Madhukar Dwivedi S/o S. S. Dwivedi v. State Of Chhattisgarh Through Secretary, Department Of Health And Family Welfare
2017-10-10
SHARAD KUMAR GUPTA, THOTTATHIL B.RADHAKRISHNAN
body2017
DigiLaw.ai
JUDGMENT : THOTTATHIL B. RADHAKRISHNAN, J. 1. The captioned Writ Petition (PIL), a Public Interest Litigation; for short 'PIL', is filed seeking, inter alia, direction to the State of Chhattisgarh and Officers under it including the Director of Health Services and the Commissioner, Health and Family Welfare Department to close down a llillegal nursing homes, clinics and pathology / patholabs and to prevent illegal medical practice in the State of Chhattisgarh. Further direction to the official Respondents to initiate enquiry against those who are permitting the illegal running of nursing homes and such other institutions, is also sought for. 2. When the PIL came up for hearing on 07.02.2017, this Court noticed Annexure P/2 therewith, which is a communication by the Block Medical Officer, Marwahi, District-Bilaspur enlisting the unauthorized nursing homes functioning in that Block and another list which gives the unauthorised clinics and the names of the persons illegally engaged in medical practice. A direction was issued on that day requiring personal affidavits to be filed by the Chief Medical & Health Officer, Bilaspur and the Director, Health Services regarding the action, if any, taken to ensure that unauthorised persons do not engage in medical practice. Different postings went through, which ultimately led to the order dated 16.03.2017being issued in the presence of the Director of Health Services, Deputy Director of Health Services and other officers. It was then submitted before this Court by the Director of Health Services that Committees have been constituted sometime in the month of August, 2013 in obedience to the order issued by this Court in Writ Petition (PIL) No. 31 of 2012.However, he did not have the details of each district ready with him, though he stated that the Committee had taken action against those persons who were unauthorisedly practicing as Doctors. The Director was required to file affidavit, having regard to the larger interest involved in the matter.
The Director was required to file affidavit, having regard to the larger interest involved in the matter. In the light of the judgments of the Hon'ble Supreme Court of India in State of Punjab and others v. Mohinder Singh Chawla and Others, (1997) 2 SCC 83 and Paschim Banga Khet Mazdoor Samityand others v. State of W.B. and another, (1996) 4 SCC 37 , this Court noted that right to health is integral to the right to life and the State has an obligation under Article 21 of the Constitution to safeguard the right to life of every person and that providing adequate medical facilities to the people constitutes an essential part of the obligations of the State for achieving people's welfare and the Government Hospitals and Medical Officers are duty bound to provide medical assistance to the needy for saving human life. 3. We have called for and perused the order dated 22.02.2013 in Writ Petition (PIL) No.31 of 2012, referred to in the immediately preceding paragraph. That writ petition was ordered by this Court in the light of the submission on behalf of the State of Chhattisgarh and other official Respondents that a District Committee as well as Committees at Block level have been constituted in district Janjgir-Champa to monitor the menace of the quacks. It was directed that if similar committees have not been constituted in all other districts, such committees shall be constituted for all other districts and the Secretary, Department of Health and Family Welfare shall also obtain quarterly or half-yearly or yearly reports from them regarding the action taken by the committees. 4. Following the order dated 16.03.2017 referred to in paragraph No.2above, the affidavit of the Director of Health Services was placed before this Court. Annexure-III, a tabular statement placed therewith, reflected the gross deficiencies in the management of the issues by the State Authorities, except to some extent in some other districts including the district of Bilaspur. It was then noticed that the issues in hand are multifaceted and requires to be dealt with by the collective effort of different establishments which should provide appropriate updation of the medical and allied health service facilities and eradication of the ignominious unauthorised activities, which is a dreadful malady in the field of health care.
It was then noticed that the issues in hand are multifaceted and requires to be dealt with by the collective effort of different establishments which should provide appropriate updation of the medical and allied health service facilities and eradication of the ignominious unauthorised activities, which is a dreadful malady in the field of health care. With that in view, a detailed order was issued after hearing the learned Advocate General and the learned Additional Advocate General, apart from the learned counsel for the Petitioner and the private Respondents in the PIL, whose activities are sought, by the Petitioner, to be closed down. The Principle Secretary, Department of Health & Family Welfare, the Director of Health Services and the Collector, Bilaspur were also present at the hearing on that day. It is appropriate to quote relevant portion of the order dated 23.03.2017, which reads as follows: "1. This writ petition is filed in public interest. The fundamental issue which has now to gain attention following earlier orders is the requirement to prevent the people from being put to a situation of peril in terms of right to life and health as a result of unauthorized and illegal involvement of the persons who are incompetent and unqualified to administer any form of medication under due certification of the competent authority in terms of the Central and the State laws. The unauthorized establishment and running of clinics, nursing homes and other institutions and establishments including those intended for medical examination and diagnosis cannot be carried except with due sanction being granted by the authority competent. Such sanction could be granted only to those persons who hold eligible qualifications in terms of the governing laws. 2. Following different orders running from the year 2013, today we have before us an affidavit sworn-in by Shri R. Prasanna, Director of Health Services, Govt. of Chhattisgarh, Raipur. For the present, we do not proceed to reiterate everything that he has said therein. Suffice it would be for us to refer to Annexure-III, a tabular statement which is a self- serving testimony of the gross deficiencies in the management of the issue by the State authorities, except to some extent in some of the districts including the District of Bilaspur.
