Delhi High Court
Supreme Court Young Advocates Forum vs Union Of India (Uoi) And Ors. on 31 May, 2002
Equivalent citations: 99(2002)DLT290, 2002(63)DRJ716
Author: A.K. Sikri
Bench: S.B. Sinha, A.K. Sikri
JUDGMENT A.K. Sikri, J.
1. Some young lawyers under the banner 'Supreme Court Young Advocates Forum' (hereinafter referred to as the Forum, for short) have filed this petition pro bone publico. This Forum is concerned about the appalling and miserable conditions existing in Government hospitals. The present Petition in particular raises the issue about the management and functioning of Guru Tegh Bahadur Hospital - University College of Medical Sciences Block (hereinafter referred to as GTBH - UCMSB, for short). It is highlighted in the Petition that because of dual control over this hospital - Government of NCT of Delhi as well as University of Delhi - there is mismanagement and malfunctioning and consequently no proper medical facilities are being provided to the residents of East Delhi to which category of population this biggest hospital of the area caters to. This dual control, according to the petitioner, is leading to duality of command, conflicting orders from two immediate superiors, two sets of personnel belonging to medical, para medical as well as lower staffs drawn through two independent sources, dual administration, absence of any discernible principle for determining inter se seniority of the personnel drawn from the two sources, lack of definite roles and lack of demarcation of responsibilities is aiding myriade of problems encountered by the hospital administration, by the patients, by the the doctors and by students undergoing Bachelor and Post Graduate Courses at the GTBH - UCMSB Complex.
2. Fortunately, as is revealed from the stand taken by all the parties, each instrumentality of the State namely, Union of India, Delhi Government, University of Delhi, recognises the aforesaid problem. There is a candid admission on the part of all these respondent regarding mismanagement because of duality of control of the hospital. But unfortunately, due to uncompromising and non-cooperative attitude of these authorities the solution to the problem has not been found out. This is notwithstanding the fact that the problem of dual control has been discussed from time to time by these respondents; various Committees have been set up for resolving the issue who have given their recommendations from time to time; various Orders passed by this Court in this Petition from time to time leading to the setting up of Task Force which also gave its recommendation. This is also notwithstanding the intervention of the Union Government trying to break the dead-lock and resolve the impasse.
3. The case in point, thus, is a classical example as to how clash of ego plays a role in creating stalemate and how this ego problem even glosses over the public interest which is put on back burner. In the process this genetic ego turns a blind eye on the future of the students, carrier of the employees and plight of the patients notwithstanding the Constitutional mandate guaranteed under Article 21 of the Constitution of India which has made efficacious and timely medical aid and device to the citizens a Fundamental Right, in view of the liberal and purposive interpretation of Article 21 which has made it a gem among the jewels constituting various Fundamental Rights enshrined in Part III of the Constitution of India.
4. The enthusiastic Forum i.e. the petitioner feeling alarmed by the pathetic malfunctioning of the Government hospitals in the city, decided to conduct study into the state of affairs on the GTBH - UCMSB complex, Dilshad Garden, Shahdra which alone caters to nearly 35% of the population of the capital city, mostly poor and living in Trans-Yamuna area including the Asia's largest slums - Seema Puri, Nand Nagri and Sunder Nagar. It found that Guru Tegh Bahadur Hospital (hereinafter referred to as GTB Hospital, for short) was in news on 7th April, 1997, when a front page story was taken out in a leading English daily 'New Delhi Edition' which revealed that the doctors of GTB Hospital were forced to perform a delicate operation by torch light following the power failure at the hospital's emergency operation theatre. The persons injured in police firing at Sahid Nagar, Ghaziabad were rushed to the GTB Hospital. One of the injured Mr. Idris, was in a critical condition on receiving a bullet in his chest. While the doctors were operating upon him the electricity went off and the standby generator - two for the GTB Hospital and two for the UCMSB. The generator operator was not available and later he was told that the generator is out of order. The condition of the patient in the meantime deteriorated and the doctors had to conduct the operation in the torch light.
5. In the 'Danik Jagaran' dated 2nd May, 1997 it was reported that there is a cold war going on between the GTB Hospital and the College Administration due to which the doctors undergoing internship have been refused HepatIT is B injections for immunizing them against this disease while treating the patients. The dispute was who is to bear the cost of the injections to be given to the intern doctors. The GTB Hospital took the stand that it has to be borne by the University since there are nearly 200 to 250 intern and post-graduate doctors getting training and the total cost would be Rs. 2.7 lakhs. On the other hand, the stand of the University authorities was that these doctors provide round-the-clock service to the patients and had to take blood samples of the patients and as such must be protected against the HepatIT is B disease. Earlier also the injections were provided by the Hospital. In this same report, the newsclipping referred to differences and disputes between the GTB hospital and UCMS over the payment of electricity and water dues.
