IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 24TH DAY OF JUNE 2022 / 3RD ASHADHA, 1944
WP(C) NO. 19484 OF 2022
PETITIONER:
ANWAR SADIK M I
AGED 32 YEARS,S/O LATE ARABIYODA MUTHUKOYA
ARIBIYODDA MANZIL, AGATTI P.O. 682 553
AGATTI ISLAND, LAKSHADWEEP.
BY ADV K.R.ARUN
ADV KABANI DINESH
RESPONDENTS:
1 THE ADMINISTRATOR
UNION TERRITORY OF LAKSHADWEEP,
KAVARATTI, LAKSHADWEEP - 682 555.
2 THE SECRETARY (HEALTH)
UNION TERRITORY OF LAKSHADWEEP,
KAVARATTI, LAKSHADWEEP - 682 555.
3 THE DIRECTOR OF HEALTH SERVICES
DIRECTORATE OF MEDICAL & HEALTH SERVICES,
UNION TERRITORY OF LAKSHADWEEP,
KAVARATTI, LAKSHADWEEP, PIN - 682 555.
4 THE JOINT SECRETARY
MINISTRY OF HEALTH AND FAMILY WELFARE,
GOVERNMENT OF INDIA, NIRMAN BHAVAN,
NEW DELHI-110 108.
BY ADVS.
SRI. V. SAJITHKUMAR,SC
SRI. JAISHANKAR V. NAIR, CGC
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
24.06.2022, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C)No.19484 of 2022
-:2:-
"C.R."
JUDGMENT
Dated this the 24th day of June, 2022 Shaji P.Chaly, J.
This is a public interest writ petition filed by a resident of Agatti Island in Lakshadweep; and according to the petitioner, the writ petition is filed as a responsible citizen being concerned and aggrieved by the disregard and inaction of the concerned authorities including respondents 1 to 4 ie., the Administrator, the Secretary (Health), the Director of Health Services of the Union Territory of Lakshadweep, and the Joint Secretary, Ministry of Health and Family Welfare Department, Government of India, New Delhi, in the enforcement of their duties for the welfare, good health and well being of the residents of Lakshadweep Island.
2. The grievances of the petitioner are that the Rajiv Gandhi Speciality Hospital at Agatti Island is functioning under a Public Private Partnership (PPP) Mode from the year 2011. The first bidder of the hospital under the PPP Mode was Amrita W.P.(C)No.19484 of 2022 -:3:- Institute of Medical Sciences, Ernakulam. On completion of their tenure, the second bid was awarded to the IQRA International Hospital, Kollam and the third bidder was Daya General Hospital, Thrissur. Accordingly, Memorandum of Understanding (MoU) dated April 20th was signed by and between Daya General Hospital, Thrissur and the Secretary (Health), Union Territory of Lakshadweep - 2 nd respondent, for a period of two years which ended in April 2022.
3. In fact the issue raised by the petitioner arises after the expiry of the last agreement. According to the petitioner, it has come to his knowledge on making due enquiries that no further process has been carried out to give extension to the existing bidder or for inviting fresh bid to run the hospital under PPP Mode for a stipulated period like the earlier years by the respondents in the writ petition. It is further submitted that respondents 1 to 3 are proposing to run the hospital directly by appointing all specialist doctors and other paramedical staff on terminating the PPP mode; however, W.P.(C)No.19484 of 2022 -:4:- respondents have not even initiated the recruitment process for appointing specialist doctors and other technical and paramedical staff. It is also contended that at present, Rajiv Gandhi Speciality Hospital is facing acute shortage of staff and facilities such as specialist doctors and other paramedical and technical hands, staff nurses, etc. As also it is contended that sufficient quantities of life saving medicines and basic laboratory facilities are not available for the past few months including disposable syringes.
