Nagaland Contractors and Suppliers Union v. State of Nagaland
2016-12-13
SONGKHUPCHUNG SERTO
body2016
DigiLaw.ai
JUDGMENT AND ORDER : S. Serto, J. This is a petition under Article 226 of the Constitution of India challenging the policy of the State Government to do away with the earlier practise of procuring dietary items and outsourcing of laundry services for Medical and Health units in the State of Nagaland by issuing tender, and replacing it by a system of self procurement and management by the units themselves but under the watchful eye of a Committee comprising of the CMO, MS, MO in charge and Diet Sister of the district concern. The petitioner is a registered union of registered contractors and suppliers who are registered under the relevant rules of the Government of Nagaland. According to the learned counsel for the petitioner. Mr. Limawapang, the members of the union (petitioners) are regular suppliers of Diet items and providers of laundry services to Medical and health units in Nagaland for the last for so many years and some of them are solely dependent on the same for their livelihood. But forgetting or ignoring the advantages of the earlier system and its obligation to provide employment to the petitioners who are Government registered suppliers and contractors a committee headed by the respondent No.2 was constituted by the respondent Department vide order dated 9.10.2015 to deliberate on the prevailing practise of procurement of dietary' items and laundry' services for the medical and health units in Nagaland. The committee in its meeting held on 14.10.2015 resolved that from 2016-2017 onwards the earlier system would be done away with so as to enable the health units to manage the diet and laundry services of the Health and Medical Units with utmost accountability, responsibility, effective quality control and ownership. The minute of the meeting held on 14.10.2015 annexed as Annexure-F, since it is impugned in this writ petition is given here below for easy reference:- "Minutes of the meeting held on I4th Oct 2015 in the office chamber of Principal Director of H&FW. With reference to order No. DHFW-2/30/D/ Tender/2013-2014/7125 dt 9th Oct; the committee members after deliberation came up with the following:- (1) From 2016-17 onward it is recommended that the system of tender on diet & washing should be done away with.
With reference to order No. DHFW-2/30/D/ Tender/2013-2014/7125 dt 9th Oct; the committee members after deliberation came up with the following:- (1) From 2016-17 onward it is recommended that the system of tender on diet & washing should be done away with. This is suggested in order for the Health units to be able to manage the dietary supplement to the patients with utmost accountability, responsibility and effective quality control and also take ownership. (2) The committee also recommended for revision of diet rate from Rs.55 to Rs.75 per head per day to prevent quality compromise due to price escalation of commodities. (3) The committee recommends that the following items of diet be compulsorily be provided:- (a) Rice (b) Dal (c) Milk (Fresh) (d) Egg (e) Bread (f) Over and above these item, firewood/gas is also inclusive within the rate. 4. In order to over see the diet/washing at health centre it is also suggested that each district form a committee of the following:- (a) CMO/Dy. CMO in case of CMO establishment/MS in case of Hospitals (b) M.O. incharge (c) Diet Sister 5. For release of bills of diet; the districts should submit along with the following information:- (a) In patient slips? bed Head Tickets (b) duration of stay (c) Type of disease (d) Total in-patient daily/month 6. For washing, it is recommended that each health centre should identify one medical attendant for the job of washing the Hospital clothing. For re-designation of Med. Attendant to dhobi the matter will be taken up separately with the Government 7. For washing, it is suggested that the department adopts the District Hospital Mon Model. 8. The committee also recommends that the entitlement of diet along with the list of diet may be displayed in the citizen's charter in the Hospital & health units. (Dr. N.M. Kithan) Director (Health) (Dr. Watikala Ao) Director(Family Welfare) (Dr. John Sweyievisa) Addl. Director (Planning) (Smti Amenla Jamir) Senior Accounts Officer (Dr. Nandira L. Changkija) Principal Director, Directorate of Health & Family Welfare Nagaland Kohima" 2. Thereafter, the State Government considered the minute of the meeting of the committee as stated above and conveyed its approval vide letter No. MED/Dietary/B/37/ 2002/3 8 7 dated 29.1.2006.
