Shashakiya Aushad Nirmata Gat Ka ... vs State Of Mah & Anr
2016 Latest Caselaw 3798 Bom

                                                      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

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.

3 WP-6512.05

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

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.

5 WP-6512.05

Respondent-State shall consider the position of the remaining rural

cottage hospitals and thereafter is expected to take decision in respect

of creating additional post of pharmacists in the said rural and cottage

hospitals. Naturally while doing so the respondent - State would be

guided by various factors and aspects. Respondent - State shall

consider all the aspects and take a decision in respect of number of

posts of pharmacists in remaining rural and cottage hospitals, apart

from 122 wherein additional post of pharmacist are created.

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.]
   



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