Act and in Section 2(42) of the 2019 Act, except for inclusion of ‘telecom’ in Section 2(42) of the 2019 Act, the terms of the definition were identical.

Another significant point noted by the Bench was that Section 2(1)(o) of the 1986 Act did not include services rendered by doctors within the term “service”, but such definition was considered by the Supreme Court in its decision in Indian Medical Association v. V. P. Shantha, (1995) 6 SCC 651.

In view of the above, High Court upheld the decision of NCDRC.

Definition of “service” in both the enactments (repealed and new) are more or less similar and what has been said of “service” as defined in section 2(1)(o) of the 1986 Act would apply ex proprio vigore to the definition of the terms “service” in Section 2(42) of the 2019 Act.

 Hence, services rendered by doctors in lieu of fees/charges therefor were not beyond the purview of the 2019 Act.

In view of the above petition was dismissed petitioning Trust was directed to pay Rs 50,000. [Medicos Legal Action Group v. Union of India, 2021 SCC OnLine Bom 3696, decided on 25-10-2021]


Advocates before the Court:

Mr. Ashish S. Chavan a/w Mr. Adithya Iye a/w Mr. Kunal Shinde for petitioner.

Mr. Anil C. Singh, Addl. Solicitor General a/w Mr. Aditya Thakkar a/w Mr. D. P. Singh for respondent-UOI

Case BriefsHigh Courts

Kerala High Court: P.B.Suresh Kumar, J., held that the requirement for Medical students who had studied abroad to undergo CRRI for obtaining permanent registration under State Medical Register was inconsistent with prevailing provisions.

Background

The petitioner, an Indian citizen enrolled for obtaining medical qualification without obtaining Eligibility Certificate insisted in terms of Section 13(4B) of the Indian Medical Council Act, 1956, which she obtained later on in 2017. She graduated in 2019, thereupon, she underwent one year internship in the various teaching hospitals under the Dubai Health Authority.

The petitioner cleared the Screening Test in terms of Section 13(4A) of the IMC Act in order to become eligible to be enrolled in a State Medical Register in India as well and applied for permanent registration under State Medical Register. Her application for registration was rejected by the State Medical Council, the Council insisted on requirement of Compulsory Rotatory Residential Internship (CRRI) in any one of the medical institutions approved by the Medical Council of India for foreign medical graduates before granting permanent registration to them in terms of Ext.P21 decision taken by the State Medical Council on 20-10-2017 in order to ensure that they learn and gain clinical experience and exposure about the epidemiological and clinical profile of local community.

Analysis and Findings of the Court

In the backdrop of above, the Court was to address following questions:

  1. Whether a person who has not undertaken internship as part of the medical course undertaken by him/her abroad is eligible to appear in the Screening Test provided for under Section 13(4A) of the IMC Act?

Regulation 11 of Screening Test Regulations, 2002 provides that candidates who qualify the Screening Test may apply to any State Medical Council for provisional or permanent registration and the State Medical Councils shall issue provisional registration to such candidates, who are yet to undergo one year internship in an approved institution and issue permanent registration to such eligible candidates who have already undergone one year internship. Therefore, internship is not insisted for appearing in the Screening Test and the only requirement for appearing in the Screening Test is that the candidates should possess a primary medical qualification.

Noticing that the State Medical Council did not have a case that the petitioner did not possess a primary medical qualification as defined in the Regulations at the time when she applied for and cleared the Screening Test, the Bench held that the stand of the State Medical Council that only students who had completed internship as part of the medical course undertaken by them in the medical institution abroad were entitled to appear for the Screening Test was unsustainable.

  1. Whether a person who obtains Eligibility Certificate after taking admission in a medical institution abroad, be denied enrolment on a State Medical Register, if he/she satisfies all other eligibility criteria for the same?

On the issue that the petitioner had obtained Eligibility Certificate only after taking admission in the medical institution abroad, the Bench observed that the Council had no case that the petitioner would not have been issued Eligibility Certificate, had she applied for the same before taking admission for the medical course in the medical institution abroad.

Section 13(4B) of the IMC Act itself provides that in case any person obtains any medical qualification without obtaining Eligibility Certificate, he shall not be eligible to appear for the Screening Test concerned. Noticing the fact that the petitioner was permitted by the competent authority i.e. Indian Medical Council to appear for Screening Test and the fact that she had cleared the Screening Test were not disputed by the State Medical Council,  the Bench remarked,

“True, the State Medical Council, while considering applications for registration, both provisional and permanent, has the power to verify whether the candidate has obtained Eligibility Certificate, but that does not mean that the State Medical Council is empowered to adjudicate the right of a person to obtain Eligibility Certificate and to appear for the Screening Test, ignoring the decisions taken by the Medical Council of India in this regard.”

Accordingly, the stand of the Council that the qualification obtained by the petitioner could not be regarded as one in accordance with the provisions of the IMC Act as she had not obtained Eligibility Certificate before taking admission, so as to become eligible to be enrolled as a medical practitioner in the State Medical Register was held to be unsustainable.

  1. Whether a person who obtains a medical qualification from a medical institution abroad and undertakes one year internship thereafter in the country of education and satisfies all other eligibility criteria for enrolment on a State Medical Register be insisted to undergo CRRI for the said purpose?

As per the IMC Act and Regulation 11 a person who obtains medical qualification granted by medical institutions outside India recognised for enrolment as medical practitioner in that country and who clears the Screening Test in terms of Section 13(4A) of the IMC Act, is entitled to be enrolled as a medical practitioner on any State Medical Register, if he has already undergone one year internship.

Since the fact that the petitioner had obtained a medical qualification granted by a medical institution in a country outside India recognised for enrolment as medical practitioner in that country and the fact that she had cleared the Screening Test were not in dispute, including the fact that the petitioner had completed one year internship after acquiring the primary medical qualification, the Bench held that the State Medical Council was obliged to grant permanent registration to the petitioner and they could not insist that the petitioner should undergo CRRI for the said purpose.

  1. Whether the State Medical Council is empowered to take decisions in the nature of Ext.P21?

Opining that a person who is entitled to registration in a State Medical Register in terms of the provisions of the IMC Act could not be denied registration by the State Medical Council, and the medical qualifications of foreign medical graduates who satisfy the requirements in the said provision are deemed to be recognised medical qualifications for the purpose of the IMC Act, the Bench was of the view that the requirement in terms of Ext.P21 that such medical graduates should undergo CRRI for claiming permanent registration was inconsistent with the requirement in terms of the IMC Act and also the Regulations.

“The IMC Act is one relatable to Entry 66 of List I of the Seventh Schedule to the Constitution and the TCMP Act is one relatable to Entries 25 and 26 of List III of the Seventh Schedule.   In other words, Ext.P21 decision of the State Medical Council being inconsistent with the provisions contained in the IMC Act, the same is invalid and unenforceable.”  