Watikala Ao) Director(Family Welfare) (Dr. John Sweyievisa) Addl. Director (Planning) (Smti Amenla Jamir) Senior Accounts Officer (Dr. Nandira L. Changkija) Principal Director, Directorate of Health & Family Welfare Nagaland Kohima" 2. Thereafter, the State Government considered the minute of the meeting of the committee as stated above and conveyed its approval vide letter No. MED/Dietary/B/37/ 2002/3 8 7 dated 29.1.2006. The copy of the said letter annexed as Annexure-G is also reproduced here below for easy reference:- "Government of Nagaland Health and Family Welfare Department MED/Dietary/B/37/2002/387 Dated Kohima the 29th Jan 2016 To The Principal Director Health & Family Welfare Nagaland Kohima. Sub:- Meeting Minutes on Dietary & Washing-Reg Madam In inviting a reference to your letter No. DHFW-2/30/D/Tender/2013-2014/9635 dated 2nd Dec 2015 on the subject cited above, I am directed to convey the approval of the Government to carry on with the recommended points taken up by the Committee during the meeting held on 14th Oct 2015. Yours faithfully (Chinnu Hangsing) Under Secretary to the Government of Nagaland" 3. Following the approval of the State Government as stated above, the respondent No.2 issued a circular No. DHF W-2/3 0/D/ Tender/2013-2014/11722 dated 19.2.16 informing all the CMOs and MS to form a committee immediately in their respective jurisdictions to over see the procurement of diet items and management of laundries of the Health centres and Medical Units. A copy of the said circular annexed as Annexure-H is reproduced here below for easy reference:- "Government of Nagaland Directorate of Health and Family Welfare Nagaland Kohima No. DHFW-2/30/D/Tender/2013-2014/11722 Dated Kohima the 19th Feb 2016 Circular In pursuance to the Govt, letter No. MED/ Dietary/B/37/2002/387 dated 29th Jan 2016 regarding Meeting Minutes on Dietary & Washing, Government has conveyed the approval for discontinuation of the Tender on Diet and Washing w.e.f.2016-2017. This approval is given on the basis of recommendation of minutes of the committee held on 14h Oct 2015 (copy enclosed) Therefore all the CMOs and MOs are requested to form a committee immediately in their respective jurisdiction as per clause (4) of the minutes. Copy to: 1. All Chief Medical Officers and Medical Superintendents Kohima, Mokokchung, Dimapur, Wokha, Zunheboto, Phek, Peren, Longleng, Kiphire, Tuensang and Mon. 2. Office copy. Yours faithfully (Dr. Sukhato A.Sema) Principal Director, Directorate of Health & Family Welfare Nagaland Kohima. 4.
Copy to: 1. All Chief Medical Officers and Medical Superintendents Kohima, Mokokchung, Dimapur, Wokha, Zunheboto, Phek, Peren, Longleng, Kiphire, Tuensang and Mon. 2. Office copy. Yours faithfully (Dr. Sukhato A.Sema) Principal Director, Directorate of Health & Family Welfare Nagaland Kohima. 4. After the issuance of the above given circular, the Directorate of Health & Family Welfare, Government of Nagaland issued an order No. DHFW-2/30/D(Tender/2013-2014/4697-99, dated 29th June 2016 thereby specifying the eligibility criteria of health units for the scheme and the guidelines to be followed. The order and guidelines are given here below for easy reference as they would be relevant and helpful in deciding this case:- "Government of Nagaland Directorate of Health and Family Welfare Nagaland Kohima No. DHFW-2/30/D/Tender/2013-2014/4697-99 Dated Kohima the 29th June 2016 Order In pursuance of the Government letter No. MED/Dietary/B/37/2002/387 dated 29th Jan 2016 Government had conveyed the approval for discontinuation of Tender System of Diet & Washing. Accordingly, implementation of Dietary and Laundry Services by various Health Units shall be henceforth as per the eligibility Criteria and Guidelines on Dietary and Laundry Services given below:- A. Eligibility Criteria:- 1. All District Hospitals, TB & Chest Hospital and State Mental Health Institution. 2. PHCs & CHCs shall be on the basis of No. of deliveries conducted. 3. De-empanelment/Disincentives:- a. If the number of deliveries falls short of criteria for three consecutive months. b. Projection of IPD more than OPD in the claim (Bill/SOE) for Dietary' and Laundry services. B. Guideline on Dietary and Laundry services:- Enclosed. (Dr. L. Watikala Ao) Principal Director Directorate of Health & Family Welfare Nagaland Kohima No. DH FW-2/30/D/Tender/2013-2014 Dated Kohima the June 2016 Copy to:- 1. The Commissioner & Secretary to the Government of Nagaland Health & Family Welfare, Nagaland Kohima for information please. 2. The Chief Medical Officer Kohima/Dimapur/Mokokchung/Tuensang/Mon/Longleng/ Wokha/Zunheboto/Phek/Kiphire/Peren. 3. The Medical Superintendent D.H. Dimapur/D.H. Mokokchung/D.H. Tuensang/D.H. Mon/D.H. Longleng/D.H. Wokha/D.H. Zunheboto/D.H. Phek/D.H. Kiphire/D.H. Peren/ State Mental Institution, Kohima T.B & Chest Hospital Khuzama/T.B & Chest Hospital, Mokokchung. (Dr. L. Watikala Ao) Principal Director Directorate of Health & Family Welfare Nagaland Kohima Guidelines on Dietary and Laundry Services Introduction 1. The Government vide letter No. MED/ Dietary/B/37/2002/387 dated 29th Jan 2016 has approved decentralization of dietary and laundry services to the hospitals instead of the present arrangement of outsourcing. 2.
