C. P. Padmanabhan v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR** ## **&** **THE HONOURABLE MR. JUSTICE SHAJI P.CHALY** **FRIDAY, THE 28TH DAY OF FEBRUARY 2020 / 9TH PHALGUNA, 1941** ## **WP(C).No.10214 OF 2013(S)** ## **PETITIONER/S:** **C.P.PADMANABHAN, AGED 65 YEARS, SECRETARY, JANASAMPARKA SAMITHI, (REGD.NO.ER/431/2011) ALAPPUZHA DISTRICT COMMITTEE, S/O. C. PAPPU, CHALIL, THRICHATTUKULAM.P.O., CHERTHALA, ALAPPUZHA DISTRICT.** **BY ADVS. SMT.AYSHA YOUSEFF SMT.ASHIFA YOUSEFF SMT.FASHIYA YOUSEFF SMT.MOLLY JACOB SMT.RABIA BEEGAM T.K.** ## **RESPONDENT/S:** - **1 STATE OF KERALA, REPRESENTED BY CHIEF SECRETARY, GOVERNMENT OF KERALA, TRIVANDRUM-695 001.** - **2 THE SECRETARY, HEALTH DEPARTMENT, KERALA, TRIVANDRUM-695 001.** - **3 THE DIRECTOR OF HEALTH SERVICES, TRIVANDRUM-695 001.** - **4 THE DISTRICT MEDICAL OFFICER, ALAPPUZHA-688 007.** - **5 THE SECRETARY, BLOCK PANCHAYAT, THYCATTUSSERY, REPRESENTED BY ITS SECRETARY, PANAVALLY.P.O., PIN-688 526.** **R1 TO R4 BY SRI.ARAVINDAKUMAR BABU.T.K.SENIOR GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 28.02.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C).10214/2013 2 ## **JUDGMENT** **Dated this the 28[th] day of February 2020** ## **S.Manikumar, CJ.** This writ petition is filed by the petitioner seeking the following reliefs: “i) issue a writ of mandamus or any other appropriate writ, order or direction directing the respondents 1 to 5 to immediately take steps to provide sufficient infrastructure, medical officers, staffs, medicines and other facilities to the Medical Centers under the 5[th] respondent so as to enable the public within the area to avail better, sufficient, proper and timely medical care, attention, treatment and other services round the clock as outpatients and inpatients and also for treatment for emergency cases including accident, delivery and other cardio, neuro cases etc. ii) to issue a writ of mandamus or other appropriate writ, order or direction directing the respondents 1 to 4 to allot sufficient funds for providing all the facilities for the health centers under the 5[th] respondent.” W.P.(C).10214/2013 3 2. Short facts relating to this writ petition are as follows: Petitioner is the Secretary of Alappuzha District Committee of the Janasamparka Samithi which is a society registered under the Travancore Cochin Literary, Scientific and Charitable Societies Registration Act, 1955. Petitioner has contended that it is an organization interested in espousing the cause of Public at large and functioning with avowed objects _inter alia_ to seek redressal of the problems of the marginal section of people in the community. Now the organization has approached this court pointing out inaction from the responsible official authorities in providing sufficient and adequate treatment facilities who are living in Thycattussery Block Panchayat area. In the said area there were four institutions viz. Public Health Centers at Arookutty, Panavally, Pallippuram and Perumbalam. They are the only Public Health Institutions within the whole Block and most of the people are in below poverty line and unable to seek any health care from private health centers or hospitals. But, even though the Primary Health Centers W.P.(C).10214/2013 4 are upgraded to Community Health Centers, the same are being run without having sufficient staff strength to meet the requirements. The local people are facing severe difficulties and put to hardship. Even though various complaints were sent to the authorities, no action is taken by them to rectify the deficiencies. Hence, this writ petition is filed. 3. Grounds raised by the petitioner in this writ petition are as follows: **“A.** The Block Panchayat has been constituted under Section 8 of the Kerala Panchayat Raj Act, 1994. Under Section 172 of the Act, the powers, duties and functions of Block Panchayat has been provided. Accordingly, it shall be the duty of the Panchayat to meet the requirements of the Block Panchayat area in respect of the matters enumerated in the Fourth Schedule. The Sl.No.X of Sector-wise function is public health & sanitation-running of Community Health Centres and Taluk Hospitals with all systems of medicines within the Block Panchayat. But the 5[th] respondent is not taking any effective steps to satisfy the statutory requirements. So, the Public living within their limits are put to irreparable injury, hardships, health hazards and difficulties. **B.** Under Section 172 (3) of the Panchayat Raj Act, the Government & District Panchayat shall W.P.(C).10214/2013 5 subject to availability of the resources provide necessary financial, technical and other assistances to the Block Panchayat to enable them to discharge their functions. But, the respondents 1 to 4 are not taking effective steps for satisfying their statutory obligations in this regard. **C.