Suffice it would be for us to refer to Annexure-III, a tabular statement which is a self- serving testimony of the gross deficiencies in the management of the issue by the State authorities, except to some extent in some of the districts including the District of Bilaspur. This does not by itself mean that we are satisfied with the action taken even by those district administrations which have shown some element of pursuit to the objects sought to be achieved by different statutory provisions and the larger public requirement to ensure that the right to life, the most precious element in the Constitution of India as guaranteed, is secured to the people of this part of the State. 3. Facility for health services is concomitant with the avowed proclamation of the right to health as part of right to life as embodied in Article 21 of the Constitution. Use of the resources of the State for the material well-being of citizenry is one of the inbuilt constitutional values emanating out of the Directive Principles of the State Policy enumerated in Part-IV of the Constitution. The Sovereign, Socialist, Secular, Democratic, Republic called India is by itself a homogeneous existence of the great people of this land where they stand assured of dignity of the individual and equality before the laws. The seminal doctrine of equality is not merely a factor in adjudicating process but is also one to be maintained and ensured in relation to enjoyment of everything that has to be provided by a welfare State. 4. Bearing the aforesaid in mind, it has to be underscored with all the emphasis at our command that time has come to wrap-up every quack in the street, meaning thereby every person who is unqualified in terms of the laws to act as a service provider in the field of medicine or medication or other operations in connection with the health management. We therefore declare so and emphasize that aspect and would proceed further with this case to ensure that everything that is needed to reach at this goal is pushed through, with the support of judicial limb of the sovereign namely 'We, the People of India'. 5.
We therefore declare so and emphasize that aspect and would proceed further with this case to ensure that everything that is needed to reach at this goal is pushed through, with the support of judicial limb of the sovereign namely 'We, the People of India'. 5. The total number of quacks in the streets even after the combing and pruning operations by the executive is voluminous as is reflected by the chart which is Annexure-III along with the affidavit of the Director, Health Services. When humans act without authority and proper eligibility, they would be potentially dangerous instruments of injustice and violators of human rights. They are to be handled by the State with due vigor as warranted by the facts and circumstances, in accordance with the laws, to curb the menace of unlawful encroachment into the health management sector, which is a matter of prime importance in governance. People are entitled to be protected from the quacks and unauthorized persons in the realm of the health management. 6. People, by and large, are innocent and gullible, as regards the unlawful activities of the quacks and similar unauthorized persons. The citizens are required to be protected from the quacks who operate solely with their unlawful commercial interest in mind and are carrying out the afore-noted illegal activity of offering unauthorizedly, remedies for illness of humans, resulting in deprivation of legitimate expectation in relation to the right to health of the citizens of this part of the land, thereby breaching the precious fundamental right to life guaranteed under Article 21 of the Constitution of India. Hence, we caution that further action should be carried forward in relation to the protection of the people from quackery on a war footing so that there will be complete eradication of such unauthorized and unlawful activities by any person whomsoever. 7. We are assured by the Principal Secretary to the Government in the Department of Health and the Director of Health Services that needful will be done for immediate result in the light of what is stated above. The Health Department, the Social Welfare Department, the Panchayat & Rural Development-Department and the Tribal Welfare Department have necessarily to work hand-in-hand to demystify quackery.
The Health Department, the Social Welfare Department, the Panchayat & Rural Development-Department and the Tribal Welfare Department have necessarily to work hand-in-hand to demystify quackery. The Secretary to the Government in the Department of Health tells us that there are different programmes carried forward from time to time for intermittent training of Asha Workers, Gram Panchayat Maintains and service providers in the public sectors at the grass root level. 8. Dissemination of information relatable to public health and health support systems is of critical importance. The State has the duty to ensure that. There must be an effective process by which the citizens are made more receptive to the idea that the quacks are to be excluded from the life system of the people to protect the lives of the citizens as part of their legitimate entitlement to enjoy the fundamental right to life enshrined in Article 21 of the Constitution of India; which is a primary legal right and constitutional right, for the enjoyment of which legal awareness in that regard is essential. This can be best achieved by carrying forward a pro-active programme for dissemination of information, including legal awareness, as would be conducive to handle the situation in hand. 9. The Chhattisgarh State Legal Services Authority can spearhead appropriate programmes if the State authorities and requisite NGOs join hands and formulate an appropriate procedure whereby the different district legal service authorities, taluka legal services committees, the para-legal volunteers and NGOs can be involved in dissemination of information attendant to the right to life which is a matter that will amount to a legal literacy programme linked with a health promotion programme. The National Legal Services Authority has also certain Schemes in force. We therefore direct that the Secretaries to the Government of Chhattisgarh in the Department of Health, Department of Tribal Welfare, Department of Pancahayat & Rural Development and Department of Family Welfare will ascertain an appropriate time and date from the Member Secretary, CG State Legal Services Authority for a meeting with the Executive Chairman of the CG State Legal Services Authority and discuss to formulate suggestions which may come therein and thereafter such programme will be operated throughout the State in obedience to this judicial order and in terms of the instructions that may be issued by the Executive Chairman, SALSA.
