Kerala High Court
Case BriefsHigh Courts

   

Kerala High Court: In a case filed concerning recurring violence against Doctors and Healthcare Professionals, a Division Bench of Devan Ramchandran and Edappagath JJ., directed that every Station House Officer concerned, to whom, or to whose Station, a complaint of atrocity or attack or harm on any Healthcare Professional be that doctors, nurses, staffs, security or such other, or against the property of a Hospital shall be recorded as a first information and a case registered within a period of one hour from the time on which such information is obtained or gathered.

The Court noted that unless a sense of fear of the law is instilled into the citizens, nothing can really change and experience has shown that citizens are not fearful of the law, but of apprehension in case of misconduct or infraction.

The Court expresses concern that the official system would function faultlessly and that the citizens would also be aware of the imperative requirement to treat the healthcare system with the respect it deserves.

The Court remarked that the fact that the Government Hospital System is overwhelmed and that the number of patients is escalating by the day is common knowledge and unless the doctors and healthcare professionals can act in peace and calm, it would become impossible for the system to sustain itself.

Thus, the Court directed that every incident of attack on a doctor or a Healthcare Professional, including any other staff of the Hospital – be Security or other – will have to be taken cognizance of by the Station House Officer of the Police Station concerned not later than one hour from the time on which it is reported to him. This can be under the Special Law applicable, or under the Penal Code, 1860; but an FIR will need to be registered within the afore time frame, which alone will ensure that the perpetrator/s understands that action is swift and quick.

The Court further directed that swift action thereafter should be initiated, including to apprehend the Offenders, as and when it requires so, leading to prosecution and such other, as the law warrants.

The Court further requested the Government of Kerala to ensure that the citizens are told, by appropriate methods, the gravity of the offence of an attack on a hospital or a Healthcare Personnel; and the way this Court proposes to deal with it in the future.

[Kerala Private Hospitals Association v. Sabu P Joseph, R.P. No. 379 of 2021, decided on 01-12-2022]


*Arunima Bose, Editorial Assistant has reported this brief.

Jammu & Kashmir and Ladakh High Court
Case BriefsHigh Courts

   

Jammu and Kashmir and Ladakh High Court: While deciding the question raised in the instant petition that, whether the classification made on the basis of educational qualification for promotion, offends Arts. 14 and 16 of the Constitution; the Bench of Sanjeev Kumar, J., went on to reiterate the core principles of the concerned constitutional provisions and held that there should be left no doubt in the mind of anybody that the classification on the basis of educational qualification for promotion is permissible in law and does not offend Arts.14 and 16 of the Constitution.

Facts of the case: The petitioners, serving in Sher-i-Kashmir Institute of Medical Sciences Soura, Srinagar (hereinafter ‘SKIMS') as Staff Nurses, claimed to have rendered their services for the last 27 years. The petitioners were Matriculates and possessed 3 years Diploma in General Nursing and Midwifery. In 1998, SKIMS promulgated the Sher-i- Kashmir Institute of Medical Sciences Subordinate Services Recruitment Rules 1998 (hereinafter ‘1998 Rules') as per which no person was eligible for appointment or promotion to any post in any class, category or grade in the service unless he possessed the qualification as laid down in Schedule II of the Rules.

Later in 2014 via Government Order No.75-SKIMS of 2014, sanction was accorded to the modification of recruitment rules for various categories of staff working in the Institute. Regarding the post of Senior Staff Nurse, the afore-stated Government Order stated that post is to be filled up 100% by promotion from Staff Nurses possessing B.Sc. Nursing or M.Sc. Nursing degrees.

Aggrieved by the prescription of minimum qualification of B.Sc. Nursing provided for promotion to the post of Sr. Staff Nurse, the petitioners challenged the same on the ground that the classification made by the respondents between a Staff Nurse possessing three years Diploma in General Nursing and Midwifery and a Staff Nurse possessing the qualification of B.Sc. Nursing, violates Arts. 14 and 16 of the Constitution and therefore the same is not permissible.