4. The sum and substance of the contention put forth by the petitioner is that even though the petitioner as well as like- minded residents had approached the respondents and appraised them of the pitiable condition that is prevailing in the Island due to lack of proper medical facilities especially to meet the requirement of pregnant women and old people, the respondents have not taken any action consequent to which, the petitioner has no other option than to approach this court in order to protect the interests of the public. W.P.(C)No.19484 of 2022 -:5:-
5. A statement is filed by the standing counsel for and on behalf of respondents 1 to 3 and among other contentions, it is submitted that the Department of Health Services under Lakshadweep Administration, with the approval of the Ministry of Health and Family Welfare, Government of India was running the Rajiv Gandhi Speciality Hospital under PPP Mode from 2011. The contract awarded to various hospitals as is submitted by the petitioner are all admitted. However, it is submitted that as per the terms of the PPP mode, doctors were to be provided by the private agencies while logistics including machineries and medical equipments, medicines and other allied items were provided by the Department of Health Services; and doctors for five basic speciality services like Physician, General Surgeon, Gynecologist, Anesthesiologist, Pediatrician, etc. were recruited in addition to already existing nine speciality services.
6. That apart, it is submitted that in 2019, 20 specialists were deployed by the then PPP Mode hospital for a period of W.P.(C)No.19484 of 2022 -:6:- two years at Rs.4,70,000/- per specialist per month. On expiry of contract with the then hospital, the Department started recruiting, 20 specialist doctors directly by conducting interview and 10 specialists were posted directly by the Department to various Islands at Rs.2,00,000/- per specialist per month; and the remaining specialists were provided by the private agency at Rs.3,75,000/- per specialist per month. It is also contended that later it was found that the private agencies participating in PPP mode were consistently failing to provide requisite number of doctors as per the terms of the agreement even after 10 years of implementation of the PPP Mode. The Department has accordingly evaluated the financial implication of the project vis-a-vis the services rendered and reached a finding that it is not up to the expected standards, and that a huge expenditure is incurred to the Government exchequer, which is not cost effective.
7. That apart, it is submitted that supply of specialists by private firms was being interrupted many times and penalty W.P.(C)No.19484 of 2022 -:7:- was levied against the private agencies as per the MoU. The details with respect to the penalties imposed against the private agencies are explained in detail in the statement. However, what is significant to be noted is that on expiry of the service of the last private agency namely Daya Management, on 30.04.2022, the Administration explored the possibility of engaging doctors/specialists by the Department of Health Services in order to secure their services to the people of the Islands without paying exorbitant rates to the private agencies under the PPP Mode. Anyhow, it is stated that the Department is not fully abandoning the PPP Mode and even now specialists are being engaged by PPP Mode through a private hospital called KINDEROMA Private Limited. Therefore, it is submitted that even though the Department started recruiting specialists directly, as and when shortage arises, the Department approaches private agency; and it is further stated that recently while recruiting specialist doctors, the Department faced difficulty in getting a Gynecologist and a Radiologist and W.P.(C)No.19484 of 2022 -:8:- therefore, immediately switched to PPP Mode for a period of three months and requested the private firm to supply the specialists at Rs.3,75,000/- per specialist per month. That apart, it is submitted that out of 12 specialists at the hospital the Department recruited 11 specialists at Rs.2,00,000/- per specialist per month except Radiologist for which the Department requested the private firm to provide the services for a period of three months i.e., till the time required for posting a Radiologist by the Department. It is submitted that the Administration is awaiting response from the private agency.
8. Insofar as the nursing and paramedical staff are concerned, it is stated that they are already available as per Indian Public Health Standards in the Islands and the allegations made in the writ petition are contrary to the true facts. It is also stated that medicines and other allied items like disposable syringes are already ensured and any temporary shortage of few medicines and logistics are being procured W.P.(C)No.19484 of 2022 -:9:- through various modalities like piecemeal and through local purchase committee; and in addition to the same, annual procurement of medicines, surgicals, laboratory items, etc. for the financial year 2022-2023 have already been processed. Therefore, it is submitted that the contentions raised in the writ petition are baseless and without any iota of truth.
