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2022 DIGILAW 84 (RAJ)

Suo Motu v. State of Rajasthan

2022-01-11

BIRENDRA KUMAR, MANINDRA MOHAN SHRIVASTAVA

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JUDGMENT : 1. This PIL petition was initially filed by one Dr. Surendra Kumar Upadhyay in the year 2015 raising an issue of public importance relating to operation of pathological labs in the State of Rajasthan. The petitioner sought to invoke jurisdiction of this Court seeking issuance of various directions as below: “It is, therefore, most respectfully prayed that this Hon'ble Court may very graciously be pleased to accept and allow this P.I.L. (Writ Petition) and by an appropriate writ order or direction: (i) The Respondents be directed to close down various Pathological Laboratories being run by unqualified persons including Lab Technicians in the State of Rajasthan. (ii) The Respondents be directed to ensure that no Pathology Laboratory is run by any unqualified person or Institute having no recognized Pathologist registered with the Medical Council. (iii) The Respondents be directed to enforce the provisions of The Clinical Establishment (Registration and Regulation) Act 2010 with the qualification that Pathological Laboratories should be run, maintained and established by a person who is qualified in M.D. in Pathology or Diploma holder in Clinical Pathology. (iv) Respondents be directed to ensure that franchise centre in the State of Rajasthan of any laboratory or hospital situated outside Rajasthan should also be manned by qualified Pathologists. (v) The Respondents may be directed that it shall ensure by appropriate law or regulations that all those hospitals, Nursing Homes, clinics who are having facility of in house pathological laboratories must be manned by a qualified pathologist who should give the final report. (vi) The respondents be directed to appoint a post of qualified pathologist in all Government Hospitals, Satellite and District Level Hospitals, Community Health Center and Primary Health Center where pathological test are conducted.” 2. During pendency of the petition, the original writ petitioner died. This Court, taking note of the importance of the issue raised in this petition, directed the petition to continue as suo motu writ petition. 3. On 25.04.2016, an order was passed by this Court raising concern that the rules under The Clinical Establishments (Registration and Regulation) Act, 2010 (hereinafter referred to as ‘the Act of 2010’) have not been framed. Thereafter, another detailed order was passed on 04.08.2016, raising concern that there is mushroom growth in establishment of pathology centres without any registration as required under the provisions of the Act of 2010. Thereafter, another detailed order was passed on 04.08.2016, raising concern that there is mushroom growth in establishment of pathology centres without any registration as required under the provisions of the Act of 2010. This Court was informed that there was no effective control of the State Government and the rules framed by the State Government cannot be of any significance unless Central Government has framed the rules under Section 52 of the Act of 2010. 4. On 17.10.2016, learned Additional Solicitor General informed the Court that the rules have already been framed by Union of India. 5. Thereafter, on 13.04.2018, again a detailed order was passed by this Court taking note of directions issued and observations made from time to time. Expressing its concern, this Court expressed hope that the Principal Secretary, Medical and Health Department will look into the matter both at the level of State and Centre and report the matter to the Court. The development with regard to framing of draft rules with amendment was also noted by this Court by subsequent orders. 6. In an another order dated 30.05.2018, taking note of deficiency that under the caption, “Basic” no minimum educational qualification is prescribed, time was granted to the counsel appearing for Union of India to seek instructions as to why the minimum qualifications were not prescribed for basic composite laboratories. 7. On 14.09.2018, order passed by the Hon'ble Supreme Court in the case of North Gujarat Unit of Association of Self Employed Owners (Paramedical) of Private Pathology Laboratories of Gujarat vs. North Gujarat Pathologists Association and Others (Petition for Special Leave to Appeal (C) No. 28529/2010, on 12.12.2017) was also brought to the notice of the Court that only a registered medical practitioner with a post graduate qualification in pathology shall sign all the laboratory reports. 8. On 14.11.2018, during the course of arguments, this Court further noticed that the State has not constituted State Council for clinical establishments under the purview of Section 8, nor had notified the rules as required by Section 54 of the Act of 2010 in respect of the matters which do not fall within the purview of Section 52 of the Act of 2010. The State counsel was granted time to do the needful. On 05.03.2019, the State informed that not only rules have been framed but the State Council has also been constituted. The State counsel was granted time to do the needful. On 05.03.2019, the State informed that not only rules have been framed but the State Council has also been constituted. The development with regard to amendment prescribing minimum qualifications for basic laboratories was informed by Union of India to this Court on 08.04.2019. On 06.11.2019, this Court granted further time of three months to Government of India to finalize and publish the notification. 9. Today, when the matter came up for hearing before us, learned Additional Solicitor General, referring to Notification dated 14.02.2020 filed along with an affidavit, informed the Court by submitting that by appropriate amendment in the rules as aforesaid, minimum qualifications have also been prescribed for the authorised persons, who can sign the pathological reports. 10. Learned Amicus Curiae, who has been assisting this Court since beginning, would submit that though so far rules have been framed by the Central Government, amended from time to time, Committee has been constituted by the State Government, rules have also been framed by the State Government, however, the qualifications, which have been prescribed under the amendment of 2020, which allow even a Non-MBBS as qualified person, is not valid and such person should not be permitted and only qualified MBBS practitioner alone should be permitted to sign the pathology reports. For this purpose, he refers to order passed by the Hon'ble Supreme Court on 12.12.2017, reference of which has been made by this Court in order dated 14.11.2018. Further submission is that even though rules have been framed, committees have been constituted, even then there are many labs in the State, which are running without proper registration and not manned by qualified persons in terms of the rules framed by the Central Government and State Government in exercise of powers under the Act of 2010, which needs to be addressed by the State. 11. 11. Having heard learned counsel for the parties, taking into consideration the issues which were raised in the writ petition originally filed in the year 2015 and that after filing of the writ petition, various rules have been framed/amended from time to time and that now the Central Government by amending the Rules vide Notification dated 14.02.2020 has also prescribed the qualifications for the human resources, who are to operate the clinical establishments and that the State has also framed the rules, constituted the Committees, we are not inclined to proceed further in this PIL petition, except to direct the State to undertake the exercise of reviewing the present situation in the State and find out whether any clinical establishments are being run contrary to the provisions of the Act of 2010 and the rules framed by the Central Government and the State Government from time to time. The complaints, if any pending with the State Government, shall be dealt with promptly. 12. As far as qualification part is concerned, we find that unless the rules framed by the Central Government and the State Government are challenged, no further consideration can be made on that aspect. We leave that issue open to be examined when occasion arises in case any petition is filed challenging the rules framed by the Central Government or State Government, as the case may be. 13. An intervention application has been filed by one Dr. Rohit Jain. However, in view of the fact that we are finally disposing off this PIL, there is no need for us to allow intervention at this stage. Leaving it open for the proposed intervenor to raise any issue other than the one raised in this petition and appreciating the efforts made and assistance provided by learned Amicus Curiae, we close this petition by disposing off the same.