Conclusion

In the result, the writ petitions were disposed of directing the State Medical Council to permit the petitioner to apply for the permanent registration, and if applied, grant permanent registration to the petitioner without insisting her to undergo CRRI. [Sadhiya Siyad v. State of Kerala, 2021 SCC OnLine Ker 3954, decided on 20-10-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Counsel for the Petitioner: Santhosh Mathew, Arun Thomas, Jennis Stephen, Vijay V. Paul, Karthika Maria, Veena Raveendran, Anil Sebastian Pulickel and Divya Sara George

Counsel for the State: Titus Mani and N.Raghuraj, SC, TCMC & KNMC

Case BriefsCOVID 19High Courts

Kerala High Court: Finding it shocking and unbelievable that were 278 attacks against Doctors, Nurses and Healthcare Workers in the State of Kerala, the Division Bench of Devan Ramachandran and Kauser Edappagath, JJ., stated that,

“The attacks on Health Care Workers or an attempt to intimidate or threaten them, for whatever be the reason can never be condoned or tolerated.”

Pursuant to frequent incidents of violence against medical practitioners in the State of Kerala and various orders of the Court, the State government had proposed following suggestions:

“1. CCTV should be installed in all hospitals, initially and a feed shall be given to Police AID Post

  1. At the institution level, security in charge officer to be nominated by the Superintendent of Hospital.
  2. The paramedical staff and others to be given security related training by coordinating with the Superintendent of the Hospital.
  3. All further appointments of security personnel, especially for Casualty and Out Patient Department (OPD) areas shall only be from Ex-Serviceman Society/organizations.”

Noticeably, around 278 cases had been registered under the provisions of the Kerala Health Care Service Persons and Health Care Service Institutions (Prevention of Violence and Damage to Property) Act, 2012 of which 232 of such cases had been charge-sheeted and 28 were under investigation.

The Indian Medical Association and Association of Private Medical Hospitals submitted that, in spite of the earnest efforts taken by the Government instances of attacks on Doctors and Nurses are still continuing, mainly because of the delay in investigation and conclusion of the proceedings on the crimes registered; and also because the Police are often lax in responding to their plea for assistance or protection. It was also submitted that sometimes certain vexatious messages in the social media give rise to misunderstanding on the working of a particular hospital, which leads to untoward incidents, but that the Police are slow in responding to it.

Noticing that there was nothing on record to suggest whether steps had already been implemented, apart from saying that they had been proposed, the Bench stated that all the steps which we have extracted above, require to be effectively implemented. Opining that it is only sensitization and education that the citizens be made aware that their actions against Doctors and Nurses would invite penal consequences under the provisions of the Act would ease the situation, the Bench said,

“we have not come across any public messages or news releases from the side of the Government informing the public that such attacks would attract very severe penalties the Government to ensure that the provisions of the Act are made known to the public at large, including by giving publicity in the premises of the hospitals and also by giving it good circulation through the Mainline and Online media.”

Hence, the State Police Chief was directed to ensure that necessary instructions are given to all the Station House Officers to react swiftly and quickly in case of any complaint being made to them by the hospitals and make adequate arrangements for disseminating information about penal consequences of violence against medical practitioners.

Additionally, on being informed that the Government had brought out an order (G.O (Rt)No.1750/2021/H&FWD) dated 16-08-2021, whereby certain fees and charges were prescribed for treatment of patients suffering from “post COVID complications”; the Bench asked the government to explain the necessity for having issued the order, particularly when post COVID complications – by its very nature – indicate problems that arises out of COVID-19 infections. [Kerala Private Hospitals Association v. State of Kerala, RP No. 379 of 2021, decided on 09-09-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

For The Petitioners: Syam Divan (Senior Advocate) along with K. Anand, Advocates

For State Of Kerala: Advocate General & Government Pleader

For Union of India: P. Vijayakumar, Assistant Solicitor General of India

For Indian Medical Association (IMA): S. Gopakumaran Nair (Senior Advocate) along with Sri.Suraj T.Elenjikkal,

For Private Medical Practitioners Association: M/S.M.Gopikrishnan Nambiar, K.John Mathai, Joson Manavalan, Kuryan Thomas, Paulose C. Abraham & Raja Kannan,

For State Police Chief: M. Ajay, Sri.S. Kannan, Senior Government Pleader

Case BriefsHigh Courts

Gauhati High Court: The Division Bench comprising of Sudhanshu Dhulia, CJ, and Manash Ranjan Pathak, J., directed to connect CCTV cameras of Hospitals to the nearest Police Station to put a check on increasing instances of violence against medical practitioners amid Covid-19.

The instant petition was heard along with a suo motu case registered with regard to the barbaric incident which took place in Assam’s Hojai district. According to reports[i], family members of the deceased patient brutally thrashed a young doctor following the patient’s demise at a Covid care centre.

As far as the abovementioned incident was concerned, the police had completed its investigation, charge-sheet had been filed and as many as twenty-four persons had already been arrested so far. Evidently, in its earlier order, the Court had directed the authorities concerned to ensure installation of CCTV cameras in hospitals, where no CCTV camera has been installed.  And provide compensation to the Medicare Service Persons, who may be the victims of violence during discharge of their duties.

The Court, on being informed that almost all the Government Medical Colleges and the District Government Hospitals except some government and Model Hospitals were having CCTV cameras, directed that mere installation of CCTV cameras in the hospitals concerned was not enough and the CCTV cameras have to be connected to the nearest Police Station for further monitoring.[Asif Iqbal v. State of Assam, 2021 SCC OnLine Gau 1529, decided on 30-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance by:

Counsel for the Petitioner: S Islam

Counsel for the Respondent: D. Saikia

For the Gauhati High Court: S. Kalita, Standing counsel

[i] https://www.indiatoday.in/india/story/arrested-attack-junior-doctor-assam-hojai-ima-1809795-2021-06-02

Case BriefsHigh Courts

Delhi High Court: V. Kameswar Rao, J., had set aside the controversial order of the CCIM (Central Council of Indian Medicine), whereby, number of doctors teaching at various Ayurvedic colleges were handed de-certification for working outside their State of registration. The Bench stated,

“The petitioners being in dark as to for what reasons, the material relied upon by them has been discarded, the impugned orders need to be set aside.”

Background

The factual background common to all the petitions was that the CCIM had initially passed order dated 24-11-2020 whereby it withdrew the teacher’s code and debarred the teachers for a period of 10 years under Regulation 3(1)(f) of Regulations of 2016 which requires CCIM to certify that the teaching faculty present in a college is not working at any other place. Therefore, as per the said regulation it is the duty of the CCIM to check that a teaching faculty who has shown himself to be teaching at a particular college is not merely an ‘On Paper Teacher’.