This, we are sure, will help in dissemination of information which would be an admixture of those relating to legal rights and entitlement to right to life being carried to the people at the grass root level. The socio-economically challenged sectors and those who suffer from challenges of language and illiteracy have also to be appropriately instructed in the matter. Let such meeting be held at the earliest, preferably within a period of ten days from today. 10. With the aforesaid, we also direct that vigorous action shall be forthwith pursued by all the District Collectors concerned to ensure that the earlier directions of this Court are obeyed to the benchmarks required and Action Taken Reports are placed on record without fail within a period of two months from today. The Chief Secretary to the Government of Chhattisgarh shall be responsible for ensuring the correctness of such reports, which shall be placed before this Court with his approval." 5. It appears that the State Government officials proceeded to intervene with the unlawful activities of the unauthorised establishments, which according to them, were violating the provisions of the applicable laws. This led to closing down of some establishments. That led to the captioned bunch of Writ Petitions (Civil); hereinafter referred to as 'WPCs'. Noticing that the action taken or proposed by the officials, which are sought to be impeached in those writ petitions, were apparently, in view of the different orders issued by this Court in the PIL, those WPCs have been referred to the Division Bench, to be tagged along with the PIL. It is thus that the WPCs are linked with the PIL. 6. Heard the learned counsel for the Petitioner in the PIL, learned Additional Advocate General, learned counsel for the Chhattisgarh State Legal Services Authority, Bilaspur; for short 'SLSA', which was impleaded as per the order quoted in paragraph No.4 above, and the different learned Advocates appearing for the private Respondents in the PIL and the learned Advocates appearing for the Petitioners in the WPCs, which are linked for consideration. 7.
7. Following the order dated 23.03.2017, SLSA has placed materials on record, supported by affidavit of its Member Secretary, to the effect that in compliance of the above order, a meeting was held on 06.04.2017 under the Chairmanship of the Executive Chairman of SLSA and the officials concerned, from the respective departments of the Government of Chhattisgarh, participated in that meeting. It is further stated that pursuant to the formulae suggested by all the officers of the respective departments of the Government, regarding availability of Health Services within the State of Chhattisgarh and prevention of unauthorised and illegal medical practice in different cities, villages of the districts, minutes were recorded enumerating the different steps that will be taken by the Government departments through the Health and Family Welfare Department, the Tribal Welfare Department, the Doctors and also for provisions to ensure availability of generic drugs in the different hospitals of the State. Requisite aspects relevant to different streams of the recognized medical practice appear to have been considered. 8. The Member Secretary of SLSA has further informed that pursuant to the meeting dated 06.04.2017, the Directorate of Medical Services has informed regarding detailed sanctioned set-up of different hospitals at all levels. He further reports that even as per the setup sanctioned by the Government, all posts of that hospital have not been filled up. He points out the vacancy position with the help of institutional materials. The Member Secretary, SLSA has further stated that SLSA and District Legal Services Authority; for short 'DLSA', concerned regularly visit the State Mental Health Centre, Sendri, Bilaspur and had time and again required enhancement of facility at that centre. The Member Secretary, SLSA, however informs that inspite of repeated reminders, information sought by the SLSA regarding the details of the set-up in the medical college and hospital have not been furnished. SLSA and DLSA have taken up the awareness programmes regarding the unauthorised and illegal practices and their ill-effects. SLSA has also printed and made available pamphlets to DLSAs for distribution in this regard. He further stated that in the year 2016, 890 health camps were organized and in the year 2017, 410 health camps have been organised throughout the State. The Secretary, Health & Family Welfare Department was required by the SLSA to make available generic drugs in the Government Hospitals.
He further stated that in the year 2016, 890 health camps were organized and in the year 2017, 410 health camps have been organised throughout the State. The Secretary, Health & Family Welfare Department was required by the SLSA to make available generic drugs in the Government Hospitals. The Member Secretary, SLSA has also informed about the receipt of district-wise report regarding the identification of illegal medical institutions. A total number of 4233 illegal clinics/nursing homes, 265 illegal patholabs, 19 illegal X-ray/Sonography centres and 912 other illegal institutions have been identified, going by the report of the Member Secretary, SLSA. He further reports that SLSA has been informed that the Government is taking action against those institutions. 9. Before proceeding further, it is worthwhile to revert to the affidavit sworn to on 22.03.2017 by the Director, Health Services following the order dated 16.03.2017. It states, among other things, that the Chhattisgarh State Upcharyagriha Tatha Rogopchar Sambandhi Sthapanaye Anugyapan Adhiniyam, 2010; for short 'the Act' and the Chhattisgarh State Upcharyagriha Tatha Rogopchar Sambandhi Sthapanaye Anugyapan Niyam, 2013; for short 'the Rules' apply to regulate all activities governed by that Act and the Rules. Recalling the directions in the order in Writ Petition (PIL) No. 31 of 2012, it is stated in the said affidavit that Committees including the District Committees have been formed in all the districts, to take appropriate action in consonance with the provisions of the Act and the Rules, against the quacks as well as illegally operating medical clinics and laboratories. As already noted, Annexure-III to the affidavit of the Director of Health Services is testimony eloquent by itself, that, according to the State and its official, unauthorised activities and illegal institutions are being run. If that were so, such violation of the provisions of the Act and Rules have definitely to be curbed. 10. We have examined the facts of each of the WPCs which are instituted in the wake of actions; or apprehending actions; by the officials. In their gist, the plea in the WPCs get classified into three categories. Some of the Petitioners in those writ petitions contend that they are duly qualified to practice in terms of the certificates issued to them by the authorities, which according to them are competent to authorise medical and health care practices.