6. In a press report dated 10th May, 1997 entitled 'Mosquito Menace Grips GTB Hospital', it was reported that the mosquitoes have swamped every inch of the hospital including the operation theatre, wards, out-patient departments and even hostels.
7. In another news item dated 14th May, 1997 in 'Rashtriya Sahara', plights of Ram Charan Dube of Meerut who had come for treatment of his leg, Miss Ramovati, who had come for the treatment of stone, Mr. Naresh who had broken his leg in a motorcycle accident was narrated. Besides it was also revealed that there is serious shortage of life saving drugs in the hospital and consequently family members of critical patients are forced to buy life saving drugs from outside. Two lifts in the hospital are always reported to be out of order, trolleys and stretchers for carrying patients are always in short supply, medicines are not given to the patients but their signatures are taken on the register and subsequently these medicines are sold outside by the Clerks of the pharmacy department, theft of medical instrument and medical equipment is quite common.
8. Moved and agitated by the aforesaid press reports/clippings the petitioner constituted a team for a detailed study of actual facts and situations prevailing in this hospital.
9. The Forum made in indepth study : how this Government hospital was being run? whether the patients coming for treatment to this complex were receiving adequate and satisfactory services at all? Whether the complex and services are properly administered or not? Whether the 'Doctors' of the Complex are satisfied with their job profile and job environment or not? Whether the 'Staff' of the institution has job satisfaction or not? Whether the 'Students' who are undergoing graduate and post graduate courses in medical sciences are satisfied or not? According to the petitioners, the examination of the matter by the aforesaid team revealed factual situation in respect of this medical college which is narrated in the petition in detail. It is not necessary to reproduce the same. Purpose would be served in pointing out that this study revealed that right from the institution of the GTBH - UCMSB there has been a problem of dual management. The Government of India had reviewed working arrangement for functioning by GTBH - UCMSB from time to time. There had been various discussions about the dual management of this hospital. Successive Vice-Chancellor of Delhi University have taken up the matter with the Central Government as well as the Delhi Administration from time to time. Committees including Tandon Committee were also set up to suggest the solution for overcoming the problem of dual control. Proposals were submitted at different times for solving the problems but no concrete steps could be taken because of inter se disputes. The net result was that the hospital was in deplorable state largely on account of this internal conflict and in-flighting, duality of control and lack of unity of command; the broken and blurred lines of responsibility; complete lack of cooperation and coordination amongst the staff recruited by the Delhi University and the Delhi administration, and the growing discontent amongst the staff of the hospital. The hospital was faced by the problem by frequent employees strike, where even the doctors and nurses joined hands leading to the harassment and no-care of the patients visiting the hospital. There was lack of availability of electricity and water, necessary infrastructure, shortage of drugs due to inter se disputes.
10. It is also highlighted in the petition that on the one hand there is a serious problem of maladministration and malfunctioning of the hospital authorities and on the other hand there is serious problem of service conditions of the Doctors and Staff, who are senior, as to how their seniority would be determined amongst the doctors drawn from two different sources with two different sets of designations, pay scales, promotional avenues, service conditions, etc. The perennial problem of the Junior Faculty staff drawn from one source overtaking the Senior Faculty members drawn from the other source because of fast track promotions in the first source, creates so much of chaos and confusion that many doctors borne on the University cadres prefer to seek more appropriate and promising avenues elsewhere. The problem of juniors drawn from Central Health Services (hereinafter referred to as CHS, for short) sub cadre borne on Delhi Administration and of the seniors drawn from Delhi University Cadre and the former overtaking the letter in a short course of time or vice versa, is more evident and pronounced in Clinical Departments such as Medicine, Surgery, Gunaecology, Paediatrics, Orthopedics, Radiology, ENT, Dental Surgery, Psychiatry, Dermatology, Ophthalmology, Hospital Lab Services, etc.
11. Alarmed and anguished by the aforesaid pathetic state of affairs prevailing in the hospital, the petitioners approached this Court, as a last resort, with the hope that with the innervation of the Court some solution to this serious problem of maladministration and malfunctioning of the hospital, mainly because of dual management, would be found out. The petitioners feel that the most important step towards revamping of the administration and for bringing about unity of command, is to create clear lines demarcating control and delineating the responsibilities, grant of authority and power commensurate with responsibilities; inculcating a sense of responsibilities and responsiveness amongst the personnel both towards the administration as well as the patients, which would come a long way in relieving the hospital with the ailments from which it is suffering.