However, on reconsideration, the said order was withdrawn with regard to all the teachers and fresh orders dated 14-01-2021 and 15-01-2021 had been passed whereby CCIM had decided not to certify the petitioners that they were not working elsewhere.

Arguments Advanced by the Petitioners

The petitioners submitted that imposition of punishment of ‘decertification as a teacher’ or ‘decertifying the Teacher Code’ has nowhere been provided as a punishment for being registered in another State or for violation of Regulation 26 by the CCIM. Additionally, the impugned decision was assailed by the petitioners on following grounds:

  1. The Regulation 3 of the Regulations of 2016 does not contemplate the consequence that the individual faculty members will be denied certification, rather it contemplates that the college will be denied permission if CCIM does not give certification in terms of 3(1)(f) of the Regulations of 2016.
  2. Regulation 26 of Regulations of 1982 does not empower CCIM to undertake the whole process of inquiry of alleged ‘On Paper Teachers’ rather it only mandates that every person registered as a practitioner shall intimate the concerned State Board or Council with respect to change in type of practice or change of address or succeeding to another practice. There was no reference to alleged non-compliance with Regulation 26 of Regulations of 1982 in the impugned orders.
  3. The only consequence for not notifying any change of address or practice to State Board or Council / Central Council was that the right to participate in the election of the members to the Central Council or a Board would be forfeited permanently or for such period as may be specified by an order of Central Government. (Ref: Section 31 of CCIM Act).
  4. The impugned orders of the CCIM were in violation of the principles of legitimate expectation and therefore arbitrary, excessively harsh and were liable to be quashed for violating Article 14 of the Constitution.

 Opinion and Findings of the Court

Regulation 3 of Regulations of 2016, shall have a twin effect, i.e., non-certification of the faculty / teacher and also the denial of permission to a particular college to function.”

Rejecting the submission of the petitoners that Regulations 3(1)(f) could not have been invoked as it contemplate that it was the college/institution which should be denied permission to run an Ayurvedic College and it did not authorise an action against the teachers, the Bench stated that Regulation 3 deals with the Requirements of Minimum Standards to grant permission and such a permission can be granted only if the College fulfils the requirement for the faculty(s) under the norms. But if the faculty/teacher is not in place, the same would result in CCIM denying the certification that the faculty/teacher is not working at any other place, 2016.

Whether Central Registration dispenses with the Requirement to obtain State Registration for the Teachers?

Regarding the stand that the petitioners were required to be registered in the State where he was teaching was contrary to the office letter dated 29-01-2021 which dispensed with the requirement of State registration for the teachers who had obtained central registration as per the CCIM Act, the Bench opined that it was true that the Regulation 26 of Regulations of 1982 provide the practitioner to inform the change in type of practice and address, but the fact that the impugned action was not an action under Regulation 26 but the CCIM had relied upon the information submitted by the teachers in the state register to, not to certify that he/ she was not working at any other place. Therefore, the Bench held that the registration in the Central register would not be of any help to the petitioners as it did not had any bearing/effect, the basis of the impugned orders was that the petitioners, though practicing at one place but were teaching at other distant places.

Whether the Order was Unjust on the Ground of Parity?

The plea of the petitioners, that the impugned orders were discriminatory as large number of identically situated Ayurvedic teachers had either been not touched or had been exonerated with identical facts and circumstances was rejected as unmerited as the petitioners had failed to state as to how those cases were identical. The Bench reiterated the Supreme Court’s opinion that, “even if some benefit has been given wrongly, it cannot be a reason to bestow the same benefit to the petitioners. There cannot be a negative equality.” State of Bihar v. Kameshwar Prasad Singh, (2000) 9 SCC 94)

Whether Past Certification by CCIM Creates an Embargo to reject Certification?

On the plea of the petitioners that the CCIM having certified the teachers in the previous inspection(s) and during these years the CCIM having not put forth the requirement of a registration in the State register of the respective State where the petitioners were teaching; the CCIM could not deny the certification concerned, the Bench expressed merely because in the past the CCIM had certified the teachers, that they were not working at any other place would not preclude CCIM on the basis of facts/evidence available to come to a conclusion that in fact a teacher is working/gainfully engaged at a different place, and thereby, not certify that the teacher is not working at any other place.

Further, the petitioners were required to follow the mandate of Regulation 26 and intimate the change of type of practice and address to the state board, to be in conformity with the address/place of the college where he/she is teaching. Not informing the same and teaching in a different state should surely suggest that he/she is practicing or working at a different place from the purported institution/college.

Whether CCIM went Outside its Jurisdiction while Denying Certification to the Teachers?

Rejecting the plea of the petitioners that CCIM did not have disciplinary powers to take action against the petitioners who were teachers governed by the CCIM Act, the Bench stated the impugned action was not a disciplinary action but a decision which emanated Regulation 3(1)(f) which the CCIM was empowered to take and which power had not been challenged by the petitioners.

Whether Separate Show-cause Notices were required for Notifying the Impugned Action?

Considering the fact that the CCIM/Ministry of Ayush was requesting the teachers and the colleges to desist from the practice of ‘On Paper Teachers’ ever since 2019, the Bench stated that when Regulation 26 mandates that change in type of practice or address shall be informed, it was required to be followed and for which no separate notice was required to be issued. Moreover, the impugned action was not for not following Regulation 26 but one emanating from Regulation 3(1)(f) of Regulations of 2016. The action being in accordance with Regulation 3(1)(f) of Regulations of 2016, it could not be said that the same violated Article 14 of the Constitution.

A related plea was that the principles of legitimate expectation clearly required that the CCIM ought to have given the petitioners a specific notice/intimation to shift their place of registration to the current state of employment. The Bench stated,

“It may be true that separate show-cause notices were not issued to the petitioners notifying the impugned action, but it cannot be said that no hearing was given to them. The hearing was given to them by the Grievance Redressal Committee wherein the petitioners have participated and relied upon, materials/documents in support of their stand that they were actually working in the college.”

Whether CCIM failed to consider the Materials Produced?

Noticeably, the petitioners were asked to furnish at least 7 out of 12 particulars sought for vide the said communication and that the said particulars were not considered by CCIM. Neither was it a case where the teachers having been found to be present on papers were physically absent. Accepting the plea of the petitioners that non-compliance of Regulation 26, could not disprove the physical presence of the teachers at the college, the Bench opined,

“The impugned orders passed do not reveal that the material produced by the petitioners has been considered. Even if considered, the material is not referred to.”

