1 WP-6512.05
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 6512 OF 2005
Shashkiya Aushad Nirmata
Gat Ka Karmachari Sanghatana,
Maharashtra State, Through
Pandharinath S/o Dhondu Patil,
Age: 38 years, Occup. Pharmacist,
General Secretary of the
petitioner having office at
'Chandrama' Plot No. A,
Gat No. 34 Dr. Bendale Nagar,
Near Prem Nagar, Jalgaon
District Jalgaon. ...PETITIONER
versus
1. The State of Maharashtra
Through Secretary,
Public Health Department,
Mantralaya, Mumbai.
2. The Director General of
Health Services,
St. George's Hospital Compound
Near C.S.T. Mumbai.
3. Chief Secretary,
Govt. of Maharashtra,
Mantralaya, Mumbai. ...RESPONDENTS
.....
Mr. K.C. Sant, Advocate for petitioner
Smt. S.S. Raut, AGP for respondents No. 1 to 3
.....
CORAM : S. V. GANGAPURWALA AND
K.K. SONAWANE, JJ.
DATED : 13 th JULY, 2016.
ORAL JUDGMENT : ( Per : S.V. Gangapurwala, J.)
1. Present writ petition is filed seeking directions against respondents to restore staffing pattern as per Government Resolution ::: Uploaded on - 20/07/2016 ::: Downloaded on - 30/07/2016 09:14:52 ::: 2 WP-6512.05 dated 01-01-1996 by taking effective steps and to have two posts of pharmacists in every thirty bedded rural and cottage hospitals in the State of Maharashtra.
2. Mr. Sant, learned counsel for petitioner submits that vide Government Resolution dated 01-01-1996, a decision was taken by the Government to have two posts of pharmacist in every thirty bedded rural and cottage hospital in the State of Maharashtra. According to learned counsel, it is only pharmacists who would dispense the medicines. The work of pharmacists cannot be performed by any other person as per the provisions of section 42 of the Pharmacy Act, 1948 (for short "Pharmacy Act"). Even as per Maharashtra Civil Medical Code, the duties and responsibilities of the pharmacists are fixed by the Government.
3. Learned counsel further submits that vide Government Resolution dated 14-08-2002 respondent No. 2 recommended new staffing pattern curtailing the number of the posts from 32 to 24.
Respondent No. 1 accepted those recommendations and took a decision to reduce number of posts. According to learned counsel for petitioner, petitioner-association persuaded the matter with Maharashtra State Pharmacy Council pointing out that at least two pharmacists are necessary at every hospital in view of pharmacists -
patient ratio i.e. 1:120. Representations are made but to no avail.
Vide Government Resolution dated 16-01-2003 respondent No. 1 changed staffing pattern and added the post of Lab Assistant, which is a non-technical post without giving any reason.
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4. Learned counsel for petitioner submits that respondent No. 2 on 26-07-2004 sent a letter to respondent No. 1 and recommended there should be two posts of pharmacists in view of provisions of Pharmacist Act and Medical Civil Medical Code referred thereto. Time and again the petitioner vide various representations pointed out to respondent No. 1 necessity to increase one post of Pharmacist in the hospital.
Learned counsel submits that Health Department has also given its recommendations thereby suggesting increase in the post of Pharmacists. During the pendency of this writ petition vide Government Resolution dated 11-09-2013 one post of pharmacist was increased in 122 rural and cottage hospitals. There are total 366 rural and cottage hospitals and in remaining hospitals, post of Pharmacist has not been increased. Learned counsel further submits that Bench of this Court at Nagpur had recorded assurance given by the State authority that proposal is made for increasing the posts of pharmacists from one to two in every rural and cottage hospitals. This Court directed respondent No. 1 to take decision on revised proposal within six months. The order dated 24-02-2010 in writ petition No. 3615 of 2009 passed by this Court Bench at Nagpur is also not adhered to.
5. Smt. Raut Learned Assistant Government Pleader submits that considering necessity of pharmacists in 122 rural and cottage hospitals posts of pharmacists have been increased. There are various constraints including financial problem, it was imperative to increase the posts of pharmacists from one to two in 122 rural and cottage hospitals and as per requirement, steps are taken. Learned Assistant ::: Uploaded on - 20/07/2016 ::: Downloaded on - 30/07/2016 09:14:52 ::: 4 WP-6512.05 Government Pleader submits that post cannot be increased contrary to staffing pattern. Learned Assistant Government Pleader submits that policy decision of the State is not arbitrary and unreasonable. This Court may not exercise its jurisdiction under Article 226 of the Constitution of India. Learned Assistant Government Pleader relies on the judgment of the Apex Court in the case of M/s Bajaj Hindustan Ltd.
Vs. Sir Shadi Lal Enterprises Ltd and another reported in (2011)1 SCC 640.
6. We have considered the submissions canvassed by learned counsel for respective parties. We are aware of our limitations in exercise of powers of the judicial review with regard to the policy decision of the State Government. The question is regarding number of the posts of the Pharmacists. After filing of writ petition, out of total 366 rural and cottage hospitals, in 122 rural and cottage hospitals the State Government has increased post of pharmacists as has been contemplated by the petitioner, however, in remaining rural and cottage hospitals post of pharmacists is maintained as one. Naturally the Government is required to consider inflow of the patients, number of the patients and thereby determine number of posts of pharmacists.
The Government has accepted to consider said aspect while fixing staffing pattern in the post of pharmacist in another writ petition bearing No. 3615 of 2009 at Nagpur. It can be considered that inflow of the patients may rise every year and to meet rise in the flow of patient number of pharmacists could also be increased. The Government has taken decision to increase post of one pharmacist in 122 rural and cottage hospitals in the State of Maharashtra.
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7. Rule is made absolute in aforesaid terms accordingly. Writ petition, as such, stands disposed of. No costs.
Sd/- Sd/-
[ K. K. SONAWANE, J.] [S. V. GANGAPURWALA, J.]
MTK
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