Kerala High Court

The Citizens Right Protection ... vs Shaji Bonsle on 17 March, 2022

                  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 17th day of March 2022 / 26th Phalguna, 1943
          CONTEMPT CASE(C) NO. 1821 OF 2021 (S)in WP(C) 8025/2020

   PETITIONER/PETITIONER IN WPC:

          THE CITIZENS' RIGHT PROTECTION COUNCIL,

          REGD NO. KLM/TC/277/2014, ADINADU SOUTH, KATTILKADAVU P.O,

          KOLLAM DISTRICT, PIN - 690 542,REPRESENTED BY ITS

          STATE GENERAL SECRETARY, A. SHAJAHAN ALIAS ADINADU SHAJI,

          S/O. ALIKUNJU, AGED 52 YEARS, KOCHUKANJICKAL, ADINADU SOUTH,

          KATTILKADAVU P.O, KOLLAM, PIN - 690 542.

      BY ADVS. M/S.ABDUL SALIM M., NAVANEETH D.PAI.
   RESPONDENTS/RESPONDENTS 2 & 4 IN WPC:

      1. SRI.SHAJI BONSLE,THE DEPUTY DIRECTOR OF PANCHAYATH,OFFICE OF
         THE DEPUTY DIRECTOR OF PANCHAYATH,CIVIL STATION,KOLLAM,PIN-691
         013.
      2. SRI.RAJAN N.KHOBRAGADE IAS,THE PRINCIPAL SECRETARY,DEPARTMENT
         OF HEALTH AND FAMILY WELFARE,GOVERNMENT
         SECRETARIAT,THIRUVANANTHAPURAM-695 001.

        SRI.V.TEKCHAND,SENIOR GOVERNMENT PLEADER FOR RESPONDENT

     This Contempt of court case (civil) having come up for orders on
17.03.2022, the court on the same day passed the following:

                                           p.t.o.
 ANNEXURE R2(a):TRUE COPY OF GOVERNMENT ORDER GO(Rt) NO.2524/2021

              H&FWD DATED 17.11.2021

ANNEXURE R2(b):TRUE COPY OF COMMUNICATION DATED 11.11.2021

ANNEXURE R2(c):TRUE COPY OF PROCEEDINGS DATED 27.11.2021
          S. MANIKUMAR, C. J. & SHAJI P. CHALY, J.
      =========================================
      Con. Case (C) No. 1821 of 2021 & R. P. No. 42 of 2022
                                 in
                   W. P. (C) No. 8025 of 2020
      =========================================
              Dated this the 17th day of March, 2022

                              ORDER

S. Manikumar, C. J.

R. P. No. 42 of 2022 has been filed by the Chief Secretary,

Government Secretariat, Thiruvananthapuram, the Deputy Director of

Panchayat, Civil Station, Kollam, and the Principal Secretary,

Department of Health and Family Welfare, Thiruvananthapuram,

respondent Nos. 1, 2 and additional respondent No. 4 respectively in

the writ petition, seeking review of the judgment dated 09.07.2020 in

W. P. (C) No. 8025 of 2020.

2. Short facts leading to the filing of the review petition are as

hereunder:-

a) The Citizens' Right Protection Council, Kollam, has filed the

writ petition contenting that the building constructed for the purpose of

running an Anganwadi and also a Laboratory attached to the Primary

Health Centre in Ward No. VIII of the Kulasekharapuram Grama Con. Case (C) No. 1821 of 2021 & R. P. No. 42 of 2022

Panchayat, the 2nd respondent, utilizing the funds alloted under the

Member of Parliament Local Area Development Scheme (MPLAD), is

not being utilized, thus wasting an amount of Rs.24 lakhs alloted from

the aforestated fund.

b) This Court, as per judgment dated 09.07.2020, disposed of the

writ petition, directing the Deputy Director of Panchayat, Kollam, the

2nd respondent therein, and Health Department of the State of Kerala,

to take appropriate steps for supply of the essential equipments and

installation thereof, and to appoint sufficient staff for managing the

Laboratory.

c) While disposing of the writ petition, on 09.07.2020, the

Principal Secretary, Department of Health and Family Welfare,

Thiruvananthapuram, the 3rd petitioner herein, was impleaded as

additional 4th respondent in the array of respondents in the writ

petition, for the purpose of implementation of the judgment.

d) According to the review petitioners, as the vital aspects which

were necessary for the proper consideration of the writ petition could

not be brought to the notice of this Court, instant review petition is Con. Case (C) No. 1821 of 2021 & R. P. No. 42 of 2022

filed.

e) Review petitioners have submitted that in Kulasekharapuram

Grama Panchayat, apart from the Family Health Centre with

Laboratory facility, there are 7 other Sub Centres. There is a Sub

Centre in Ward No. IX, which also caters to Ward No. VIII. As per the

policy of the State, as well as the guidelines for Sub Centres issued by

the Directorate of General Health Services, Ministry of Health and

Family Welfare, Government of India, the manpower provided in

different categories of Sub Centres does not envisage a post of Lab

Technician in the Sub Centres. Therefore, the direction to provide a

Laboratory in Ward No. VIII for the Sub Centre, that is functioning in

Ward No. IX, is liable to be reviewed.