Relying on the decisions in Kothari Filaments v. Commr. of Customs, (2009) 2 SCC 192, and S.N. Mukherjee v. Union of India, (1990) 4 SCC 594, wherein it was held that “a person charged with misdeclaration is entitled to a proper hearing which would include documents on which reliance is placed”; the Bench held that the law in this regard is well settled that an authority discharging its functions under a statute/regulation must pass a reasoned order which would reveal the consideration of the relevant material in support of the said order.

Verdict

In the view of the above, the matters were remanded back to the CCIM with a direction that they should pass fresh order(s) by considering all the material available with them including the material submitted by the individual petitioner. Further, the Court ordered that the status quo as prevailing with regard to each of the petitioners shall continue.[Anil Kumar Singh Bhadoria v. Union Of India, 2021 SCC OnLine Del 3807, decided on 26-07-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Advocates before the Court:

Mr Sandeep Sethi and Mr A. Mariarputham, Sr. Advs. Mr Siddharth Gupta, Mr Avneesh Arputham, Mr Vikas Sethi, Mr Md. Zunaid Altamis, Mr Saurabh Dutta, Mr Animesh Kumar, Mr Nishant Kumar, Mr Ambuj Dixit, Ms Utkarsha Sharma, Ms.Shweta Singh, Mr Siddharth Sharma, Mr Amit Khemka, Mr Rishi Sehgal, Mr Midhun Aggarwal, Mr Jasbir Singh Malik, Mr Kanwar Udai Bhan Singh Sehrawat and Mr Akshay Bansal, Advs. for petitioners.

Ms Archana Pathak Dave, Mr Kumar Prashant, Ms Vanya Gupta and Mr Pramod Kumar Vishnoi, Mr Shashank Bajpai, Sr. Panel Counsel, Mrs Shakun Sudha Shukla, Ms Monika Arora, CGSC, Mr Shriram Tiwary, Ms Aakanksha Kaul, Mr Manek Singh, Mr. Manish Mohan, CGSC, Ms Manisha Saroha, Mr Avnish Singh, Ms Pushplata Singh, Ms Sumanlata Gautam, Mr Farman Ali, Mr Athar Raza Farooquei, Mr Vijay Joshi, Sr. Panel Counsel, Mr Neeraj, Mr Sahaj Garg, Mr Rudra Paliwal, Mr Vedansh Anand, Mr Sanjeev Sabharwal, Sr. Panel Counsel, Mr Jivesh Kumar Tiwari, Sr. Panel Counsel, Mr Santosh Kumar Pandey, Mr Harish Kumar Garg, Ms Payal Aggarwal, Mr Rajesh Kumar, Sr. Panel Counsel, Mr Satya Ranjan Swain, Central Govt. Sr. Panel Counsel, Mr Soumendu Mukherjee, G.P., Mr Kautilya Birat, Mr Akshay Amritanshu, Mr Vikrant N. Goyal, Mr Suraj Kumar, Mr Alok Singh, Sr. Panel Counsel, Mr Vijayender Kumar, Mr Dhruv Kapur, Mr Maharshi Kaler, Mr Tanveer Ahmed Ansari, Mr Naginder Benipal, Sr. Panel Counsel, Ms Rupali Kapoor, Govt. Pleader and Ms Harithi Kambiri, Advs. for respondents.

Case BriefsCOVID 19High Courts

Kerala High Court: K.Haripal, J., granted bail to the Police Officer accused of manhandling a doctor and subjecting him to violence. The Bench, though, stated,

“It is quite unfortunate that in spite of attending the duties in most diligent manner, they (doctors) have to suffer such indignation which go to the extent of suffering physical and verbal assault.”

 Background

The facts of the case were such that an FIR was registered under Sections 341, 294(b), 323, 332 read with 34 of the Penal Code,1860 and Sections 3 and 4 of the Kerala Healthcare Service Institutions (Prevention of Violence and Damage to Property) Act, 2012, against the petitioner-a civil Police officer for man handling a doctor.  The case of the complainant doctor- Dr. Rahul Mathew was that he had been on night duty on  13-05-2021, when at about 04.15 A.M., a lady by name Laly was taken to the casualty for treatment. As it was reported that she was tested covid positive and was undergoing quarantine, though the complainant had rushed to the patient even without being in PPE kit; taking into consideration the urgency of the matter, but unfortunately, by the time he reached to the patient, she had died.

Alleging that there was delay in attending the deceased, the petitioner-son of the deceased abused the complainant and tried to manhandle him. Later, at about 7.30 A.M., two persons entered the complainant’s room, abused him, caught hold of his neck and slapped him. The complainant contended that the patient had died due to Covid complications. Even though her oxygen level was low, she was not taken to hospital on time.

On the other hand, the case of the petitioner was that the entire incident had happened due to the shock of death of his mother, that his mother did not get prompt medical attention when she was taken to hospital in a breathless condition. It was submitted by the petitioner that even after 10 to 15 minutes of their reaching the hospital, attention was not given; finally only with the help of an acquaintances, who was working as a helper in the hospital, the deceased was given oxygen; and by the time the doctor and nurses came, his mother had died.

Findings of the Court

Opining that, though the incident had happened in an emotionally charged stage, still the action of the petitioners could not be justified, the Bench stated,

“Even if they had a case that there was negligence on the part of the medical officer and hospital staff, that cannot be addressed by showing muscle power and manhandling the doctor in charge.”

The Bench stated that the version of the complainant indicated that on realising the seriousness of the situation, he had rushed to the place where the patient was brought even risking his own life without wearing a PPE kit. Thereafter, he suffered indignation and also physical assault.

“The petitioner is not an ordinary person but is part of the police department, a uniformed force, is expected to show utmost discipline. But he was taking law into his hands and was thrashing the medical officer in his room.” 

Considering the above mentioned, the Bench remarked that, “We cannot forget the sacrifices and devotion to the duty exhibited by the medical officers and health staff especially during the trying times when the pandemic condition was at its peak. The worsening situation could be bridled in our State only because of the devoted discharge of duties in a most religious manner by the medical staff. The huge pressure of work in a Government hospital is seen to be believed.”

However, noticing that the petitioner was a Civil Police Officer on probation, who was already under suspension due to his conduct and that the prosecution had no contention that he may flee from justice and will not make himself available for investigation and Trial, if found necessary; the Bench granted pre-arrest bail to the petitioner on condition to execute bond for Rs.50,000.[Abhilash Chandran v. State of Kerala, 2021 SCC OnLine Ker 2649, decided on 25-06-2021]


Kamini Sharma, Editorial Assistant ahs reported this brief.


