M. R. Manoj Kumar v. State of Kerala and 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 MONDAY, THE 06TH DAY OF JULY 2020 / 15TH ASHADHA, 1942 ## WP(C). No. 9744 OF 2020(S) ## PETITIONER: M. R. MANOJ KUMAR, AGED 45, S/O. S. RAVEENDRAN NAIR, MOOLAMVILA VEEDU, JAGATHY, THYCAUD P.O, THIRUVANANTHAPURAM. BY ADVS. SRI.B.S.SWATHI KUMAR SMT.ANITHA RAVINDRAN SRI.HARISANKAR N UNNI SMT.P.S.BHAGYA SURABHI ## RESPONDENTS: - 1 THE STATE OF KERALA REPRESENTED BY CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAURAM, PIN-695001. - 2 THE STATE POLICE CHIEF, POLICE HEAD QUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM-695014 - 3 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF HEALTH AND FAMILY WELFARE, NIRMAN BHAVAN, NEW DELHI-110011. R1 & R2 BY SRI. SURIN GEORGE IPE, SENIOR GOVT. PLEADER R3 BY ADV. SHRI P. VIJAYAKUMAR, ASG OF INDIA R3 BY SRI. SUVIN R. MENON, CGC FOR ASG THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P. (C) No. 9744 OF 2020 -2- ## **“C.R”** ## **JUDGMENT** Dated this the 6[th] day of July, 2020 ## **S. Manikumar, CJ** The petitioner, claiming to be a known socio-political worker engaged in the health sector, has filed this public interest writ petition, seeking the following reliefs: A) Declare that 1[st] respondent is legally and statutorily bound to declare special pay/risk allowance and Insurance Scheme to all policemen involved in the fight against Coronavirus forthwith; B) Issue a writ of mandamus or any other appropriate writ, order or direction, commanding and compelling the 1[st] respondent to formulate an Insurance Package Scheme for Policemen and to grant Special pay, risk allowance etc., to them and also to implement Ext.P3 in respect of the persons mentioned therein forthwith. C) Issue a writ of mandamus or any other appropriate writ, order or direction commanding or compelling the 3[rd] respondent to include policemen in the Pradhan Mantri Garib Kalyan Insurance Scheme for health workers fighting for COVID -19; D) Issue a writ of mandamus or any other appropriate writ, order or direction commanding or compelling the first respondent to implement the Pradhan Mantri Garib Kalyan Insurance Scheme for health workers fighting for COVID-19 as directed in Exhibit-P3. ## 2. The case of the petitioner is as follows: Due to the outbreak of pandemic COVID-19, lockdown has been declared by the Central as well as State Governments. The grievance voiced by petitioner is that when the country is under the threat of Coronavirus, the entire police force is working to prevent the spread of W.P. (C) No. 9744 OF 2020 -3- COVID-19, without any personal protection. States like Assam, Delhi, Tamil Nadu and Utter Pradesh have declared insurance packages, special allowance, for risk coverage and even daily allowance of Rs.250/per policeman, but the State of Kerala has not extended any benefits to the policemen. It is also submitted that Government of India has declared the 'Prime Minister's Garib Kalyan Yojana, 2020' on 26[th] March, 2020, by which, an insurance package has been framed for the health workers to the tune of Rs.50 lakhs and the entire subscription for the scheme is borne by the Central Government. It is further submitted that even though the State Police Chief has submitted a proposal to the State of Kerala, represented by the Chief Secretary, Secretariat, Thiruvananthapuram, 1[st] respondent herein, requesting to sanction a scheme for Rs.25 crores to the policemen, the same has been rejected without any reason. Hence, this writ petition. 3. Today, when the matter came up for hearing, on instructions, Sri. Surin George Ipe, learned Senior Government Pleader, submitted that the Insurance Package Scheme announced by Union of India for health workers cannot be extended to policemen. 