9. The details with respect to the specialist doctors in Lakshadweep as on 18.06.2022 is given in the statement which, according to us, is worthwhile to be extracted and it reads thus:
Details of Specialist Doctors in Lakshadweep as on 18.06.2022 Sl. Name of Specialist Mode of Posting Available No. Hospital, Island Category Physician Regular through UPSC 1 General Surgeon Regular through UPSC 1 Gynecologist 1 Regular through UPSC & 1 1 contract (To be deployed 0 by PPP for 3 months) Pediatrician State (Contract) 1 Anesthesiologist 1 Regular through UPSC & 2 1 State (Contract) Ophthalmologis Regular through UPSC 1 t ENT State (Contract) 1 1 IGH, Kavaratti Orthopedic Regular through UPSC 1 Surgeon (GDMO accommodated in Specialist Post) Pathologist State (Contract) 1 PHS Regular through UPSC 1 Psychiatrist State (Contract) 1 Radiologist PPP (Contract) 1 Oncologist State (Contract) 1 W.P.(C)No.19484 of 2022 -:10:- Microbiologist State (Contract) 0 TOTAL 14 2 RGSH, Agatti Physician State (Contract) 1 General Surgeon State (Contract) 1 Gynecologist State (Contract) 1 Pediatrician State (Contract) 1 Anesthesiologist State (Contract) 1 Ophthalmologis State (Contract) 1 t ENT State (Contract) 1 Orthopedic State (Contract) 1 Surgeon Psychiatrist State (Contract) 1 Dermatologist State (Contract) 1 Radiologist Contract (To be deployed 0 by PPP for 3 months) TOTAL 11 3 GH, Minicoy Physician To be deployed by PPP 0 (Contract) General Surgeon To be deployed by PPP 0 (Contract) Gynecologist PPP (Contract) 1 Pediatrician State (Contract) 1 Anesthesiologist To be deployed by PPP 0 (Contract) TOTAL 2 4 CHC, Andrott General Surgeon State (Contract) 1 Gynecologist PPP (Contract) 1 Pediatrician State (Contract) 1 Anesthesiologist State (Contract) 1 Orthopedic State (Contract) 0 Surgeon TOTAL 4 5 CHC, Amini Physician PPP (Contract) 1 General Surgeon To be deployed by PPP 0 (Contract) Gynecologist To be deployed by PPP 0 (Contract) Pediatrician To be deployed by PPP 0 (Contract) Anesthesiologist To be deployed by PPP 0 (Contract) Total 1 GRAND TOTAL 32
10. So also, a summary of the speciality services in the Lakshadweep as on 18.06.2022 is also given in the statement, W.P.(C)No.19484 of 2022 -:11:- which is also extracted for convenience and future purposes:
Summary of the Specialty Services in Lakshadweep as on 18.6.2022 Sl. No. of In Vacan Remuneration No. Specialis place t Paid ts 1 Total No. of 43 32 11 ------ Specialist in all island under Department of Health Services, Lakshadweep 2 STATE including 30 28 2 Rs.200000/- Per UPSC Specialist per Month (State) 3 PPP 13 4 9 Rs.375000/- per month per Specialist
11. Therefore, according to the respondents, apart from the blunt allegations made in the writ petition, the petitioner has failed to establish any arbitrariness, illegality or other legal infirmities on the part of the Administration in providing medical facilities to the Islanders of Lakshadweep Islands.
Learned Standing Counsel for the administration has also submitted that the decision of the administration to make recruitment of the doctors is a policy decision in order to protect the public interest by providing medical facilities, and to save public money of the administration, which policy is not W.P.(C)No.19484 of 2022 -:12:- tainted with any legal infirmities as per settled principles of law.
12. A reply affidavit is filed, reiterating the stand adopted in the writ petition.
13. We have heard learned counsel for the petitioner Smt.Kabani Dinesh; the learned standing counsel for the Lakshadweep Administration Sri.V.Sajith Kumar and the learned Central Govt Counsel for the 4 th respondent Sri.Jaishankar V. Nair and perused the pleadings and the material on record.