12. Show cause notice in this petition was directed to be issued to the respondents. It took some time to elicit the response of the respondents. Principally three respondents who are concerned with the matter are : (1) Central Government, (ii) Government of NCT of Delhi and (iii) University of Delhi. It was recognised and conceded by all the respondents that most of the problems highlighted in the petition are on account of dual control. However, inspite of the fact that the respondent could diagnose the ailment, they were not able to find treatment for the same. This Court accordingly by Order dated 8th January, 1999 directed the Secretary, Department of Education, Ministry of Human Resources and Development, Government of India to confine the meeting at the earliest to be attended by Secretary, Ministry of Health and Family Welfare, Secretary of Department of Health, Government of NCT of Delhi and Vice-Chancellor of University of Delhi to examine the entire matter and suggest possible remedy to resolve the aspect of dual control of the college and the hospital. It would be apposite to quote and this stage, the Order dated 8th January, 1999 in entirety:-
"The University College of Medical Science (UCMS) and Guru Teg Bhahdur Hospital (GTB Hospital) are functioning under the dual authority of Government of NCT of Delhi and University of Delhi. The College is functioning under the administrative control of University of Delhi and the Hospital is functioning under the control of Government of NCT of Delhi. There seems to be no dispute that most of the problems highlighted in the petition are on account of dual control. In past the matter was examined from time to time. Various committees/working groups were required to examine the matter and suggest a via media but nothing tangible has happened so far. From the affidavit of Mr. Vineet Chaudhry, Director Medical Education, Ministry of Health and Family Welfare, it appears that as both the University and the Government were unable to find a solution to the problem of dual control, on direction of the term Minister of State of Health, Government of India, a working group was constituted in December, 1996 to resolve the issue and suggest measures. The working group comprised of Joint Secretary, in charge of Medical Education in Union Health Ministry, the Principle, UCMS and the Medical Superintendent, GTB Hospital. Despite above nothing happened. It appears that the working group never met. In any case, there is nothing on record to show what conclusions were arrived at by the said group. Further it appears that as late as on 10th November, 1998 a letter was written by Secretary, Ministry of Health and Family Welfare to Secretary, Department of Education, Ministry of Human Resource Development requesting for convening of meeting of all concerned with a view of find out solution of the problem. Here too, it appears that despite lapse of nearly two months no progress has been made. It appears that no meeting was called/held pursuant to the letter dated 10th November, 1998.
Under the aforesaid circumstances, we direct Secretary of Department of Education, Ministry of Human Resource Development to convene a meeting at the earliest to be attended by Secretary, Ministry of Health and Family Welfare, Secretary Department of Health of Government of NCT of Delhi and Vice-Chancellor of University of Delhi to examine the entire matter and suggest the best possible method to resolve the aspect of dual control of the College and the Hospital. It would be open to the aforesaid officers to take assistance of such officers as they may deem fit who can also attend the meeting to assist their head of Departments. A report shall be submitted to this Court on or before 12th February, 1999. A copy of this order be given dusty to learned counsel appearing for Government of India, Government of Delhi and University of Delhi.
List on 22nd February, 1999.
13. Meeting after meeting took place. The matter was deliberated upon. The Court was informed from time to time about the progress of the meetings. However, as these meetings were not taking any concrete shapes, by Order dated 12th May, 1999 this Court granted last opportunity to the respondents to have the matter finalised positively within a period of two months and the case was adjourned to 6th August, 1999. On that date, counsel for Union of India informed that a decision had been arrived at and took time to place on record the said decision. Again, after seeking some adjournments Union of India filed the Minutes of the Meeting held on 9th July, 1999 where the decision purported to have been taken. In fact, it was the report submitted by the Committee which was constituted by this Court. The counsel for the respondent, particularly the Union of India started taking further time to consider the report of the Committee and action taken thereon.
14. The gist of the recommendations of this Committee and what was there recommendations finds mention in Order dated 16th August, 2000 passed in this Petition which is to the following effect:-
"On July 9, 1999, to search solution for proper management of GTB Hospital and UCMS, a high level meeting was held under the Chairmanship of Education Secretary (ES) in which the following persons participated:-
1. Prof. Abad Ahmad (Pro- Vice-Chancellor),
2. Prof. D.P. Tandon (Dean) on behalf of the University of Delhi.
3. Shri Chander Mohan, Principal Secretary (Medical) Government of Delhi.
4. Dr. R.K. Chauhan, Joint Secretary, UGC.
5. Dr. D.K. Srivastava, Medical Superintendent (GTBH).
6. Dr. B.B.L. Agarwal, Principal, (UCMS),
7. Shri Champak Chatterjee (JS),
8. Shri Pawan Agarwal (DS); and
9. Shri P.S. Chakraborty (D.O.) In the aforesaid meeting long term and short term solutions were suggested to tide over the problem. It was decided that as per the long term solution, UCMS was to continue to use the premises of GTBH and the Government of Delhi was to be compensated by construction of a new hospital in East Delhi area. It was noted that the proposed 750 bed hospital would cost nearly Rs. 150 crores and the same could come up within five years. Government of Delhi through DDA was to identify suitable land for the purpose of establishing a new hospital. The funds for construction of hospital were to be made available to the Government of Delhi.
