Reji Thazhamon vs State Of Kerala
2021 Latest Caselaw 19796 Ker

              IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
          THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
                                 &
              THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
    THURSDAY, THE 23RD DAY OF SEPTEMBER 2021 / 1ST ASWINA, 1943
                      WP(C) NO. 19418 OF 2021
PETITIONER:

          REJI THAZHAMON,
          AGED 61 YEARS, S/O. CHANDY ABRAHAM,
          THAZHAMON HOUSE, VELLIYARA P.O.,
          AYROOR VILLAGE, PATHANAMTHITTA 689 612.
          BY ADVS.
          ARUN.B.VARGHESE
          AISWARYA V.S.
          VARNA MANOJ
RESPONDENTS:
     1     STATE OF KERALA,
           REPRESENTED BY ITS CHIEF SECRETARY,
           GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
           THIRUVANANTHAPURAM 695 001.
     2     THE PRINCIPAL SECRETARY
           DEPARTMENT OF HEALTH AND FAMILY WELFARE ,
           SOUTH BLOCK, GOVERNMENT SECRETARIAT,
           THIRUVANANTHAPURAM 695 001.
     3     THE AIRPORT DIRECTOR,
           ADMINISTRATIVE BLOCK, AIRPORTS AUTHORITY OF INDIA,
           TRIVANDRUM INTERNATIONAL AIRPORT,
           THIRUVANANTHAPURAM, KERALA 695 008.
     4     MICRO HEALTH LABORATORIES,
           CORPORATE OFFICE, REP. BY ITS PROPRIETOR,
           M P S TOWER, ARAYIDATHUPALAM, OPP. FEDERAL TOWER,
           MAVOOR ROAD, KOZHIKODE , KERALA 673 004.

          SRI.V.MANU, SR. G.P. FOR R1 & R2
          SRI.V.SANTHARAM FOR R3
     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
23.09.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 W.P.(C)No.19418 of 2021-S
                                       2




                                JUDGMENT

Dated this the 23rd day of September, 2021

S.Manikumar, C.J.

Instant public interest litigation is filed for the following

reliefs:

"1. To issue a writ of mandamus or any other writ or order directing the respondents 1 to 3 to ensure that the 4 th respondent is charging only Rs.500/- for the RT PCR test as per Exhibit P3 from the international passengers at International Airport, Thiruvananthapuram.

2. To declare that the 4th respondent can only charge the amount fixed in Exhibit P3 order from the passengers for the RT PCR test."

2. Short facts leading to the writ petition are as follows:

This Writ Petition is filed challenging the action of State of Kerala, represented by its Chief Secretary, the Principal Secretary, Department of Health and Family Welfare, the Airport Director, Administrative Block, Airports Authority of India (respondents 1, 2 and 3 respectively) in permitting Micro Health Laboratories (4th respondent), functioning within the premises of the 3 rd respondent, to collect charges from the international passengers exceeding that fixed by the 2nd respondent for the Real Time Polymerase Chain Reaction tests (hereinafter referred to as 'RT PCR test').

W.P.(C)No.19418 of 2021-S

The role played by emigrants in the national growth and development of India is noteworthy. Keralites form a major part of this reverential category working in various class and sectors. Their efficiency and dedication is globally recognized. The repercussions of the strike of COVID 19 pandemic were disastrous upon them. Many of them lost their jobs and many were forced to come back to their home state. Immigrants were banned in many countries and existing ones were forced out. This was followed by the global shut down of air traffic which meant that they cannot go back to the place where they worked. Many who were in their homeland and people who were preparing for an emigration got stranded in their respective places unable to rejoin or join their jobs and consequently turned unemployed. The only means for these people is to go abroad again and to find some other means of livelihood. Many have availed visas and booked flight tickets upon availing loans posing them to further financial liabilities with the mere hope that they can start rebuilding their lives once settled abroad.