(Dr. L. Watikala Ao) Principal Director Directorate of Health & Family Welfare Nagaland Kohima Guidelines on Dietary and Laundry Services Introduction 1. The Government vide letter No. MED/ Dietary/B/37/2002/387 dated 29th Jan 2016 has approved decentralization of dietary and laundry services to the hospitals instead of the present arrangement of outsourcing. 2. Accordingly, all identified hospitals shall be responsible for arrangement and provisions of diet and laundry services in their respective hospital with immediate effect. 3. For proper implementation and delivery of the services, all hospitals shall follow the Guideline on management of diet and laundry services; Diet & Laundry Services: 1. The entitlement and rates of diet per patient per day and the rates of laundry/washing of hospitals clothes shall be according to the Government Notification issued from time to time. 2. List of Dietary Items to be provided compulsorily and List of washing items shall be according to the Government Notification issued from time to time. 3. The Health Centre Management Committee (PHC/CHC) or Hospital Management Society/Committee(DH/TB &C Hospital/SMHl) shall constitute a Committee on Diet and Laundry services of the Hospital comprising of the following members: For District Hospital and other Hospitals with multiple Doctors, Nursing and support personnel: a. Medical Superintendent/In-Charge of the Hospital: Chairman b. One senior Doctor of the hospital: Member Secretary c. Nursing Superintendent/Asst Nursing Superintendent/Sister In-Charge of the Hospital: Member d. Diet Sister or Nurse in-charge of Diet: Member e. Linen Sister or Nurse or Staff in-charge of Linen: Member f. Two members of HCMC/HMS representing the public: Member For Health Units with one Doctor: a. In-Charge of the Hospital: Chairman b. Sister In-Charge of the Hospital: Member Secretary c. One senior Staff of the hospital: Member d. Staff in-charge of Diet: Member e. Staff in-charge of Linen: Member f. Two members of HCMC/HMS representing the public: Member In addition to the above committees, in case of health units under the establishment of the Chief Medical Officer, a committee shall be constituted in each district comprising of the following: a. Chief Medical Officer: Member b. Chairman of Health Unit Committee on Diet and Laundry services as members. c. Deputy CMO as Member Secretary. NB: The Committee may co-opt any relevant staff such as Diet sister. Accountant of the CMO Office etc as co-opted member. 4.
c. Deputy CMO as Member Secretary. NB: The Committee may co-opt any relevant staff such as Diet sister. Accountant of the CMO Office etc as co-opted member. 4. Responsibility of Committee on Diet and Laundry services of the hospital/health unit: a. To oversee, monitor and supervise diet and laundry services of the hospital to ensure provision of quality dietary and laundry services. b. To ensure all Dietary and laundry materials are to be procured only from duly licensed registered vendors. c. To manage the funds of dietary and laundry services of the hospital as per the provisions of the Nagaland Communitization of Public Institutions and Services Act 2002. d. To scrutinize the Diet and Laundry bills/SoE/UC of the hospital/Health Unit. e. To report to or appraise the HCMC/ HMS on dietary and laundry services at least twice yearly. 5. Responsibilities of district committee on Diet and Laundry services for health units under the establishment of the Chief Medical Officer a. To oversee, monitor and supervise diet and laundry services of the health units under the establishment of Chief Medical Officer. b. To scrutinize the Diet and Laundry bills/SoE/UC shall be submitted by various health units under the establishment of the Chief Medical Officer. 6. Responsibilities of the Medical Superintendent/In-Charge of the hospital/health unit: a. The Medical Superintendent of the hospital shall designate the Member Secretary of the Committee on diet and laundry services of the hospital as Nodal Officer (diet and laundry services) and also assign adequate support staff including accounts personnel and logistics as deemed necessary from the existing staff and resources of the hospital for proper functioning and management of the diet and laundry services. b. The Medical Superintendent/Incharge of the hospital shall open a Saving Bank Account each of any Nationalised Bank for dietary service and laundry service respectively. c. The Medical Superintendent/In-Charge of the hospital shall ensure proper maintenance of the following registers: (i) Day and night Register: To be maintained by Sister in-charge of each Ward and obtained counter signature from the Nursing Superintendent/Asst Nursing Superintendent/Sister In-Charge and the Medical Superintendent/in-Charge of the hospital every day. (ii) Daily In-patients Midnight Head Count Register: Necessary information to be collected from the Day and Night Register. To be maintained by Sister In-Charge of each Ward and consolidated Register by the Nursing Superintendent/Asst Nursing Superintendent/Sister In-charge of the hospital.