Appearance before the Court by:

For the petitioner: Sr. Adv. P.Vijaya Bhanu, Adv. Nirmal V Nair, Adv. P.M.Rafiq, Adv. Manu Tom and Adv.  Sruthy N. Bhat

For the respondents: PP Santosh Peter and Adv. P. Sreekumar

Case BriefsCOVID 19High Courts

Patna High Court: Ashutosh Kumar, J., directed the Bihar government to consider representation made by the petitioners for appointment in the State Health Department, contrary to the advertisement issued by the state whereby it had barred the doctors above 37 years of age from participating. The Bench stated,

“Though the classification with respect to different maximum age limit fixed for different categories may not be called arbitrary, but under the present circumstances, the Government ought to have given due consideration to the fact that the State of Bihar today in the Health Department is severely deficient in terms of manpower.”

Background

The petitioners were qualified doctors, who were aggrieved by the decision of the Government as also of the Technical Service Commission in fixing the upper age limit of 37 years for unreserved male doctors for participating in the interview against the advertisement issued for tackling the difficult situation arising out of Pandemic.

The government of Bihar had advertised the posts of 2632 doctors to be posted as Medical Officers against regular and vacant posts in various Districts and Sub-Divisions as well as Primary Health Centres. This was required to be done as an emergency for the paucity of doctors to handle the COVID-19 Pandemic situation. Pursuant to the aforesaid direction by the State Government, the Bihar Technical Service Commission came up with the impugned advertisement, whereby, the age limit was set as below 37 years.

The petitioners had submitted that fixing of the outer age limit for unreserved male doctors was arbitrary and it does not serve the purpose for which such advertisement had been issued. The petitioner contended that a female doctor in the general category had been allowed to participate if she is 40 years of age whereas the outer age for other class of doctors had been kept as 42 years; also many other States in their Health Departments have considered it appropriate to fix the outer age limit at 42 to 47 years. Apart from this, it had been submitted that the advertisement for appointment and posting of doctors was first issued in the Year 2015, thereafter in 2019 and presently, in an emergency situation in the Year 2019. For the last seven years, there had been only three advertisements which had prevented the qualified doctors in Bihar to get any opportunity of serving in the Health Department.

Maintainability of the petition has been assailed by the state on the ground that the decision to fix the particular age limit for a class of doctors for the purposes of appointment and posting was exclusively in the Government domain as it pertains to policy decision and, therefore, it could not be interfered with in a writ petition by a Court of law.

Findings of the Court

Finding substance in the argument of the petitioners, the Bench agreed that the fixation of 37 years as the outer age limit for the doctors of the General Category may not serve the purpose of improving the medical infrastructure and manpower. Noticing that in last seven years, instead of yearly advertisement for filling-up of such posts, only three advertisements had been issued including the present one and in the earlier advertisement, lesser number of posts than the vacancy was advertised and, therefore, only less number of doctors were appointed, the Bench directed that the state would definitely do a better job by giving relaxation in the outer age limit of the doctors. Moreover, the Bench stated, when the age of superannuation of such Government doctors has been increased from 62 years to 65 or 67 years, it would only be in the commonweal to tackle this problem of lack of medical hands in tackling the problem at the stage of appointment itself.

Accordingly, it was held by the Court that though the classification with respect to different maximum age limit fixed for different categories may not be called arbitrary, but under the present circumstances, the Government ought to have given due consideration to the fact that the State of Bihar today in the Health Department is severely deficient in terms of manpower. Hence, the Bench while asking the state to file a detailed affidavit on the matter, directed it to consider representation made by the aspirants including the petitioners.[Abhay Kumar v. State of Bihar, CWJC No.10366 of 2021, decided on 15-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the Petitioner/s: Mr. Sanjeev Ranjan- Advocate

For the State: Mr. Suryakant- Advocate

For BTSC: Mr. Nikesh Kumar- Advocate

Case BriefsHigh Courts

Gauhati High Court: The Division Bench of Sudhanshu Dhulia, CJ., and Manash Ranjan Pathak, J., addressed the issue of violence against doctors. The Bench ordered the State to ensure that no medical practitioner is manhandled or abused in any manner.

In the instant PIL, concern had been raised about the doctors and paramedics, who are the frontline warriors and also about the incident where a Doctor was manhandled and beaten up by a mob in Udali Model Hospital. The petitioner had sought for issuance of directions to the State to take suitable measures to ensure safety and security of medical practitioners.

The stand taken by State was that as far as the incident of Udali was concerned, twenty-four people were arrested and lodged in jail within twenty-four hours. The State assured the Bench that due process of law was being followed as far as the incident was concerned. Moreover, the Government itself was conscious about the care it had to give to its doctors and paramedics and it was open for any suggestions and guidelines in this regard.

In view of the above, the Bench granted two weeks time to the State to inform the Court about the progress made and steps taken to avoid occurrence of such incidence in future. The State was also directed to ensure with immediate effect that no weapon/firearms are allowed to be taken inside a hospital and proper notice of warning is given in every hospital and medical colleges about the consequences to be followed in law if Medicare Service Persons, which include Doctors, Nurses, Para-medical, medical students, nursing students and any other worker employed and working in Medicare Service Institutions [as defined under Assam Medicare Service Persons and Medicare Service Institutions (Prevention of Violence and Damage to Property) Act, 2011], are manhandled or attacked.[Suo Motu v. State of Assam, PIL (Suo Moto) No.4 of 2021, Order dated 14-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

For the High Court: Sr. Adv. V. Hansaria with Adv. S. Kalita,
For the State of Assam: AG D. Saikia,

Case BriefsCOVID 19High Courts

Madhya Pradesh High Court: The Division Bench of Mohammad Rafiq, CJ. and Sujoy Paul, J., decided on a petition which was filed with the prayer that members of Junior Doctors Association (JUDA) of Government Medical Colleges in the entire State of Madhya Pradesh and other Associations or Unions of Doctors/Medical Officers/ Nurses/Medical Staff, should be restrained from continuing with the strike and that direction be given to the State Government to initiate appropriate action against the erring directors under the Essential Services Maintenance Act, National Disaster Management Act and the Medical Council (Professional Conduct, Etiquette and Ethics) Regulations 2002 and that action be taken against the members who have by proceeding on strike committed contempt of the orders passed by this Court.

Mr Pranay Choubey, counsel for the petitioner had submitted that members of Junior Doctors Association, who were students of post graduation study course in various branches of medicine had abstained from work w.e.f. 31-05-2021, demanding increase in their stipend, as a result of strike the emergency services in all type of hospitals had been shut down.

Mr Rishi Shrivastava and Mr Siddharth R. Gupta, counsel for the striking doctors argued that

  • first demand of the Junior Doctors was for increase in the amount of stipend which was static for past many years
  • second demand of the junior doctors was that they should be provided adequate security at the work place as in certain incidents they were subjected to not only misbehavior but also beating by the attendants and family members
  • if they and their family members were infected with corona virus, they should be provided free of cost treatment in the same hospital where they were working
  • fourth demand was that the medical colleges should waive the fee for the period of extension of the study course of post graduation and diploma over and above the period of three years
  • fifth demand was that 10% additional/extra marks given to the P.G. students who are rendering their services in rural/ remote/ difficult areas

Mr Purushendra Kaurav, Advocate General submitted that the resident doctors by proceeding on strike have committed contempt of the order of this Court and that the state government may consider their demand only if they first call off the strike and resume the duty.

