Ashok Dagliya vs The State Of Madhya Pradesh
2021 Latest Caselaw 1682 MP

                                             WP No.8914/2020 & Linked Matters
                                    [1]



      THE HIGH COURT OF MADHYA PRADESH


                         W.P. No.8914/2020
          [In Reference (Suo Motu) vs. Union of India and others)
                                   with
                        W.P. No.20889/2020
            (Sushil Kumar Patel vs. Union of India and others)
                                    &
                        W.P. No. 8991/2021
                (Ashok Dagliya vs. State of M.P. and others)
24
Jabalpur, Dated: 30.04.2021

      Heard through Video Conferencing.

      Mr. Naman Nagrath, Senior Advocate with Mr. Jubin Prasad,
Advocate appeared as Amicus Curiae in W.P.No.8914/2020.

      Mr. Sanjay Kumar Verma, Advocate for the petitioner in W.P.
No.20889/2020.

      Mr. Rohit Jain, Advocate for the petitioner in W.P.
No.8991/2021.

      Mr. Purushaindra Kaurav, Advocate General, Mr. Pushpendra
Yadav, Additional Advocate General and Mr. Swapnil Ganguly,
Deputy Advocate General for the respondents/State along with Mr.

Mohammad Suleman, Additional Chief Secretary, Directorate of Health Services, Govt. of M.P. and Ms. Chhavi Bhardwaj, Managing Director, National Health Mission, M.P.

Mr. Jitendra Kumar Jain, Assistant Solicitor General and Mr. Vikram Singh, Advocate for the Union of India.

Mr. Shivendra Pandey, Advocate for the Indian Medical Association (respondent No.5 in WP No.8914/2020).

Mr. Shreyas Pandit, Advocate for the Madhya Pradesh Nursing Home Association (respondent No.8 in WP No.8914/2020).

WP No.8914/2020 & Linked Matters [2]

Mr. A.M. Mathur, Senior Advocate along with Mr. Sanjay Agarwal and Mr. Abhinav P. Dhanodkar, Advocates for the intervenor/ Shanti Manch Samiti (IA No.4353/2021 in WP No.8914/2020).

Mr. Manoj Sharma, Advocate - President, High Court Advocates' Bar Association, Jabalpur (IA No.4396/2021 in WP No.8914/2020).

Mr. Shashank Shekhar, Advocate for the intervenor in W.P.No.8914/2020.

Mr. Subhash Upadhyay, Advocate for the intervenor in W.P. No.8914/2020.

Mr. Ajay Raizada, Advocate for the intervenor (IA No.4349/2021 in WP No.8914/2020).

Mr. Girish Patwardhan, Advocate for the intervenor (IA No.4389/2021 in WP No.8914/2020).

Mr. Rajesh Chand, Advocate for the intervenor in W.P.No.8914/2020.

Mr. Nikhil Tiwari, Advocate for the intervenor in W.P.No.8914/2020.

      Mr.   Zaki     Ahmad,     Advocate    for    the     intervenor    in
W.P.No.8914/2020.

Present suo motu petition was registered as Public Interest

Litigation for benefit of residents of the State suffering from

Coronavirus, who are aggrieved by inaction on the part of the various

State Authorities in not providing them timely and proper treatment.

This Court vide order dated 19.04.2021 had issued as many as 19

directions aimed at redressing their grievances. An action taken report

was filed by the State on 26.04.2021. When the matter was listed on

26.04.2021, Mr. Naman Nagrath, learned Amicus Curiae filed an WP No.8914/2020 & Linked Matters [3]

application to call for further action taken report on certain points. A

supplementary action taken report was filed by the State on

28.04.2021.