On the last date the learned counsel for Union of India stated that the Report submitted by the aforesaid Committee was under consideration of the Central Government. On the representation made by learned counsel for Union of India, we directed the Central Government to consider the proposal/report of the aforesaid Committee and report action thereon within eight weeks. The Central Government was directed to file status report before this date. It appears that neither the Central Government has considered the report of the aforesaid Committee nor any status report has been filed by it. Mr. Rakesh Tikku, learned counsel appearing for the Union of India, has presented in Court an affidavit of Dr. P.H. Sethumadhava Rao, Joint Education Adviser, Ministry of Human Resource Development, Department of Secondary Education and Higher Education. This affidavit does not speak of the consideration of the Report/proposals of the aforesaid Committee by the Central Government. We also find that though the aforesaid Committee had met on July 9, 1999, no action has been taken for the last one year with regard to the proposal of setting up of the hospital which was to cost Rs. 150 crores. Surely, the Central Government and also the States Government would be aware of the fact that the time factor is very important in such matters as, loss of time invariably results in rise of the cost of the project. Having regard to the aforesaid facts, we consider it appropriate to ask the Central Government to bestow its attention to the report/proposals of the aforesaid Committee and take a decision in the matter. The decision of the Central Government should be placed on record within four weeks. We clarify that no further time shall be given to the Central Government in this regard. In the meantime, DDA shall identify suitable land for setting up of the hospital. It shall be the responsibility of the Secretary (Medical), Government of N.C.T. of Delhi, to have a meeting with the Vice-Chairman, DDA, in this regard.
To come up on 22nd September, 2000. dusty.
15. However, time passed by without any concrete action. This Court expressed its anger, pain and anguish over the lackadaisical approach of different authorities. On such anguish being expressed the Court was informed that further Committees were appointed to discuss the problem. Thereafter the Court was informed that the Task Force had been constituted to oversee the work of the different Committees. This resulted into various adjournments to await the recommendations of these Committees and the Task Force. The stock of the entire situation was again taken in Order dated 18th September, 2001 which summarises the entire position prevailing as on that date. This Order reads as under:-
On 12.12.2000 final opportunity was granted to the Delhi University and Government of National Capital Territory of Delhi to find a solution to the problem, which had been projected in this writ petition. Complete proposal in this regard was directed to be submitted to the court by the next date. The petition was adjourned to 10.1.2001. Again on the request of the respondents petition was adjourned to 8.3.2001, on which date it was pointed out that in order to solve difficulties faced by the University College of Medical Sciences and Guru Tegh Bahadur Hospital, Delhi, two committees had been appointed. The order constituting committee was brought to the notice to the Court. Court observed that the order did not contain terms of reference for the committees. The writ petition was adjourned to 10.5.2001. In between Delhi University drew the terms of reference in accordance with the decision stated to have been taken in the meeting held between the Chief Minister of Delhi and Vice Chancellor, University of Delhi. Besides disclosing the names of the Task Force, which was constituted for advising the Vice Chancellor, University of Delhi and the Chief Minister of Delhi, the following terms of reference for the said Task Force were notified:-
"The terms of reference for the Task Force are as under:-
(a) To review the working of the UCMS and GTBH and identify the problems of coordination for ensuring the smooth and harmonious functioning of the two institutions in the larger public interest.
(b) To suggest an appropriate working arrangement in the short term for overcoming the above problems in conformity with the rules, regulations and policies of the University of Delhi and the Government of Delhi.
(c) To suggest a viable and feasible permanent solution.
(d) To deliberate on any other issues arising out of the above.
The Task Force will start functioning with immediate effect and would submit its recommendations preferably within a period of one month for consideration of the Vice Chancellor, Delhi University and the Hon'ble Chief Minister of Delhi. UCMS and GTBH will provide the necessary Secretarial and other infrastructural support to the Task Force."