Contentions: The petitioners contended that for about 27 years, they entertained a legitimate expectation that they would be promoted to the post of Sr. Staff Nurse in due course but, because of the impugned Government Order, laying down a modified criteria for the post of Sr. Staff Nurse, the petitioners have been deprived of their right to promotion for all times to come.

Per contra, the respondents relied on State of J&K v. Triloki Nath Khosa, (1974) 1 SCC 19, wherein classification on the basis of higher qualification being permissible under law, was settled by the Supreme Court.

Observations: Perusing the issue raised by the petitioners, the Court observed that the issue is no longer res-integra as the same has been settled by the Supreme Court in plethora of cases. The Court, however, deemed it appropriate to reiterate the interpretation of Arts. 14 and 16 as laid down by the Supreme Court from time to time-

  • Arts. 14 and 16 do not permit the State to treat un-equals as equals, for that is not the spirit of the principle of equality envisaged under the Constitution.

  • Art. 14 prohibits class legislation and not reasonable classification. To pass the Art. 14 test, classification needs to meet only two requirements: intelligible differentia and rational/ reasonable nexus between the intelligible differentia and object of the classification sought to be achieved.

  • The Court referred to the landmark decision in E.P. Royappa v. State of T.N., (1974) 4 SCC 3, wherein Justice P.N. Bhagwati had delineated the concept of permissible classification under Art. 14 stating that, “Art. 14 is the genus while Art. 16 is a species, Art. 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Arts. 14 and 16 is equality and inhibition against discrimination”.

  • The Court considered the arguments raised by the respondents and agreed with them that the issue of classification on the basis of educational qualification in the matter of promotion, was set at rest by the Supreme Court in the afore-stated Triloki Nath Khosa case.

Decision: With the afore-stated observations, the Court dismissed the petitions and held that prescription of higher qualification like the qualification of B.Sc. Nursing/M.Sc. Nursing for promotion to the post of Senior Staff Nurse, is essential for efficient discharge of duties of a higher post. Thus, the respondents can surely prescribe higher technical qualification for the purpose of promotion.

The Court also held that a Staff Nurse possessing qualification of three years Diploma in General Nursing and Staff Nurses possessing qualification of B.Sc. Nursing, cannot be on par and therefore, are unequal because of their qualification. Which means that it would not be obligatory for respondents to treat these two unequals as equals.

[Hanifa Deva v. SKIMS, 2022 SCC OnLine J&K 528, decided on 05-07-2022]


Advocates who appeared in this case :

Arif Sikandar, Advocate, for the Petitioners;

M. A. Chashoo, AAG, Advocate, for the Respondents.


*Sucheta Sarkar, Editorial Assistant has prepared this brief

Case BriefsSupreme Court

Supreme Court: The Division Bench of L. Nageswara Rao and B.R. Gavai*, JJ., dismissed an appeal challenging the decision of State of Rajasthan to place persons having experience in Rajasthan and those having experience in other States on different footings for extending benefits of State notification proving bonus marks. Approving the findings of Rajasthan High Court, the Bench held,

“…the experienced candidates in other States cannot be compared with the candidates working in the State of Rajasthan, as every State has its own problems and issues and the persons trained to meet such circumstances, stand on a different pedestal.”

Factual Backdrop

The State of Rajasthan had framed rules known as Rajasthan Ayurvedic, Unani, Homeopathy and Naturopathy Services (Amendment) Rules, 2013. Subsequently, the a State notification was issued on 30-05-2018 providing that the candidate who had worked under the Government, Chief Minister BPL Life Saving Fund, NRHM Medicare Relief Society, AIDS Control Society, National TB Control Program, Jhalawar Hospital and Medical College Society, Samekit Rog Nirgrani Pariyojna or State Institute of Health Family Welfare (SIHFW), would be entitled to bonus marks as per the experience attained. The notification provided,

“For 1 year of experience, the bonus marks will be 10, for 2 years of experience the bonus marks will be 20 and for 3 years of experience it will be 30. The advertisement also provided that only such of the candidates who were having experience certificate from the competent authority as mentioned in the said advertisement would be entitled to the bonus marks.”