In their gist, the plea in the WPCs get classified into three categories. Some of the Petitioners in those writ petitions contend that they are duly qualified to practice in terms of the certificates issued to them by the authorities, which according to them are competent to authorise medical and health care practices. Going by the pleadings of some of those Petitioners, such certifications include the conferment of eligibility to practice 'elctro-homeopathy' and different other versions of medical and health care facilitations. There is also the plea that some of the Petitioners are trained 'para-medics'. Petitioner in WPC No. 1113 of 2017 pleads that she runs is a 'Blood Collection Centre' and that she is competent to run it. She has pleaded that she opened a blood collection centre and is providing facility of collection of blood by engaging trained staff. Another plea is that the clinics or establishments have been closed down without any prior notice. There is also the plea that the State authorities do not have the power to close down the clinics and such institutions run by those writ Petitioners. Some of them have contended that they have applied for registration under the Act and the Rules; some of them also resorting to e-filing; however that, those applications for registration are not being considered. The fact of the matter remains that none of the Petitioners in any of the WPCs has obtained registration for that person's clinical establishment under the Act, as enjoined by it and the Rules. None of them had earlier come to this Court and obtained orders on the plea of failure or refusal to consider any application for registration under the Act and the Rules. 11. The object of the Act is affirmed in its Preamble. That legislation is enacted to provide for licensing of Nursing Home and Clinical Establishment and for matters connected therewith to ensure standardization and thereby achieving improvement of health care services. The Act draws abundant synergistic support from the Constitution of India. It is founded in Article 21 and anchored in Part IV of the Constitution. It provides the requisite legislative insulation to protect those in need of health care by ensuring that activities of nursing homes and clinical establishments are regulated in terms of statutory regime of norms to ensure due regulation and control of that critically relevant sector.
It is founded in Article 21 and anchored in Part IV of the Constitution. It provides the requisite legislative insulation to protect those in need of health care by ensuring that activities of nursing homes and clinical establishments are regulated in terms of statutory regime of norms to ensure due regulation and control of that critically relevant sector. The Act lays down standards for centres of health care services and regulates their activities through legislative control and duly authorised executive supervision. It prescribes punishments for offences against that law. The legislative power of the State to make such legislation and the co-extensive executive powers are referable primarily to Entries 7, 64 and 65 of List II in the Seventh Schedule to the Constitution. Section 3 of the Act provides that any person, company, corporate body or association/partnership firm who intend to set up a Nursing Home or a Clinical Establishment as defined in that Act shall apply to the Supervisory Authority and that authority shall grant licence to a nursing home or a clinical establishment as the case may be, if it is satisfied that the eligibility norms for obtaining the licence are fulfilled by the applicant. Thus, licence is prescribed for Nursing Home or Clinical Establishment as defined in the Act and provision is made for application and grant of licence. The applicant, for licence, is required to furnish the details as prescribed. The proviso to that section enjoins, among other things, that the Supervisory Authority shall grant licence, if it is satisfied that, if the applicant fulfills the norms prescribed for grant of licence. The details to be furnished are prescribed in the Rules made in exercise of power under Section 18 of the Act. The other requisite details are also seen delineated in Section 6 of the Act. By virtue of Section 1(3) of the Act, the said statute came into force on 23.09.2010, the date of publication of that Act in the official gazette. In terms of the proviso to Section 3, all nursing homes or clinical establishments, which were already in existence on that day, shall apply to the Supervisory Authority, within 90 days from then. Section 6 of the Act provides for grant of licence or rejection of the application based on the examination of the application for licence.
In terms of the proviso to Section 3, all nursing homes or clinical establishments, which were already in existence on that day, shall apply to the Supervisory Authority, within 90 days from then. Section 6 of the Act provides for grant of licence or rejection of the application based on the examination of the application for licence. The grounds on which the application for licence shall be rejected are enumerated in the different clauses in Section 6 of that Act. They are thus the grounds of ineligibility for licence under the Act. Section 7 enumerates the conditions of licensing. Section 8 governs the renewal of licence. Section 9 provides for cancellation or suspension of licence on the grounds stated therein. Power of entry and inspection is conferred on the duly authorised officer by Section 11 of the Act. Whoever runs a Nursing Home or a Clinical Establishment without obtaining a licence shall be punishable with fine. Section 12 provides further penal provisions. The penalty by way of fine is confined to the first instance of conviction. Subsequent conviction carries penalty by way of imprisonment as well. Section 13 also contains certain penal provisions. Sections 15 and 14 regulate the prosecution on matters relating to jurisdiction and proceedings against juristic persons, respectively. All offences under the Act are cognizable in terms of Section 16 of that Act. Thus, running of a Nursing Home or a Clinical Establishment without obtaining a licence under the Act is by itself an offence. Hence, running a Nursing Home or a Clinical Establishment without a licence, in the State of Chhattisgarh, is forbidden by law. It is a transgression of law and is hence prohibited. Thus, the effect of Sections 6 and 7 of the Act is that no Nursing Home or a Clinical Establishment as defined in that Act can be set up or run without licence under Section 3 of the said Act. 12. We will now examine the term "Clinical Establishment" in the Act. "Clinical Establishment" is defined in Section 2(b) to mean a Medical Laboratory, a Physiotherapy Establishment or Clinic or a Hospital or any other establishment analogous to any of them, by whatever name called.