2. Mr. Naman Nagrath, learned Amicus Curiae has argued that

despite exhaustive directions issued by this Court to ensure

continuous and regular supply of Oxygen and Remdesivir to all the

Government Hospitals as well as private Hospitals/Nursing Homes,

the State Government has failed to manage the state of affairs

inasmuch as more than 60 deaths have so far taken place in the State

owing to lack of oxygen. The portrayal regarding availability of

oxygen in the action plan submitted by the State before this Court, is

far from reality. Out of eight PSA (Pressure Swing Adsorption)

Oxygen Plants approved by the Central Government under the PM

CARES (Prime Minister's Citizen Assistance and Relief in Emergency

Situations Fund) Fund, so far only five Plants have been installed and

they too are also functional with less than half capacity. It is submitted

that one PSA Oxygen Plant costs approximately Rupees One Crore.

The State of Madhya Pradesh has got 52 districts in which District

Hospitals are situated. There is no reason why it cannot invest an

amount of Rs.50 Crore so as to set up one PSA Oxygen Plants in each

of them. There is no liquid oxygen manufacturing plant in the entire

State. Since there is possibility of third wave of Covid-19 in the

coming months, it is the duty of the State to take steps to ensure that

such plants are set up in the State.

WP No.8914/2020 & Linked Matters [4]

3. Learned Amicus Curiae submitted that availability of

Remdesivir still remains major cause of concern. This medicine is

being openly black-marketed and sold at exorbitant price in the State.

Most of the private hospitals are requiring the Covid-19 patients to

obtain this medicine on their own. The patients requiring admission

are being made to shuttle from one hospital to another in view of

ambiguity regarding availability of beds. The State Government has to

pay urgent attention to strengthen the healthcare facilities in the rural

areas, so that citizens do not suffer adverse consequence. Despite

direction by this Court for not charging more than the rates prescribed

for treatment, the private hospitals are taking exorbitant charges. The

Government has so far taken no steps to curb such malpractice. It is

submitted that as per experts, second wave of Covid-19 is likely to

reach peak in the mid of May, 2021. Despite direction by this Court,

the State Government has not increased number of testing and has not

complied direction to ensure that report of RT-PCR is provided to the

suspects/patients within 36 hours of the collection of the sample,

which generally takes 3 to 4 days. Even though statement was made

on behalf of the Government before this Court on 07.04.2021 that no

oral instruction has been issued to private labs to stop conduct of

Covid-19 test, the private pathology labs/diagnostics centres are

refusing to conduct the Covid-19 test. The patients having BPL cards

under Deendayal Antyodaya Upchar Yojana, Cards under Ayushman

Bharat Yojana and those covered under the CGHS are neither being

given admission nor provided treatment by the Private WP No.8914/2020 & Linked Matters [5]

Hospitals/Nursing Homes approved therefor. The State Government is

not taking any effective steps for disposal of the medical waste, which

is being dumped at open place in all the major cities of the State.

4. Mr. Shashank Shekhar, learned counsel for the intervenor also

submitted that the State Government has instructed all the private

pathological labs and diagnostics centres not to conduct the RT-PCR

test of the Coronavirus. The private hospitals are not honouring the

rates prescribed by the State Government for treatment of the patients

suffering from Coronavirus. The State Government is not taking steps

to fill up the huge number of vacancies of medical and paramedical

staff in the State. The posts of Specialists to the extent of 80% are

lying unfilled and the posts of Medical Officers to the extent of 40%

are lying vacant. The helpline number provided by the Government is

hardly helpful to the people seeking to know the position of

availability of beds in the private hospitals. The private hospitals are

refusing to admit the ordinary patients and honouring only those

patients who pay the hefty amount in advance. The State Government

should regulate admission of the Coronavirus patients in Government

hospitals as well as private hospitals as per modal developed by the

Government of NCR Delhi.

5. Mr. Anand Mohan Mathur, learned Senior Counsel appearing

for the intervenor - Shanti Manch Samiti submitted that various

directions issued by this Court on 19.04.2021 have not been complied

by the State Government. People are dying in many hospitals only

because of non-availability of oxygen. Reference in this connection is WP No.8914/2020 & Linked Matters [6]

made to various news items in different newspapers. All private

hospitals should be mandated to set up their own Air Separation Units.

