Uttarakhand High Court
WPMS/2151/2019 on 5 March, 2022
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 5TH DAY OF MARCH, 2022
BEFORE:
HON'BLE SHRI JUSTICE MANOJ K. TIWARI
Writ Petition (M/S) No. 2151 of 2019
BETWEEN:
Suresh Chandra Joshi ... Petitioner
(By Mr. Paritosh Dalakoti, Advocate)
AND:
State of Uttarakhand & others ... Respondents
(By Mr. Pradeep Hairiya, Learned Standing Counsel)
JUDGMENT
1. By means of this writ petition, petitioner has
sought the following relief:-
(i) To issue a writ, order or direction in the nature of
mandamus directing the respondents to
constitute the District Mental Health Review
Board as per section 45, 73 and 74 of the Mental
Healthcare Act, 2017.
(ii) To issue a writ, order or direction in the nature of
mandamus alternatively issued certificate to the
petitioner as per section 14 of the Mental
Healthcare Act, 2017 due to non-constitution of
the District Mental Health Review Board so that
the petitioner's younger brother Dinesh Chandra
may get Family Pension under Rule 54 of Central
Civil Service (Pension) Rules, 1972.
2. A counter affidavit has been filed by Mr.
Pankaj Kumar Pandey, Secretary, Medical Health &
Medical Education Department on behalf of respondent
no. 2. Para 10 of the said affidavit is reproduced
below:-
"10. That in reply to the contents of paragraph no. 24
to 25 of the said petition it is stated that in compliance
of Section 45 of the Mental Healthcare Act, 2017 the
State Government has already established State
Mental Health Authority vide notification dated
31.02.2019 and vide office order dated 30.09.2021,
02 persons who are representatives of non-
governmental organizations have duly been appointed
as members of State Mental Health Authority. The
State Mental Health Authority has already held its 02
meeting till now i.e. on 23.12.2021 and 09.02.2021 to
ensure that the rights of the person suffering from
mental illness are duly protected and promoted and
they are given proper mental healthcare and services.
Further, after the establishment of State Mental Health
Authority, as stated above in compliance of Section 73
of the Mental Healthcare Act, 2017 Mental Health
Review Boards for all 13 Districts of State of
Uttarakhand have also been constituted vide
notification dated 31.12.2019 read with notification
dated 06.08.2021. Necessary proceedings to appoint
the members of the Mental Health Review Boards is
under progress and the State Government is also in its
final stage of drafting State Mental Health Care Rules
for the better execution of different provisions of the
Act. Hence, from the above details it is clear that all
mandatory obligations have duly been complied with.
Copy of the Notification dated 13.02.2019, copy of
Office order dated 30.09.2021, copy of MoM dated
23.12.2021 and copy of MoM dated 09.02.2022 are
being marked and filed as Annexure B-2, B-3, B-4 and
B-5 respectively to this affidavit."
3. From the averments made in the affidavit, it
is revealed that State Mental Health Authority has been
constituted under Section 45 of the Mental Healthcare
Act, 2017. Annexure B-1 to the counter affidavit is a
notification dated 31.12.2019, issued by Uttarakhand
Government, whereby Mental Health Review Boards
have been constituted for all the 13 Districts of
Uttarakhand in terms of mandate contained in Section
73 of the Mental Healthcare Act, 2017. From the
counter affidavit, it is further revealed that proceedings
for appointing members of Mental Health Review
Boards are on and further that drafting of State Mental
Healthcare Rules is also in the final stage.
4. It is unfortunate that the Mental Health
Review Boards contemplated under Section 73 of the
aforesaid Act have not become functional, even after
five years of enactment of Mental Healthcare Act.
Persons with mental illness constitute a vulnerable
section of society and are subject to discrimination in
our society, therefore, in order to protect and promote
their rights, constitution of Mental Health Review
Boards has been envisaged, which will discharge such
functions as are enumerated in Section 82 of the Act.
5. Therefore, any further delay in appointing
members of Board constituted under Section 73 of the
Act will be prejudicial to the interest of the most
vulnerable section of society.
6. In such view of the matter, the writ petition is
disposed of with the following directions:-
(i) The Competent Authority shall ensure that
members of Mental Health Review Boards are
appointed, as early as possible, but not later
than six weeks from the date of production of
certified copy of this order.
(ii) State Government shall make every
endeavour to issue appropriate notification, in
terms of Section 121/123 of the Mental
Healthcare Act, 2017 to make the legislation
workable, as early as possible, preferably
within six months from the date of
presentation of certified copy of this order.
(Manoj Kumar Tiwari, J.)
Aswal
