Madhya Pradesh High Court
The State Of Madhya Pradesh vs Index Medical College Hospital And ... on 21 February, 2024
Author: Vivek Rusia
Bench: Vivek Rusia, Anil Verma
Writ Appeal No.353 of 2024 1
IN THE HIGH COURT OF MADHYA PRADESH AT
INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 21st OF FEBRUARY, 2024
WRIT APPEAL No. 353 of 2024
BETWEEN:-
THE STATE OF MADHYA PRADESH SECRETARY DEPARTMENT OF
1.
PUBLIC HEALTH VALLABH BHAWAN BHOPAL (MADHYA PRADESH)
CHIEF EXECUTIVE OFFICER AYUSHMAN BHARAT NIRAMAYAM
2. DEEN DAYAL SWASTHYA SURAKASH PARISHAD IEC BUREAU
BUILDING JP HOSPITAL PREMISES BHOPAL (MADHYA PRADESH)
GENERAL MANAGER OPERATIONS AYUSHMAN BHARAT
NIRAMAYAM DEEN DAYAL SWASTHYA SURAKASH PARISHAD IEC
3.
BUREAU BUILDING JP HOSPITAL PREMISES BHOPAL (MADHYA
PRADESH)
STATE OF HEALTH AGENCY SHA CHIEF EXECUTIVE OFFICER DEEN
4. DAYAL SWASTHYA SURAKASH PARISHAD IEC BUREAU BUILDING JP
HOSPITAL PREMISES BHOPAL (MADHYA PRADESH)
STATE EMPANELMENT COMMITTEE SEC THROUGH ITS CHAIRMAN
5. DEEN DAYAL SWASTHYA SURAKASH PARISHAD IEC BUREAU
BUILDING JP HOSPITAL PREMISES BHOPAL (MADHYA PRADESH)
.....APPELLANT
(BY MS. ARCHANA KHER, ADDITIONAL ADVOCATE GENERAL)
AND
1. INDEX MEDICAL COLLEGE HOSPITAL AND RESEARCH CENTRE
INDORE THROUGH ITS MEDICAL SUPERINTENDENT DR. AJAY
SINGH THAKUR S/O SHRI R.N. SINGH, AGED ABOUT 42 YEARS,
OCCUPATION: SERVICE INDEX CITY, N H-59-A, NEMAWAR ROAD,
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 23-02-2024
18:30:47
Writ Appeal No.353 of 2024 2
POST BAVLIYA KHURD, KHUDEL, INDORE (MADHYA PRADESH)
UNION OF INDIA THROUGH ITS SECRETARY DEPARTMENT OF
2. PUBLIC HEALTH AND FAMILY WELFARE NIRMAN BHAWAN NEW
DELHI (DELHI)
.....RESPONDENTS
(RESPONDENT NO.1 BY SHRI MANU MAHESHWARI, ADVOCATE)
This appeal coming on for hearing this day, JUSTICE VIVEK
RUSIA passed the following:
ORDER
01. The appellants / State of Madhya Pradesh (hereinafter
referred to as respondents No. 1 to 5) and others have filed the
present writ appeal under Section 2(1) of the Madhya Pradesh
Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005
challenging the order dated 07.07.2023 passed by the Writ Court in
W.P. No.7484 of 2023, whereby the writ petition filed by respondent
No.1 / writ petitioner was allowed.
02. Thereafter, respondents No. 1 to 5 filed a writ appeal i.e.
W.A. No.1370 of 2023 which was disposed of vide order dated
30.10.2023 with liberty to file a review petition. Thereafter, a review
petition i.e. R.P. No.1268 of 2023 was filed which has been dismissed
vide order dated 08.12.2023. Now present writ appeal.
03. Heard on I.A. No.1152/2024, which is an application under
Section 5 of the Limitation Act for condonation of delay. As per the
Registry's report, the appeal is barred by 126 days. In view of the
reasons pleaded in the application, the delay caused for filing the
present appeal is a procedural delay. Initially, the writ appeal was
filed by respondents No. 1 to 5, thereafter, review petition was filed,
hence, the delay as explained is bonafide. The application is duly
supported by the affidavit of General Manager (Operational),
Ayushman Bharat Niramayam. Accordingly, I.A. No.1152/2024
stands allowed. Delay in filing the appeal is hereby condoned.
Facts of the case
04. The writ petitioner filed a writ petition initially challenging
the show-cause notice dated 14.03.2023 and order of suspension
dated 21.03.2023 issued by Respondents No. 1 to 5.