On 10.5.2001 when the writ petition was taken up for consideration, the aforementioned order was brought to the notice of the Court and the following order was passed:-
"We find from the Minutes of the meeting held on 21st November, 2000 regarding dual control/management of UCMS and GTBH Complex, that a suggested was mooted to the effect that thirty officers from Central Health Services in GTBH/UCMS could be transferred to alternative places to ensure that both GTBH/UCMS are managed by the officers from a single cadre. Let the Secretary, Health, government of NCT of Delhi and Dean of Colleges, University of Delhi be present on the next date so that a final decision could be taken in the matter to resolve the controversy. List the matter on 29th May, 2001.
A copy of this order be given dusty to the learned counsel for the NCT of Delhi and University of Delhi."
On the adjourned date, namely, 29.5.2001 it was brought to the notice of the Court that the Task Force had been constituted to over see the work of the two Committees. The Task Force was required to submit its recommendations. The writ petition was adjourned to 14.8.2001 on which date it was pointed out that the Task Force had submitted its recommendations but was pointed out on behalf of respondents 2 and 3 that the recommendations could not be considered since the Chief Minister was indisposed. It was assured that decision on the recommendations was likely to be taken shortly. Accordingly, the recommendations of the Task Force as also decision to be taken as regards implementation of the recommendations was directed to be brought on record.
Despite assurance the decision as regards implementation of the recommendations of the Task Force has not been brought on record by N.C.T. of Delhi. It has also not been brought on record that which of the long term option is to be implemented and within what period the said long term option along with short terms option will became operational. However, copy of the recommendations of the Task Force has been placed on record.
We allow more opportunity to the respondent NCT of Delhi to take a decision as regards choice of the long term option and about the time schedule for implementing the short term option and the said long term option. The decision to be brought on the record of the writ petition on affidavit positively on or before 11.10.2001.
List on 12.10.2001 on which date Secretary, Health, Government of National Capital Territory of Delhi along with record shall remain present in Court.
A copy of this order be given dusty to learned counsel for the parties under the signature of Court Master.
16. The matter again suffered few more adjournments. Ultimately the Central Government filed affidavit dated 9th April, 2002 and the matter was argued thereafter.
17. An affidavit on behalf of the Union of India traced out the position after the recommendations of the Export Committee meeting held on 9th July, 1999 and gives in nut shell the account of deliberations which took place thereof. Most of these developments have already been noticed above. It further discloses the suggestions given by the Task Force and the response of University as well as the Delhi Government to these suggestions. It would be, therefore, appropriate to reproduce that portion of the affidavit in extenso :-
The Task Force has suggested the following long-term options for permanent resolution of the problem:
(i) Transfer of GTB Hospital to University of Delhi with representatives of Government of NCT of Delhi on the Governing Body of UCMS to be chaired by the Vice-Chancellor or his nominee as per the existing practice. This would necessitate total financing of the Complex by the University.
(ii) Transfer of UCMS to the Government of NCT of Delhi.
(iii) Conversion of GTB Hospital-UCMS Complex into an Autonomous Body with Deemed University status or under a unified control like AIIMS or IHBAS.
18. While the Government of NCT of Delhi has strongly opposed the option at (i) above, the option at (ii) above is not acceptable to the University of Delhi. The Government of NCT of Delhi has expressed its acceptance to the option at (ii) above but the University of Delhi has reservations against this option also. The University of Delhi considers construction of a new 500 bedded independent hospital with the Central Government funding as the only solution to the problem and accordingly the Chief Minister of Delhi and the Vice Chancellor, University of Delhi have decided that the matter would be jointly taken up with the Government of India for obtaining necessary funding in this regard.
19. As per the provisions of the Indian Medical Council Act, 1956 (hereinafter referred to as IMC, for short) and Regulations framed there under, the applicant/organisation intending to start/run a medical college must provide, inter alia, for a hospital owned and managed by them. Therefore, in case UCMS is to hand over the control of GTB Hospital to the Government of NCT of Delhi they may have to establish their own hospital for continued recognition of UCMS under the IMC Act. The Ministry of Health & Family Welfare has already ruled out any possibility for funding a new hospital for the Delhi Government in lieu of GTB Hospital or for use of UCMS in view of their policy decision not to fund construction of any new hospitals. The Ministry of Human Resource Development which is the administrative ministry concerned with the Delhi University to which UCMS is affiliated does not have the requisite funds for construction of a hospital under its budget and the Planning Commission has already rejected its proposal for allocation of funds for construction of the hospital over and above its normal allocation.
20. The possibilities of construction of a new hospital in Delhi by Central Government funding are, therefore, very remote and some workable solution to the problem of dual control of UCMS-GTBH Complex has to be found out within the existing framework itself. However, a final decision in the matter is yet to be taken.
