Dr Kaushal Kant Mishra v. Govt of NCT of Delhi & Ors.

SECRETARY (H&FW)”

2. The submission of Mr. Thawani – learned counsel for the petitioner, firstly, is that the right to life & personal liberty guaranteed under Article 21 of the Constitution of India includes the right to receive medical treatment. In this regard, he places reliance upon Association of Medical Superspecialty Aspirants and Residents & Others vs. Union of India & Others, [(2019) 8 SCC 607]; and Bharat Sanchar Nigam Limited vs. Telephone Cables Limited [(2010) 5 SCC 213].

3. Mr. Thawani submits that the DDMA issued the first impugned order dated 02.05.2020 – whereby the DDMA sought to permit creation of exclusive facilities for medical treatment of officers/ officials of Government of NCT of Delhi, autonomous bodies, corporations and local bodies who contract Covid-19 while performing their duties. He submits that creation of exclusive facilities for such officers/ officials would fall foul of Article 14 of the Constitution of India, and also impinge on the right to life & personal liberty of other citizens of Delhi looking for treatment of Covid-19 in hospitals in the NCT of Delhi, since they would be deprived of receiving treatment, as the limited resources of the State are sought to be reserved for treatment of officers/ officials of Government of NCT of Delhi, autonomous bodies, corporations and local bodies. He further submits that, in contrast, the earlier order dated 14.04.2021 issued by the Principal Secretary (Health & FW), GNCTD, which creates other facilities for attachment with hospitals, did not provide for any exclusive reservation for any class of persons.

4. Mr. Thawani submits that the impugned orders, by stipulating that a special class of persons shall be treated by Rajiv Gandhi Super Specialty Hospital and Deen Dayal Upadhyay Hospital in the attached hotels, divert critical health resources of the community away from the common citizens and in favour of powerful members of the Government, which ex-facie offends the right to health reserved under Article 21 of the Constitution.

5. He further submits that such exclusive reservation, leads to lock-in of critical resources, such as, oxygen and medicines which are, therefore, not made available to the common man, who are desperately looking for hospital beds and medical resources.

6. Lastly Mr. Thawani submits that the subsequent impugned orders issued in pursuance of the impugned order dated 02.05.2020, have all been issued without authority of law, in as much, as, they have not been issued by the Nodal Officer Sh. Nikhil Kumar, CEO, Delhi Jal Board who has been appointed as the State Welfare Nodal Officer but by other authorities – as would be evident from reading of the said orders. It is, therefore, submitted that the impugned orders – founded upon the order dated 02.05.2020, have been issued without any authority of law, and on that ground, they are liable to be quashed.

7. Mr. Thawani has sought to place reliance on the case, Indian School, Jodhpur v. State of Rajasthan [2021 SCC Online SC 359] and in particular paragraphs 112 and 119 thereof, which read as follows:

8. He places reliance on the aforesaid decision in support of his submissions that the Nodal Officer Sh. Nikhil Kumar, CEO (Delhi Jal Board) not having issued the orders founded upon the first impugned order dated 02.05.2020, they have been issued incompetently.

9. We have considered the submissions of Mr. Thawani.

10. In our view, the State is obliged to provide medical facilities to all the citizens, which includes those citizens who are running the wheels of the administration. During the height of the Pandemic, there was even greater need of governance, since the uncontrolled fire of the Pandemic was raging at its height. It required government officers and officials, and those serving with other local bodies and autonomous bodies to work in the field, even at odd hours, at great risk to their own lives. During the period of the lockdown, while the common citizenry were holed up in their homes, it is the Government officers and officials, and those serving with autonomous bodies, corporations and local bodies, who were out on the streets to manage the situation. If such officers/ officials were to fall sick, and were not to receive treatment for COVID-19, not only would they have to suffer but the entire citizenry of Delhi would have suffered. The wheels of administration in the NCT of Delhi would have come to a grinding halt. Without even this much of assurance that they would receive treatment, in case, they contracted COVID-19 disease in the discharge of their duties, such officers and officials would not have been able to discharge their duties in the field without fear, and with the attention and focus with which they were required to do so.