4. Inviting our attention to the letter dated 30.03.2020 issued by the Secretary, Government of India, Department of Health and Family Welfare, Ministry of Health and Family Welfare addressed to all Chief W.P. (C) No. 9744 OF 2020 -4- Secretaries/Administrators of UTs and with copy to (i) Principal Secretary to Hon'ble Prime Minister, South Block, New Delhi, (ii) Cabinet Secretary, Cabinet Secretariat, New Delhi and (iii) Secretaries of all Ministers/Departments of Government of India, and the order dated 28.03.2020 issued by the Ministry of Health and Family Welfare, Department of Health and Family Welfare, New Delhi, Sri. Suvin R. Menon, learned counsel for the Central Government, submitted that 'Pradhan Mantri Garib Kalyan Package', an Insurance Scheme for health workers fighting for COVID-19, has been approved by the competent authority. According to him, it is extended to the public healthcare providers, including the community health workers, who may have to be in direct contact and care of COVID -19 patients and who may be at risk of being impacted by the same. He has also submitted that the policemen have not been included in the said insurance scheme. The aforesaid orders read thus: “D.O. No.Z.21020/16/2020-PH Dated: 30[th] March, 2020 PREETI SUDAN, IAS Secretary ## Dear Colleague, Subject: **'Pradhan Mantri Garib Kalyan Package: Insurance Scheme for Health Workers Fighting COVID-19** ' - reg. W.P. (C) No. 9744 OF 2020 -5- To give further momentum to India's efforts to fight COVID19 and to assure our doctors and healthcare workers that their well-being is foremost for the Government, Central Government announced the “ **'Pradhan Mantri Garib Kalyan Package: Insurance Scheme for Health Workers Fighting COVID-19”** to provide an insurance cover of Rs.50 lakh for ninety (90) days to a total of around 22.12 lakh public healthcare providers, including community health workers who may have to be in direct contact and care of COVID-19 patients and who may be at risk of being impacted by this. Also, on account of the unprecedented situation, private hospital staff/retired/volunteer/local urban bodies/ contract/ daily wage/ ad-hoc/ outsourced staff requisitioned by States/Central hospitals/autonomous hospitals of Central/ States/ UTs, AIIMS & INIs/ hospitals of Central Ministries can also be drafted for COVID-19 related responsibilities. These cases will also be covered under the said insurance scheme. I am enclosing a copy of this Ministry's Order dated 28.03.2020. 2. In this context, I am happy to inform you that the Scheme has come into effect from today i.e., March 30, 2020 and insurance cover, provided by New India Assurance company Limited, will be available for 90 days. 3. I request you to kindly give this wide publicity to instill a sense of security, appreciation and inclusion among all our healthcare providers and workers engaged in a tough battle against COVID-19. W.P. (C) No. 9744 OF 2020 -6- Encl: as above Yours sincerely Sd/(Preeti Sudan) All Chief Secretaries/Administrators of UTs. Copy for information to: (i) Principal Secretary to Hon'ble Prime Minister, Sough Block, New Delhi. (ii) Cabinet Secretary, Cabinet Secretariat, New Delhi. (iii) Secretaries of all Ministries/Departments of Government of India. Sd/(Preeti Sudan) Ministry of Health and Family Welfare Department of Health and Family Welfare Nirman Bhawan, New Delhi Dated. 28.03.2020 ## **ORDER** As per the announcement made under the Pradhan Mantri Garib Kalyan Package, the competent authority has approved the launch of 'Pradhan Mantri Garib Kalyan Package: Insurance Scheme for Health Workers Fighting COVID-19' with the following conditions: - i. It will be a comprehensive personal accident cover of Rs. 50 lakh for ninety (90) days to a total of around 22.12 lakh public healthcare providers, including community health workers, who may have to be in direct contact and care of COVID-19 patients and who may be at risk of being impacted by this. It will also include accidental loss of life on account of contracting COVID-19; - ii. On account of the unprecedented situation, private hospital staff/retired/volunteer/local urban bodies/contract/daily W.P. (C) No. 9744 OF 2020 -7- wage/ad-hoc/outsourced staff requisitioned by States/ Central hospitals/autonomous hospitals of Central/ States/ UTs, AIIMS & INIs/ hospitals of Central Ministries can also be drafted for COVID-19 related responsibilities. These cases will also be covered subject to numbers indicated by MoHFW; - iii.The scheme will be funded through the NDRF Budget operated by the Health Ministry for this purpose; - iv. Actual payment by the Insurance Company to the beneficiary will be under certification of the authorised Central/ State Government Officials; and - v. The insurance provided under this scheme would be over and above any other insurance cover being availed by the beneficiary. 