It is contended that Indore city alone is getting more than 1500

Corona positive cases every day. There is no dedicated website or

helpline number with details about availability of beds either in

Government or private hospitals. Many people are losing their lives in

absence of medical treatment. The State Government and the local

administration are not revealing actual figure of death owing to

Covid-19 and hiding data only in order to cover up their failure.

Reference in this connection is also made to various newspaper

reports. It is argued that Indore city is facing the huge problem of

oxygen. The patients of Indore and other cities of the State are also

facing acute scarcity of Remdesivir injection and Fabiflu. Learned

Senior Counsel has invited attention of this Court towards the fact that

Chacha Nehru Children Hospital, Indore which was catering to

medical needs of large number of children of Indore and adjoining

districts, has been converted into Coronavirus care centre. This ill-

advised action of the State would deprive thousands of children of the

treatment.

6. Mr. Shivendra Pandey, learned counsel appearing for Indian

Medical Association and Mr. Shreyas Pandit, learned counsel

appearing for M.P. Nursing Home Association have denied the

suggestion that approved private hospitals are not treating the

Coronavirus patients holding cards under the Ayushman Bharat

Yojana, BPL card holders under the Deendayal Antyodaya Upchar WP No.8914/2020 & Linked Matters [7]

Yojana and CGHS approved cards. They also denied that the Private

Hospitals/Nursing Homes are overcharging the patients inasmuch as

demanding hefty amount in advance for starting treatment. It is

submitted that despite directions of this Court in the order dated

19.04.2021 to hold periodical meetings with representatives of the

private hospitals, no such steps are being taken by the concerned

authorities in this behalf. In spite of specific direction, the State

Government has failed to consider providing soft loan to the Private

Hospitals/Nursing Homes through Banks for setting up their own Air

Separation Units.

7. Having taken note of the submissions made by the learned

Amicus Curiae, learned counsel for the intervenors and also learned

Advocate General, we are constrained to observe that the situation on

ground is totally different than what was portrayed by the State

Government in the action taken report about its efforts to continuously

procure and provide oxygen to Government Hospitals as well as

Private Hospitals. There have been several incidents in past two

weeks, in which numbers of people have lost their lives only because

of sudden disruption or low-pressure in supply of oxygen or due to

non-availability of oxygen. As per several newspaper reports, which

have been placed on record reporting such incidents, two persons lost

their lives on 02.04.2021 in J.P. Hospital, Bhopal. Four persons lost

their lives on 08.04.2021 at Bundelkhand Medical College, Sagar.

One patient died on 08.04.2021 in District Hospital, Khargone. Ten

persons died for this reason on 09.04.2021 at Bundelkhand Medical WP No.8914/2020 & Linked Matters [8]

College, Sagar. Five persons died on 09.04.2021 in Madhav Nagar

Government Hospital, Ujjain. One person died on 13.04.2021 at

P.G.B.M, Bhopal. One person died in Life Medicity Hospital,

Jabalpur. Four persons died in Sukhsagar Medical College, Jabalpur

on 16.04.2021. Two persons died in JP Hospital, Bhopal. Similarly in

the incident which took place in ICU of Medical College, Shahdol,

sixteen Covid patients are said to have died because of non-supply of

oxygen. Ten persons lost their lives on 20.04.2021 in Peoples' Medical

College, Bhopal. Five persons died on 24.04.2021 in Galaxy Hospital,

Jabalpur. Eleven persons died on 25.04.2021 at Gwalior in different

hospitals. Six persons died on 25.04.2021 in District Hospital at

Chhatarpur. Two persons lost their lives on 27.04.2021 in District

Hospital, Katni. Two persons lost their lives on 27.04.2021 at District

Hospital, Morena and five persons died on 28.04.2021 in Jayarogya

Hospital, Gwalior. We do not know how far these data are correct,

which may be a matter of enquiry, but such reports have been

appearing in all the leading newspapers of the State, almost regularly,

during the month of April, 2021. Even the State has not made any

serious effort to dispute the veracity of the alleged deaths of several

persons in the hospitals due to non-availability of oxygen. Death of

citizens, so large in number, is really heart-rending. It is a pity that

people are dying in the hospitals due to lack of oxygen.