12. We will now examine the term "Clinical Establishment" in the Act. "Clinical Establishment" is defined in Section 2(b) to mean a Medical Laboratory, a Physiotherapy Establishment or Clinic or a Hospital or any other establishment analogous to any of them, by whatever name called. "Medical Laboratory" is defined in Section 2(f) to mean an establishment, manned by qualified pathologist and radiologist, where Bio-Medical tests such as hematology, biochemistry, serological tests, bacteriological, cytology, histology, genetic investigations or any other diagnostic tests are carried out. "Physiotherapy Establishment" is defined in Section 2(h) to mean an establishment where massaging, elector-therapy, hydro-therapy, medical gymnastics or any other similar processes are usually carried on, for the purpose of treatment of disease or of infirmity or for improvement, whether by modern medicine or Indian system of medicine. "Clinic" is defined in Section 2(c) to mean any premise having facilities for treatment of sick and used for their reception and not stay. "Hospital" is defined in Section 2(d) to mean any premise having facilities for treatment of sick and used for their reception or stay. In terms of Section 2(b) "Clinical Establishment" also includes any other establishment analogous to Medical Laboratory, Physiotherapy Establishment, Clinic or Hospital, by whatever name it is called. Therefore, a Medical Laboratory, a Physiotherapy Establishment or Clinic or a Hospital or any other establishment analogous to any of them, by whatever name called, is a Clinical Establishment for the purpose of the Act and the Rules. 13. "Nursing Home" is defined in Section 2(g) of the Act to mean a place where parties are treated as inpatients with facilities for admission as inpatients for treatment of illness without or with surgery or conduct of delivery and also includes other gynecological operations where women are received or accommodated for the purpose of sterilization, hysterectomy, or medical termination of pregnancy etc. with or without overnight inpatient facilities. Nursing Home would include any Inpatient Medical Clinic, Nursing Home, Maternity Home, Hospital, Old Age Homes and Day Care Centres (any intervention which would require observation and on-going care/monitoring). 14. The grant or rejection of application for licence depends on the different factors enumerated in Section 6 of the Act.
with or without overnight inpatient facilities. Nursing Home would include any Inpatient Medical Clinic, Nursing Home, Maternity Home, Hospital, Old Age Homes and Day Care Centres (any intervention which would require observation and on-going care/monitoring). 14. The grant or rejection of application for licence depends on the different factors enumerated in Section 6 of the Act. In terms of that Section, one of the grounds on which an application for grant of licence would be liable to be rejected is that, the applicant or any person employed by him at the Nursing Home or Clinical Establishment, is not a fit person, whether by reason of expertise, qualification or otherwise to carry on or to be employed at the Nursing Home or the Clinical Establishment of such a description as the Nursing Home or the Clinical Establishment named in the application. Therefore, the expertise and qualification of any person who is the applicant for licence or any person employed by him at the Nursing Home or the Clinical Establishment is a relevant consideration for grant of licence. 15. Rule 10 of the Rules prescribes the standards for every Clinical Establishment. The rigor of Sub-rules (1) to (3) of Rule 10 would show that the standards prescribed therein are mandatory. Sub-rule (4) of Rule 10 empowers the Supervisory Authority to grant further time for rectification of matters enumerated in Rule 10(4), insofar as they relate to existing Clinical Establishment. The Rule does not apply to Clinical Establishments set up after the Act and Rules came into force. That Rules also do not empower the Supervisory Authority to water down the prescribed standards. Rule 10(1) provides that every Clinical Establishment liable to obtain a licence under the Act must fulfill the standards prescribed in Schedule 1. As already noted above, Clinical Establishment includes, inter alia, a 'Clinic', which term is defined as a premise having facilities for treatment of sick and used for their reception without stay. The WPCs are filed by persons claiming to run Clinics, but have, admittedly, not obtained registration under the Act. Schedule 1 of the Rules enumerates the standards for Clinical Establishments. The standards prescribed for various types of Clinical Establishments are categorised in that Schedule. Category A in that Schedule lays down the standards for Clinics. We will refer to the relevant requirements among the standards for Clinics.