2. This Order is issued with the concurrence of Integrated Finance Division vide their CD no.4593. **==> picture [74 x 27] intentionally omitted <==** Joint Secretary to the Government of India” 5. Learned Senior Government Pleader as well as the Central Government Counsel have contended that a writ of mandamus cannot be issued against the Government to take a policy decision in the manner as suggested by the petitioner and that the reliefs sought for by him are only misconceived. 6. We have heard the learned counsel on both sides, apart from perusing the materials on records. 7. A reading of the afore-quoted letter and the order makes it clear that there were 22.12 lakhs public health providers, including the W.P. (C) No. 9744 OF 2020 -8- community health workers, who may have to be in direct contact and care of COVID -19 patients and who may be at risk of being impacted by the same. The order further states that private hospital staff/retired/ volunteer/local urban bodies/contract/daily wage/ad-hoc/outsourced staff requisitioned by States/Central hospitals/autonomous hospitals of Central/States/UTs, AIIMS & INIs/hospitals of Central Ministries were also engaged in the fight against COVID-19. 8. We are of the view that as rightly contended by the learned Senior Government Pleader as well as the Central Government Counsel, it is for the Government to frame any insurance scheme or to take a policy decision regarding Insurance Package Scheme to certain class of persons and Court cannot direct the Government to frame a policy in a particular manner. 9. Petitioner has prayed that the State of Kerala, represented by Chief Secretary, is legally and statutorily bound to declare special pay/risk allowance and Insurance Scheme to all policemen involved in the fight against Coronavirus forthwith. No statutory provision has been brought to the notice of this Court, which mandates the 1[st] respondent to frame a policy or issue any order, as suggested by the petitioner. At this juncture, it is worthwhile to consider a few decisions as to when a writ of mandamus can be issued. W.P. (C) No. 9744 OF 2020 -9- (i) In **State of Kerala v. A. Lakshmi Kutty** reported in (1986) 4 SCC 632, the Hon'ble Supreme Court held that, a Writ of Mandamus is not a writ of course or a writ of right but is, as a rule, discretionary. There must be a judicially enforceable right for the enforcement of which a mandamus will lie. The legal right to enforce the performance of a duty must be in the applicant himself. In general, therefore, the Court will only enforce the performance of statutory duties by public bodies on application of a person who can show that he has himself a legal right to insist on such performance. The existence of a right is the foundation of the jurisdiction of a Court to issue a writ of Mandamus. (ii) In **Comptroller and Auditor General of India v. K. S. Jegannathan** , reported in AIR 1987 SC 537 = 1986 (2) SCC 679, a Three-Judge Bench of the Hon'ble Apex Court referred to Halsbury's Laws of England 4[th] Edition, Vol. I, paragraph 89, about the efficacy of mandamus: "89. Nature of Mandamus.-- .... is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy, for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient, beneficial and effectual." (iii) In **Raisa Begum v. State of U.P.