On being aggrieved by the decision of the State to limit the benefit of the notification to those who had experience under NRHM in Rajasthan only and exclude those who had experience of working under the NRHM scheme on contract basis in different States, the appellants had approached the High Court vide various writ petitions seeking a direction to the State to accept the experience certificate of the petitioners which was issued by the NRHM authorities of different States, so as to qualify them for getting the bonus marks.

Findings of the High Court

The Single Judge of the High Court allowed the said writ petitions and directed the State of Rajasthan to grant bonus marks to the appellants. However, by the impugned judgment the Division Bench set aside the order of the Single Judge holding that the intention of the State of Rajasthan was to confine the benefit of award of bonus marks to those employed in the schemes within the State of Rajasthan and not in other States.

Was there any intelligible differentia?

Rule 19 of the Rules, 2013 provided that the Appointing Authority shall scrutinize the applications received by it and require as many candidates qualified for appointment under these rule as seem to it desirable for interview. The appellants argued that a plain reading of Rule 19 of the said Rules would clearly show that the experience of working anywhere in the country under the NHM/NRHM schemes would be sufficient to qualify a candidate to get bonus marks as both category of candidates either belonging to State of outside were doing same kind of work.

Therefore, the appellants alleged that to discriminate between employees working under the NHM/NRHM schemes in the State of Rajasthan as against those working outside the State of Rajasthan, was without intelligible differentia, not having the nexus with the object sought to be achieved and as such, was palpably arbitrary and violative of Article 14 of the Constitution.

Analysis and Observations

Noticing that the policy of the State of Rajasthan was that while selecting Nurse Compounder Junior Grade, the bonus marks were to be given to such employees who had done similar work under the State Government and under the various schemes, the Bench stated that when Rule 19 is read with sub clause (ii) of Clause 7 of the advertisement, the policy and object of the State of Rajasthan would be clear.

Sub clause (ii) of Clause 7 of the advertisement enlists the authorities who are competent to issue experience certificate for contractual employees. The list revealed that most of the competent authorities are the authorities who are heads of the institution like Government Medical College, Government Dental College, Director, Public Health, All Chief Medical and Health Officer of the State, All Primary Medical Officers, etc. Insofar as the NHM/AIDS is concerned, the competent authority is mentioned as Project Director, NHM/AIDS. Hence, the Bench opined that reading ‘Project Director, NHM/AIDS’ to be a Project Director of NHM/NRHM anywhere in the country would be reading the said words without context. The Bench expressed,

“When sub clause (ii) of Clause (7) of the advertisement mentions all other authorities who are the heads of the various establishments in the State of Rajasthan, the term ‘Project Director, NHM’ will have to be construed as ‘Project Director, NHM’ within the State of Rajasthan.”

The Bench noted that in Jagdish Prasad v. State of Rajasthan, (D.B. Civil Writ Petition No. 12942/2015, dated 09-02-2016) the Division Bench of the Rajasthan High Court had held that the Government of Rajasthan had conducted several training programmes for the persons working with it on contractual basis, as well as under different schemes. The training programmes mainly pertained to the peculiar working pattern in the rural areas of the State of Rajasthan including tribal and arid zones and such a training is mandatory and non-joining of the same would result in non-renewal of service contracts. It had been held by the High Court that persons having special knowledge in working in the State of Rajasthan form a class different than the persons not having such experience of working in the State.

Approving the findings of the he Division Bench in the aforementioned case, the Bench stated that the experienced candidates in other States cannot be compared with the candidates working in the State of Rajasthan, as every State has its own problems and issues and the persons trained to meet such circumstances, stand on a different pedestal.

Verdict

In the light of the above, the Bench concluded that the policy of the State of Rajasthan to restrict the benefit of bonus marks only to such employees who have worked under different organizations in the State of Rajasthan and to employees working under the NHM/NRHM schemes in the State of Rajasthan could not be said to be arbitrary. The impugned order was upheld.