(ii) Daily In-patients Midnight Head Count Register: Necessary information to be collected from the Day and Night Register. To be maintained by Sister In-Charge of each Ward and consolidated Register by the Nursing Superintendent/Asst Nursing Superintendent/Sister In-charge of the hospital. (iii) In Patients Admission (IPD) Register: To be maintained by Sister In-charge of each ward. The Sister In-charge of each ward must send the necessary documents of each patient to the MRD Section every day. (iv) OPD Registration Register: To be maintained by Registration Staff. The Sister In-Charge of OPD must send the necessary documents of each patient to MRD Section every day. (v) MRD Registration: The MRD personnel must ensure that necessary documents are received from various sections of the hospital such as Ward, OPD etc and to reconcile the information with the concerned sections in case of any insufficient information. To ensure all patients are codified as per the norms/guideline and prepare the consolidated report to be counter signed by the Nursing Superintendent/Sister ln-charge and the Medical Superintendent/In-charge of the hospital every month. (vi) OT (Major and Minor Operation) and Labour Room Registers: To be maintained by the Sister In-charge of OT (Major and Minor Operation) and Labour Room. To prepare the consolidated report to be counter signed by the Nursing Superintendent/ Sister In-charge and the Medical Superintendent/In-charge of the hospital every month. (vii) Daily Diet Indent/Requisition Form: Sister In-charge of Ward OT (Major and Minor Operation), Labour Room etc shall submit duly filled Daily Diet Indent Form to the Diet Sister or Nurse or Staff in-charge of Diet. (viii) Daily Laundry Indent/Requisition Form: Sister In-charge of Ward, OT (Major and Minor Operation), Labour Room etc shall submit duly filled Laundry Indent Form to the Linen Sister or Nurse or Staff in-charge of Linen. (ix) The entitlement of diet along with the list of diet shall be displayed in the Citizen's Charter of health unit (x) To identify on medical attendant for the job of washing of hospital clothes. (xi) To adopt the District Hospital Mon model for washing. 7. Responsibilities of Nodal Officer (Diet and Laundry Services): a. To assist the Committee on diet and laundry services and the Medical Superintendent/In-charge of the hospital in implementation and provision of diet and laundry services. b. To ensure proper record/book keeping by all concerned. c. To scrutinize and approve the daily dietary and laundry requirement.