** , reported in 1995 All.L.J. 534, the Allahabad High Court has held that certain conditions have to be satisfied before a writ of mandamus is issued. The petitioner W.P. (C) No. 9744 OF 2020 -10- for a writ of mandamus must show that he has a legal right to compel the respondent to do or abstain from doing something. There must be in the petitioner a right to compel the performance of some duty cast on the respondents. The duty sought to be enforced must have three qualities. It must be a duty of public nature created by the provisions of the Constitution or of a statute or some rule of common law. (iv) Writ of mandamus cannot be issued merely because, a person is praying for. One must establish the right first and then he must seek for the prayer to enforce the said right. If there is failure of duty by the authorities or inaction, one can approach the Court for a mandamus. The said position is well settled in a series of decisions. (a) In **State of U.P. and Ors. v. Harish Chandra and** Ors., reported in (1996) 9 SCC 309, at paragraph 10, the Hon'ble Apex Court held as follows: “10. ...Under the Constitution a mandamus can be issued by the court when the applicant establishes that he has a legal right to the performance of legal duty by the party against whom the mandamus is sought and the said right was subsisting on the date of the petition....” (b) In **Union of India v. S.B. Vohra** reported in (2004) 2 SCC 150, the Hon'ble Apex Court considered the said issue and held that,- 'for issuing a writ of mandamus in favour of a person, the person claiming, must establish his legal right in himself. Then only a writ of mandamus could be issued against a person, who has a legal duty to perform, but has failed and/or neglected to do so.” W.P. (C) No. 9744 OF 2020 -11- (c) In **Oriental Bank of Commerce v. Sunder Lal Jain** reported in (2008) 2 SCC 280, at paragraphs 11 and 12, the Hon'ble Apex Court held as follows:- “11. The principles on which a writ of mandamus can be issued have been stated as under in The Law of Extraordinary Legal Remedies by F.G. Ferris and F.G. Ferris, Jr.: “Note 187.- Mandamus, at common law, is a highly prerogative writ, usually issuing out of the highest court of general jurisdiction, in the name of the sovereignty, directed to any natural person, corporation or inferior court within the jurisdiction, requiring them to do some particular thing therein specified, and which appertains to their office or duty. Generally speaking, it may be said that mandamus is a summary writ, issuing from the proper court, commanding the official or board to which it is addressed to perform some specific legal duty to which the party applying for the writ is entitled of legal right to have performed. Note 192.- Mandamus is, subject to the exercise of a sound judicial discretion, the appropriate remedy to enforce a plain, positive, specific and ministerial duty presently existing and imposed by law upon officers and others who refuse or neglect to perform such duty, when there is no other adequate and specific legal remedy and without which there would be a failure of justice. The chief function of the writ is to compel the performance of public duties prescribed by statute, and to keep subordinate and inferior bodies and tribunals exercising public functions within their jurisdictions. It is not necessary, however, that the duty be imposed by statute; mandamus lies as well for the enforcement of a common law duty. Note 196.- Mandamus is not a writ of right. Its issuance unquestionably lies in the sound judicial discretion of the court, subject always to the well-settled W.P. (C) No. 9744 OF 2020 -12- principles which have been established by the courts. An action in mandamus is not governed by the principles of ordinary litigation where the matters alleged on one side and not denied on the other are taken as true, and judgment pronounced thereon as of course. While mandamus is classed as a legal remedy, its issuance is largely controlled by equitable principles. Before granting the writ the court may, and should, look to the larger public interest which may be concerned-an interest which private litigants are apt to overlook when striving for private ends. The court should act in view of all the existing facts, and with due regard to the consequences which will result. It is in every case a discretion dependent upon all the surrounding facts and circumstances. Note 206.--......The correct rule is that mandamus will not lie where the duty is clearly discretionary and the party upon whom the duty rests has exercised his discretion reasonably and within his jurisdiction, that is, upon facts sufficient to support his action.” 