8. This Court in its earlier order dated 19.04.2021 has discussed

the law in detail to hold that the right to health forms an integral

component of right to life enshrined under Article 21 of the WP No.8914/2020 & Linked Matters [9]

Constitution of India. Right to life is meaningless unless accompanied

by the guarantee of certain concomitant rights including, but not

limited to, the right of health. This Court referred to catena of

judgments, in which the Supreme Court has given dynamic

interpretation to Article 21 of the Constitution of India, thereby

expanding the meaning of right to life to also include the right to

health. In our view, the right to health can be secured to the citizens

only if the State provides adequate measures for their well being,

treatment, healthcare and takes their care by protecting them from

calamities like Coronavirus. Health has its own prerequisites of social

justice and equality and that it should be accessible to all. It includes

the ability to obtain all kind of healthcare services including

prevention, diagnosis, treatment and management of health disorders,

diseases, illness and other health impacting conditions. What is

significance of oxygen for the right to life need not be

overemphasized. Human life and oxygen always go together. About

21% of Earth's atmosphere consists of oxygen, which plays a critical

role in the respiratory system of the human and many other living

creatures. One cannot imagine existence of life without the oxygen.

We need oxygen in the air we breathe to stay alive. Right to life

cannot be accomplished without the availability of oxygen. The right

to life, apart from other things, also means right to breathe, which, in

the present context, is possible only on availability of oxygen. There

has always been emphasis by the Constitutional Courts on

maintenance of hygiene and pollution free environment as one of the WP No.8914/2020 & Linked Matters [10]

facets of right to life so that citizens can breathe unpolluted air. We

inhale oxygen into our body and exhale carbon dioxide out. In the

ongoing pandemic, if one gets infected, his lungs may get

overpowered by the deadly virus of Corona. In this condition, their

function to constantly purify the blood with the use of oxygen which

they inhale from the atmosphere around and send it back to the heart,

gets impaired. How important is continuous availability of oxygen to

humans thus needs no elaboration. At such crucial stage, survival of

citizen can be ensured by supply of oxygen from external source till

the time his lungs with the use of approved medication can be made to

regain their normal functioning. The right to life enshrined under

Article 21 of the Constitution of India would be meaningless in the

present situation without the continuous availability of oxygen. Here

comes the role of State as a Constitutional obligation to provide for

not only the life saving drugs but also the oxygen.

9. We are constrained to record that most of the significant

directions issued by this Court in its order dated 19.04.2021, mainly in

respect of continuous and regular supply of Oxygen and Remdesivir

to the Government as well as the private Hospitals/Nursing Homes,

have not been fully complied. What has been contended before us is

that most of the private hospitals are refusing to admit Corona patients

for the reason of non-availability of the oxygen and now with every

passing day, it is becoming difficult for Covid patients to get

admission either in the Government Hospitals or the Private Hospitals.

WP No.8914/2020 & Linked Matters [11]

Evidently, the Oxygen and Remdesivir continue to be two major

problems which the State Government is trying to grapple with.

10. Learned Advocate General submitted that as far as the oxygen

is concerned, the Central Government has allocated the quota of 649

MT (Metric Ton) Liquid Medical Oxygen (LMO) but this includes 60

MT of oxygen generated by the Government Medical Colleges of the

State by their own Air Separation Unit Plants and 6 MT of LMO

allocated from Air Liquide Panipat, which the State surrendered

because it cannot spare any cryogenic tanker of 20 MT capacity to go

that far away for this purpose. Thus, actual supply as per allocation by

the Central Government to the State is only 583 MT of LMO. Further,

out of eight districts where PSA Oxygen Generation Plants were

sanctioned under PM CARES Fund, six have already become

functional and remaining two will start functioning by 30.04.2021.

The State Government has issued work order for installation of PSA

Plants in 37 districts out of which 13 will be commissioned by 16 th

May, 2021, 9 by 23rd May, 2021 and remaining 15 by 20 th July, 2021.