** As per Exhibit P1 reply under Right to Information Act dated 20.7.2007 vide No.C.375/2006 of the 5[th] respondent Secretary, Thycattussery Block Panchayat the Arookutty and Thycattussery hospitals are working 24 hours. But, it is learned that the information furnished by the secretary is false. There is no facility for entertaining, examining, admitting, treating and nursing patients at night in these centres. Accident victims and pregnant ladies are not able to undergo any treatment there. In spite of various representations from the people of the locality and various organizations including political parties effective steps are not taken for providing facilities for service to the patients during night. Patients in need of emergency care and attention including pregnant ladies who seek service for their delivery etc. are finding it very difficult to have purposeful service from this hospital. There is no regular doctor and other employees including other nurses for night duty. Inexperienced and untrained persons who are employed for other duties are said to be engaged at times even during day time for W.P.(C).10214/2013 6 attending the patients. **D.** Any negligence or laches on the part of the respondents for providing sufficient healthcare and attention by making available necessary infrastructure, staffs and medicines to cater the needs of the public is absolutely in violation of the provisions of the Kerala Panchayat Raj Act and the very intention of the Constitutional 73[rd] Amendment, 1992, whereby the part IX of the Constitution relating to the Panchayat has been incorporated therein. **E.** The respondents have bounden duty cast upon them to look after the medical care and attention of the public especially the poor and downtrodden people and it is part of the social security and welfare measures. So, the inaction on their part is absolutely unjustifiable and violative of the constitutional rights of the people. **F.** The Constitution of India has provided for the right to health, as enshrined among directive principles of State Policy under Articles 42 and 47. Those articles act as guidelines that the State must pursue towards achieving certain standards of living for its citizens'. It also shows clearly the understanding of the State that nutrition, conditions of work and maternity benefit as being integral to health. **G.** The Apex court and the High Courts interpreted the right to health in many ways, through public interest litigation as well as W.P.(C).10214/2013 7 litigation arising out of claims that individuals have made on the State, with respect to health services which has rendered substantial case laws in our country. **H.** The Fundamental Right to Life, as stated in Article 21 of the Indian Constitution, guarantees life and personal liberty. The Supreme Court has widely interpreted this fundamental right and has included in Article 21 the right to live with dignity and all the necessities and basic amenities of life such as adequate nutrition, clothing etc. It has also held that act which affects the dignity of an individual will also violate the right to life (SimMullin Vs Union Territory of Delhi). In Bandhua Mukti Morcha Vs Union of India, the Supreme Court has held that the Right to life includes the right to live with dignity. **I.** The recognition that the right to health is essential for human existence and is, therefore, an integral part of the Right to Life, is laid down clearly in Consumer Education and Resource Centre Vs Union of India (AIR 1995 SC 636). It also held in the same judgment that humane working conditions and health services and medical care are an essential part of Article 21. **J.** In State of Punjab and Others v. Mohinder Singh (AIR 1997 SC 1225) it is held that now it is settled law that right to health is integral to right to life and that the W.P.(C).10214/2013 8 Government has a constitutional obligation to provide health facilities. Apart from recognizing the fundamental right to health as an integral part of the Right to Life, there is sufficient case law both from the Supreme and High Courts that lays down the obligation of the State to provide medical health services. This has been explicitly held with regard to the provision of emergency medical treatment in Parmanand Katara Vs Union of India (AIR 1989 SC 2039) that "Every doctor whether at a government hospital or otherwise has the professional obligation to extend his services with due expertise for protecting life". **K.** The issue of adequacy of medical health services was also addressed in Paschim Baga Khet Mazoor Samiti Vs State of West Bengal (AIR 1996 SC 242) wherein the question mooted before the court was whether the nonavailability of services in the government health centres amount to a violation of Article 21. It was held that Article 21 imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The government hospitals run by the State and the medical officers employed therein are duty-bound to extend medical assistance for preserving human life. Failure on the part of a government hospital to provide timely medical treatment to a person W.P.