12. These very principles have been adopted in our country. In **Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh and others** , AIR 1977 SC 2149, after referring to the earlier decisions in Lekhraj Satramdas Lalvani v. Deputy Custodian-cumManaging Officer, (AIR 1966 SC 334); Dr. Rai Shivendra Bahadur v. The Governing Body of the Nalanda College, (AIR 1962 SC 1210) and Dr. Umakant Saran v. State of Bihar, (AIR 1973 SC 964), this Court observed as follows in paragraph 15 of the reports : "15. .......... There is abundant authority in favour of the proposition that a writ of mandamus can be granted only in a case where there is a statutory duty imposed upon the officer concerned and there is a W.P. (C) No. 9744 OF 2020 -13- failure on the part of the officer to discharge the statutory obligation. The chief function of a writ is to compel performance of public duties prescribed by statute and to keep subordinate Tribunals and officers exercising public functions within the limit of their jurisdiction. It follows, therefore, that in order that mandamus may issue to compel the authorities to do something, it must be shown that there is a statute which imposes a legal duty and the aggrieved party has a legal right under the statute to enforce its performance. .... In the instant case, it has not been shown by respondent No. 1 that there is any statute or rule having the force of law which casts a duty on respondents 2 to 4 which they failed to perform. All that is sought to be enforced is an obligation flowing from a contract which, as already indicated, is also not binding and enforceable. Accordingly, we are clearly of the opinion that respondent No. 1 was not entitled to apply for grant of a writ of mandamus under Article 226 of the Constitution and the High Court was not competent to issue the same." (v) When a Writ of Mandamus can be issued, has been summarised in Corpus Juris Secundum, as follows: “Mandamus may issue to compel the person or official in whom a discretionary duty is lodged to proceed to exercise such discretion, but unless there is peremptory statutory direction that the duty shall be performed mandamus will not lie to control or review the exercise of the discretion of any board, tribunal or officer, when the act complained of is either judicial or quasijudicial unless it clearly appears that there has been an abuse of discretion on the part of such Court, board, tribunal or officer, and in accordance with this rule mandamus may not be invoked to compel the matter of discretion to be exercised in any particular way. This principle applies with full force and effect, however, clearly it may be made to appear what the decision ought to be, or even though its conclusion be disputable or, however, erroneous the conclusion reached may be, and although W.P. (C) No. 9744 OF 2020 -14- there may be no other method of review or correction provided by law. The discretion must be exercised according to the established rule where the action complained has been arbitrary or capricious, or based on personal, selfish or fraudulent motives, or on false information, or on total lack of authority to act, or where it amounts to an evasion of positive duty, or there has been a refusal to consider pertinent evidence, hear the parties where so required, or to entertain any proper question concerning the exercise of the discretion, or where the exercise of the discretion is in a manner entirely futile and known by the officer to be so and there are other methods which it adopted, would be effective." (emphasis supplied) In the light of the above discussion and decisions, the prayers sought for by the petitioner cannot be granted. Writ petition fails and accordingly, dismissed. No costs. Sd/- **S. MANIKUMAR, CHIEF JUSTICE** Sd/- **SHAJI P. CHALY, JUDGE** _krj & Rv_ W.P. (C) No. 9744 OF 2020 -15- ## **APPENDIX** ## _**PETITIONER'S/S EXHIBITS:**_ **EXHIBIT P1 COPY OF THE G.O(MS)NO.10/2020/DMD DATED 19.03.2020. EXHIBIT P2 COPY OF THE ORDER NO GO(MS) NO.49/2020/GAD DATED 23.3.2020. EXHIBIT P3 TRUE COPY OF THE COMMUNICATION NO.DO.NO.F NO.Z18016/1/2020/PMGKP-NHM II DATED 3/4/2020 FROM THE MISSION DIRECTOR, NATIONAL HEALTH MISSION, MINISTRY OF HEALTH AND FAMILY WELFARE TO THE 1ST RESPONDENT.** ## _**RESPONDENTS' EXHIBITS:- NIL**_ _//TRUE COPY//_ _P.A. TO C.J._