The work order has also been issued to CSIR authorized vendor for

installation of 650 LPM PSA plants in 5 districts i.e. Bhopal, Indore,

Gwalior, Rewa and Shahdol and these will be installed by 20 th May,

2021 The Directorate of Health Services has also issued work order

for setting up of 570 LPM onsite Oxygen Generation Plant, each in

eight district hospitals, at a cost of Rs.5.87 Crore. Thus in all new PSA

Oxygen Generation Plants worth Rs.56.2 Crore have already been

sanctioned covering on 51 district hospitals in the State along with 15 WP No.8914/2020 & Linked Matters [12]

civil hospitals. As on 26.04.2021, the installed LMO capacity in

Government Medical Colleges stands at 310 MT as compared to 89

MT of LMO in June, 2020, which means that the State Government

has improved its installed LMO capacity in Government Medical

Colleges. But continuous availability of oxygen for the patients

admitted in the hospitals attached to these Government Medical

Colleges can be ensured only if constant and regular supply of the

LMO is received. The State Government has procured 2150 (5 LPM)

Oxygen Concentrators and orders have been placed for another 6000

(10 LPM) Oxygen Concentrators and 3000 (5 LPM) Oxygen

Concentrators. In addition, the Government of India has been

requested to provide 2000 Concentrators to the State.

11. Learned Advocate General however submitted that since the

State Government is not having the sufficient number of cryogenic

tankers, therefore, the transportation of oxygen from the place where

it has to be lifted from, is a major stumbling block in making timely

supply to different hospitals located in the State. As of now, the State

Government is having 61 such tankers at its disposal and through

them, it is able to transport roughly about 550 MT Liquid Medical

Oxygen to the State. A total number of five liquid Nitrogen tankers

and three liquid Argon tankers, with a total capacity of 167 MT, have

already been converted into LMO tankers, which are included in the

above number of 61 tankers. The Government of India has assigned

two such tankers (each with the capacity of 20 MT) to the State of

Madhya Pradesh, which it has imported from Singapore and has WP No.8914/2020 & Linked Matters [13]

promised to allocate four more tankers to improve the movement of

oxygen from eastern part of the country. It is contended that the State

Government with the help from the Central Government has arranged

for transportation of filled tankers by special trains through green

corridor especially created for the purpose from different locations.

Six tankers carrying 63.78 MT LMO have been dispatched via train

from Bokaro of which three tankers are for Sagar, two tankers for

Bhopal and one for Jabalpur. Six more are expected to reach shortly. It

is submitted that the State Government has been airlifting empty

tankers from Bhopal to Bokaro and from Indore to Jamnagar with the

help of Indian Air Force in their Jumbo Air Crafts in order to reduce

the transit time, at least at one end. It is submitted that the Central

Government has set up the Oxygen Crisis Management Task Force

which takes stock of the day to day situation about the oxygen in

different States. The State of M.P. is constantly apprising the Union

Government of its requirements of oxygen. The Chief Minister of the

State wrote a letter to the Hon'ble Prime Minister on 09.04.2021, that

since bed capacity of hospitals in the State in the month of May, 2021

would be increased to one lakh, requirement of oxygen would rise to

840 MT. The Additional Chief Secretary, Department of Public Health

& Family Welfare, Government of Madhya Pradesh has now therefore

on 27.04.2021 written a letter to the Additional Secretary, DPIIT,

Oxygen Nodal Officer, Government of India requesting for allocation

of 100 MT LMO more. However, the learned Advocate General

submitted that the State Government still requires more number of WP No.8914/2020 & Linked Matters [14]

Cryogenic tankers to transport the allocated oxygen and has, in this

connection, taken up the matter with the Central Government.

12. On a query by the Court, Mr. J.K. Jain, learned Assistant

Solicitor General and Mr. Vikram Singh, learned counsel for the

Union of India sought time to seek instructions from the Government

of India as to why the quota of Liquid Medical Oxygen for the State

of Madhya Pradesh may not be increased at least by 100 MT, in

addition to the allocation already made and also in addition to two

tankers already allocated and four more, which are promised to be

given, six more cryogenic tankers may not be made available to the

State of Madhya Pradesh for timely transportation of the oxygen to

different locations considering the geographical width and length of

the State.