The 2nd respondent, in the wake of the increased requirement in the number of COVID RT PCR tests to be performed and the inconsistent rates fixed by private labs for the test, passed Exhibit P3 Government Order refixing the rate of RT PCR tests for COVID 19 as Rs.500/-. Exhibit P3 government order was passed after considering the rates for doing RT PCR tests through static and mobile RT PCR labs and also the expenses for engaging Private (Static Labs) for RT PCR tests in Airports as part of airport surveillance strengthening. But the 4 th respondent, a private lab who is functioning within the premises of the 3 rd respondent is charging more in violation of the rate fixed by W.P.(C)No.19418 of 2021-S

Exhibit P3 by levying Rs. 2,500/- per test, collecting an additional amount of Rs.2000/- per test. On 13.08.2021, the writ petitioner along with one Jayakumari Ashokan, Aji Bhavan, Velliyera P.O, Aiyiroor, a staff of writ petitioner's establishment and her son Akhil went to Airport Thiruvananthapuram for boarding to UAE. At that time they were asked to undergo RT PCR Test. Even though the said three persons were found negative, the above said Akhil was not permitted to board the flight on that day and the writ petitioner and Jayakumari Ashokan were permitted to travel. A single bill, Exhibit P4 amounting to Rs 7500/- was issued for the above said three persons by the 4th respondent for undergoing the RT PCR test. This amount to nothing less of extortion on the international passengers. Most of the people trying to go abroad have virtually lost everything due to this pandemic. They are trying to rebuild their life. Even though the writ petitioner was also a victim, the writ petitioner finds that this is an issue which affects a large community of people and have decided to take up the matter before the authorities as well as before the court of law as a public spirited citizen. The writ petitioner has sent Exhibit P5 representation to the Honourable Chief Minister on 07.09.2021 to his official email id [email protected] praying that action may be taken and only Rs.500/- may be charged for the RT PCR test. The office of the Chief Minister has received the same. Later copy of the same was also submitted to the 1 respondent in his official email id [email protected] Hence this writ petition.

3. In support of the contentions, the petitioner has relied on

Exhibit P3 Government Order, G.O.(Rt)No.980/2021/H&FWD,

dated 30.04.2021.

W.P.(C)No.19418 of 2021-S

4. On this day, when the matter came up for hearing, on

instructions from the Principal Secretary to the Government,

Home & Family Welfare (F) Department, furnished to the learned

Advocate General, High Court of Kerala, Mr.V.Manu, learned Senior

Government Pleader, submitted that what is being conducted at

the Airport is Rapid PCR test, which is mandatory for the purpose

of travelling to United Arab Emirates from India.

5. He further submitted that true that earlier the

Government have issued Exhibit P3, fixing a charge for conducting

the conventional RT PCR test, whereas, due to the mandatory

requirement, as stated supra, Rapid PCR test is being conducted

and that there is a technological difference and use of different

molecular diagnostic technologies, and thus the Government of

Kerala have directed that conducting of Rapid PCR test is

mandatory, at the departure airport, because of the speed and

accuracy and that for the above said purpose, a laboratory is also

permitted to be operated at the Airports in Kerala.

6. Detailed instructions as to why a Rapid PCR test is

required and the difference in the cost, as furnished by the

Principal Secretary to the Government, Health & Family Welfare

Department, are reproduced:

W.P.(C)No.19418 of 2021-S

"Difference between Conventional RT-PCR and Abbott ID NOW Rapid PCR instrument.

a. RT-PCR and Rapid PCR uses different Molecular Diagnostic Technologies.

b. Abbott ID NOW is a closed system and only Abbott testing cartridge can be used to perform the tests. Conventional RT-PCR is an open system where any approved kits can be used to run the test. Variety of kits for RT-PCR testing is available in the market at lower costs. Whereas Abbott ID NOW test cartridges are costly and there is no option for replacing it with other test kits or cartridges.

c. Time taken for releasing a test result in normal RT-PCR is from 8 hours to 24 hours, whereas in Rapid PCR the Turn Around Time is only 15 to 30 minutes only. d. In RT-PCR testing methodology, majority of the procedure is done manually such as extraction of the nucleic acid, mixing of the reagents, manual pipetting of the nucleic acid and reagents to the PCR plates before the thermal cycling process. Whereas Rapid PCR testing with Abbott ID NOW instrument is an automated method, where the sample is collected using a nasal swab and the swab is dipped in to the elution buffer of the cartridge, which is inserted in to the equipment for processing. The testing process will only take 13 minutes and the results will be displayed by the equipment once the test is completed.

e. The very purpose of UAE Government insisting Rapid PCR test mandatory and not RT-PCR at the departure W.P.(C)No.19418 of 2021-S

airport before boarding is mainly because of the speed and accuracy. Even a repeat test will only take maximum 15 minutes using Abbott ID NOW equipment compared to a minimum of 8 hours using a conventional RT-PCR. And in RT-PCR technology, a repeat test is common due to the errors that may happen during the process like internal controls not working, improper amplification, possibility of cross contamination etc."