3. We have gone through the averments made in the review

petition.

4. Prima facie, we are of the view that judgment in W. P. (C) No.

8025 of 2020 was solely rendered on the basis of the counter affidavit

filed by Kulasekharapuram Grama Panchayat, the 3 rd respondent

therein, that the construction of Anganwadi was from the MPLAD Con. Case (C) No. 1821 of 2021 & R. P. No. 42 of 2022

Fund, and that though Sub Centre was started in some other place,

building constructed was not utilized for the purpose of Sub Centre, as

well as the Laboratory.

5. To ascertain the correct facts as to whether the construction

intended include a Laboratory in Ward No. VIII of Kulasekharapuram

Grama Panchayat, we directed Mr. V. Tekchand, learned Senior

Government Pleader, to produce the records pertaining to the proposal

of construction for the abovesaid purposes.

6. Perusal of the file shows that as per letter dated 07.07.2017 of

the then Member of Parliament addressed to the District Collector,

Kollam, the very intention is to accord sanction for construction of a

new building for Kadathoor Anganwadi in Ward No. VIII of

Kulasekharapuram Grama Panchayat, and the amount proposed was

Rs. 10,00,000/-.

7. Similarly, he has also proposed construction of a new building

for Health Sub Centre in Ward No. VIII of Kulasekharapuram Grama

Panchayat for a sum of Rs. 10,00,000/-.

8. After going through the process, sanction has been accorded Con. Case (C) No. 1821 of 2021 & R. P. No. 42 of 2022

for construction of Anganvadi and Sub Centre, vide proceedings of the

District Collector, Kollam, dated 04.09.2018, which reads thus:-

"Proceedings of the District Collector, Kollam

(Present: Dr. S. Karthikeyan IAS)

Sub:- MPLADS 2017-18 - Work proposed by Sri. K.C Venugopal MP(LS) - Construction of a new building for Kadathoor Anganwadi and Health Sub Centre in ward no.8 of Kulasekharapuram Grama Panchayat - Revised Administrative Sanction accorded - Orders issued. Read:- 1. Guidelines on MPLADS June 2016

2. Circulars on MPLADS from time to time

3. This office order of even no. dated 04.10.2017

4. Lr. No. D.3155/17 dtd 14.08.2018 of the Block Development Officer, Oachira

ORDER No. Plg. 450/17-18/DPO/KLM/KCV/BDO Oachira Dated 04/09/2018

As per papers read as 1st and 2nd above, the Government of India have issued detailed guidelines for the implementation of MPLAD scheme.

As per the order read as 3rd above, administrative sanction was accorded to the Block Development Officer, Oachira for the implementation of the work viz. Construction of a new building for Kadathoor Anganwadi and Health Sub Centre in ward no.8 of Kalasekharapuram Grama Panchayat (plinth area not less than 90.40 m) at a total cost of Rs. 24.00 lakh under MPLADS of Sri. K.C Venugopal MP(LS) during 2017-18.

Con. Case (C) No. 1821 of 2021 & R. P. No. 42 of 2022

As per the paper read as 4th above, the Block Development Officer, Oachira has furnished duly approved revised estimate of the above work and reported that as per the site condition construction of compound wall foundation is necessary for preventing soil erosion in front side of the building and also increasing more window planes by reducing some extra quantities of certain items in the original estimate. Consequently, the Block Development Officer, Oachira has furnished duly approved revised estimate along with comparative statement and requested for revised administrative sanction.

In the above circumstances, revised administrative sanction is hereby accorded to the Block Development Officer, Oachira for the implementation of the work "Construction of a new building for Kadathoor Anganwadi and Health Sub Centre in ward no.8 of Kulasekharapuram Grama Panchayat" at a total cost limited to Rs. 24,00,000/- (Rupees Twenty Four Lakh only) as per revised estimate under MPLADS of Sri K.C. Venugopal MP (LS) during 2017-18.

The expenditure will be met from the amount available under MPLADS in respect of Sri. K.C.Venugopal MP (LS). The expenditure should be limited to the actual sanctioned amount and no tender excess/difference in cost of materials will be allowed. The work should be completed within 1 months from the date of this order.