13. There can be no doubt that the State Government and its

functionaries are making all out efforts to continuously procure the

oxygen and supply it to the Government Hospitals as well as the

Private Hospitals in the State. But procurement of oxygen should be

so regular and punctual, that all hospitals, be it Government or

Private, continue to have such quantity of oxygen, as may be

necessary to maintain the required pressure of oxygen supply to all the

patients under their treatment so that no patient loses his life due to

shortage or non-supply of oxygen. We therefore, reiterate our earlier

directions which required the State Government to ensure regular and

continuous supply of oxygen to all the citizens admitted anywhere

either in Government or Private facilities.

WP No.8914/2020 & Linked Matters [15]

14. Coming now to Remdesivir, the medicine with regard to which

lot of complaints are being made by the people at large, Corona

patients and their kith and kin. We may at the outset observe that it

should be for the doctor treating the patient to decide as to which

patient has to be administered Remdesivir injection and which not, but

once when it is prescribed by a treating doctor to any patient, the State

should ensure that such injection becomes available at the earliest,

which is why this Court in its earlier order set the time line of one

hour from the time the treating doctor prescribes such medicine.

Moreover, this Court also directed that the State Government should

ensure that the patients/attendants are not exploited by exorbitantly

charging. This Court had required the State Government to regulate

and ensure continuous supply of Remdesivir, not only to the

Government Hospitals but also to the Private Hospitals/Nursing

Homes with regard to which there are lots of complaints, which we

notice on regular basis in local Media, print and electronic both.

Several newspaper clippings about this have been placed on record. In

the action taken report and supplementary action taken report it has

been stated on behalf of the State Government that the Remdesivir is

approved for restricted emergency use only. This drug is sold on

authorised permission from the Drug Controller General of India as

investigational therapy only in moderate to severe cases of Covid-19

with due exclusion of clinical conditions as mandated by the Ministry

of Health and Family Welfare. In view of the sudden surge in demand

for this medicine, the Government of India has ramped up the WP No.8914/2020 & Linked Matters [16]

manufacturing capacity of domestic manufacturers and has further

taken up the task of judicious distribution and seamless inter-State

supply of the drug to address the shortages.

15. Learned Advocate General submitted that interim allocation of

Remdesivir for the period of 10 days from 21 st to 30th April, 2021, has

been ensured, with supplies from seven domestic manufacturers. The

State of Madhya Pradesh has been allocated 95000 vials of

Remdesivir for consumption before 30.04.2021, out of which, the

State has retained only 45,000 vials for utilization in the Government

Hospitals and allotted 50,000 to be supplied to the private hospitals

through C&F/Stockists, however, with a rider that they shall ensure

equitable sale/ availability of drug for treatment of admitted Covid-19

patients in private hospitals based on the number of Covid-19 in-

patients admitted in Covid ICU/HDU/Oxygen supported beds. Mr.

Mohammad Suleman, Additional Chief Secretary, Directorate of

Health Services, Government of Madhya Pradesh has however

submitted that while in Government Hospitals only 5 to 6% Covid-19

patients are being prescribed Remdesivir injection but the private

hospitals are advising this injection indiscriminately to large number

of patients, which is why a lot of demand of the said medicine has

arisen. It is contended that the State Government has taken punitive

action against the persons, who were found indulging in black-

marketing of Remdesivir inasmuch as nine persons from Indore and

two persons from Ujjain, in total 11 persons, have been detained for

illegally selling the Remdesivir.