14. The elaborate discussion of facts would make it clear that the basic grievance advanced by the petitioner is the inability of respondents 1 to 3 to take effective measures and steps for inviting fresh tender for running the Rajiv Gandhi Speciality Hospital in PPP Mode as done in earlier years. However, according to the Administration, the Administration found that there are disruptions in the matter of timely engagement of specialist doctors to attend the medical requirements of the Islanders and on various occasions against W.P.(C)No.19484 of 2022 -:13:- all the private agencies, fine were imposed in accordance with terms and conditions of the MoU. Further, it is clear from the facts and figures given that huge amounts were being paid to the specialist doctors when compared to the specialists recruited by the Administration for regulating the operations of the hospital in its various Departments. Anyhow, it is clearly stated by the Administration that they have not given up the PPP Mode fully and till such time the specialist doctors in all the Departments are recruited wherever required, the PPP Mode would be adopted in order to cope up with the medical demands of the Islanders. It is also clearly stated in the statement that the petitioner could not point out any deficiency specifically in the deployment of nursing and paramedical staff in the hospital and the contentions raised that there are no sufficient nurses and paramedical staff in the hospital in question is a baseless and blunt allegation.
15. From the statement it is also clear that every step and effort is made to procure medicines through various modalities W.P.(C)No.19484 of 2022 -:14:- and as per the annual procurement policy of the Administration. In our considered opinion, it is for the Administration of the Union Territory of Lakshadweep to decide the manner in which the hospital is to be managed and how the doctors and the staff are to be appointed. Earlier, they found that PPP Mode was a feasible one and it was accordingly that in order to cater the needs of the Islanders from 2011 such mode was adopted. However, later the Administration found that the PPP Mode is not a feasible one and accordingly, the Administration has changed its policy and decided to recruit the specialist doctors and other doctors permanently and only to depend on PPP Mode wherever specialist doctors are not available. In our considered opinion, it is a policy decision of the Administration and unless and until any illegality, arbitrariness or perversity in the policy making decision of the Administration is established, a writ court is not expected to interfere with the policy decision and the day-to-day affairs of the Administration.
W.P.(C)No.19484 of 2022 -:15:-
16. On assimilating the factual situations pointed out by the rival parties and the pros and cons, we are of the definite opinion that the Administration is taking earnest efforts to provide medical facilities to the Islanders by recruiting specialist doctors and securing services of specialist doctors by resorting to PPP Mode wherever required. It is also the intention of the Administration that all the posts of the specialist doctors are filled up by direct recruitment. The said policy decision is taken by the Administration also taking into account the financial implications and the advantages secured by the Administration by recruiting the specialist doctors which, according to us, is conceptualizing the idea of larger public interest. After all it is for the Lakshadweep administration to decide the manner in which its policies are to be evolved in order to effectively carry out its administration to the maximum advantage of the public after taking into account its financial and other technical and feasible aspects. Adding to those aspects, petitioner has not pointed out any statutory W.P.(C)No.19484 of 2022 -:16:- violation on the part of the Administration in making the policy decision. The extent of interference with the policy decisions of a government is well settled through a catena of decisions of the Apex Court, and a reference to a few of them would enable us to arrive at a logical conclusion.
(i) In Sher Singh v. Union of India and Others [(1995) 6 SCC 515], it is held as under:
"As a matter of fact the courts would be slow in interfering with matters of government policy except where it is shown that the decision is unfair, mala fide or contrary to any statutory directions."
(ii) In Krishnan Kakkanth v. Government of Kerala and Others [(1997) 9 SCC 495], the Hon'ble Apex Court held as follows:
"36. To ascertain unreasonableness and arbitrariness in the context of Article 14 of the Constitution, it is not necessary to enter upon any exercise for finding out the wisdom in the policy decision of the State Government. It is immaterial whether a better or more comprehensive policy decision could have been taken. It is equally immaterial if it can be demonstrated that the policy decision is unwise and is likely to defeat the purpose for which such decision has W.P.(C)No.19484 of 2022 -:17:- been taken. Unless the policy decision is demonstrably capricious or arbitrary and not informed by any reason whatsoever or it suffers from the vice of discrimination or infringes any statute or provisions of the Constitution, the policy decision cannot be struck down. It should be borne in mind that except for the limited purpose of testing a public policy in the context of illegality and unconstitutionality, courts should avoid "embarking on uncharted ocean of public policy".