[Satya Dev Bhagaur v. State of Rajasthan, 2022 SCC OnLine SC 206, decided on 17-02-2022]


*Judgment by: Justice B.R. Gavai


Appearance by:

For the Appellants: Rishabh Sancheti, Himanshu Jain and Alpana Sharma, Advocates

For the State: Manish Singhvi, Senior Advocate


Kamini Sharma, Editorial Assistant has put this report together

COVID 19Hot Off The PressLegislation UpdatesNotifications

UPDATE

Order regarding shortage of staff in the non-COVID hospitals due to infection of Doctors and Staff, is kept in abeyance till further orders.


Earlier Order

It is reported that many doctors, nurses, paramedics and other staff in non- COVID hospitals are either getting infected or reported as contact to infected person and Medical Directors of respective hospitals are indiscriminately sending them in quarantine either at hotels or their homes for 14 days. This practice is causing unnecessary shortage of doctor & staff at the Hospitals. It seems, it is happening because either hospitals are not following standard SOPs or such persons are not following guidelines prescribed tor health care workers.

Thus, All Medical Directors are directed to obtain written explanation from an such person as how these persons got infected or become a contact in spite of wearing required protective gears, maintaining safe distance and following precautions prescribed for health care workers.

Further, Medical Director is required to constitute a team of Doctors to ascertain whether a contact, fulfils the Govt. of India guidelines to be declared as the contact of positive patient.

To access the official Orders, please click on the link below:

Order 1

Order 2


Government of NCT of Delhi

[Order dt. 01-05-2020]

Case BriefsCOVID 19High Courts

Calcutta High Court: A Division Bench of Thottathil B. Radhakrishnan, CJ and Arijit Banerjee, J.noted the following while addressing the present petition,

“…push forward the efforts taken by this nation including the State of West Bengal in fighting the pandemic COVID­19 which is a matter of grave concern for all stakeholders and the entire citizenry of this nation.”

Petitioner sought direction to the respondent authorities to make widespread and rapid testing among the population of West Bengal for COVID 19 for early detection and prevention of further spread.

Further direction on the respondent authorities is sought for taking immediate step to convert Calcutta Medical College for use only to house COVID­19 patients and also for improving health infrastructure by arranging sufficient test kit and/or protection measures for doctors to make it compatible to combat the present pandemic situation.

Adding to the above, petitioner also sought direction to ensure supply of food materials to all sections of marginalized people including migrated workers, pregnant women, young mothers and children.  

Petitioner sought an order from the Court directing the State to prepare and submit before the Court a plan for rapid testing and/or increasing the amount of testing for COVID­ 19 among the population in West Bengal

Bench stated that while the Government has issued advisory to the Health Authorities in the State regarding testing of samples as per ICMR’s latest testing protocol, it tends to indicate that more than 300 samples are tested daily.  

“…it is necessary that the official respondents give a deeper look to the requirement of more number of samples being collected and subjected to tests on war­ footing.”

Court also stated that, having regard to the fact that the ICMR testing protocol and WHO guidelines require adherence to effective screening on war ­footing, Bench needs to be told by the State as to the acceleration of the rate of sample collection and testing which is being obtained on the aforesaid basis.

State Government is expected to place a report on the following:

quarantine, managing the COVID­19 cases, that is to say the doctors, nurses, para­medical persons and the other health service oriented persons as well as those coming into regular close contact with such situation, there is deficit in facilities for their protection and safety from the point of view of health.

WHO and ICMR being expert authorities in the field, their guidelines and advisories are required to be followed by all stake­holders.

Matter to be posted on 23-04-2020. [Dr Faud Halim v. State of W.B., 2020 SCC OnLine Cal 738 , decided on 17-04-2020]

COVID 19Op EdsOP. ED.

“You will never do anything in this world without courage. It is the greatest quality of the mind next to honour.”

-Aristotle

So did you come across the various selfies with bruises on faces due to wearing of masks for long hours, being posted by the Doctors, Medical Staff, etc. who are in direct contact with the COVID-19 patients?

