Kitex Garments Limited vs State Of Kerala
2021 Latest Caselaw 18076 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM
                          PRESENT
        THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
FRIDAY, THE 3RD DAY OF SEPTEMBER 2021 / 12TH BHADRA, 1943
                  WP(C) NO. 16501 OF 2021
PETITIONER:

    1    KITEX GARMENTS LIMITED,
         KIZHAKKAMBALAM P.O, POST BOX NO.5, ERNAKULAM-683
         562, REPRESENTED BY ITS HR MANAGER, SATHEESH
         KURUP.R.

    2    KITEX CHILDRENSWEAR LTD,
         KIZHAKKAMBALAM P.O, POST BOX NO.5, ERNAKULAM-683
         562, REPRESENTED BY ITS HR MANAGER, SATHEESH
         KURUP.R.

         BY ADVS.
         BLAZE K.JOSE
         NIVEA LIZ PETER FERNANDEZ
         URMILA ZACHARIA
         JUDY JOSE
RESPONDENTS:

    1     STATE OF KERALA
          REPRESENTED BY PRINCIPAL SECRETARY, HEALTH AND
          FAMILY WELFARE DEPARTMENT, GOVERNMENT
          SECRETARIAT, THIRUVANANTHAPURAM-695 001

    2     THE DIRECTOR,
          STATE HEALTH MISSION, GENERAL HOSPITAL JUNCTION,
          THIRUVANANTHAPURAM-695 035

    3     DISTRICT MEDICAL OFFICER (HEALTH),
          PARK AVE, MARINE DRIVE, ERNAKULAM-682 011.
 W.P.(C) No.16501 of 2021             2



      4       ADDL.R4. SECRETARY TO GOVERNMENT,
              DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT OF
              INDIA, NEW DELHI.
              (ADDL. RESPONDENT NO.4 IS SUO MOTU IMPLEADED AS PER
              ORDER DATED 12-08-2021 IN WP(C).

              BY ADV P.VIJAYAKUMAR
              SRI.V.MANU SR GP
      THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
03.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C) No.16501 of 2021                   3




                             P.B.SURESH KUMAR, J.
                   -----------------------------------------------
                           W.P.(C) No.16501 of 2021
                   -----------------------------------------------
             Dated this the 3rd day of September, 2021.


                                JUDGMENT

The short, but interesting question that arises for

consideration in this matter is whether a person covered by the

National COVID Vaccination Program is entitled to make a choice

between early protection and better protection from Covid-19 infection

in the matter of accepting paid vaccine.

2. Petitioners are two companies employing more than

10,000 workers. With a view to protect the workers and their close

family members from Covid-19 infection, the petitioners have taken

upon themselves the task of vaccinating them without waiting for the

Government to do so, and procured for the said purpose the required

quantity of Covishield vaccine by spending Rs.52,30,680/-, and

administered the first dose to the beneficiaries through a medical

institution on 12.6.2021. Later, the petitioners have purchased 12,000

more vaccine doses for administering the second dose to the

beneficiaries for their better protection. Initially when the vaccination

program of the Central Government began, the protocol of the said

vaccine was that the second dose shall be administered only after 4

weeks, but within 6 weeks. Later, the said protocol was revised

successively and the existing protocol is that the second dose shall be

administered only after 12 weeks, but within 16 weeks. It is stated by

the petitioners that the restriction aforesaid is being enforced by the

Central Government by insisting registration for administration of

vaccine in the portal, CoWIN. In the light of the said restriction, the

petitioners are unable to administer the second dose of the vaccine to

the beneficiaries. It is stated by the petitioners that in the meanwhile,

the State Government felt that the time interval between the two

doses of the Covishield vaccine needs to be reduced for certain classes

of persons and accordingly, requested the Central Government to

make appropriate changes in the CoWIN portal so as to enable

registration for the second dose of Covishield vaccine before 12 weeks.

As the Central Government has not considered the said request of the

State Government, the State Government issued Ext.P2 order on

28.5.2021, permitting those who want to go abroad to administer the

second dose of Covishield vaccine after 4 weeks without registration in

the CoWIN portal. In the light of Ext.P2 Order, the petitioners submitted

Ext.P4 representation to the State Government, seeking permission to

administer the second dose of the vaccine to the beneficiaries after

four weeks. It is alleged by the petitioners that Ext.P4 representation is

not being considered by the Government. The petitioners, therefore,

seek directions to the respondents to accord them sanction to

administer the second dose of the Covishield vaccine to the workers

and their close family members who have completed 4 weeks of

administering the first dose.

