R-Cell Diagnostics And Research ... vs State Of Kerala
2021 Latest Caselaw 1396 Ker

W.P(C).No.255/2021-F                1

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

                 THE HONOURABLE SMT. JUSTICE P.V.ASHA

    THURSDAY, THE 14TH DAY OF JANUARY 2021 / 24TH POUSHA, 1942

                       WP(C).No.255 OF 2021(F)


PETITIONERS:

       1       R-CELL DIAGNOSTICS AND RESEARCH CENTRE
               27/29E, FCC BUILDING, NEAR FEDERAL BANK TOWER,
               ARAYIDATHUPALAM, KOZHIKODE, KERALA-673 016,
               REPRESENTED BY ITS MANAGING PARTNER,
               MR. RUSSEL MOHAMMED.

       2       AZA DIAGNOSTIC CENTRE,
               STADIUM PUTHIYARA ROAD, OPP. TO SABHA SCHOOL,
               CALICUT, KERALA-673 004, REPRESENTED BY ITS CHIEF
               OPERATING OFFICER, MR. JAVED ISLAM.

       3       ASWINI DIAGNOSTIC SERVICE,
               CHINTHAVALAPPU JUNCTION, JAIL ROAD, CALICUT 673
               004, REPRESENTED BY ITS MANAGING PARTNER,
               MR. A. GEERISHAN.

       4       SAROJ DIAGNOSTIC LABORATORY,
               OLIVE ARCADE, MALAPARAMBA JUNCTION, NERA ASCENT ENT
               HOSPITAL, KOZHIKODE, KERALA-673 009, REPRESENTED BY
               ITS MANAGING DIRECTOR, MR. ARUN JYOTHISH K.C.

       5       MEDIVISION SCAN & DIAGNOSTIC RESEARCH
               CENTRE PVT. LTD,
               GROUND FLOOR, MERCY ESTATE, M.G. ROAD, RAVIPURAM,
               KOCHI-682 016, REPRESENTED BY ITS DIRECTOR,
               MR. BERLY CYRIAC.

       6       JEEVA SPECIALTY LABORATORY,
               M.G. ROAD, THRISSUR, KERALA-680 004, REPRESENTED BY
               ITS MANAGING DIRECTOR, MR. C. BALACHANDRAN.

       7       DANE DIAGNOSTICS PVT. LTD,
               18/757, RC ROAD, NEADSHADIMAHAL, PALAKKAD-678 014,
               KERALA REPRESENTED BY ITS DIRECTOR, DR. M.SUSHAMA.

               BY ADVS.
               SRI.PAUL JACOB (P)
               SMT.SHERU JOSEPH
 W.P(C).No.255/2021-F             2




RESPONDENTS:

       1       STATE OF KERALA
               REPRESENTED BY ITS PRINCIPAL SECRETARY, HEALTH AND
               WELFARE DEPARTMENT, ROOM NO. 603, 6TH FLOOR, ANNEXE
               II, SECRETARIAT, THIRUVANANTHAPURAM-695 001.

       2       UNION OF INDIA,
               REPRESENTED BY ITS SECRETARY, HEALTH AND FAMILY
               WELFARE, NIRMAN BHAVAN, NEW DELHI-110 011.

       3       INDIAN COUNCIL FOR MEDICAL RESEARCH,
               V. RAMALINGASWAMI BHAWAN, P.O.BOX NO.4911, ANSARI
               NAGAR, NEW DELHI-110 029, REPRESENTED BY ITS
               SECRETARY AND DIRECTOR GENERAL.

               R1 BY SRI.RANJITH THAMPAN,ADDL.ADVOCATE GENERAL
               R2 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA

     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
14.01.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P(C).No.255/2021-F                   3




                                 JUDGMENT

Dated this the 14th day of January 2021

Petitioners are National Accreditation Board for

Testing and Calibration Laboratories (NABL) accredited

diagnostic laboratories and research centres conducting

various kinds of Covid 19 tests including RT-PCR tests.

They are aggrieved by Ext.P6 order by which the

Government reduced the charges for the tests for

diagnosis of Covid. The charges for RTPCR (open test)

was reduced from Rs.2100/-to Rs.1,500/-.

2. Petitioners point out that Government had fixed

the maximum cost for the RTPCR test initially as

Rs.4500/- which was reduced to Rs 2750/-as per Ext.P1

order dated 02.07.2020; it was reduced to Rs.2100/ as

per Ext.P2 order on 21.10.2020. It is stated that the

said fee was fixed taking into consideration of various

factors like costs, including Accreditation costs,

calibration, maintenance of equipment, labour, quality

of test kits etc. It is stated that there are six

types of tests and the expenditure being incurred by

petitioners to maintain quality standards is more than

the cost now fixed. It is also their case that premium

customers, who travel abroad and who can afford to

avail such quality services come to private labs. It

is pointed out that private labs cannot be compared to

those under the Government as they had to create for

separate facilities and had to engage highly qualified

personnel for conducting these tests. Explaining the

expenditure involved for conducting these tests and the

persons who are attending and undertaking tests in

their Laboratories, the petitioners have pointed out

that the reduction of the maximum charges for the tests

is unreasonable as well as without authority.