Schedule 1 of the Rules enumerates the standards for Clinical Establishments. The standards prescribed for various types of Clinical Establishments are categorised in that Schedule. Category A in that Schedule lays down the standards for Clinics. We will refer to the relevant requirements among the standards for Clinics. Minimum Infrastructure Requirement including Location and Surroundings, Building etc.; Space Requirements; Emergency First Aid; Entrance Zone; Outpatient Department; Human Resource; Support Services and Waste Disposal are enumerated delineating the required standards. Of immediate relevance is 'Human Resource' which is at Serial No. 5 under Category A in Schedule 1 of the Rules. It provides that Clinical Services shall be provided only by a Qualified Medical Practitioner as described in the Act. "Qualified Medical Practitioner" is defined in Section 2(i) of the Act to mean a Medical Practitioner registered in any State in India under any law for the time being in force for the registration of Medical Practitioners. Section 6(a) of the Act enjoins, inter alia, that the applicant or any person employed by him in the Clinical Establishment ought to be a fit person, by reason of, among other things, qualification. Section 6(a) of the Act read with Rule 10 and the Entry at Serial No. 5 in Section A of Schedule 1 would show that clinical services in a Clinic shall be provided only by a Qualified Medical Practitioner as defined in Section 2(i) of the Act. Therefore, the question whether a person providing clinical services in a Clinic is a Qualified Medical Practitioner in terms of Section 2(i) of the Act, is a ground on which grant or rejection of licence under Section 6 of the Act would depend. This would apply to all Clinical Establishments including Clinics. 16. As regards Nursing Homes, relevant provisions in the Schedule to the Rules taken along with the provisions of the Act definitely lead to the situation which is not different from what we have found, in terms of law, above. Same principles, as noted above, while considering the laws relating to Clinics, apply to Nursing Homes which are also covered by the provisions of the Act, though the conditions prescribed for the Nursing Homes are modulated for those health care institutions.
Same principles, as noted above, while considering the laws relating to Clinics, apply to Nursing Homes which are also covered by the provisions of the Act, though the conditions prescribed for the Nursing Homes are modulated for those health care institutions. Therefore, no Nursing Home as defined in Section 2(g) of the Act can be set up or run in the State of Chhattisgarh except with licence and in terms of the Act and the Rules. 17. Reverting to the question of Clinics, as already noted, none of the Petitioners in WPCs has a case that they have setup or are running Clinics with licence under the Act. None of those Petitioners has a case that the premise utilized by them as Clinic is not a premise with facilities for treatment of sick and is used for reception of sick and for their treatment, though not for stay. All their Establishments therefore fall within the definition of Clinic and therefore within the term 'Clinical Establishment' as defined in the Act. Hence, none of the Petitioners in the WPCs is entitled to run any Clinic as pleaded by them without licence from the Supervisory Authority. Any application for grant of such licence by any of them is not eligible to be considered for grant of licence without reference to all matters that would arise for consideration in terms of the Act and Rules; in particular, Section 6 of the Act. This includes the question whether the applicant or any person employed by him in the Clinical Establishment, which includes a Clinic, is a Qualified Medical Practitioner as defined in Section 2(i) of the Act. The question whether any qualification and registration held out by any such applicant entitles that person to claim to be a Qualified Medical Practitioner under the Act would depend upon the question whether that person is a Medical Practitioner registered in any State in India under any law for the time being in force for registration of the Medical Practitioners. This is an issue which is also to be considered on case to case basis by the Supervisory Authority and such question would arise only when there is an application for licence in terms of the Act and Rules. The eligibility to practice different schools of medicine, health care etc.
This is an issue which is also to be considered on case to case basis by the Supervisory Authority and such question would arise only when there is an application for licence in terms of the Act and Rules. The eligibility to practice different schools of medicine, health care etc. on the strength of degrees and diplomas are held out by the Petitioners in WPCs except WPC No. 1113 of 2017. Many of those Petitioners have pleaded that they are eligible to practice different schools of medicines and other therapeutic activities on the strength of such diplomas or certifications by different institutions. The eligibility of each of such person to hold out such qualification, would be a matter in issue when that person's application for licence under the Act is being considered by the Supervisory Authority. Bereft of any decision by the Supervisory Authority on any application for licence, such issues do not arise for decision at this stage, though we are not oblivious of the plea of some of the Petitioners in the WPCs as to non-consideration of applications for licence; which we will deal with as we proceed. 18. As already noted, none of the Petitioners in the WPCs hold licence under the Act and the Rules. That being so, there is no question of their claiming eligibility to pre-decisional hearing before closing down such illegal and unauthorised Clinical Establishments. When the law forbids a particular activity by treating such activity as liable to be visited with penalty prescribed by law, it definitely carries with it the eligibility of the State to enforce prevention and deactivation of such Establishments when they are ex facie in conflict with the law relating to licence. This is all part of the police powers of the State and is the more important when the subject matter of the licence is a premise to provide services relating to health care, intricately connected with right to life of every recipient of each such service. 19.