05. The Government of India framed a health scheme known as
'Ayushman Bharat' and the said scheme is being implemented in
the State of Madhya Pradesh through the State Health Agency (in
short SHA) commonly known as Deen Dayal Swasthya Suraksha
Parishad 'Niramayam'. The writ petitioner entered into an
agreement with SHA through the Chief Executive Officer as a service
provider for cashless health facility for selected surgical and medical
packages under the aforesaid Scheme. According to the writ
petitioner, medical facilities were provided under the Scheme,
therefore, the period of the agreement was extended for three years
on 05.03.2023. The SHA suddenly conducted a surprise inspection of
the hospital and submitted an adverse report. Vide order dated
14.03.2023, payments were stopped for the treatment already
provided to the patients admitted in the hospital under the Scheme.
Thereafter, vide order dated 21.03.2023, the writ petitioner was
suspended from the 'Ayushman Bharat Scheme'.
06. The writ petitioner approached this Court by way of W.P.
No.7484 of 2023 which came up for hearing on 31.03.2023 and
learned Government Advocate, who was appearing for the State
sought three weeks' time to seek instructions in the matter. The writ
petitioner was directed to pay process fee for service to respondent
No.6, i.e. Union of India and by way of interim relief, no penal action
was directed to be taken against the writ petitioner. Thereafter,
respondents No.1 to 5 filed I.A. No.2504/2023 for vacating the ex-
parte stay granted on 31.03.2023 without filing the para wise return.
On 28.04.2023, the writ petitioner was given a week to file a reply to
I.A. No.2504/2023. On 08.05.2023, respondent No.6 submitted a
reply the copy of which was supplied to the writ petitioner to go
through the same and to file rejoinder, if necessary.
07. Meanwhile respondents issued the order of de-empanelment
dated 29.03.2023 to the writ petitioner and proceeded to file police
complaint / FIR. The writ petitioner filed an application for
amendment in the writ petition, i.e. I.A. No.3082/2023 challenging
the order of de-empanelment dated 29.03.2023 and police complaint
(Annexure-P/9). Vide order dated 18.05.2023, amendment
application was allowed with a direction to incorporate the
amendment within three working days and the matter was directed to
be listed on 25.05.2023. On 25.05.2010, the writ petition was heard
finally and the judgment was pronounced on 07.07.2023, whereby
show-cause notice dated 14.03.2023, suspension order dated
21.03.2023 and de-empanelment order dated 29.03.2023 all were set
aside with a direction to regularize the empanelment of the writ
petitioner under 'Ayushman Bharat Scheme' and also settle the
outstanding bills for the treatment extended to the patients.
08. The State Government challenged the aforesaid order passed
in Writ Petition by way of writ appeal inter alia on the ground that no
opportunity to file para-wise reply was granted to the State
Government. The Division Bench found it appropriate to grant liberty
to the State to file a review petition before the Writ Court with an
application for a grant of stay. Thereafter, a review petition was filed
which came to be dismissed as no error apparent on the face of record
was found. The Writ Court has observed that the application
preferred by the State Government for vacating stay runs into 260
pages, thereafter, the synopsis was filed, and the State Government
did not seek any time to file a reply and argued finally, hence, no case
for review is made out.
09. Ms Archana Kher, learned Additional Advocate General for
the appellants/respondents urged that it is a very serious matter, in
which various serious irregularities were found committed by the writ
petitioner, therefore, the penal action was rightly taken. The
respondents could not get the opportunity to place inquiry reports and
relevant documents on record of the Writ Petition. It is further
submitted that the Writ Court has not considered that remedy of
appeal is available to the writ petitioner, therefore, the writ petition is
not maintainable. It is also submitted that the Writ Court has directed
for settlement of the outstanding bill for treatment which was not
sought by the writ petitioner in the writ petition. Hence, the present
writ appeal be allowed by remanding the Writ Petition to the Single
Bench for a decision on merit after filing of reply on merit.
10. Shri Manu Maheshwari, learned counsel for respondent
No.1 / writ petitioner contended that the Writ Court never prevented
the respondents from filing reply. The State Government thought it
proper to contest the writ petition only on the basis of a reply to the
application for vacating the stay. Thereafter, arguments were finally
heard with the consent of the parties and thereafter, written synopsis
were filed. When the petition has been allowed the State is making so
much hue and cry that the writ petition has been allowed without
filing the return.
We have heard learned counsel for the parties at length and
perused the record.
11. The order sheets recorded in W.P. No.8484 of 2023 are as
under:-
1. Order Dated 31.03.2023
Shri Manu Maheshwari - Advocate for the petitioner.
Shri Koustubh Pathak - Govt. advocate for the respondent No.1
to 6 / State.
Learned counsel for respondent No.1 prays for and is granted
three weeks' time to seek instructions in the matter.