3. The petitioners pointed out that the Supreme

Court had in Ext.P3(a) order dated 13.04.2020 in Writ

Petition (Civil) Diary No.(s).10816/2020 ordered that

the private labs can continue to charge payment for

testing of Covid-19 from persons who are able to make

payment of testing fee as fixed by ICMR. Therefore, the

contention of the petitioners is that the State

Government has no authority to pass Ext.P6 order

reducing the maximum charges further. According to Sri.

Paul Jacob, the learned Counsel for the petitioners,

even the ICMR does not have any authority to fix the

testing fee, but for the order passed by the Supreme

Court. It is also pointed out that the Government has

taken such a decision without ascertaining their views

or giving them an opportunity of hearing. It is stated

that even though they had submitted Ext.P5

representation before the Government, Ext.P6 order was

issued on 01.01.2021.

4. The 1st respondent has filed a statement. It is

stated that the rate was re-fixed after considering

various factors including cost of re-agents and kits

required for the test and the rates prevailing in other

States. It is stated that the kits which had to be

imported initially have become sufficiently available

in the State after the total lock down was lifted and

more manufacturers started manufacturing kits and ICMR

approved different types of tests. It is stated that

the Secretaries of the Department of Health and Family

Welfare and that of Department of Health research of

Government of India and Director General of ICMR had,

in Annexure R1(a) letter dated 01.07.2020 while issuing

instructions relating to testing, asked the State

Governments to finalise the rate for RTPCR test by

private labs. It is stated that the orders fixing and

revising the rates for the tests were issued

thereafter. According to the respondents, common man is

benefited by the revision and reduction of rates and

more and more persons are approaching private labs for

the tests though the tests in Government hospitals and

laboratories are done free of cost. It is stated that

the rates are revised gradually after a meticulous

market analysis is done through the Medical Services

Corporation with due regard to the cost involved.

Furnishing a comparative chart showing the costs for

different tests from January, 2020 to January, 2021, it

is stated that the orders are issued reducing the

charges taking into consideration of the said cost of

kits, consumables etc. It is also stated that the

Government has got every authority to fix the rates of

Covid-19 diagnosis and the ICMR has given the authority

to finalise the rates for RT-PCR tests for private

labs.

5. Though the petitioners are challenging the

authority of the Government as well as ICMR, I am of

the view that the contentions raised by the petitioners

require consideration by the Government as admittedly,

their views are not ascertained before fixing/reducing

the rate of charges from Rs.2,100/- to Rs.1,500/- and

it is seen that Ext.P1 order was passed after a meeting

was held with them on 19.06.2020.

Therefore, the Writ petition is disposed of with a

direction to the 1st respondent to consider the

grievance of the petitioners against Ext.P6 order,

including Ext.P5 representation and to take a decision

after affording them an opportunity of hearing within a

period of three weeks from the date of receipt of a

copy of the judgment. Hearing can be held through

electronic media. Till such time, the petitioners shall

be permitted to realise charges in accordance with

Ext.P2. The question of jurisdiction raised by the

petitioners is left open.

Sd/-

P.V.ASHA JUDGE DM

APPENDIX PETITIONERS' EXHIBITS:

EXHIBIT P1 TRUE COPY OF THE GOVERNMENT ORDER DATED 02.07.2020 AND NUMBERED AS G.O(RT) NO. 1326/2020/H&FWD ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P2 A TRUE COPY OF THE GOVERNMENT ORDER DATED 21.10.2020 AND NUMBERED AS G.O(RT) NO. 1935/2020/H&FWD ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P3 A TRUE COPY OF THE ORDER DATED 08.04.2020.

EXHIBIT P3(a) A TRUE COPY OF THE ORDER DATED 13.04.2020.

EXHIBIT P4 A TRUE COPY OF THE EMAIL DATED 28.12.2020 SENT TO THE CHIEF MINISTER.

EXHIBIT P4(a) A TRUE COPY OF THE EMAIL RESPONSE DATED 28.12.2020 FROM THE OFFICE OF THE CHIEF MINISTER.

EXHIBIT P5 A TRUE COPY OF THE EMAIL-DATED 31.12.2020 TO THE 1ST RESPONDENT.

EXHIBIT P6 A TRUE COPY OF THE GOVERNMENT ORDER DATED 01.01.2021 AND NUMBERED AS G.O(RT) NO. 12/2021/H&FWD ISSUED BY THE 1ST RESPONDENT.

EXHIBIT P7 A TRUE COPY OF A NOTICE INVITING QUOTATION DATED 2.11.2020.

EXHIBIT P8 A TRUE COPY FOR TAX INVOICE DATED 24.12.2020.

EXHIBIT P9 A TRUE COPY FOR TAX INVOICE DATED 04.01.2021.

EXHIBIT P10 A TRUE COPY OF TAX INVOICE DATED 18.07.2020.

EXHIBIT P11 A TRUE COPY OF THE COST SHEET DATED 12.1.2021.

RESPONDENTS' EXHIBITS

ANNEXURE R1(a) TRUE COPY OF THE COMMUNICATION DATED 01.07.2020.