WP No.8914/2020 & Linked Matters [17]

16. Mr. Shreyas Pandit, learned counsel for the M.P. Nursing Home

Association and Mr. Shailendra Pandey, learned counsel for the Indian

Medical Association submitted that despite the demand by the private

Hospitals and Nursing Homes for supply of Remdesivir injunction,

the sufficient number of vials are not being provided to them because

the Government in its policy has put a rider on C&F stockist to

distribute this medicine on the basis of number of Covid-19 in-

patients admitted in the Covid-ICU/HDU/Oxygen supported beds

whereas the doctors may, at times, prescribe this medicine to the

patients having CT-score, anywhere between 5 and 10 which is the

best time when it can give positive results, even though the patients

may not be on oxygen support. Mr. Shivendra Pandey, learned counsel

for the Indian Medical Association has therefore disputed the

aforesaid contention of the Additional Chief Secretary and submitted

that only when there is involvement of lungs that the doctors in the

private hospitals prescribe the Remdesivir injection.

17. Whether or not a particular Covid-19 patient is required to be

administered Remdesivir as medicine, should be left to the discretion

of the treating doctors and ought not to be decided by the executive

fiat. We see no justification on the insistence of providing Remdesivir

to only such patients who are on oxygen support, particularly when

oxygen, as a commodity, itself has become so scarce. There appears to

be no logic behind this policy. Considering the submission of learned

Amicus Curiae and learned counsel appearing for the Indian Medical

Association and M.P. Nursing Home Association and the respective WP No.8914/2020 & Linked Matters [18]

intervenors, we find that there is tremendous amount of dissatisfaction

not only amongst the Private Hospitals and Nursing Homes with

regard to justness of policy of distribution of this drug but also there is

lot of hue and cry amongst the patients and their attendants/family

members with regard to the policy of distribution of Remdesivir

injections. Resultantly black-marketeers are flourishing. This

sometimes results into very chaotic conditions in such hospitals giving

rise to law and order situation. We do not want to go into the details of

all these issues but considering serious question marks put on the

efficacy of the policy adopted in this behalf, the State Government

ought to have re-look at its distribution policy so as to rationalize the

same in consultation with all the stakeholders, in such a way that the

medicine becomes available to common man at reasonable price.

18. At this stage, learned Advocate General submitted that this is

largely happening because of the scarcity of Remdesivir due to short

supply. The State Government is taking up this issue with the Central

Government for getting allocation of Remdesivir increased. We

require Mr. J.K. Jain, learned Assistant Solicitor General as well as

Mr. Vikram Singh, learned counsel appearing for the Union of India to

seek instructions from the Central Government as to why the quota of

95,000 vials of Remdesivir, for a block of 10 days, may not be

increased by atleast 20% more, so as to make it more just, equitable

and reasonable to cater to the everyday increasing demand,

considering the huge surge in the number of Covid positive cases in

the State. This Court also requires the Central Government to consider WP No.8914/2020 & Linked Matters [19]

allowing the State Government to directly procure all kind of essential

drugs, be it Remdesivir, Tocilizumab, Itolizumab, Fabiflu or any other

drug, from the manufacturers, within or outside the country, so as to

ensure its easy availability to the patients. At this stage, we also want

to impress upon all the private Hospitals and Nursing Homes as well

as the Government Hospitals to educate the patients, their

attendants/family members and the people at large as to in what kind

of cases the prescription of Remdesivir as a medicine is advisable.

19. This Court in para 27(xv) of its order dated 19.04.2021, on the

suggestions made by the learned counsel appearing for the Indian

Medical Association and M.P. Nursing Home Association, had

required the State Government to consider providing soft loan to all

the private Hospitals and Nursing Homes to set up their own Air

Separation Units so that they may become self-reliant with regard to

their oxygen requirement. An argument has been advanced before us

that all the private hospitals should be mandated to set up their own

Air Separation Units. In this regard, we direct the State Government to

take up this issue with the Nationalised Banks and other Financial

institutions, by involving the major Private Hospitals, to provide them

soft loan on priority basis, for setting up their own Air Separation

Units and come out with the progress on this aspect. The State

Government, at its own level, should also consider providing subsidy

and incentive to such private hospitals.