The guidelines, laws, rules regulations and procedures etc., shall be followed, failing which the implementing officer Con. Case (C) No. 1821 of 2021 & R. P. No. 42 of 2022

shall be liable for default and suitable action shall be taken against the Implementing Officer in the event of failure to complete the work within the stipulated time as per the State Government Procedure.

The order read as 1st paper above stands modified to the above extent only and all conditions remain unchanged.

Sd/-

District Collector"

9. Alleging non-implementation of the directions issued in W. P.

10. Principal Secretary, Department of Health and Family

Welfare, Thiruvananthapuram, the 2nd respondent in the contempt

petition, has filed a detailed counter affidavit, setting out the details of

sanction accorded for construction of the abovesaid buildings, and as

to how the judgment has been implemented.

11. Paragraphs 3 to 6 of the counter affidavit filed by the

Principal Secretary, Department of Health and Family Welfare,

Thiruvananthapuram, the 2nd respondent in the contempt petition, are

reproduced:-

"3. It is respectfully submitted that Kulasekharapuram Con. Case (C) No. 1821 of 2021 & R. P. No. 42 of 2022

Grama Panchayat has a Primary Health Centre. The Primary Health Centre was upgraded as a Family Health Centre with Lab facility in the first phase of Ardhram Project. In the State, there are no Lab facilities attached the Sub Centers. The Directorate of General Health Service, Ministry of Health and Family Welfare. Government of India has issued guide lines for Sub Centres. As per the said guidelines, the man power to be provided in different categories of Sub Centres are as follows.

Type of Sub- Sub-Centre A Sub-Centre B (MCH Sub-Centre) Centre Staff Essential Desirable Essential Desirabl e

Worker (Female)

(Male)

ANM, if Staff Nurse is not available) Safai - 1 (Part- 1 (Full-time) Karmachari time)

Reading of the allocation of man power would show that the post of Lab Technician is not provided in Sub-Centres.

4. In the case on hand, the room in question is situated just 5 K.M. away from the Family Health Centre Kulasekharapuram. In the Family Health Centre, a Lab Technician has been appointed and the Lab has started functioning from 05.07.2017 onwards in the building adjoining Con. Case (C) No. 1821 of 2021 & R. P. No. 42 of 2022

the Family Health Centre. It is at that juncture, the then Member of Parliament has proposed construction of a new building for Health Sub Centre in Ward VIII of Kulasekharapuram Grama Panchayat using the fund alloted under the Member of Parliament Local Area Development Scheme. It seems after construction the Panchayat had decided to convert the building meant for Sub Centre into a Laboratory. Since the room was constructed for use as a Sub Centre, the alloted room for the Lab lacks work benches and toilet facilities for patients which are highly essential for running of a Laboratory. The above situation happened due to non consultation/permission/opinion from the Health Authorities before construction of the building.

5. It is submitted that pursuant to the receipt of Annexure A1 Judgment the Government examined the case in detail and in deference to the direction of this Hon'ble Court, as per Government Order GO(Rt)No.2524/2021 H&FWD dated 17.11.2021 direction has been issued to the District Medical Officer, Kollam to appoint staff from various Health Institutions on Work in Arrangement/ Temporarily on getting basic facilities for functioning the Lab in the Sub Centre on those days when Doctor visits at the Sub Centre as a special case. Pursuant to Annexure R2(a), the Office of the Director of Health Service has issued a communication to the District Medical Officer, Health Kollam, dated 11.11.2021. In R2(b) it is directed that as and when the equipments for functioning of the Lab is obtained, the essential staff for functioning of the Lab should be provided from the district itself on work arrangement basis atleast for 3 days in a Con. Case (C) No. 1821 of 2021 & R. P. No. 42 of 2022

week. On receipt of Annexure R2(b) communication the District Medical Officer, Health as per Proceedings dated 27.11.2021 has posted a Lab Technician for 3 days in a week on work arrangement basis to the Kulasekharapuram Family Health Centre. Further for the functioning of the Laboratory, as per proceedings dated 06.12.2021, the District Medical Officer, Kollam posted a Junior Lab Assistant and a Hospital Attender on similar terms as that of Annexure R2(c).

6. It is respectfully submitted that the delay in complying with the direction has occurred due to the fact that consultation at various level had to be made as none of the Sub Centres in State Laboratories service are provided as detailed above and due to the fact that the most of the Health Department staff are fully routed either for covid treatment or for allied activities. The delay occurred in complying with the judgment is neither willful nor deliberate. The same has occurred due to the circumstances mentioned above. In the said circumstances, this Hon'ble Court may kindly find that there exists no circumstances warranting initiation of contempt proceedings."