21. When the counsel for Delhi University as well as the Delhi Government were confronted with the aforesaid respective stand which was creating a stalemate, unfortunately even in the course of their argument they stuck to their guns. Mr. Kamaldeep, learned counsel appearing on behalf of NCT of Delhi even pleaded for the outright dismissal of the instant Writ Petition in his vain attempt to take technical objections to the maintainability of such a petition. He also tried to project that the conditions in the hospital were improving and Delhi Government had been very generous to make the requisite fund available for the hospital and therefore Court's intervention was not at all needed. He also sounded alarm by projecting that if the hospital is allowed to be taken over by the Delhi University it is bound to affect the patients care service as well as the progress of hospital since the University is already starved of funds. It was submitted that there are approximately more than 2000 officers/officials working in super-specialty GTB Hospital, catering the medical needs of the population of east part of Delhi. These officers/officials can not be put under the control of UCMS as the Delhi Government is the disciplinary authority of these officers/officials. In case these officers/officials are put under UCMS there will be unrest in the staff of GTB Hospital, which will not be in the interest of patient care and general public at large. Especially when the health is the state subject.
22. On the other hand, Mr. Sudhir Luthra, learned counsel appearing on behalf of the University of Delhi referred to salient recommendations contained in the Minutes of the Meeting held on 9th July, 1999 and submitted that the Committee had primarily recommended the case for UCMS to continue to use GTB Hospital and compensation to the Delhi Government for establishing a new hospital in East Delhi for which the Committee had recommended transfer of CHS staff from GTB Hospital to other institutions. He further submitted that the problem could be solved had Central Government provided requisite funds to the Delhi Government for acquiring the land from the Delhi Development Authority and construction of the hospital. However, the aforesaid proposal of the Committee went in oblivion when the Central Government showed its unwillingness to provide necessary finances for this purpose. He further submitted that regarding the withdrawal of faculty from CHS, as Delhi Government did not agree to the suggestion for the said withdrawal, the problem of dual management was persisting. He therefore, submitted that this Court should issue necessary directions, in public interest, for implementation of the suggestion of the Committee. In this respect, learned counsel appealed to this Court to give the following directions:-
a) to direct the Govt of India/Govt of NCT of Delhi to provide land and finances for the construction of the new hospital for Govt of NCT of Delhi.
b) to transfer the management of GTB Hospital to University of Delhi:
c) pending implementation of the aforesaid decision to direct Govt of NCT of Delhi to withdraw clinical faculty working in the hospital belonging to CHS or in the alternative to direct CHS faculty to opt for being absorbed in the University cadre so as to be under the control and management of the University of Delhi.
23. There cannot be any doubt that if these two respondents have their say and they maintain their respective posture, solution to the problem would be difficult.
24. Fortunately all the parties including these two respondents appreciated and recognised the problem. Hospital, which is meant to cure people is suffering from serious ailment. They also recognised the need to solve the problem which is plaguing the very institution i.e. GTBH - UCMSB. But they are not ready to budge an inch from their respective stands. Consequently, if it is allowed to continue, result would be that the disease although diagnosed would not be given a proper treatment and it may sound death knell of the "patient" i.e. the hospital which was established to cure the ailments of human beings visiting this hospital. This is really unfortunate.
25. As already pointed out at more than one places, there is a problem of dual management of GTBH - UCMSB. It is also virtually accepted by all the parties that because of this problem, the working of the hospital is adversely affected with the result the hospital is not able to function properly. It is the common public for which the hospital was meant, which is the sufferer. In these circumstances, the only solution is that the problem of dual control, which is the root cause of the malaise, be removed. Necessary surgery for this purpose is required. This is accepted by one and all. However, in the process Delhi University want the Delhi Government to be ousted while demand of the Delhi Government is that it is the Delhi University which should pack up and move out. This rigid attitude reminds one of the famous story where two mothers are claiming their right over a child and fighting before the King, each claiming herself to be the real mother. The King could resolve the problem by ordering that the child be cut into two pieces and one-half thereof be given to each claimants and in the process he could find as to who was the real mother and thereby restored the child to her. In the present case it cannot even be said that the claim of one of the parties is totally genuine and that all the other parties is totally bogus. Both can maintain their legitimate claim over the GTBH - UCMSB.