The Court observed that All doctors have a solemn duty towards humanity. This duty binds them to serve the citizens suffering from any kind of disease. In the present scenario, this duty requires them to join hands with all fellow citizen in fight against the ongoing pandemic of Coronavirus. The Court was of the view that in this crucial phase of our lives when whole of the country is grappling with the deadly menace of Covid-19 following its second wave, the striking doctors have completely forgotten the solemn oath taken by them in the above extracted declaration. We quite appreciate that they have suffered hardship and rendered duties at odd hours at the cost of their health. But at the same time it is also equally true that they have chosen a wholly inappropriate time to press for their demands, howsoever reasonable they may be, by proceeding on strike.

The Court declared that the strike by junior doctors was illegal and directed them to immediately resume their duties and if they do so a high powered committee consisting of the Chief Secretary of the State, Additional Chief Secretary, Medical and Health and the Commissioner, Medical Education shall immediately call them for negotiation. If they failed to do so within 24 hours, it would be open for the government to take any legal action against them as it may deem fit in accordance with law.[Shailendra Singh v. State of M.P., 2021 SCC OnLine MP 1034, decided on 03-06-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsCOVID 19Tribunals/Commissions/Regulatory Bodies

National Human Rights Commission, India, after taking cognizance of a complaint about the brutal assault on a doctor by the relatives of a Covid patient at Udali Model Hospital in Hojai district of Assam 01-06-2021 has called for the action taken report from the Chief Secretary and the Director-General of Police, Government of Assam into the alleged incident within four weeks. Besides an enquiry into the allegations, the report is expected to include the needful preventive and punitive action taken in the matter.

The Commission has also sent a copy of the complaint to the Secretary, Union Health & Family Welfare Ministry to initiate necessary measures to ensure the safety and security of the frontline health workers in the country.

According to the complaint, having attached media reports,

the incident happened after the Covid patient had died. Allegedly, some of the frontline medical workers, Doctors, Nurses and Ward boys managed to escape but also got hurt and are deeply traumatized due to this horrific incident.


National Human Rights Commission

[Press Release dt. 4-06-2021]

Case BriefsCOVID 19High Courts

Bombay High Court: Addressing the matter of dysfunctional ventilators supplied through PM Cares Fund, the Division Bench of Ravindra V. Ghuge and B. U. Debadwar, JJ., remarked,

“We would not permit experimentation of the ventilators which have undergone major repairs, in treating the patients, since this would be causing a risk/health hazard to the patients and unfortunately, the use of such ventilators may cause loss of life.”

Faulty Ventilators

Observing the report pertaining to the special meeting held in the Government Medical College and Hospital (GMCH), Aurangabad for conducting an analysis of installation, commissioning and operation of ventilators provided to the State by the Central Government for COVID-19 management, the Bench reached to the findings that:

  1. The ventilators had suffered continuous break down even after repairs;
  2. Desaturation, water drain issue, UI not proper, frequent oxygen sensor failure, water drain failure and defective user interface were some of the defects;
  3. There is a sufficient stock of consumables with the hospitals;
  4. The hospital has 269 trained personnel to operate the ventilators;
  5. Training material/User Manuals had been provided to the hospital at the time of the deployment of the ventilators;
  6. The personnel operating the ventilators were found to be aware of the functioning and operations of the said ventilators;
  7. Amongst the 21 persons who participated in the said inspection and analysis, were the representatives of the manufacture, the procurement agency HLL, CDSCO representatives, DGHS/AIIMS Nagpur and two more representatives of the manufacturer.

The ASGI had submitted before the Court that two senior Doctors, each from the Ram Manohar Lohiya Hospital and the Safdarjang Hospital would be visiting GMCH to carry out extensive inspection of the ventilators at issue and if the ventilators are found to be dysfunctional after inspection/repairs, the manufacturer would be held liable and would be made to replace defective ventilators. The ASGI further contended that no casualty would occur since these ventilators would not be made operational in the treatment of the patients until the team of the doctors visiting GMCH Aurangabad and representatives of the manufacturer ensure that the ventilators are upto desirable operational standards.

Considering the above, the Bench directed Union of India to adopt firm approach with the manufacturer in the event of a supply of defective ventilators and that if found necessary, the Bench may direct returning of the defective ventilators. The Bench clarified that it would be the responsibility of the Union of India to ensure that the defective ventilators are replaced with new functional ventilators. The Bench further made it clear that it would not permit experimentation of the ventilators which had undergone major repairs, in treating the patients as that might risk the life of the patients.

Ambulance Operators over Charging Fare

On the submission of State government that the rate chart had been affixed on every such ambulance by the RTO ensuring that those ambulances which had violated the conditions imposed as regards the fare to be charged had been penalized; the Bench directed that the competent committee deal with the offenders on day-to-day basis. The Bench further directed the RTO to carry out surprise checks of such ambulance vehicles and in the event of noticing any ambulance operator having torn/ripped off the fare chart affixed on the vehicles, such a vehicle can be impounded and heavy penalty may be imposed before granting permission to commission the said vehicle.[Registrar (Judicial) v. Union of India,  2021 SCC OnLine Bom 790, Order dated 02-06-2021]


Kamini Sharma, Editorial Assistant has reported this brief.

Appearance before the Court by:

Amicus Curiae: Satyajit S. Bora
For State of Maharashtra: Chief PP D. R. Kale
For Union of India: ASGI Ajay G. Talhar
For the respondent 8: Adv. S. G. Chapalgaonkar
For the respondent 22: Adv. K. N. Lokhande
For the respondent 25: Adv. R. K. Ingole

Case BriefsCOVID 19High Courts

Bombay High Court: The Division Bench comprising of Ravindra V. Ghughe and B. U. Debadwar, addressed the issue relating to supply of dysfunctional ventilators through PM Cares Fund. The Bench slammed the Center for contending that the ventilators were in working condition and the deficiencies were with the hospital staffs, the Bench remarked,

We would have appreciated had the affiant avoided entering into a blame game and instead shown sensitivity towards the patients, it being the paramount object of the welfare State to take care of the health of its citizens.

Whether the Ventilators Supplied through PM Cares Fund dysfunctional?