20. This Court time and again impressed upon the State

Government to ensure that the number of RT-PCR tests conducted by WP No.8914/2020 & Linked Matters [20]

different Government Labs as well as Private Labs and Diagnostic

Centres should be increased inasmuch as their reports should become

available within 36 hours from the time of collection of samples. In

this respect, learned Advocate General submitted that unless the

ICMR is directed to approve more number of BSL certified Labs in

the State, this target may be difficult to be achieved. The State

Government, in this connection, may approach the ICMR with its

proposal but in this connection we also record the submission made

by learned Amicus Curiae and Mr. Shashank Shekhar, learned counsel

for the intervenor that the State Government has by an oral direction

required all the private Labs to either refuse or discourage conducting

the RT-PCR tests and despite the submission made before this Court

on 07.04.2021 that no such direction has been issued to the private

Labs/Diagnostic Centres, the fact is that the private Labs are still not

willing to conduct the RT-PCR tests. Considering that number of

private BSL certified Labs even as per the State Government is 37, it

is very important to have their continuous support and involvement in

conducting more and more number of RT-PCR tests and screen the

patients so that timely detection of Covid-19 positive cases may

prevent such disease from spreading further. We, therefore, direct the

State Government to consider increasing the sample collection from

twice a day, to four-times a day, and also for that purpose, increasing

the number of Technicians, Scientists and Lab Attendants etc.

involved in the process to positively achieve the above target of 36

hours and submit the further progress report in this regard.

WP No.8914/2020 & Linked Matters [21]

21. Learned Amicus Curiae and other learned counsel appearing for

the intervenors have further submitted that despite specific direction

by this Court, the private hospitals are refusing to admit and treat

those patients who are entitled to cashless treatment facility in terms

of Ayushman Card (under Ayushman Bharat Yojana) and BPL cards

(under Deendayal Antyodaya Upchar Yojana) and CGHS Cards and

the State Government has not ensured the compliance in that behalf.

We further reiterate our earlier directions given in the order dated

19.04.2021 that those hospitals, which are approved for treatment of

the patients covered by those cashless schemes of the Government,

shall not refuse to provide treatment to concerned patients and if any

complaint in that behalf is received, the State Government shall take

appropriate action against such private Hospitals/Nursing Homes.

22. Learned Amicus Curiae has invited attention of this Court

towards accumulation of medical waste consisting of PPE kits, masks

and other items in all the major cities of the State including Bhopal,

Indore, Gwalior and Jabalpur. He has produced certain newspaper

clippings to bring home the point. This Court, in this connection,

directs the State Government as well as the M.P. State Pollution

Control Board to undertake a special drive for disposal of such bio-

medical waste, wherever found, in accordance with the provisions of

the Bio-Medical Waste (Management & Handling) Rules, 1998 and

submit a compliance report thereabout.

23. Mr. J.K. Jain, learned Assistant Solicitor General and Mr.

Vikram Singh, learned counsel for the Union of India, in response to WP No.8914/2020 & Linked Matters [22]

the query made by this Court on I.A. No.4396/2021, have submitted

that the Government of India has taken a serious note of the incident

in which an oxygen tanker carrying the oxygen allocated to the State

of Madhya Pradesh was intercepted by police officers of Uttar

Pradesh to be diverted to Jhansi. Learned counsel submitted that the

Government of India shall in future ensure that no such incident

recurs and in this regard, a direction has again been issued to all the

State Governments to ensure free movement of the tankers carrying

the oxygen to the respective destinations to which they have to deliver

the same. This Court impresses upon all the State Governments and

through them, their Police Authorities and the Transport Authorities,

to provide green corridors to the Tankers carrying Liquid Medical

Oxygen involving inter-state movement, at par with ambulances, so

that the oxygen can be timely delivered at the respective destinations,

to save the precious human lives in this crucial period. Accordingly,

the I.A. No.4396/2021 is disposed of.

24. The State Government and its various authorities shall in the

meantime make all the endeavours to carry out various directions

issued by this Court in its order dated 19.04.2021.

25. Let the matter to come up again on 06.05.2021 on top of the

list to see the further progress.

                               (Mohammad Rafiq)                     (Atul Sreedharan)
                                 Chief Justice                           Judge


                      C,S/


Digitally signed by SACHIN CHAUDHARY
Date: 2021.05.01 15:17:52 +05'30'