Kerala High Court
Sajith.K.R vs Union Of India on 16 April, 2025
Author: Amit Rawal
Bench: Amit Rawal
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WP(PIL)NO.22 OF 2025
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE AMIT RAWAL
&
THE HONOURABLE MR. JUSTICE P.M.MANOJ
WEDNESDAY, THE 16TH DAY OF APRIL 2025 / 26TH CHAITHRA, 1947
WP(PIL) NO. 22 OF 2025
PETITIONER(S):
SAJITH.K.R
AGED 51 YEARS, S/O LATE RAMACHANDRAN.K.N.,
KUNDEKATH HOUSE, AZAD ROAD, KALOOR, PIN - 682017
BY ADV HARKISH SREETHU V.S.
RESPONDENT(S):
1 UNION OF INDIA
REPRESENTED BY ITS SECRETARY,
MINISTRY OF HEALTH AND FAMILY WELFARE,
NIRMAN BHAWAN, NEW DELHI, PIN - 110011
2 STATE OF KERALA
REPRESENTED BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF HEALTH & FAMILY WELFARE,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN - 695001
3 DIRECTOR OF HEALTH SERVICES
DIRECTORATE OF HEALTH SERVICES,
GOVERNMENT OF KERALA, GENERAL HOSPITAL JUNCTION,
THIRUVANANTHAPURAM, PIN - 695035
SRI C DINESH DSGI IN CHARGE
SR GP SMT AMMINIKUTTY
THIS WRIT PETITION (PUBLIC INTEREST LITIGATION) HAVING
COME UP FOR ADMISSION ON 16.04.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
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2
JUDGMENT
AMIT RAWAL,J.
1. The Petitioner claims to be a public-
spirited resident advocate, deeply concerned about the
welfare of the poor and needy patients, particularly in
accessing life-saving medical facilities concerning
Oncology, Cardiology, Pulmonology and other health
services, including essential screening, diagnostic and
therapeutic services.
2. The Petitioner seeks issuance of
following directions in alleged public interest to the
Respondent -State Government which are contrary to
the guidelines issued by NITI AYOG :
"a. Issue a writ of mandamus or any other
appropriate writ, order or direction in public interest to
henceforth, notwithstanding the guidelines issued by NITI
Aayog in this regard -
(i) seek collaboration only with the private sector
for providing all healthcare services by adopting a
transparent and competitive bidding process for fixation of
User Fee Package rates for such healthcare services,
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without being guided by lower States/ Centre Insurance
Scheme(s)/ CGHS package rates for such services, and
(ii) prohibiting the Respondents from nominating or
directly collaborating with, any Public Sector Enterprise for
strengthening the capacity of its own health facilities,
infrastructure, human resources and all healthcare
services delivery capacity;
b. Dispense with the filing of the English
translation of the Malayalam Exhibits.
c. Pass such other and further orders as may be
deemed just and proper in the facts and circumstances of
the case."
3. From above, it is evident that the
directions sought are to henceforth seek collaboration
only with the private sector and to prohibit State from
nominating or directly collaborating with any Public
Sector Enterprise for strengthening the capacity of its
own health facilities, infrastructure, human resources
and health service delivery capacity, adopt a transparent
and competitive bidding process for fixation of User Fee
Package rates for the private sector, instead of being
guided by such lower rates which are discovered
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periodically through States/ Centre Insurance
Scheme(s) or CGHS package rates.
4. The pith and substance in essence
indicate to ignore the NITI AYOG report which does not
propose any impediment in State nominating or directly
collaborating with any Public Sector Enterprise, and
ignore the fixation of User Fee Package rates for
reimbursement by State to service provider, but also
seeks to rely on the very same report for supporting
collaboration with the private sector.
5. There cannot be any quarrel on the
argument that getting quality healthcare is an essential
aspect of the fundamental right to life under Article 21
of the Constitution of India, and Public Health & Hospital
being a State subject, the State has an obligation to
ensure such facilities for all citizens irrespective of their
socio-economic status. Article 47 of the Constitution of
India also casts such duty on the States. Therefore, one
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cannot undermine the role of Public Healthcare
Institutions / Public Sector Undertakings such as HLL
Lifecare Ltd, HSCC India Ltd, and Telecommunications
Consultants India Ltd under the aegis of Ministry of
Health and Family Welfare offering these services in
different States at District hospitals, Sub-District
hospitals and Rural hospitals.
6. While currently there may exist an acute
shortage of free and cashless medical facilities in urban
and rural areas for Oncology, Cardiology and
Pulmonology as well as other health services,including
essential screening, diagnostic and therapeutic
healthcare services, leading to immense hardships for
poor and underprivileged patients. It is indisputable that
hence to cater to the vast population, particularly in
rural and underserved areas, NITI Aayog has recognized
the role of the private medical companies and institutes
who possess the requisite technical competence, skilled
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manpower, and modern equipment and has proposed
taking these services from them on a reimbursement
basis at rates which are discovered periodically through
States/ Centre Insurance Scheme(s) or CGHS package
rates.