Regarding the use of the 113 ventilators supplied through PM Cares Fund a report was prepared by the Committee of eight doctors of the GMCH who deal with ICU and the utilization of ventilators. The said report indicated that the ventilators developed errors from day one. About 25 ventilators were installed in the Medicine Department and 25 ventilators were distributed to the District and private hospitals. All such 25 ventilators were returned by the ICU departments of the concerned hospitals, as they were not functioning properly and patients had started complaining about breathlessness and associated symptoms within hours of the ventilators having been switched on. The report suggested that Private hospitals also returned the ventilators stating that they were not working properly. Although, a Team of three technicians of the Manufacturer visited the GMCH, and a Company Service Engineer joined the Team and calibrated `in-put oxygen’ regulators of two ventilators, they worked well overnight and next day by afternoon patients complained about poor oxygen and showed signs of restlessness.

The Committee noted that even after major repairs, the results indicate the failure of the ventilators. In the final conclusion, the Committee opined that these machines are unsafe for patients use and it was decided not to test any of these machines on patients, henceforth.

Stand Taken by the Central Government  

The ASGI contended that the alleged 150 ventilators were never supplied through the P.M. Cares Funds thereby, completely denying that these ventilators were funded through the P.M. Cares Funds, as was earlier announced. However, to defend the same, ASGI submitted that the ventilators manufactured by M/s Jyoti CNC Automation Limited, were modern ventilators, which were highly complex and sophisticated medical equipments. Shifting the blame on the Hospitals the ASGI contended that Doctors and paramedics were not properly trained to operate such ventilators at Aurangabad. It was also submitted that after the Dean of the Government Medical College submitted a report, the MoHFW sought an explanation from the Manufacturer and as per the said explanation there was no material before the MoHFW to conclude that the ventilators were not working satisfactorily.

Explanation Given by the Manufacturer

On the other hand, the Manufacturer alleged that the Government Medical College, Aurangabad was non-cooperative right from the acceptance of the delivery and the local District Collector had to direct the GMCH for unloading and accepting the ventilators. It was submitted that there was nothing on record to demonstrate that the ventilators were malfunctioning. Applying the same scheme as that of Central government, the Manufacturers contended that the user manual and training videos were not followed by the operators and that the infrastructure available at the GMCH is inadequate hence, the ventilators were not being used properly. Lastly, it was argued that 300 ventilators were performing satisfactorily in other States of India and other regions of Maharashtra and Aurangabad, therefore, there was no fault on the part of the manufacturer and it could not be held responsible for inadequacies on the part of the GMCH.

Observations and Findings of the Court

The Amicus curiae highlighted before the Court that not a single hospital/institution which was delivered with such ventilators had submitted that even one ventilator was operating satisfactorily. Noticing that the subject “Public Health and Hospitals” is at entry-6 in the State list and the legislative powers as well as executive and administrative powers of the State Government pertaining to the said subject are covered by Article 162, the Bench opined that it is the State Government which would be answerable on this subject. Hence, before accepting or acquiring such medical equipments/instruments by any medical facility/hospital, the State Government should make it mandatory for the Manufacturer to undertake fullest cooperation and assistance in the event of the equipment becoming dysfunctional. The Bench slammed the Center Government stating that,

We are unable to appreciate the contention of the ASGI that the ventilators are in perfect operating conditions and it is the hospitals who do not have trained personnel to operate the said ventilators properly. We find that such statements demonstrate insensitivity on the part of Ministry of Health and Family Welfare (MoHFW).

The Bench opined that instead of expressing whole hearted support to ensure that such costly instruments are put to optimum utilization in the interest of the lives of the patients, the affiant found it advantageous to contend that there was no merit in the report of the Dean of the Government Medical College. Hence, the tenor of the Center government was that the ventilators were in working condition and the deficiencies were with the hospitals and the doctors/paramedics/technicians. On such submissions made by ASGI, the Bench expressed,

We find that he (ASGI) is questioning the report of the Dean, and does not even remotely refer to the six reasons as regards the malfunctioning of the ventilators cited by the GMCH. The ASGI has addressed us as if he is holding the brief for the Manufacturer.

In the backdrop of the above, the Bench directed the MoHFW to take all remedial steps and ensure that the ventilators would operate normally and all defects, if any, would be removed. The Bench warned the MoHFW to refrain from questioning the reports of the Medical Experts and respect the same in the larger interest of the society and concentrate on rectifying the ventilators.

Overcharging by Ambulance Operators

On the issue of ambulance operators openly demanding multi-fold times of the approved rates of Ambulances as disclosed by an sting operation carried out by a local reporter, the Bench held that since the District Collector of every district is the authority under the Disaster Management Act, all aggrieved patients/relatives of patients would be at liberty to complain to the District Collector, if they had suffered such overcharging of Ambulance fare and the District Collector would deal with such complaints in accordance with the procedure as is laid down.[Registrar (Judicial) v. Union of India, 2021 SCC OnLine Bom 761, Order dated 28-05-2021]


Kamini Sharma, Editorial Assistant has reported this brief.


Appearance before the Court by:

Amicus Curiae: Satyajit S. Bora
For State of Maharashtra: Chief PP D. R. Kale
For Union of India: ASGI Ajay G. Talhar
For the respondent 8: Adv. S. G. Chapalgaonkar
For the respondent 22: Adv. K. N. Lokhande
For the respondent 25: Adv. R. K. Ingole

Case BriefsCOVID 19High Courts

Tripura High Court: Arindam Lodh, J.,  while terming the doctors as “frontline warriors”, directed the Investigating officer to conduct Test identification parade to ascertain the real offenders responsible for harassing a doctor.

Dr Sangita Chakrobarty was serving as District Health Officer, West Tripura, and was discharging her duties as, in-charge of distribution of COVID-19 patients. Five post-delivery mothers long with their new born babies, who were tested COVID-19 positive, were sent to a COVID Care Centre to ensure maximum safety and were kept under the surveillance of Dr Chakrobarty.

Some of the previously admitted older patients started protesting indiscriminately demanding that they would not allow entry of any new patients in the centre. The protests turned graver shortly and situation worsened. Dr Chakrobarty tried to calm down the protestors, however, they abused her, threw sexually coloured remarks, spat on her face and exhibited more of such uncivilised behaviour. Complaint against these patients was filed by the Director of Health Services, Government of Tripura.

The petitioner was one of the alleged protestors, and therefore, came before the High Court under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail.

The counsel, Raju Datta, for petitioner argued that the name of the petitioner had not been transpired in the complaint, there was no accusation against him, and on this ground alone, the petitioner should be granted anticipatory bail. High Court raised a question before him, whether mere apprehension of arrest attracts the ingredients of Section 438 of CrPC to which Mr Datta, submitted that mere apprehension of an arrest does not attract the ingredients of Section 438 of CrPC for granting anticipatory bail.