This is all part of the police powers of the State and is the more important when the subject matter of the licence is a premise to provide services relating to health care, intricately connected with right to life of every recipient of each such service. 19. Reverting to the provisions of the Act and the Rules, it can be seen that if the Supervisory Authority refuses, cancels, or suspends a licence, the person aggrieved would have a right of appeal to the State Government, but there is no such right of appeal or right of hearing that can be read in favour of those who have not obtained licence, but have yet started the activity of Clinical Establishments including Clinics without licence. There is no provision in the Act which could be characterized as enabling 'deemed licence' in the form of a default clause operating in favour of the applicant for licence. It would also be an extremely disastrous situation to perceive that there could be any such provision except at the peril of the public at large which will form the recipient group of medical and health services through those who run Clinical Establishments and Nursing Homes. 20. We cannot, however, ignore the plea of some of the Petitioners that certain applications made for grant of licence are yet to be considered. It is noted in paragraph 10 above that some of the Petitioners in the WPCs have pleaded that though they had applied for registration under the Act and the Rules, those applications are not being considered. As noted in the immediately preceding paragraph, there is no provision in the Act which confers a 'deemed licence' status to the applicants, even by efflux of time. Having regard to the nature of the Act and the field it relates to, the Supervisory Authority has the public and statutory duty to decide on the applications for grant of licence expeditiously since grant or rejection of the application would depend upon various factors which are statutorily enumerated and also because one who intends to set up a Nursing Home or a Clinical Establishment is forbidden by law from doing so without obtaining the licence. The Act does not prescribe any time frame within which the Supervisory Authority has to decide on the application for licence. However, there are certain statutory indicators in this regard.
The Act does not prescribe any time frame within which the Supervisory Authority has to decide on the application for licence. However, there are certain statutory indicators in this regard. Rule 11 of the Rules prescribes the procedure for issue of licence. Sub-rule (2) of Rule 11 lays down the procedure for licensing of new Establishments. That would necessarily apply to those Establishments which were not set up before the coming into force of the Rules. Clause (c) of Sub-rule (2) of Rule 11 provides that the application form must indicate that the date of commencement of the Clinical Establishment which shall not be less than 30 days from the date of the application. Clause (d) of that Sub-rule requires that the Supervisory Authority shall indicate a tentative date for inspection in its acknowledgement letter/receipt. These two provisions in Rule 11(2) are clear indicators of the legislative intendment that a decision on the application for licence is to be issued within a period of 30 days, except in exceptional circumstances. Reasonable situational requirements including the application, inspection, any rectification as may be suggested, any repeated inspection etc; all taken together; should necessarily put an outer limit to be within a period of two months from the date of the application. 21. We now revert to WPC No. 1113 of 2017. The Petitioner therein pleads that she has opened a 'blood collection centre' and is since then providing facility of collection of blood, for which purpose she has engaged trained staff. 'Medical Laboratory' is defined in Section 2(f) of the Act to mean an establishment manned by qualified pathologist and radiologist where Bio-Medical tests such as hematology, biochemistry, serological tests, bacteriological, cytology, histology genetic investigations or any other diagnostic tests are carried out. 'Medical Laboratory' falls under the term 'Clinical Establishment' as defined in Section 2(b) of the Act. Therefore, a 'Medical Laboratory' cannot be run without the licence under the Act and the Rules. The claim of the Petitioner in WPC No. 1113 of 2017 is that she runs a blood collection centre and is competent to run it. The definition of 'Medical Laboratory' has already been noticed. That establishment is one where different activities mentioned in Section 2(f) of the Act could be carried out. This includes the conducting of bio-medical tests, such as hematology, biochemistry, serological tests etc., which relate to blood.
The definition of 'Medical Laboratory' has already been noticed. That establishment is one where different activities mentioned in Section 2(f) of the Act could be carried out. This includes the conducting of bio-medical tests, such as hematology, biochemistry, serological tests etc., which relate to blood. For this, blood has to be collected from the person who is being subjected to the test. As already noted, Rule 10 of the Rules enjoins that every Clinical Establishment liable to obtain licence under the Act must fulfill the standards prescribed in Schedule 1 of the Rules. Category B in Schedule 1 of the Rules deals with 'Medical Laboratory'. Entry at serial No. 1 in that category classifies Pathological Laboratory into 'Small Lab' and 'Large Lab'. Serial No. 1.6 enumerates the minimum qualification to run a 'Small Laboratory' as well as a 'Large Laboratory'. The minimum qualification to run a Small Laboratory is an MBBS degree. The minimum qualification to run a Large Laboratory shall be MD/DCP in Pathology. 'Collection Centre' is provided at Serial No. 1.8. It is part of the different entries falling under the main entry. Pathological Laboratory is at serial No. 1 in Section B of Schedule 1. The provision at Serial No. 1.8 in Section B is, inter alia, that the 'Collection Centre' should have facilities for collection and storage of samples and proper transportation of samples from centre to medical lab. The transportation should be done carefully with proper maintenance of cold chain. These requirements of a collection centre are intricately connected to the activity of Pathological Laboratory which is a Medical Laboratory as defined in the Act. Therefore, the Collection Centres cannot but be extended limbs of Pathological Laboratories, to facilitate collection of samples and their storage and to transit. This obviously has to be under the control and responsibility of Pathological Laboratory and, in particular, the control of the Supervisory Doctor. This is fundamentally so for many reasons, including the need to fix responsibility in case of deficit, neglect or negligence in such establishments which deal with the critical sector of health care management.