On payment of process fee by RAD payable within three
working days issue notice to respondent No.6 returnable within
four weeks.
In the meanwhile, no penal action be taken against the
petitioner.
2. Order Dated 28.04.2023
Shri Manu Maheshwari - Advocate for the petitioner.
Shri Koustubh Pathak - Government Advocate for the
respondent No.4.
Learned counsel for the petitioner prays for and is granted a
week's time to file reply to I.A. No.2504/2023.
Learned counsel for respondent No.6 also prays for and is
granted a week's time to file reply.
List in the week commencing 08.05.2023.
IR to continue, till next date of hearing.
3. Order Dated 08.05.2023
Shri Manu Maheshwari, learned counsel for the petitioner.
Shri Koustubh Pathak, learned Govt. Advocate for the
respondents No.1 to 5/State.
Shri Himanshu Joshi, learned counsel for the respondent No.6.
Learned counsel for the respondent No.6 submits that reply has
been filed today.
Learned counsel for the petitioner prays for a short time to go
through the same and to file rejoinder, if necessary.
Let a copy of the reply filed by respondent No.6 be supplied by
the learned counsel for the respondent No.6 to the learned
counsel for respondents No.1 to 5 within a period of three days.
List immediately after ensuing summer vacation.
I.R. to continue till the next date of hearing.
4. Order Dated 18.05.2023
Shri Nitin Phadke, learned counsel for the petitioner.
Shri Koustubh Pathak, learned counsel for the respondent No.5.
Shri Himanshu Joshi, learned counsel for the respondent No.6.
Learned counsel for the respondent is directed to file the order
dated 28.03.2023 within three working days.
Heard on IA No. 3344/2023, an application for urgent hearing.
IA No. 3344/2023 stands disposed of.
Also heard on IA No.3082/2023, an application for amendment.
For the reasons stated in the application, the same is allowed.
Let necessary amendment be incorporated within a period of
three working days.
Let a copy of the order of dempanelment be supplied to the
counsel for the petitioner.
List the matter on 25.05.2023.
IR, if any, shall continue till the next date of hearing.
5. Order Dated 25.05.2023
Shri Nitin Phadke, learned counsel for the petitioner.
Shri Koustubh Pathak, learned Government Advocate for the
State.
Shri Himanshu Joshi, learned counsel for respondent No.6/UoI.
With the consent of the parties, matter is heard finally.
Case is reserved for orders."
12. It is clear from the aforesaid orders passed in Writ Petition
that no formal notices were issued to respondents No.1 to 5 i.e. State
of Madhya Pradesh through Secretary, Department of Public Health,
Chief Executive Officer, Ayushman Bharat Niramayam, General
Manager, Operations Ayushman Bharat Niramayam, State Health
Agency and the State Empanelment Committee. Only on 31.03.2023,
the Government Advocate casually sought time to seek instructions,
and thereafter, come up with an application for vacating the stay. The
writ petitioner sought time to file a reply to the application for
vacating the stay. Thereafter, the writ petitioner filed an application
for amendment challenging two more orders in the writ petition. The
substantial amendment was carried out in the writ petition and the
State Government did not file any reply to controvert the facts.
13. The High Court being a Court of record the proceedings
should be completed before deciding the writ petition on merit. The
respondents only filed the application for vacating stay which cannot
be treated as para-wise reply to the Writ Petition. We must say that
the writ petition was casually contested by the State Government
despite there being seriousness of the matter and the liability of more
than 50 Crores was likely to come on the State. The objection of
maintainability of Writ Petition for want of remedy of appeal was
also raised, but the same was also not adjudicated which is evident
from the question framed in paragraph - 16 of the impugned order,
for adjudication.
14. There are various issues and reliefs which require
adjudication in the matter which could have been adjudicated after
filing of para-wise reply by the State Government, therefore, the
conduct of appellants / State is also liable to deprecated as the writ
petition was contested offhandedly without filing any reply.
15. In view of the above, the impugned orders passed in the writ
petition as well as in the review petition are hereby set aside. W.P.
No.7484 of 2023 is hereby restored to its original number.
16. At this stage, Shri Manu Maheshwari, learned counsel for the
writ petitioner submits that the interim protection granted by the Writ
Court vide order dated 31.03.2023 be continued till the writ petition
is heard on the question of admission. Ms. Archana Kher, learned
Additional Advocate General has no objection to this short prayer.
18. In view of the above, interim protection granted to the writ
petitioner shall remain in operation till the writ petition comes up for
admission and interim relief.
19. Writ Appeal stands allowed with a cost of Rs.20,000/-
payable to the writ petitioner.
(VIVEK RUSIA) (ANIL VERMA)
JUDGE JUDGE
Ravi