7. Responsibilities of Nodal Officer (Diet and Laundry Services): a. To assist the Committee on diet and laundry services and the Medical Superintendent/In-charge of the hospital in implementation and provision of diet and laundry services. b. To ensure proper record/book keeping by all concerned. c. To scrutinize and approve the daily dietary and laundry requirement. d. To prepare timely the monthly Bill/ SoE/UC of diet and laundry service in the prescribed format e. To provide support and supervision of diet and laundry services. 8. Responsibilities of Diet Sister/Nurse or Staff in-charge of Diet: a. Up-keep of the kitchen and mess in conformity with FSSA for time being in force. b. The Diet Sister/Nurse or Staff in-charge of Diet shall ensure submission of Daily Diet Indent Form from various units of the hospital and compile the indents. c. To cross check the indent with the Daily In-Patients Midnight Head Count Register and other relevant documents as deemed necessary. d. To prepare daily dietary requirement based on the indent and to obtain approval of the dietary requirement from the Nodal Officer (diet and laundry services) or in his absence from the Medical Superintendent/ In-charge of the hospital everyday. e. To make necessary arrangement of the dietary materials from licensed/registered vendors only. f. To supervise the dietary services and ensure provision of quality diet. g. To maintain the Stock Register of the diet services as per existing rules. 9. Responsibilities of Linen Sister/Nurse or Staff in-charge of Linen: a. Up-keep of the laundry area. b. The Linen Sister/Nurse or Staff in-charge of Linen shall ensure submission of Daily Laundry Indent Form from various units of the hospital and compile the indents. c. To cross check the indent with the Daily In-Patients Midnight Head Count Register. OT (Major and Minor Operation), Labour Room, laboratory etc and other relevant documents as deemed necessary. d. To prepare daily laundry requirement based on the indent and obtain approval of the laundry requirement from the Nodal Officer (diet and laundry services) or in his absence from the Medical Superintendent/ In-Charge of the hospital every day. e. To make necessary arrangement of the laundry materials from licensed/registered vendors only. f. To supervise the dietary services and ensure provision of quality laundry. g. To maintain Stock Register of the laundry services as per existing rules. 10.
e. To make necessary arrangement of the laundry materials from licensed/registered vendors only. f. To supervise the dietary services and ensure provision of quality laundry. g. To maintain Stock Register of the laundry services as per existing rules. 10. Responsibilities of Accountant: a. To maintain all aspects of accounting and book keeping in conformity with the Model Accounting Handbook for RKS Accountants (HMS/HCMC). b. To scrutinize and cross check Bills/ Invoice and vouchers before release of payment of bills. c. To keep in safe custody all books of accounts. 11. Submission of Bills: a. Diet and Laundry bills/SoE/UC shall be submitted in the prescribed format on or before 3rd of every month preferably at the time of submission of Salary Bills. Delay in submission of the bills will not be entertained: b. Diet and laundry bills/SOE/UC of health units under the CMO establishment shall be submitted to the directorate through the Chief Medical Officer. 12. Financial Management: a. All financial transactions of the diet and laundry services shall be managed through the respective saving bank account only. b. All payments are to be made by account pay cheque only. c. The said bank accounts shall be jointly operated by the Medical Superintendents/In-Charge of the Hospital and the Member Secretary of the Committee on diet and laundry services. d. Books of Accounts of the fund shall be maintained and subject to Audit as per Financial Rules for time being in force. e. Any profit earned from the dietary and laundry services shall be utilized for development of the hospital on prior approval of the HMS/HCMC (Dr. L. Watikla Ao) Principal Director Directorate of Health & Family Welfare Nagaland Kohima." 5. The petitioner has challenged the above stated policy of the Government on two grounds:- (i) That the Government while taking the policy decision have not followed the Nagaland Rules of Executive Business; (ii) The object and impact of the policy is to give ownership of the work of supplying the dietary items and management of the laundry works of the hospitals by the Medical units, which amounts to or results into giving monopoly of the same to them while depriving the petitioners. The points of challenge raised by the petitioner are taken up one after other.
The points of challenge raised by the petitioner are taken up one after other. Point No.1 It is submitted by the learned counsel for the petitioner that doing away with the policy and practise of issuing tender for procurement of dietary items and outsourcing laundry services for medical units and centres amounts to change of Government policy which is included in the second schedule para 19 of the Nagaland Rules of Executive Business (among the matters that need to be laid before the cabinet), therefore, the minutes of the Committee which suggested change of the policy should have been laid before the Cabinet for consideration and decision as required under Rule 8 of the same before it was finally accepted and implemented. Since that was not done the notifications/orders issued by the respondents by which change of policy has been effected in the supply of dietary items and providing of laundry service to Medical units/centres in Nagaland are violative of the said business rules therefore, deserves to be quash. The Rule of Business cited by the Id counsel in support of his submission i.e. Rule-8, and Para 19 of the Second schedule of the Nagaland Rules of Executive Business is reproduced below:- "8. Subject to the orders of the Chief Minister under Rule 14, all cases referred to in the Second Schedule to these Rules shall be brought before the Cabinet in accordance with the provisions of the Rules contained in Part-II. Provided that no case in regard to which the Finance Department is required to be consulted under Rule 10, shall save in exceptional circumstances under the directions of the Chief Minister, be discussed by the Cabinet unless the Finance Minister has had opportunity for its consideration." Rule 19 of Second Schedule of the same Rule reads as follows:- "19. Proposals involving any important change of policy or practise." The learned counsel for the petitioner further submitted that the above stated point of challenge was raised at para 16 and 17 of the writ petition and answer to the same was given at para 10 of the affidavit in opposition filed on behalf of the respondent Nos. 1 and 3, but there is no specific denial to the facts asserted by the petitioner. Therefore, it should be deemed that the Government have not followed the Rule of Business in the decision making process of changing the policy.