(iii) In State of Punjab v. Ram Lubhaya Bagga [(1998) 4 SCC 117], it is held thus:
25. .......... When Government forms its policy, it is based on number of circumstances on facts, law including constraints based on its resources. It is also based on expert opinion. It would be dangerous if court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. The Court would dissuade itself from entering into this realm which belongs to the executive. It is within this matrix that it is to be seen whether the new policy violates Article 21 when it restricts reimbursement on account of its financial constraints.
(iv) In Union of India v. Dinesh Engg. Corpn. [(2001) 8 SCC 491], it is held as under:
W.P.(C)No.19484 of 2022 -:18:-
12. There is no doubt that this Court has held in more than one case that where the decision of the authority is in regard to a policy matter, this Court will not ordinarily interfere since these policy matters are taken based on expert knowledge of the persons concerned and courts are normally not equipped to question the correctness of a policy decision. But then this does not mean that the courts have to abdicate their right to scrutinise whether the policy in question is formulated keeping in mind all the relevant facts and the said policy can be held to be beyond the pale of discrimination or unreasonableness, bearing in mind the material on record. ........... Any decision, be it a simple administrative decision or a policy decision, if taken without considering the relevant facts, can only be termed as an arbitrary decision. If it is so then be it a policy decision or otherwise, it will be violative of the mandate of Article 14 of the Constitution.
(v) In State of M.P. v. Narmada Bachao Andolan [(2011) 7 SCC 639], it is held as follows:
"36. The Court cannot strike down a policy decision taken by the Government merely because it feels that another decision would have been fairer or more scientific or logical or wiser. The wisdom and advisability of the policies are ordinarily not amenable to judicial review unless the policies are contrary to statutory or constitutional provisions or arbitrary or irrational or an abuse of power.
W.P.(C)No.19484 of 2022 -:19:-
37. Thus, it emerges to be a settled legal proposition that the Government has the power and competence to change the policy on the basis of ground realities. A public policy cannot be challenged through PIL where the State Government is competent to frame the policy and there is no need for anyone to raise any grievance even if the policy is changed. The public policy can only be challenged where it offends some constitutional or statutory provisions."
(vi) In Brij Mohan Lal v. Union of India and Others [(2012) 6 SCC 502], the Hon'ble Supreme Court held as follows:
96. It is a settled principle of law that matters relating to framing and implementation of policy primarily fall in the domain of the Government. It is an established requirement of good governance that the Government should frame policies which are fair and beneficial to the public at large. The Government enjoys freedom in relation to framing of policies. It is for the Government to adopt any particular policy as it may deem fit and proper and the law gives it liberty and freedom in framing the same. Normally, the Courts would decline to exercise the power of judicial review in relation to such matters. But this general rule is not free from exceptions. The Courts have repeatedly taken the view that they would not refuse to adjudicate upon policy matters if the policy decisions are arbitrary, capricious or mala fide.
xxxxx xxxxx xxxxx
98. We must examine the cases where this Court has stepped in and exercised limited power of judicial review in matters of W.P.(C)No.19484 of 2022 -:20:- policy. In Asif Hameed v. State of Jammu & Kashmir and Anr. [1989 Suppl.(2) SCC 364], this Court noticed that, where a challenge is to the action of the State, the Court must act in accordance with law and determine whether the State has acted within the powers and functions assigned to it under the Constitution. If not, it must strike down the action, of course, with due caution. Normally, the Courts do not give directions or advise in such matters. This Court held as under:
"19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the Constitution and if not, the court must strike down the action. While doing so the court must remain within its selfimposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an Appellate Authority. The Constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers." (emphasis supplied)
99. It is also a settled cannon of law that the Government has the authority and power to not only frame its policies, but also to change the same. The power of the Government, regarding how the policy should be shaped or implemented and what should be its scope, is very wide, subject to it not being arbitrary or unreasonable. In other words, the State may formulate or reformulate its policies to attain its obligations of governance or to achieve its objects, but the W.P.(C)No.19484 of 2022 -:21:- freedom so granted is subject to basic Constitutional limitations and is not so absolute in its terms that it would permit even arbitrary actions.