(C).10214/2013 9 in need of such treatment results in violation of his right to life guaranteed under Article 21. Therefore, the failure of a government run health centre to provide timely treatment, is violative of a person's right to life. Further, the Court ordered that Primary health care centres be equipped to deal with medical emergencies. It has also been held in this judgement that the lack of financial resources cannot be a reason for the State to shy away from its constitutional obligation. **L.** In Mahendra Pratap Singh v. State of Orissa, a case pertaining to the failure of the government in opening a primary health care centre in a village, the court had held "In a country like ours, it may not be possible to have sophisticated hospitals but definitely villagers within their limitations can aspire to have a Primary Health Centre. The government is required to assist people to get treatment and lead a healthy life. Healthy society is a collective gain and no Government should make any effort to smother it. Primary concern should be the primary health centre and technical fetters cannot be introduced as subterfuges to cause hindrances in the establishment of health centre." It also stated that, "great achievements and accomplishments in life are possible if one is permitted to lead an acceptably healthy life". Thereby, there is an implication that the enforcing of the right to life is a duty of the state and that this duty covers the W.P.(C).10214/2013 10 providing of right to primary health care. This would then imply that the right to life includes the right to primary health care. **M.** In fact, the State is entrusted with the responsibility in matters of health, to ensure efficient functioning of all centres relating to health care.” 4. Though by inviting attention of this Court to the difference in the two statements filed on behalf of the 4[th] respondent, the first on 10.04.2013 and the latter dated 23.01.2020, Mrs.Molly Jacob,learned counsel for the Public Interest Litigant submitted that posts mentioned in the tabular column in Annexure-2 in Annexure R4(a), as per the Indian Public Health Standards, have not been created and provided to Pallippuram Family Health Centre, and what is stated in statement dated 23.01.2020 varies, in so far as the posts in Community Health Centre, Pallippuram is concerned. 5. Per contra Mr.Aravind Kumar Babu, learned Government Pleader submitted that in Community Health Centres and Family Health Centres, Government have intended to provide only basic health care facilities. They are not speciality hospitals like Taluk Head Quarters Hospitals wherein special care services are W.P.(C).10214/2013 11 provided. There are speciality hospitals at Taluk Head Quarters. In the above said circumstances, grievance of the writ petitioner that speciality treatment should be provided in every Community Health Centres and Family Health Centres, cannot be accepted. If the facility is not available, there is no point in creating a post in a Community Health Centres, or Family Health Centres as the case may be. We are satisfied with the steps taken by the Government and accept the statement dated 23.01.2020. Accordingly, this writ petition is closed. ## **Sd/-** **S.MANIKUMAR CHIEF JUSTICE** DG **Sd/SHAJI P.CHALY JUDGE** W.P.(C).10214/2013 12 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 EXT.P1 PHOTOCOPY OF THE REPLY RECEIVED FROM THE PUBLIC INFRMATION OFFICEDR OF THE 5TH RESPONDENT PANCHAYAT IN 20-12007 ABOUT THE STAFF ETC. IN PRIMARY HEALTH CENTRE, AROOKUTTY.** - **EXHIBIT P2 EXT.P1A PHOTOCOPY OF THE TRUE EENGLISH TRANSLATION OF EXT.P1.** - **EXHIBIT P3 EXT.P2 PHOTOCOPY OF THE GOVERNMENT ORDER DATED 18-6-2007.** - **EXHIBIT P4 EXT.P3 PHOTOCOPY OF THE REPLY FURNISHED BY THE MEDICAL OFFICER IN CHARGE OF THE COMMUNICTY HEALTH CENTRE, AROOKUTTY DATED 2-8-2010.** - **EXHIBIT P5 EXT.P3A PHOTOCOPY OF THE ENGILISH TRNSLATION OF EXT. P3.** - **EXHIBIT P6 EXT.P4 PHOTOCOPY OF THE REPRESENTATION DATED 1-8-12 SUBMITTED BY THE PETITIONER TO THE RESPONDENTS 1 TO 4** - **EXHIBIT P7 EXT.P5 PHOTOCOPY OF THE PETITION SUBMITTED BY THE PETITIONER ON 25-2-13 TO THE LEGISLATIVE COMMITTEE FOR SENIOR CITIZENS, WELFARE COMMITTEE.** - **EXHIBIT P8 EXT.P6 PHOTOCOPY OF THE INFORMATION FURNISHED BY THE CHC THYYCATTUSSERY ON 23-11-12** - **EXHIBIT P9 EXT.P6A PHOTOCOPY OF THE ENGLISH TRANSLATION OF EXT. P6** - **EXHIBIT P10 EXT.P7 PHOTOCOPY OF THE INFORMATION DATED 21-11-12** - **EXHIBIT P11 EXT.P7A PHOTOCOPY OF THE ENGILISH TRANLSATION OF EXT. P7.**