7. There is no merit in the contention of
the petitioner that such costs to be paid on
reimbursement basis shall remain unguided and left to
only competitive bidding process between private
parties. Such contention lacks in merits, particularly
when the public healthcare institutions (PSUs) are able
to provide these services at lower rates which are
discovered periodically through States/ Centre Insurance
Scheme(s) or CGHS package rates.
8. Significantly, NITI Aayog has issued the
guidelines with a Model Concessionaire Agreement
(MCA) for Public-Private Partnerships (PPP). On Draft
MCA and guidelines comments of States and Ministry of
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Health & Family Welfare were called and posted on
NITl's website for the public consultation. Evidently,
these guidelines were developed by NITI Aayog in
partnership with the Ministry of Health and Family
Welfare, State Governments and representatives from
the healthcare industry. World Bank provided technical
assistance for preparing the Model Concession
Agreement (MCA) to foster PPP at district hospital level
with a focus on tier II / tier Ill cities after calling inputs
in this regard from Industry, NGOs, Civil Society, States
and Ministry of Health & Family Welfare and wider
consultations were done with CMOs of various hospitals.
After extensive deliberations the MCA and the guidelines
were formulated by NITI Aayog.
9. These NITI Aayog guidelines are aimed
at enhancing the provision of healthcare services while
recording the purpose, rationale, scope, objectives,
potential PPP and Co-location (BOT) models, and
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delineating further steps for operationalizing the
guidelines. These Guidelines also recognize the
responsibility of State / Centre Government to protect
the investment of PPP partner in Public Health Sector for
long term sustainability.
10. One of the salient features of the NITI
Aayog guidelines is that User Fee to be fixed as the
package rates discovered periodically through States/
Centre Insurance Scheme(s). States which do not
have such insurance packages, could use CGHS package
rates for period when such insurance rates are not
available.
11. Further, NITI Aayog also records that
-"...The government needs to develop a multi-
pronged response to augment not only its own
capacity, but also mobilize the private health sector to
respond to the rapidly growing challenge of NCDs,
especially at the secondary levels.........The state
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governments may decide to strengthen the
capacity of its own health facilities -
infrastructure, human resources and service
delivery capacity. Alternatively, the government may,
in select district hospitals, seek collaboration with the
private sector ......." .
12. Therefore, there is no merit in the
contention to henceforth prohibit the State from
nominating or directly collaborating with any Public
Sector Enterprise to strengthen the capacity of its own
health facilities - infrastructure, human resources and
service delivery capacity.
13. Article 47 of the Constitution reads as
under:
"47. Duty of the State to raise the level of
nutrition and the standard of living and to
improve public health:The State shall regard the
raising of the level of nutrition and the standard of
living of its people and the improvement of public
health as among its primary duties and, in particular,
the State shall endeavour to bring about prohibition of
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the consumption except for medicinal purposes of
intoxicating drinks and of drugs which are injurious to
health."
In view of this constitutional duty to improve public
health, so far as healthcare field is concerned, rather it
is duty of the State to explore and ensure such
possibilities and for that purpose taking direct support of
any Public Sector Undertaking cannot be faulted with.
14. In Manohar Lal Sharma v. Principal
Secy., (2014) 9 SCC 614 all Coal Block allocations
without competitive bidding process were quashed and
set aside, barring those which were to Public Sector
Undertaking after examining the provisions of the Mines
and Minerals (Development and Regulation) Act, 1957
and Coal Mines (Nationalisation) Act, 1973 on finding
abuse of State Machinery for Private gain by Private
Parties.
15. Even otherwise, in view of Article 47 of
the Constitution of India, the State cannot be directed to
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be guided by any contrary precedent in any field other
than public healthcare which would militate against
collaboration of State with its Public Sector Enterprise
without a competitive bidding process.
16. The State cannot be directed to ignore
the NITI Ayog Guidelines for User Fee package rate to
be reimbursed by the State in free and cashless services
provided to patients, whether or not any private player
finds rates as per States/ Centre Insurance Scheme(s) /
CGHS package rates as attractive. It is undisputed that
if nominated, the public healthcare institutions (PSUs)
will be able to provide same services at lower rates
discovered periodically through States/ Centre Insurance
Scheme(s) or CGHS package rates.
17. It cannot be presumed that public
sector hospitals and diagnostic centres offer
substandard quality of service. Contentions, either to
collaborate with private sector in preference over public
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sector institutions or that State shall give private sector
reimbursement for free / cashless or subsidized
healthcare services, notwithstanding the NITI Aayog
guidelines stipulating the same on the basis of States/
Centre Insurance Scheme(s) / CGHS package rates
which are lower, have no merits at all.
18. No prima facie case serving any public
interest is thus made out calling for any interference and
to issue any directions to State in this regard.
The Public Interest Litigation is, accordingly, dismissed.
Sd/-
AMIT RAWAL
JUDGE
Sd/-
P.M.MANOJ
JUDGE
nak
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APPENDIX OF WP(PIL) 22/2025
PETITIONER EXHIBITS
Exhibit P1 A TRUE COPY OF THE GUIDELINES ISSUED BY
NITI AAYOG