7. Accordingly, Government have also issued orders in G.O.

(Rt)No.1923/2021/H&FWD dated 08.09.2021, prescribing the cost

for the test by Abott Health Care Pvt. Ltd. and Thermo Fishre

Scientific India Pvt. Ltd.

8. For brevity, G.O.(Rt)No.1923/2021/H&FWD dated

08.09.2021 is extracted:

"GOVERNMENT OF KERALA Abstract Health & Family Welfare Department - COVID 19 test costs at Airports - Sanction accorded - Orders issued.

--------------------------------------------------------------------------

HEALTH & FAMILY WELFARE (F) DEPARTMENT G.O.(Rt)No.1923/2021/H&FWD Dated, Thiruvananthapuram, 08/09/2021

-----------------------------------------------------------------------

Read 1. G.O.(Rt)No.1935/2020/H&FWD dated 21/10/2020

2. G.O.(Rt)No.12/2021/H&FWD dated 01/01/2021

3. G.O.(Rt)No.980/2021/H&FWD dated 30/04/2021

ORDER As per the Government Orders read above, the rates for W.P.(C)No.19418 of 2021-S

COVID-19 tests at private laboratories and at various public places (Airports, Railway Stations, Bus stations, Sabarimala Pilgrimage etc) were fixed as follows:

                     Types of test            Price per Test
           Antigen                               Rs.300
           RTLAMP                                Rs.1150
           TruNAT                                Rs.1500
           XpertNAT                              Rs.2500
           (Gene Xpert)
           RTPCR                                 Rs.500

Now at Airports Rapid RTPCR test by Abott Health Care Pvt. Ltd. and Thermo Fishre Scientific India Pvt. Ltd have been established. The charges are fixed as follows:

Types of test Price per Test Rapid RTPCR Rs.2490 (test by Abott Health Care Pvt. Ltd. and Thermo Fishre Scientific India Pvt. Ltd)

It is brought to the notice of the Government that differential rates are charged for Covid-19 tests at Airports in the State. Therefore, Government are pleased to clarify that passengers can appropriately select a test/tests as per the respective countries' Covid testing regulatory protocols at the stipulated charges as above.

(By Order of the Governor) Rajan Namdev Khobragade Principal Secretary."

9. Thus, from the instructions of the Principal Secretary to

the Government, Health & Family Welfare Department and

Government Order stated supra, it is abundantly clear that the

test, which is conducted at the Airport, is different from the W.P.(C)No.19418 of 2021-S

conventional RT PCR test.

10. Writ petition has been filed based purely on Exhibit P3,

which prescribes the cost for RT PCR test and not Rapid PCR test,

which is a mandatory requirement at the departure airport before

boarding.

11. It is represented by Mr.V.Santharam, learned counsel for

respondent No.3, that a sum of Rs.2,490/- is being collected as

charge for conducting Rapid PCR test by the lab permitted to be

put up for the said purpose.

Accepting the contentions raised by the State, prayers

sought for cannot be granted. Accordingly, the writ petition 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.19418 of 2021-S

APPENDIX

PETITIONER EXHIBITS

Exhibit P1 TRUE COPY OF THE JUDGMENT DATED 01.06.2020 IN WPC NO. 10648/2020 OF THE HONOURABLE HIGH COURT OF KERALA.

Exhibit P2 TRUE COPY OF THE JUDGMENT DATED 26.06.2020 IN WPC NO. 11817/2020 OF THE HONOURABLE HIGH COURT OF KERALA.

Exhibit P3 TRUE COPY OF G.O.(RT) NO. 980/2021/H & FWD DATED 30.04.2021 ISSUED BY THE 2ND RESPONDENT.

Exhibit P4 TRUE COPY OF THE CASH RECEIPT NIL DATED ISSUED BY THE 4TH RESPONDENT FOR RT PCR TEST.

Exhibit P5 TRUE COPY OF THE REPRESENTATION SEND ON 07.09.2021 TO THE OFFICIAL EMAIL ID OF THE CHIEF MINISTER [email protected] ALONG WITH THE ENGLISH TRANSLATION.

Exhibit P6 TRUE COPY OF THE REPRESENTATION DATED 13.09.2021 SUBMITTED BY THE WRIT PETITION BEFORE THE IST RESPONDENT THROUGH HIS OFFICIAL EMAIL ID CHIEF [email protected] ALONG WITH ITS ENGLISH TRANSLATION.

Exhibit P7 TRUE COPY OF EMAIL SEND BY THE WRIT PETITIONER TO THE IST RESPONDENT'S OFFICIAL EMAIL ID [email protected]

true copy

P.A. to Judge