Bench looked into the relevant sections of CrPC. and the Epidemic Diseases (Amendment) Ordinance, 2020, to consider the bail application. He further explained the importance of doctors in society and especially during the time of COVID-19 when doctors have become the “first-line defence of the country”.

Adding to the above, Court labelled the protest which took place as “detrimental to the sentiment, safety and security of the Doctors and the entire society of our nation as well as of this state.” Therefore, keeping in mind the objective of the latest Epidemic Ordinance, he directed the Investigating Officer to record the confessional statement of the victim and her supporting staff under Section 164(5) of the CrPC.

Bench directed the Investigating officer to arrange for Test Identification parade to identify the real offenders. [Karnajit De v. State of Tripura,  2020 SCC OnLine Tri 353, decided on 30-07-2020]

Case BriefsHigh Courts

Delhi High Court: Prathiba M. Singh, J., constituted a committee to finalize the process in regard to the issuance of digital degree certificates for the students of Delhi University while directing the same Bench also observed that,

Obtaining a degree, which should have been a cause of celebration, has been turned into a complete nightmare for all these doctors who ought to have been busy rendering medical services during the pandemic.

Petitions filed were with the intent to reflect upon the sorry state of affairs at the Delhi University. Petitioners are all doctors and graduated their MBBS course in the year 2018 and 2019 and yet have been struggling to get their original degree certificates.

After failed approaches to the University, petitioners have reached out to the Court.

In an earlier petition, Court had observed that DU ought to make alternative arrangements during the COVID-19 pandemic for issuance of digital certificates, digital mark sheets and digital transcripts online along with digital signatures and security features.

Reason cited by DU for delay in issuance of the degree certificate was non-availability of paper and the fact that DU’s contract with the printer had expired.

Further, it was observed that Court was informed that steps were being taken for printing the degree certificates in an expedited manner. Despite this being the position, the tender for printing degree certificates was not finalized and it was only yesterday i.e., 3rd August, 2020 that the tender was opened. 

In an affidavit it has been informed to the Court that a Committee has been formed for looking after the security of sensitive data of academic awards, manpower requirement, University revenue, etc. 

“…looking at the urgency for the degree of the petitioners specially the medical doctors/professionals who have already completed their degree from University of Delhi and also other urgent specific cases, the University will initiate measures so that their degree can be delivered to them on priority basis and for that purpose the related data shall be given to the Digilocker to generate their digital degree.

Further, the University will develop a system to address such type of cases in a time bound manner so that degree certificate can be provided digitally.”

Insofar as Digilocker is concerned, the Court is informed that DU has registered on Digilocker only yesterday i.e., 3-08-2020.

Bench observed that despite the sufficient time being made available to the Delhi University, it is clear that adequate steps have not yet been taken to set up the process for issuance of digital degree certificates.

There is a completely callous attitude being reflected towards the plight of students.

Further, an affidavit filed by DU is lacking in several respects – in the name of the portal, the link to the portal, the form to be filled for obtaining the digital degree-certificate and is not providing a sample of the degree certificate to be issued.

Obtaining a degree, which should have been a cause of celebration, has been turned into a complete nightmare for all these doctors who ought to have been busy rendering medical services during the pandemic.

Hence in view of the above, Court constituted a Committee, which shall finalise the following:

a) The online link on the DU portal where the students can put in applications for issuance of their digital degree certificates. Alternatively, an e-mail address shall be provided where the Petitioners and similarly placed candidates can write an e-mail to obtain their degree certificates;

b) The timeline after receipt of the said email for verification and issuance of the degree certificate with the digital signature;

c) Template for the degree certificate to be issued by email;

d) Official to be responsible for affixing the digital signature and issuance of the same;

e) A sample degree certificate in favour of one of the Petitioners, duly signed with the digital signature, shall also be generated;

f) Timelines for transmission of past data to Digilocker from DU;

g) Timelines for transmission of data periodically to Digilocker so that students can easily access their certificates, transcripts, mark sheets, awards, etc.

Status report to be submitted on 07-08-2020 and matter for hearing is to be listed on the same date. [Dr Akshita Khosla v. University of Delhi, 2020 SCC OnLine Del 926, decided on 04-08-2020]


Also Read:

Del HC | “No reason why DU should not adopt technically advanced methods”; Court suggests DU to issue degree certificates online through email

Case BriefsCOVID 19Supreme Court

Supreme Court: On the issue revolving around the timely payment of salaries of doctors and health workers during the period of COVID-19, Solicitor General Tushar Mehta told the bench of Ashok Bhushan, R, Subhash Reddy and MR Shah, that those doctors and health workers, who are quarantined, their period of quarantine cannot be treated as leave and he will obtain necessary instructions/clarifications in that regard.

He has further told the Court that the Ministry of Health and Family Welfare has passed an order on 18.06.2020 directing for payment of salaries of doctors and health workers during the period of COVID-19 on time and that five States i.e. Delhi, Maharashtra, Punjab, Tripura and Karnataka have not paid the salaries to the doctors and health workers on time to the full satisfaction. He, hence, submitted that appropriate steps in this regard shall be taken by the Central Government to ensure that salaries of doctors and health workers is released.

The Court has listed the matter on August 10, 2020 after Solicitor General sought for a week’s time in the matter.

On June 17, 2020, a 3-judge bench of Ashok Bhushan, S K Kaul and M R Shah, JJ directed the Centre to issue directions to states for payment of salaries and providing necessary quarantine facilities to doctors and healthcare workers engaged in treating COVID-19 patients. Earlier, the Court had observed,

“In war, you do not make soldiers unhappy. Travel extra mile and channel some extra money to address their grievances.”

[Dr. Arushi Jain v. Union of India, 2020 SCC OnLine SC 615 , order dated 31.07.2020]



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Case BriefsHigh Courts

Bombay High Court:  A Division Bench of Dipankar Datta, CJ and Sarang V. Kotwal, J., took up a matter highlighting the concern regarding the inflated charges for Personal Protective Equipment Kits (PPE) by private hospitals and nursing homes.

Petitioner raised the concern that in view of the pandemic, private hospitals and nursing homes have been charging for Personal Protective Equipment Kits on a cost more than the procurement costs.

In view of the above stated concern, petitioner sought a direction for imposing a cap on the prices of PPE Kits charged to COVID/NON-COVID patients in private hospitals and nursing homes.

P.P. Kakade, Government Pleader a/w Nisha Mehra, AGP for State.

Ish Jain a/w Kiran Jain a/w Amruta Thakur for respondent 4.

Therefore, Court directed the parties to file affidavit stating their responses after which on 07-08-2020, the present PIL will be taken up for further consideration. [Abhijit K. Mangade v. State of Maharashtra, 2020 SCC OnLine Bom 827, decided on 28-07-2020]