3. A statement has been filed by the Assistant Solicitor

General of India on behalf of the Secretary to Government, Department

of Health and Family Welfare, Government of India stating, among

others, that the COVID Vaccination Program is being implemented

under the guidance of the National Expert Group on Vaccine

Administration for COVID-19 (NEGVAC) and the Empowered Group on

Vaccine Administration for Covid-19, and the interval between two

doses of Covishield vaccine was introduced on the recommendations of

NEGVAC based on scientific evidence for providing best protection

against Covid-19.

4. Heard the learned counsel for the petitioners as also

the learned Assistant Solicitor General of India.

5. The learned counsel for the petitioners did not dispute

the fact that the interval of 12 weeks between two doses of Covishield

vaccine would give better protection against Covid-19. But, according

to him, insofar as the people have the right even to refuse to accept

the vaccine and insofar as it is admitted that a second dose of the

vaccine after the interval of 4 weeks would give a better protection

than a single dose of the vaccine, the people should necessarily have

the right to make a choice as to the time interval within which they

should accept the second dose of the vaccine. It is all the more so

since the vaccine in respect of which the relief is sought is one

procured by the petitioners, and not provided free of cost by the

Government, submits the counsel. Placing reliance on the various

orders issued by the State and Central Governments, the learned

counsel for the petitioners has also contended that when the State and

Central Governments have relaxed the interval between the two doses

of the vaccine for various classes of persons who intend to go abroad,

giving preference to their need over the quality of protection from the

pandemic, there is absolutely no reason why the same privilege shall

not be extended to people residing in India for their early protection

from the pandemic.

6. Per contra, the learned Assistant Solicitor General of

India submitted that the decision to administer the second dose of

vaccine after an interval of 12 weeks was arrived at after considering

substantial scientific evidence and expert opinion to ensure best

protection for the whole population and even if the petitioners do have

a right to choose between best protection and early protection, the

said right cannot be exercised, if the exercise of the said right by the

petitioners would affect the right of the general public to secure

maximum protection against Covid-19. It was also submitted by the

learned Assistant Solicitor General of India that the time interval

between the two doses of the vaccine was relaxed only to facilitate

international travel for inevitable situations and the workers of the

petitioners cannot claim the said privilege. It was also submitted by the

learned Assistant Solicitor General of India that the court cannot issue

a mandamus in the claims of the instant nature since they are to be

considered at the first instance by the Government and the workers of

the petitioners have not approached the Central Government for the

said purpose.

7. The petitioners in the instant case maintain and agree

with the Governments at the Central and State level that vaccination is

absolutely necessary to overcome the global pandemic, Covid-19. As

indicated, the petitioners do not have a case that a second dose of

Covishield vaccine after 12 weeks, but within 16 weeks would not give

a better protection than a second dose of Covishield vaccine

administered after 4 weeks. It is admitted in the statement filed on

behalf of the Central Government that the immunity provided by the

second dose of Covishield vaccine with time interval less than 12-16

weeks would be better than partial vaccination namely single dose.

According to the petitioners, in a country like India, where a substantial

part of the population is yet to be vaccinated and where large number

of persons are infected with Covid -19 on a day-to-day basis and where

the infection is leading to casualty in large number of cases, the need

of the hour is not better protection or best protection, but early

protection from infection. In other words, as indicated at the outset,

what the petitioners claim is a right to make a choice on behalf of their

workers, between early protection and better protection from Covid-19

infection in the matter of accepting vaccine. It is also the case of the

petitioners that at any rate, the people should certainly have a right to

exercise a choice between early protection and better protection in the

matter of accepting paid vaccine.

8. The principle that every human-being of adult years

and sound mind has a right to determine what shall be done with

his/her body, though not of Indian origin, has been widely accepted by

the courts in India. It appears, it is in recognition of the said principle

that the vaccination for Covid-19 is made voluntary. The fact that the

vaccination is voluntary and there is no compulsion on anyone to

accept the same is declared by the Government of India in the website

of the Ministry of Health and Family Welfare. If that be so, the

requirement to administer two doses of the vaccine and the time

interval between the two doses for better protection from infection can

only be considered as advisory. In other words, as pointed out by the

petitioners, when the people have even the right to refuse to accept

vaccine, there is absolutely no reason why the State should take the

stand that they shall not be permitted to accept the second dose, if

they choose to do so after four weeks in terms of the original protocol

of the vaccine for their early protection, especially when they

themselves are procuring the vaccine by spending money from their

pockets. It is all the more so since the policy of the Central

Government itself is, as discernible from the website of the Ministry of

Health and Family Welfare, that the people shall have the choice to get

early vaccination, for the implementation of which vaccine is being

distributed on payment of its cost through private hospitals as well.