11. In our view, such officers/officials constituted a different class on account of the nature of their duties and responsibilities, which they were required to perform during the height of the Pandemic. Such officers/ officials, who were required/ bound to attend to their duties by stepping out of the comfort and security of their homes, certainly could not have been equated with those who had the option to remain inbound, and not step out to discharge their duties and obligations.

12. The submission of Mr. Thawani that the resources of the State were tied down and locked-in, is a submission which does not take into account the ground reality, as it existed, at the height of the second wave of the Pandemic that was experienced in the NCT of Delhi. There was such huge shortage of medical facilities-such as Oxygenated Beds, ICU Beds, Medicines, Medical Doctors and Paramedic staff, that there was no question of any of the facilities remaining underutilized. The submission of the petitioner that the resources of the State, on account of exclusive reservation, remained underutilized has no factual basis, and none has been brought on record.

13. So far as the submission of Mr. Thawani - that the orders impugned in this petition, founded upon the impugned order dated 02.05.2020 were issued without authority of law, is concerned, we find that the petitioner has not specifically raised the said issue in the writ petition. Mr. Satyakam submits that this ground should have been pleaded with clarity, for him to deal with the same elaborately.

14. In this regard, he has also placed his reliance on the judgment of the Madhya Pradesh High Court on MP Bus Operator Association vs. State of MP [2021 SCC Online MP 1477] decided on 09.08.2021 wherein, in similar circumstances, the Madhya Pradesh High Court did not entertain the similar plea raised by the petitioner in that case. He specifically refers to para 21, of which relevant extract reads as follows:-

15. Mr. Satyakam has drawn our attention to the provisions of the Disaster Management Act, 2005. Under the Scheme of the Act, it is the Statutory Authorities mentioned therein, who are entrusted with the task of enforcing the objects of the Act.

16. The Respondent has drawn our attention to the definition of “State Government” contained in Section 2(s), which means “the Department of Government of the State having administrative control of disaster management and includes Administrator of the Union Territory appointed by the President under Article 239 of the Constitution”.

17. Mr. Satyakam submits that the concerned department of the Government of NCT of Delhi, which has administrative control over Public Health, Hospitals and dispensaries, is the Health and Family Welfare Department as per the Allocation of the Business Rules which have also been placed on record. These rules were notified vide notification No. F.57/1/92-S.I./Vol.III dated 01.12.1993.

18. He has also placed on record the order dated 03.05.2020, issued in pursuance of the first impugned order dated 02.05.2020 by the State Nodal Welfare Officer Sh. Nikhil Kumar, CEO (Delhi Jal Board), wherein he makes reference to the order dated 02.05.2020 issued by the Chairperson, State Executive Committee, GNCTD appointing him as the State Nodal Welfare Officer u/s 22 for achieving the stated mandate and to provide all necessary help/assistance to COVID-19 positive officers/officials of the Government of NCT of Delhi, Autonomous Bodies, Corporations and Local Bodies. In the light of paras 6(a) to 6(g) of the Order dated 02.05.2020 he suggested the following for urgent consideration and action:i) To provide psychological counselling, moral support and experience sharing with infected officer/officials and their family members, it is requested that a panel of trained psychological counsellors/psychologists may kindly be prepared and conveyed for offering need-based services to the patients/relatives, as per the communication/request made through the Staff Welfare Cell. The order for constitution of Staff Welfare Cell is also enclosed herewith(Annexure-2) ii) Necessary action to identify and earmark two dedicated hospitals in Delhi and one exclusive testing laboratory (which are covered under DGEHS) for testing and treatment/ hospitalization of the COVID-19 infected/suspected Delhi Govt. officers/officials and their family members on cashless basis may kindly by undertaken on priority, so that the list of such Hospitals and laboratories is circulated to all HODs of Departments/ Autonomous Bodies/ Corporations/ Local Bodies of GNCT of Delhi can be done as per the directives of DDMA. iii) Sh. S.M. Ali, IAS, Special Secretary (Health) has been co-opted as a member of the SWC to assist the undersigned in the discharge of the assigned responsibilities as State Welfare Nodal Officer. It is requested that a Medical Officer, fully conversant with COVID-19 may be designated for day-to-day coordination and facilitation in ensuring necessary help/assistance to COVID-19 affected officers/officials. (emphasis supplied)

19. Mr. Satyakam has also drawn our attention to Section 20 of Delhi Disaster Management Act which talks of the State Executive Committee. The State Executive Committee consists of the Chief Secretary to the State Government, who shall be Chairperson, ex-officio; and four Secretaries to the Government of the State, of such department as the State Government may think fit, ex-officio.