This obviously has to be under the control and responsibility of Pathological Laboratory and, in particular, the control of the Supervisory Doctor. This is fundamentally so for many reasons, including the need to fix responsibility in case of deficit, neglect or negligence in such establishments which deal with the critical sector of health care management. The provision in Entry at Serial No. 1.8 in Section B of Schedule 1 of the Rules that the Collection Centre can be run by a DMLT or a trained nurse is only indicative of the fact that such a person can man the Collection Centre on behalf of Pathological Laboratory which has to be in control of the Supervising Doctor and other duly authorised persons in control of that institution as enjoined by the Act and Rules. Samples which are collected in the Collection Centre has to be stored and properly transported from the centre to the Medical Laboratory carefully, with proper maintenance of cold chain. It is thereupon that the collected sample could be subjected to the clinical procedures to be carried out in the Pathological Laboratory. Therefore, the Collection Centre ought to be the Collection Centre of the Pathological Laboratory. There cannot be independent Collection Centres, which carry out the activity of collecting samples and carrying it to the Medical Laboratory for clinical procedure of examination. We say this in the context of the plea of the Petitioner that she had opened a 'blood collection centre' and has since then been providing the facility of collection of blood, and for that she has engaged trained staff. The mere possession of the certificate of DMLT held out by her as Annexure P/1 is insufficient to run a Collection Centre in the manner pleaded by her. This we say without expressing on the acceptability or otherwise of her qualification for other purposes as authorised by the Act. Her plea that she is entitled to continue with the Blood Collection Centre which she had opened is unsustainable. That writ petition therefore fails. 22.
This we say without expressing on the acceptability or otherwise of her qualification for other purposes as authorised by the Act. Her plea that she is entitled to continue with the Blood Collection Centre which she had opened is unsustainable. That writ petition therefore fails. 22. In the result, (i) Writ Petition (PIL) No. 19 of 2017 is ordered making absolute all the directions issued earlier in that case, including that contained in order dated 23.03.2017 quoted above; and directing the State Government of Chhattisgarh and all authorities under it as well as all the duly authorised authorities and officers under the Chhattisgarh State Upcharyagriha Tatha Rogopchar Sambandhi Sthapanaye Anugyapan Adhiniyam, 2010 and the Rules made there under, to ensure that no Clinical Establishment or Nursing Home as defined under that Act is established or run in the State of Chhattisgarh without licence in terms of the provisions of that Act and those Rules. (ii) Writ Petition (C) Nos.
(ii) Writ Petition (C) Nos. 1078 of 2017, 752 of 2017, 1005 of 2017, 970 of 2017, 920 of 2017, 978 of 2017, 982 of 2017, 954 of 2017, 974 of 2017, 967 of 2017, 941 of 2017, 953 of 2017, 977 of 2017, 969 of 2017, 968 of 2017, 942 of 2017, 981 of 2017, 975 of 2017, 976 of 2017, 918 of 2017, 972 of 2017, 956 of 2017, 1075 of 2017, 1094 of 2017, 980 of 2017, 1153 of 2017, 1154 of 2017, 1117 of 2017, 1108 of 2017, 1162 of 2017, 1161 of 2017, 989 of 2017, 979 of 2017, 1101 of 2017, 985 of 2017, 1042 of 2017, 1046 of 2017, 1048 of 2017, 1043 of 2017, 1081 of 2017, 1064 of 2017, 1071 of 2017, 987 of 2017, 1068 of 2017, 1130 of 2017, 1126 of 2017, 1099 of 2017, 1080 of 2017, 1079 of 2017, 1069 of 2017, 1061 of 2017, 1104 of 2017, 1067 of 2017, 1129 of 2017, 1109 of 2017, 1076 of 2017, 1066 of 2017, 1072 of 2017, 992 of 2017, 990 of 2017, 1127 of 2017, 1002 of 2017, 1110 of 2017, 1125 of 2017, 1121 of 2017, 1093 of 2017, 1102 of 2017, 1112 of 2017, 1095 of 2017, 1151 of 2017, 1122 of 2017, 1100 of 2017, 1105 of 2017, 1115 of 2017, 1103 of 2017, 1007 of 2017, 1031 of 2017, 1114 of 2017, 1107 of 2017, 1123 of 2017, 1098 of 2017, 1118 of 2017, 1111 of 2017, 1124 of 2017, 1032 of 2017, 1119 of 2017, 1038 of 2017, 1152 of 2017, 1175 of 2017, 1165 of 2017, 1160 of 2017, 1168 of 2017, 1206 of 2017, 1158 of 2017, 1133 of 2017, 1169 of 2017, 1257 of 2017, 1355 of 2017, 1399 of 2017, 1567 of 2017, 1555 of 2017, 1620 of 2017, 1854 of 2017, 1741 of 2017, 1969 of 2017, 2177 of 2017 and Writ Petition (C) No. 2176 of 2017 are ordered holding that the Petitioners therein are not eligible to run their Clinics/Clinical Establishments without obtaining licence under the Chhattisgarh State Upcharyagriha Tatha Rogopchar Sambandhi Sthapanaye Anugyapan Adhiniyam, 2010 and directing that the application for grant of licence made by any of those Petitioners, received by the Supervisory Authority concerned and pending, shall be taken up and acted upon in accordance with law; by passing orders on such application within an outer limit of two months from the date of receipt of a copy of this order.
(iii) Writ Petition (C) No. 1113 of 2017 is dismissed. (iv) IA No. 3 of 2017 in WP(PIL) No. 19 of 2017, application for exemption from depositing security amount, is allowed and the Petitioner is exempted from depositing the security amount.