1 and 3, but there is no specific denial to the facts asserted by the petitioner. Therefore, it should be deemed that the Government have not followed the Rule of Business in the decision making process of changing the policy. To this, the learned counsel for the respondents Mr. V. Zhimomi submitted that the Rule of Business was followed in the decision making process as it would be seen from the letter of Under Secretary to the Government of Nagaland No. MED/Dietary/ B/37/2002/387 dated 29.1.2016. The learned counsel quoted the words of the letter as follows:- "In inviting a reference to your letter No. DHFW-2/30/D/Tender/2013-2014/9635 dated 2nd Dec 2015 on the subject cited above, I am directed to convey the approval of the Government to carry on with the recommended points taken up by the Committee during the meeting held on 14th Oct 2015." The learned counsel emphasised in his submission on the word of the letter "the approval of the Government" and submitted that without following the due process of law, this letter could not have been written in such manner and no further action could have been taken based on the change of policy. When Government documents are produced, presumption has to be that they have been issued by following the required procedure or rule unless or until they are proved otherwise. In this case, the petitioners have not filed any document to show that the decision for change of the policy was taken without following the due process of decision making as prescribed under the rules. Therefore, it has to be accepted that the letter of the Under Secretary conveying approval of the Government was issued after following all the decision making process as per rules. I am unable to agree with this submission of the learned counsel for the petitioner that time there is no specific denial from the respondents at para 10 of their affidavit in opposition on the assertion of the petitioners on the point as given at para 16 and 17 of the writ petition it has to be assumed that the rule of business has not been followed. The affidavit in opposition has to be read in its entirety to understand what it intents to convey.
The affidavit in opposition has to be read in its entirety to understand what it intents to convey. I have gone through the entire affidavit Though it is true that no specific denial has been made at that particular para the tune and tenor of the affidavit as a whole conveys that the decision was taken by the Government consciously by following the due process of decision making in the Government. 6. Now coming to the second point raised by the petitioners, the learned counsel appearing on their behalf submitted that the main object and purpose of the change in the policy is to give ownership of the supply business of dietary items and laundry service to medical units and health centers of the State Government to the department concerned only while denying the same to the petitioners. The learned counsel pointed out the contents of para-1 of the minutes of the meeting held on 14.10.2015 in the office chamber of Principal Director of Health and Family Welfare particularly to the words "to take ownership" and submitted that this shows that the department wants to take ownership of the supply work and not to give anybody including the petitioners. The contents of the para 1 of the said minute is given here below for better appreciation; (1) "From 2016-17 onward it is recommended that the system of tender on diet & washing should be done away with. This is suggested in order for the Health units to be able to manage the dietary supplement to the patients with utmost accountability, responsibility and effective quality control and also take ownership." The learned counsel also submitted that such policy of the Government has created monopoly of the department concerned over the supply work of the medical department and totatly denied the same to the petitioners, therefore, it has violated the rights of the petitioners under Article 19(1)(g) of the Constitution of India. The learned counsel further submitted that the petitioners are Government contractors registered under relevant rules of the Government, therefore the Government is duty bound to give employment to them. But by such change of policy they have been denied of their right to carry' on with their profession. Therefore, such change of policy deserves to be quashed.