26. However, as these two respondents have adopted such a stand is no ground not to find the solution. In this respect Mr. Manoj Goel, learned counsel for the petitioner submitted that this Court can give necessary directions keeping in view the mandate of Article 21 of the Constitution of India as interpreted by the Apex Court in various cases. His submission was that Article 21 of the Constitution is most fundamental of the fundamental rights and guarantees right to life and personal liberty to all. The present is a case wherein right to life of the petitioners and common public is being violated on account of various problems concerning GTBH - UCMSB Complex. It is submitted that the Hon'ble Supreme Court has given a liberal interpretation to meaning and scope of expression 'life'. It has been held in the case of Pt. Parmanand Katara v. Union of India and Ors. that right to medical aid and advice is inherent part of the right to life. It was observed:-
"There can be no second opinion that preservation of human life is of paramount importance. That is so on account of the fact that once life is lost, the status quo ante cannot be restored as resurrection is beyond the capacity of man. The patient whether he be an innocent person or be a criminal liable to punishment under the laws of the society, it is the obligation of those who are in charge of the health of the community to preserve life so that the innocent may be protected and the guilty may be punished. Social laws do not contemplate death by negligence to tantamount to legal punishment.
Article 21 of the Constitution casts the obligation on the State to preserve life. The provision as explained by this Court in scores of decision has emphasized and reiterated with gradually increasing emphasis that position. A doctor at the government hospital positioned to meet this State obligation is, therefore, duty bound to extend medical assistance for preserving life. Every doctor whether at a government hospital or otherwise has the professional obligation to extent his services with due experise for protecting life. No law or State action can intervene to avoid/delay the discharge of the paramount obligation cast upon members of the medical profession. The obligation being total, absolute and paramount, laws of procedure whether in statutes or otherwise which would interfere with the discharge of this obligation cannot be sustained and must, therefore, give way."
27. In the case of Vincent Panikurlangara v. Union of India and Ors. The Apex Court has observed as under:-
"A healthy body is the very foundation for all human activities. That is why the adage "Sariramadyam Khaludharma Sadhanam". In a welfare State, therefore, it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health.....
In a series of pronouncements during the recent years this Court has culled out from the provisions of Part IV of the Constitution these several obligations of the State and called upon it to effectuate them in order that the resultant pictured by the Constitution Fathers may become a reality. As pointed out by us, maintenance and improvement of public health have to rank high as these are indispensable to the very physical existence of the community and on the betterment of these depends the building of the society of which the Constitution makers envisaged. Attending to public health, in our opinion, therefore is of high priority - perhaps the one at the top"
28. In a Public Interest Litigation under Article 32 of the Constitution of India, titled B.R. Kapoor and Anr. v. Union of India and Ors. , which is similar to the present case, pertained to the mismanagement of the mental hospital run by Delhi Administration at Shahdara. The Supreme Court appointed a committee of experts to suggest remedial measures to improve the conditions as also to explore rehabilitation programs and establishment of congenial atmosphere from the humanitarian point of view. The Supreme Court directed that the said Mental Hospital, Shahdara should be run by the Union of India instead of the Delhi Administration and the hospital be modeled on the pattern of NIMHANS at Bangalore. In the case of Rakesh Chandra Narayan v. State of Bihar reported in (1989) Suppl. 1 SCC 644, the Supreme Court in a public interest litigation, passed various directions for remedying the deplorable state of affairs at the Mental Hospital at Kanke near Ranchi. The Supreme Court gave directions concerning the management of the Hospital which is reported in (1991) Suppl.2 SCC 626. In this case only, the Supreme Court while resolvings the various problems concerning the Hospital gave it a status of an autonomous institution and thereby brought about sweeping changes in its management structure (Ref : (1994) Suppl. 3 SCC 478).
29. Similar directions were passed by the Supreme Court in the case of Chandan Kumar Banik v. State of West Bengal reported in (1995) Suppl. 4 SCC 505 concerning a Mental Hospital at Mankundu, Distt. Hoogly (West Bengal) in order to improve the facilities for the patients. The Apex Court had held in a number of cases that even financial constraints cannot be an impediment for obligation of the State to provide effective health services, which is an integral part of the right to life. (Ref. State of Punjab and Ors. v. Mohinder Singh Chawla and Ors. .
30. With this aim in mind Mr. Manoj Goel, learned counsel for the petitioner submitted that as would be clear from the Order dated 10th May, 2001 and subsequent Order dated 18th September, 2001 passed by this Court, regarding dual control/Management by GTBH - UCMSB a suggestion was noted to the effect that 30 officers from Central Health Services in GTBH - UCMSB could be transferred to alternate places to ensure that both GTBH and UCMSB are managed by officers from a single cadre. At that point of time, the respondents had expressed difficulty for implementation of the suggestion on the sole ground that there were no vacancies available for absorbing CHS officers in other hospitals/institutions. This problem, according to Mr. Manoj Goel, learned counsel for the petitioner, could be taken care of as by a new Institution viz. Vardhaman Mahavir Institute of Medical Sciences, New Delhi which was established recently. According to him there are sufficient vacancies available in that institution in order to absorb all the CHS officers, who are present working with GTBH - UCMSB. As of now, the aforesaid new Institution is being manned by taking staff on deputation from the Maulana Azad Medical College and permanent appointments in the said Institution are due. Thus, the CHS officers can be absorbed in the said institution and the management of GTBH - UCMSB can be brought under unitary control of Delhi University which can root out the entire problem. He therefore made a fervent appeal to this Court to issue necessary directions to save the institution in larger public interest.