12. Annexure R2(A) G. O. (Rt) No. 2524/2021/H&FWD dated

17.11.2021 passed by the Government, pursuant to the directions

issued in judgment dated 09.07.2020 in W. P. (C) No. 8025 of 2020, is

also extracted:-

Con. Case (C) No. 1821 of 2021 & R. P. No. 42 of 2022

"GOVERNMENT OF KERALA

Abstract

Health & Family Welfare Department - Judgment Dated 09/07/2020 in WP(C) 8025/2020 filed by the Citizens Right Protection Council before the Hon'ble High Court - Complied with - Orders issued.

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

HEALTH & FAMILY WELFARE (E) DEPARTMENT

G.O.(Rt)No.2524/2021/H&FWD Dated, Thiruvananthapuram, 17/11/2021

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

2. Letter No.PLB3-63374/2020/DHS dated 23/09/2020 from the Director of Health Services.

3. Letter No.DDP-KLM/145/2020-C3 dated 29/04/2021 from the Deputy Director, Panchayat, Kollam.

ORDER

The Hon'ble High Court in its judgment dated 09.07.2020 in WP(C) 8025/2020 filed by the Citizens Right Protection Council has ordered take appropriate steps for the supply of the essential equipments and installation thereof and to appoint sufficient staff for managing the Lab in the sub centre within a period of two months from the date of receipt of a copy of the judgment.

2) It is a public interest litigation case. A subcentre is situated about 5 KM away from Family Health Centre, Kulasekharapurm. A room is allotted for running laboratory in the building constructed using fund allotted under MPLAD. The room allotted for laboratory lacks work benches and toilet facility for patients, which are inevitable for running laboratory. Con. Case (C) No. 1821 of 2021 & R. P. No. 42 of 2022

3) It is reported that the Primary Health Centre, Kulasekharapuram was upgraded as Family Health Centre during the period 2017-18. As a part of this, a Lab Technician has been appointed and the Lab has been started functioning from 5.7.2017 onwards in the building adjoining the Family Health Centre. It is not possible to provide the services of the existing lab technician to the above said sub centre building.

4) Currently, labs are not functioning in any of the sub centers. Additional manpower is required to implement the esteemed High Court judgment. In this case, the laboratory can sanctioned only if the services of a Lab Technician, a Lab Assistant, and a Hospital Attender Grade-2 staff are available.

5) The President, Kulasekharapuram Grama Panchayat has reported that the anganwadi in the newly constructed building started its function on 20/06/2018 and due to the lack of essential equipment and sufficient staff the lab attached to the building couldn't function. It is also informed that as directed in the judgment, Panchayat alloted Rs.5,50,000/- for supplying essential equipment for the lab and requested District Medical Officer to take necessary action to appoint sufficient staff for functioning the lab.

6) The 2nd respondent Deputy Director, Panchayat, Kollam has reported that it is not possible for the Panchayat to appoint staff for the lab. The Panchayat authorities never sought permission or opinion from Health authorities for the construction of the building which lacks many facilities for Con. Case (C) No. 1821 of 2021 & R. P. No. 42 of 2022

functioning as a Laboratory. Health Dept has upgraded the Primary Health Centre to Family Health Centre with Laboratory facilities during this period. Laboratories are not functioning in any of the sub-centers in the state and the said room is only 5 KM away from the Family Health Centre, Kulasekharapuram. Hence utilizing the room for another lab by health dept is not practical. The Government have no policy to start labs / to appoint staff to the laboratories attached to sub centres.

7) Government have examined the case in detail and to comply with the direction in WP(C) 8025/2020 direction is issued to the District Medical Officer, Kollam to appoint staff from various health institutions on working arrangement / temporarily on getting basic facilities for functioning the lab in the sub centre on those days when the doctor visits at the sub- centre as a special case. On the remaining days the field staff may use the room for other health promotion activities such as immunization, awareness classes, etc.

8) The judgment of Hon'ble High Court dated 09.07.2020 in WP(C) 8025/2020 filed by the Citizens Right Protection Council, is thus complied with.

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

13. Thus, in the light of the above facts, we are prima facie of the

view that the proposal / sanction / construction is not intended for a Con. Case (C) No. 1821 of 2021 & R. P. No. 42 of 2022

Laboratory in the Sub Centre.

14. Giving due consideration to the facts placed before this

Court, question remains to be considered is as to whether judgment in

W. P. (C) No. 8025 of 2020 dated 09.07.2020 has to be reviewed, and

as to whether the Principal Secretary, Department of Health and

Family Welfare, Thiruvananthapuram, the 2nd respondent in the

contempt petition, has committed any contempt as alleged.

15. Mr. M. Abdul Salim, learned counsel for the writ petitioner /