The learned counsel further submitted that the petitioners are Government contractors registered under relevant rules of the Government, therefore the Government is duty bound to give employment to them. But by such change of policy they have been denied of their right to carry' on with their profession. Therefore, such change of policy deserves to be quashed. On the other hand, the learned counsel for the respondents submitted that the object and purpose of the change in the policy is to provide better dietary and laundry service to the patients admitted in the Government medical units and centres. It is not to give ownership of the supply work to any particular individual or institution for the purpose of making profit. The learned counsel also submitted that the change in the policy will not deprive the petitioners from carrying on their business or profession as there are many other works of the Government which are still carried out through the service of registered contractors, therefore, the contention that the policy change has violated the rights of the petitioners under Article 19(l)(g) of the Constitution is without any basis. 7. I have considered the submission of the learned counsels and also the object and purpose of the change in the policy and also the mechanism that has been put in place to implement the new scheme which are already given above. On mere perusal of the contents of para-1 of the minutes of the meeting held on 14.10.2015 in the chamber of the Principal Director of Health and Family Welfare which constitutes the genesis or the basis on which the policy change has been made (given above) one would understand that the object and purpose of the change in policy is nothing but to ensure that the patients in the Government hospitals are provided with the amenities they are entitled to more effectively and efficiently by giving the responsibility of doing the same to the persons who are responsible and accountable to the department so that it is done with sense of responsibility, accountability and ownership. As such, I am afraid, the petitioners have misunderstood or understood the word ownership out of the context. It simply means that the people responsible for doing the job will do it with sense of ownership.
As such, I am afraid, the petitioners have misunderstood or understood the word ownership out of the context. It simply means that the people responsible for doing the job will do it with sense of ownership. It does not mean that the ownership of the supply work has been given to the department in that sense of making or drawing personal benefits out of it. If at all any profits or benefit is made out of it, the same will go to the department the owners of which are the people of the state. To attract the vires of Article 19( 1 )(g) of the Constitution of India the change in the Government policy must be shown or seen that it has direct impact on the petitioners' business. In this case, there is no direct impact on the petitioners as they will have other contract works to do from the Government. And as it will in no way restrict them from carrying on their profession. Further, the petition, nowhere shows that the State Government is bound to give such work only to the petitioners at all times. On this point, the judgment of the Hon'ble Supreme Court in the cases given here below are instructive and are definitely a guide. Therefore, the relevant portions are reproduced: (i) Krishnan Kakkanth v. Government of Kerala & Ors. reported in (1997) 9 SCC 495 , Para 34. "It has already been indicated that in Viklad Case it has been held by this Court that infringement of fundamental right under Article 19(l)(g) must have a direct impact on the restriction on the freedom to carry on trade and not ancillary or incidental effects on such freedom to trade arising out of any Governmental action. It has also been held in that case that unless the trader or merchant is not wholly denied to carry on his trade the restriction imposed in denying the allotment of wagon in favour of such trader or merchant to transport coal for carrying out trading activities does not offend Article 19(1)(g) of the Constitution. No restriction has been imposed on the trading activity of dealers in pumpsets in the State of Kerala including northern region comprising eight districts. Even in such an area, a dealer is free to carry on his business.
No restriction has been imposed on the trading activity of dealers in pumpsets in the State of Kerala including northern region comprising eight districts. Even in such an area, a dealer is free to carry on his business. Such dealer, even in the absence of the said circular, cannot claim as a matter of fundamental right guaranteed under Article 19(1)(g) that a farmer or agriculturist must enter into a business deal with such trader in the matter of purchase of pumpsets. Similarly, such trader also cannot claim that the Government should also accept him as an approved dealer of the Government. The trading activity in dealership of pumpsets has not been stopped or even controlled or regulated generally. The dealer can deal with purchasers or pumpsets without any control imposed on him to carry on such business. The obligation to purchase from approved dealer has been fastened only to such farmer or agriculturist who has volunteered to accept financial assistance under the scheme on various terms and conditions." (ii) Dharam Singh Yadav & Ors. v. Union of India & Ors. reported in SCC (1984) 1 SCC, Para 21. "The first question that may be posed in this context is: what is the trade being carried on by the petitioners? Are they coal transporters? Is the transport of coal their business? Or are they coal merchants who are dealers in coal and for the purpose of carrying on of business at a certain place they are required to transport coal from the colliery sidings to their place of business? Obviously their business is not transport of coal. Transport is merely incidental to their business, namely, trade in coal. Assuming that the Railways have wholly banned transport of coal offered by the petitioners by wagons, could it be said that the action of the Railways would violate Article 19(1)(g) in relation to them. Whenever the Court is called upon to examine the complaint that restrictions imposed on the freedom to carry on trade are unreasonable, it is necessary to find out what is the trade or business of the complainant-petitioner and to what extent the restriction, if any, is imposed upon the freedom to carry on trade or business and then to determine whether the restriction is reasonable or otherwise.