20. The Chairperson of the State Executive Committee is empowered to exercise such powers and perform such functions as may be prescribed by the State Government, and such other powers and functions as may be delegated to him by the State Authority. Section 22 enumerates the functions of the State Executive Committee which, primarily, is responsible for implementing the National Plan and State Plan, and to act as a Coordinating Monitoring Body for management of disaster in the State.

21. Mr. Satyakam has also drawn our attention to the powers and functions of the State Executive Committee in the event of threatening disaster situation - with which the State was, and continues to deal, due to the prevalence of COVID-19 pandemic. It states that for the purpose of assisting and protecting the community affected by disaster, or providing relief to such community, or preventing or combating disruption, or dealing with the effects of any threatening disaster situation, the State Executive Committee may inter alia:- (e) give direction to the concerned Department of the Government of the State, any District Authority or other authority, within the local limits of the State to take such measure or steps for rescue, evacuation or providing immediate relief saving lives or property, as may be necessary in its opinion; (f) require any department of the Government of the State or any other body or authority or person in charge of any relevant resources to make available the resources for the purposes of emergency response, rescue and relief;

22. Mr. Satyakam submits that in the light of the aforesaid statutory scheme, the submissions of Mr. Thawani that the impugned orders issued in pursuance of the primary impugned order dated 02.05.2020 are without authority of law, has no merit.

23. He further submits that these orders were issued in the year 2020 during the end of the 1st COVID-19 wave, whereas the petition has been preferred only after the 2nd COVID-19 wave has ended. Therefore, the orders impugned by the petitioner have worked themselves out with the passage of time.

24. We may turn to the orders impugned by the petitioner founded upon the first impugned order dated 02.05.2020 issued by the DDMA. The order dated 08.05.2020 has been issued by the Health Minister, whereby, Government hospital namely, Rajiv Gandhi Super Speciality Hospital was made as the link hospital in respect of the facilities created at Hotel Ginger, Vivek Vihar; Park Plaza, Shahdara; and Hotel Leela Ambience, CBD Ground.

25. Similarly, vide order dated 31.05.2020, another hotel namely; Golden Tulip Essential, Harinagar, was also linked to Rajiv Gandhi Super Speciality Hospital. Since the concerned department of the GNCTD was the Health and Family Welfare Department - which is tasked with the responsibility of addressing issues relating to Public Health, Hospitals and Dispensaries, and the order dated 08.05.2020 has been issued by the Health Minister, in our view, there is absolutely no lack of authority/competence in the authority that had issued these orders.

26. The next order which is impugned is dated 27.04.2021, which merely seeks to attach the facilities created at Hotel Ginger, Vivek Vihar; Hotel Park Plaza, Shahdara; Hotel Leela Ambience, CBD Ground; and Hotel Golden Tulip Essential, Hari Nagar with the Government Hospitals. This order also refers to the earlier orders issued in the year 2020 (referred to above), whereby these facilities were linked to Rajiv Gandhi Super Speciality Hospital. On this occasion, Golden Tulip Essential, Hari Nagar was linked to Deen Dayal Upadhaya Hospital, which is another hospital of the Government of NCT of Delhi. Merely because the order dated 27.04.2021 has been issued under the signature of the Special Secretary (Health & Family Welfare), Sh. S.M. Ali, it does not cease to be an order issued by the concerned department of the State Government. There is no case made out by the Petitioners, that this order dated 27.04.2021 was not backed by the approval of the Competent Authority.

27. In any event, we do not find any merits in the submissions of Mr. Thawani that the orders in pursuance of the first impugned order dated 02.05.2020 have not been issued by the competent authorities. For the above-said reasons the petition is dismissed.

VIPIN SANGHI, J JASMEET SINGH, J AUGUST 26, 2021 kd/aks/aj/dm