100. Certain tests, whether this Court should or not interfere in the policy decisions of the State, as stated in other judgments, can be summed up as:
(I) If the policy fails to satisfy the test of reasonableness, it would be unconstitutional.
(II) The change in policy must be made fairly and should not give impression that it was so done arbitrarily on any ulterior intention.
(III) The policy can be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness etc. (IV) If the policy is found to be against any statute or the Constitution or runs counter to the philosophy behind these provisions.
(V) It is dehors the provisions of the Act or Legislations. (VI) If the delegate has acted beyond its power of delegation.
101. Cases of this nature can be classified into two main classes: one class being the matters relating to general policy decisions of the State and the second relating to fiscal policies of the State. In the former class of cases, the Courts have expanded the scope of judicial review when the actions are arbitrary, mala fide or contrary to the law of the land; while in the latter class of cases, the scope of such judicial review is far narrower. Nevertheless, unreasonableness, arbitrariness, unfair actions or policies contrary to the letter, intent and philosophy of law and policies expanding beyond the permissible limits of delegated power will be instances where the Courts will step in to interfere with government policy.
xxxxx xxxxx xxxxx W.P.(C)No.19484 of 2022 -:22:-
104. A challenge to the formation of a State policy or its subsequent alterations may be raised on very limited grounds. Again, the scope of judicial review in such matters is a very limited one. One of the most important aspects in adjudicating such a matter is that the State policy should not be opposed to basic Rule of Law or the statutory law in force. This is what has been termed by the courts as the philosophy of law, which must be adhered to by valid policy decisions.
(vii) In Satya Dev Bhagaur and Others v. State of Rajasthan and Others (2022 SCC OnLine SC 206), the Hon'ble Apex Court held as follows:
15. It is trite that the Courts would be slow in interfering in the policy matters, unless the policy is found to be palpably discriminatory and arbitrary. This court would not interfere with the policy decision when a State is in a position to point out that there is intelligible differentia in application of policy and that such intelligible differentia has a nexus with the object sought to be achieved.
17. Taking into account the facts and figures and the well settled proposition of law deliberated above, we are of the clear and undoubted opinion that the petitioner has not made out any case of arbitrariness, illegality, discrimination or other legal infirmities in the policy decision of the Lakshadweep W.P.(C)No.19484 of 2022 -:23:- Administration justifying our interference exercising the power of judicial discretion under Article 226 of the Constitution of India.
Upshot of the discussion is that the writ petition fails. Accordingly, it is dismissed.
Pending interlocutory applications, if any, shall stand closed.
Sd/-
S.Manikumar Chief Justice Sd/-
Shaji P.Chaly Judge vpv W.P.(C)No.19484 of 2022 -:24:- APPENDIX OF WP(C) 19484/2022 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE LETTER D.NO.Z-
28016/58/2011-H DATED 26TH APRIL 2011 Exhibit P2 TRUE COPY OF THE LETTER BEARING F.NO.U-
14015/9/2010-ANL DATED 28TH APRIL 2011 Exhibit P3 TRUE COPY OF THE JOINT REPRESENTATION DATED 16.05.2022 SUBMITTED BEFORE THE 1ST RESPONDENT Exhibit P4 TRUE COPY OF THE CENSUS OF THE IN-
PATIENT AND OUT- PATIENT AT RAJIV GANDHI SPECIALITY HOSPITAL, AGATTI FOR THE YEARS 2011-2022 ISSUED BY THE ADMINISTRATIVE OFFICER OF RAJIV GANDHI SPECIALTY HOSPITAL //true copy// P.A. to Judge