True, exercise of such a right by individuals cannot be said to be

absolute and the same is subject to the rights of others, in the instant

case, the fundamental right under Article 21 of the Constitution, viz,

the right to health. In other words, it is open to the Government to

treat such categories of persons as a class different from persons who

have accepted vaccine in terms of its protocol, in the matter of

imposing restrictions or relaxing restrictions, as the case may be, to

contain the spread of the pandemic.

9. That apart, the materials on record indicate that the

Central Government has relaxed the time interval between the two

doses of the Covishield vaccine initially, for students who have to

undertake foreign travel for the purpose of education, for persons who

have to take up jobs in foreign countries, and for athletes, sports

persons and accompanying staff of Indian contingent attending the

Olympic Games at Tokyo. The materials also indicate that later, the

said privilege was extended to Indian Government officials mandated

to attend official commitments abroad. The privilege was extended

again later to those individuals who have to travel abroad for other

purposes such as for availing treatment services for any health

problems, foreign nationals who have to return to their native

countries or to any other circumstances where such foreign travel may

be unavoidable. Similarly, the State Government on its own, without

the concurrence of the Central Government, has relaxed the time

interval between the two doses of the Covishield vaccine to those who

intend to go abroad for employment. These facts are not in dispute. In

other words, the Government have permitted all those classes of

persons to exercise the choice between early protection and better

protection from Covid-19 infection. All those are not persons who

reside and settle permanently abroad. Most of them are persons who

have to come back to India soon after their assignment. If the

Government can permit persons who are intending to travel abroad to

exercise a choice between early protection and better protection from

Covid-19 infection, there is absolutely no reason why the same

privilege shall not be extended to others who want early protection in

connection with their employment, education, etc. Further, the stand

taken by the Central Government that the court shall not grant the

relief sought for by the petitioners, for they have not approached the

Central Government, cannot be accepted, for, as indicated, the very

premise on which the present writ petition is instituted is that the

decision of the Government in providing relaxation in the protocol

regarding administration of second dose of vaccine to certain classes

of persons alone amounts to discrimination and the directions sought

are directions to extend to the petitioners also the same relief. In cases

of this nature, according to me, the relief sought by the petitioners

cannot be denied merely for the reason that the petitioners have not

approached the Government for the same.

In the result, the writ petition is allowed and the fourth

respondent is directed to make necessary provisions forthwith in the

CoWIN portal, so as to enable scheduling of second dose of Covishield

vaccine after four weeks of the first dose for those who want to accept

the second dose after a period of four weeks in terms of the initial

protocol of the vaccine. It is, however, made clear that I have not

considered the question whether a person is entitled to make a choice

between early protection and better protection from Covid-19 infection

in the matter of accepting the free vaccine provided by the

Government.

Sd/-

P.B.SURESH KUMAR JUDGE YKB

APPENDIX OF WP(C) 16501/2021

PETITIONER EXHIBITS

Exhibit P1 A TRUE COPY OF THE CIRCULAR NO.NHM/3821/ADMIN1/2020/SPMSU ISSUED BY NATIONAL HEALTH MISSION DATED 29.05.2021

Exhibit P2 A TRUE COPY OF THE ORDER NO.G.O(RT) NO.1155/2021/H & FWD ISSUED BY THE HEALTH & FAMILY WELFARE (F) DEPARTMENT DATED 28.05.2021

Exhibit P3 A TRUE COPY OF THE REPRESENTED TO THE 3RD RESPONDENT DATED 23.07.2021

Exhibit P4 A TRUE COPY OF THE REPRESENTATION TO THE 1ST RESPONDENT DATED 07.08.2021

RESPONDENT EXHIBITS

ANNEXURE R4(A) A TRUE COPY OF THE LETTER FROM THE MINISTRY TO ALL STATES ALONG WITH THE SOP DATED 07.06.2021 IS PRODUCED HEREWITH AS

ANNEXURE R4(B) A TRUE COPY OF THE LETTER DATED 23-08-2021 ISSUED BY THE MINISTRY