Well, if not, then the fact that doctors around the world are working round the clock to protect “us” and protect the ones who are already affected by Corona Virus (COVID-19) is something that each and every individual out there, reading this should not only just be overwhelmed on knowing this, but have a bit of gratitude towards them and their families.

Doctors — Heroes without any capes, are looking out for us every second when we are under this extreme crisis mode of COVID-19, when the cities look deserted but the hospital’s ain’t.

As the days are passing the situation is intensifying, we as citizens quarantined in our air-conditioned homes with stocked up fridges have only been given one task — to release 1/4th of the pressure that our heroes are facing which is by staying at home.

The Hippocratic Oath is the one that Doctor’s take to treat the ill to the best of one’s ability, to preserve a patient’s privacy, to teach the secrets of medicine to the next generation, and so on; And clearly the fighters have stood by the same without any doubt.

It is not some test where they have to prove that whether they are standing by the same, in fact it is for us individuals to see and appreciate the extents to which our Heroes can go on to — to save lives by risking their own.

Standing in comforted balconies/terrace and applauding for them for few minutes in unity was something they were worthy of but on our part just by doing that for those few minutes and then instantly forgetting the purpose of doing so would be a mistake that generations will not forget and history will remember.

If they are standing by their duty and roles while facing the worst of circumstances standing in the frontline to protect the nation selflessly then the least we can do is to stand in solidarity for the courageous men and show our gratitude to them and not throw them out of our houses as has been recently reported from several States in India.

Every individual who have a privilege of such doctors, nurses or people from medical field living as tenants in their houses or in their locality should not treat them as untouchables or make them at the receiving end of their discomfort or hatred, need of the hour is to protect these warriors and their families as they are protecting us in the fight of the deadly virus — COVID-19.

If they are providing us the best of services in their ability without any discrimination, then which part of our conscience allows us to make them feel unsafe?

Recognize and acknowledge the efforts that our medical field is providing us with in these hard times, just this one thought might stop us from doing the wrong to them and raise us to show kindness and gratitude to them.

“..And let’s remember this decade as the decade of our warriors ..”


† Legal Editor, EBC Publishing Pvt. Ltd.

Case BriefsCOVID 19High Courts

Andhra Pradesh High Court, Amravati: A Division Bench of J.K. Maheshwari, CJ and M. Satyanarayana Murthy, J. asked the State Government to ensure provision of all required equipments to Doctors, Nurses, Ward Boys and Paramedical staff to combat COVID-19.

The present petition has been filed to sought direction from Central and State Governments with regard to supply of precautionary equipments like N-95 masks, sterile medical gloves, starch apparels to all the Doctors, Nurses, Ward Boys and staff concerned within 24 hours, amidst the pandemic caused due to COVID-19, and maintain a register with regard to usage of those items.

B. Krishna Mohan, ASG submitted that State Government has already taken the necessary measures and if any other additional measures are required then the same would will be fulfilled by the State Government.

It has also been pointed out that the Doctors and the Paramedical staff who are in the field and providing primary medical aid to the citizens must also be kept in isolation to prevent spreading of COVID-19.

Court on perusal of the above, stated that State Government shall ensure to provide all necessary equipment like N-95 masks, sterile medical gloves, starch apparels, personal protection equipment and all other necessary things to all the Doctors, Nurses, Ward Boys and Paramedical staff.

Further the Court added that,

“In view of the appeal so made by the Hon’ble Prime Minister and the instructions so issued by the Central Government, Ministry of Home Affairs, dated 24.03.2020, it is the duty of the State authorities and their functionaries to provide necessary medical facilities to the citizens with all the above-said equipment and accessories, as and when required. The Doctors and the Paramedical staff are also supposed to do the needful to save the citizens of the society and the nation.”

The petition was disposed of with above directions. [Dr Koilagandla Niranjan v. Union of India, 2020 SCC OnLine AP 65, decided on 26-03-2020]