SHORT TERM SOLUTION
31. The Task Force has suggested three alternatives as long term option for permanent solutions of the problem which have already been reproduced above. These solutions in nut shell are for :- (a) transferring the hospital to the Delhi University, (b) transferring the hospital to the Delhi University, (b) transferring GTBH - UCMSB to the Delhi Government and (c) converting GTBH - UCMSB complex into two autonomous bodies. As also noted above, first solution is not acceptable to the Delhi Government. The second is not acceptable to the Delhi University and about the third Delhi University has again reservations although that is acceptable to the Delhi Government. A fourth alternative suggested by the Delhi University is construction of a new 500 bedded independent hospital wit Central Government found as the only solution to the problem. But for this purpose funds are required and Central Government has refused to fund in this regard and the stand taken by the Central Government is that one of the three alternatives mentioned by the Task Force should be adopted to solve the problem. As on today, it seems to be improbable that the Central Government would provide necessary funds. However, exclusive control by the Delhi University is not acceptable to the Delhi Government and exclusive control of Delhi Government is not acceptable to Delhi University. Unless such a consent is there by one respondent, the other respondent cannot assume exclusive control. This Court can neither issue directions to the Central Government to provide funds nor it can issue directions to the Delhi University or to Delhi Government to give requisite consent. We may at this stage state that it would have been an ideal situation if the Delhi Government would have agreed to transfer GTB Hospital to Delhi University and Central Government would have provided funds to the Delhi Government for acquiring and alternative land and construction of a hospital. However, as that is not happening, one of the following two alternatives as short terms solution can be adopted:-
(a) As suggested by Mr. Manoj Goel, learned counsels for the petitioner, the Delhi Government may consider transferring its 30 officers from GTBH - UCMS to Vardhman Mahavir Institute of Medical Sciences to ensure that both GTBH and UCMS are managed by officers from a single cadre.
OR
(b) As suggested by the Central Government also, the Constitution of an Apex Governing Body with representatives of the Delhi Government and the Delhi University. We know that Delhi University has been finding some difficulty in setting up the Apex Governing Body, but this is not a difficulty of a kind which cannot be surmounted. Therefore, as otherwise there is almost an agreement among the parties for the constitution of the Apex Governing Body (there may be reservations of Delhi University in this regard but no opposition to this idea). We direct the parties to work out the constitution of the Apex Governing Body within a period of three months from the date of receipt of the copy of this Order as a short term solution of the problem.
LONG TERM SOLUTION
32. As a long term permanent solution of the problem, we feel that it would be more appropriate if GTBH - UCMSB complex is converted into an autonomous body with deemed University status or under a unified control like All India Institute of Medical Sciences and IHBAS. This we are preferring over the other two alternatives suggested by the Task Force as they are not acceptable to one or the other party. Therefore, in such a situation when two mothers are claiming rights over a child and without the consent of the one it cannot be given to the other and both refused to give the consent, it would be more appropriate to give the child independent status so that it prospers and bloom of its own without the clutches provided by either Delhi University or the Delhi Government. The Central Government, therefore, is directed to work out on this hypothesis/alternative as a permanent resolution of the problem. Such a decision on this issue should be taken up by the Central Government, in consultation wit the Delhi Government and the Delhi University, within a period of two years.
33. We may hasten to add that the aforesaid solutions are suggested by this Court keeping in view the larger public interest and to save the institution. Final decision thereon rest with the authorities. We have also made Central Government as mediator/arbitrator in view of the rigid stand of the Delhi University and the Delhi Government inasmuch as in such a situation they should agree with the final decision taken by the Central Government in this respect. If inspite of this the solution to the problem is not found it is the respective respondents who would have to blame themselves and for the public at large, in a democratic set up, to decide who is to be blamed. After all when the problem is brought to the Court of such a nature inspite of adopting a activist approach to the hilt, Courts still have their own limitations. Conscious of its limitations, this Court could only suggest to the parties as to what should be the ideal solution. We hope better conscience shall prevail and the respondents shall rise to the occassion and see the public interest as their own. If such an approach is adopted it would not be difficult to resolve the dispute. With this observations and directions the present Writ Petition stands disposed of.