It is the direct impact of the restriction on the freedom to carry on trade that has to be kept in view and not the ancillary or incidental effect of the governmental action on the freedom to carry on trade. The petitioners are not transporters of coal. They are coal merchants scattered over various parts in India and now they complain that they are unable to transport coal because the Railways have so arranged its priorities in the matter of transport of coal that the petitioners would never be able to obtain a single wagon for transport of their coal. Prima facie it appears that the petitioners' business or trade as coal merchant is in no way interfered with by the Railways by not being able to provide transport facility. Let it not be forgotten that the railway is not the only means of transport. There are other means of transport by which the coal can be transported by the petitioners to their respective places where they carry on their business as the coal merchants. Even assuming that the direct impact of the policy laid down by the railway administration pursuant to the orders of the Central Government under Section 27-A results in denial of allotment of wagons to the petitioners, the restriction will nonetheless be reasonable because petitioners are not wholly denied the allotment of wagons." 8. The decision to do away with the earlier practise of issuing tender inviting contractors to supply dietary items and to provide laundry service to medical or health units in the State of Nagaland and replacing it with a new scheme of providing the same by the department itself is a policy decision of the Government. In such policy decision of the Government Court should normally be slow in interfering with it unless there is violation of any of the rights provided under the Constitution. As stated above, the rights of the petitioners under Article 19(1 )(g) have not been affected by the change in the policy. The Hon'ble Supreme Court and the Courts in the country have been, following this principle which by now has become a settled principle of law. Therefore, there is no reason why this Court should interfere with change in the policy decision of the State Government.
The Hon'ble Supreme Court and the Courts in the country have been, following this principle which by now has become a settled principle of law. Therefore, there is no reason why this Court should interfere with change in the policy decision of the State Government. The State Government knows best in what way or by what means the amenities to which the patients are entitled to would be best provided. Moreover, the petitioners have not brought to the notice of this Court if the earlier practise was efficient enough and was good for the patients admitted in the Government hospitals, therefore no change is called for. The decision of the Hon'ble Supreme Court on this subject in the case of Narmada Bachao Andolan v. Union of India & Ors. reported in (2000) 10 SCC 664 is quite relevant, therefore, the relevant portion of the judgment is given here in below: Para 227. "There are three stages with regard to the undertaking of an infrastructural project. One is conception or planning, second is decision to undertake the project and the third is the execution of the project. The conception and the decision to undertake a project is to be regarded as a policy decision. While there is always a need for such projects not being unduly delayed, it is at the same time expected that a thorough possible study will be undertaken before a decision is taken to start a project. Once such a considered, decision is taken, the proper execution of the same should be undertaken expeditiously. It is for the Government to decide how to do its job. When it has put a system in place for the execution of a project and such a system cannot be said to be arbitrary, then the only role which a Court may have to play is to see that the system works in the manner it was envisaged. Para 228. "A project may be executed depart-mentally or by an outside agency. The choice has to be of the Government. When it undertakes the execution itself with or without the help of another organization, it will be expected to undertake the exercise according to some procedure or set manner.
Para 228. "A project may be executed depart-mentally or by an outside agency. The choice has to be of the Government. When it undertakes the execution itself with or without the help of another organization, it will be expected to undertake the exercise according to some procedure or set manner. NC A was constituted to give effect to the award, various subgroups have been established under NCA and to look after the grievances of the resettled oustees, each State has set up a grievance redressal machinery. Over and above NCA is the Review Committee. There is no reason now to assume that these authorities will not function properly. In our opinion the Court should have no role to play." Para 229. "It is now well settled that the Courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructural project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy making process and the Courts are ill-equipped to adjudicate on a policy decision so undertaken. The Court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people's fundamental rights are not transgressed upon except to the extent permissible under the Constitution. Even then any challenge to such a policy decision must be before the execution of the project is undertaken. Any delay in the execution of the project means overrun in costs and the decision to undertake a project, if challenged after its execution has commenced, should be thrown out at the very threshold on the ground of laches if the petitioner had the knowledge of such a decision and could have approached the Court at that time. Just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them." 9.
Just because a petition is termed as a PIL does not mean that ordinary principles applicable to litigation will not apply. Laches is one of them." 9. In view of the above stated reasons and the conclusions drawn in the light of the law settled by the Hon'ble Supreme Court, I am of the opinion that interference of this Court in the policy decisions of the State Government in changing the earlier scheme of providing dietary items and laundry service to the patients admitted in Government medical/ health units and centres in the State of Nagaland with the new policy is uncalled for. Therefore, the prayer of the petitioners is declined and the writ petition is dismissed. There is no order as to cost.