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2020 DIGILAW 684 (JK)

Unique Diagnostic Laboratory v. Union of India

2020-12-16

JAVED IQBAL WANI

body2020
ORDER : Javed Iqbal Wani, J. 1. In this petition, the petitioners herein implore for the following reliefs:- "Writ of Mandamus : Directing and commanding the official respondents to grant the petitioners permanent registration for running diagnostic laboratories. Writ of Mandamus : Directing and commanding the official respondents to grant the petitioners the certificate of provisional registration." 2. The facts those emerge from the petition on the basis of which the aforesaid reliefs are being sought by the petitioners are that they have been running Diagnostic Laboratories in Bhaderwah after complying with all the formalities required for running a diagnostic laboratory and that the petitioners applied for the first time for registration of their respective laboratories which registration was granted to them by respondents No. 3 for an initial period of one year and extended thereafter for a further period of three years and that the said registration, however, was not renewed by the respondent No. 3, despite fulfillment of all requisites by the petitioners. 3. According to the petitioners, they were asked by respondents 2 and 3 to apply afresh for the new registration as the old registration cannot be renewed, whereupon the petitioners state to have applied for fresh registration of their diagnostic laboratories before respondent No. 2, after fulfilling all requisites and duly acknowledged by the office of respondent No. 2 vide order dated 12.04.2019, whereby respondent No. 3- Chief Medical Officer, Doda was directed to conduct inspection of the laboratories which inspection was delayed on one pretest to the other and in the process fresh registration was not granted. 4. According to the petitioners their diagnostic laboratories were sealed by the Tehsildar Executive Magistrate 1st Class, Bhadarwah vide order dated 15.06.2020, on the instructions of respondent No. 3 and thereafter the petitioners approached the respondents for processing their pending cases for registration which requests, however, were not entertained by respondent No. 3, whereupon the petitioners approached respondent No. 2 by filing a representation dated 01.07.2020, seeking inspection of their laboratories for the approval of fresh registration and till such time the petitioners be allowed to continue to operate their laboratories. It is being stated in the petition by the petitioners that after filing of the said representation before respondent No. 3, petitioners were informed that new rules have come into being and that the petitioners, as such, are required to apply afresh for registration, whereupon the petitioners in terms of Jammu and Kashmir Clinical Establishments (Registration and Regulation) Rules, 2020 (for brevity 'the Clinical Establishment Rules 2020') applied afresh for registration of their laboratories and that in terms of Section 24, the petitioners were required to send through registered post an application in prescribed format for grant of registration, which was done by the petitioners, besides having applied for provisional registration in terms of Section 14 of the Clinical Establishments (Registration and Regulation) Act, 2010 (for brevity 'the Clinical Establishments Act, 2010'). 5. According to the petitioners, the respondent No. 3 for the purposes of grant of provisional registration under Section 14 (supra) did not accord registration in favour of the petitioners and no steps thereof have been taken by the authorities to do the needful. 6. The short grievance of the petitioners in the instant writ petition thus, is that despite having applied for registration (both provisional and permanent) of their diagnostic laboratories, respondents have failed to accord consideration to their respective cases compelling them to maintain the instant petition. 7. Per contra, the respondents in their objections controvert and resist the contentions raised by the learned counsel for the petitioners and while opposing the writ petition of the petitioners, contend that on coming into being of The Jammu and Kashmir Reorganization Act, 2019, new registration rules for the diagnostic laboratories have come into existence, wherein District Magistrate is the Chairperson of the Committee in place of Director, Health Services and District Health Officer/Chief Medical Officer is the Convener and as per the said rule read with S.O No. 167 dated 19.05.2020, Chairman has to nominate members of the committee for the purpose. 8. According to the respondents no inspection has been conducted due to non-constitution of the Inspection Committee and that under law without registration no diagnostic laboratory is permitted to operate. 9. 8. According to the respondents no inspection has been conducted due to non-constitution of the Inspection Committee and that under law without registration no diagnostic laboratory is permitted to operate. 9. In the objections, the respondents admit to have received the applications of the petitioners for registration of their laboratories, but would contend that on account of outbreak of COVID-19, the committee for registration of the clinical establishments has not been constituted by the Chairperson till date. It is being stated in the objections that after constitution of the committee process of registration shall be initiated. 10. Heard learned counsel for the parties. 11. Learned appearing counsel for the parties while making their respective submissions reiterated their respective contentions raised in their respective pleadings. 12. Learned counsel for the petitioners while making his submission referred to Section 10 of the Clinical Establishment Act, 2010, which provides for authority for registration where under the State Government by way of a Notification has to set-up an authority to be called the District Registering Authority for each district for registration of clinical establishments, with District Collector as Chairperson, District Health Officer as Convenor and three members with such qualifications and on such terms and conditions as may be prescribed by the Central Government. 13. According to learned counsel for the petitioners in terms of S.O 167 (supra) dated 19.05.2020, Government has established an authority being District Registering Authority for each District of Union Territory of Jammu and Kashmir for registration of clinical establishments in the respective districts with District Magistrate as Chairperson, District Health Officer/Chief Medical Officer as Convener and three other members. 14. According to the learned counsel for the petitioners, the petitioners have filed the applications for registration as per SG-1 Form, seeking provisional registration of Clinical Establishments and that the authority without undertaking any enquiry prior to the grant of provisional registration is mandated to accord provisional registration within a period of 10 days from the date of receipt of such application, which according to learned counsel for the petitioners, respondents have failed to accord. 15. Mr. Siddiqui, learned senior AAG appearing for the respondents did not dispute and controvert the said rule position, however, reiterates that the cases of the petitioners for grant of registration permanent/provisional got delayed on account of out-break of COVTD-19. 16. 15. Mr. Siddiqui, learned senior AAG appearing for the respondents did not dispute and controvert the said rule position, however, reiterates that the cases of the petitioners for grant of registration permanent/provisional got delayed on account of out-break of COVTD-19. 16. Learned counsel for the respondents would fairly concede that the cases of the petitioners would be considered as early as possible strictly in accordance with the provisions of the Clinical Establishment Act of 2010 and Rules, 2020. 17. Having regard to the nature of controversy involved in the instant writ petition, provisions of the Clinical Establishment Act of 2010 and Rules 2020, referred to hereinabove and the admission/submissions of the appearing counsel for the respondents, this writ petition can be disposed of at this stage without formally admitting the same for hearing in the following terms:- (i) The respondents shall accord effective consideration for registration (permanent/provisional) of the Clinical Establishments of the petitioners' pending before the respondents within a period of two weeks from the date of passing of this order without any fail strictly in accordance with the provisions of and Clinical Establishments (Registration and Regulation) Act, 2010 and The Jammu and Kashmir Clinical Establishments (Registration and Regulation) Rules, 2020. 18. Writ petition is, accordingly, disposed of along with connected CM(s). 19. It is made clear that nothing hereinabove shall be construed to be expression of any opinion of the merits of the case.