Himachal Pradesh High Court
Davinder Sharma And Another vs State Of Himachal Pradesh And Others on 26 September, 2020
Bench: L. Narayana Swamy, Anoop Chitkara
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
CWPIL No. 4 of 2020
Date of order: 26.09.2020
Davinder Sharma and another ...Petitioners
Versus
State of Himachal Pradesh and others ...Respondents
Coram
The Hon'ble Mr. Justice L. Narayana Swamy, Chief Justice.
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1
For the petitioners: Mr. Bimal Gupta, Senior Advocate,
with M/s. Satish Sharma, Kusum
Chauhdary and Poonam Moghta,
Advocates.
For the respondents: Mr. Ajay Vaidya, Senior Additional
Advocate General, for respondents No.
1 to 3.
Mr. Rajesh Kumar Sharma, Assistant
Solicitor General of India, for
respondent No. 4.
1
Whether reporters of the local papers may be allowed to see the judgment?
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2
L. Narayana Swamy, Chief Justice. (Oral)
The concept of providing health facilities at .
Primary Health Centres (hereinafter referred to as 'PHCs') to all the persons, more particularly, persons residing in rural and tribal areas came into existence before independence, whereafter, it was updated in phased manner, as per the requirement.
2. The object of issuing the Indian Public Health Standards (IPHS) Guidelines for PHCs, which were revised in the year 2012, is to ensure round the clock access to public health facilities, Primary Health Centres are expected to provide 24hour service with basic Obstetric and Nursing facilities. Under National Rural Health Mission (hereinafter referred to as 'NRHM'), PHCs are being operationalized for providing 24 x 7 services in various phases by placing at least three Staff Nurses in these facilities. If the case load is there, operationalization of 24 x 7 PHC may be undertaken in a phasewise manner according to availability of manpower.
This is expected to increase the institutional deliveries which would help in reducing maternal mortality.
::: Downloaded on - 28/09/2020 20:18:35 :::HCHP 33. As per the staff pattern of the Indian Guidelines of IPHS, it is expected that the respective States should establish .
a number of PHCs on requirement basis with staff, as per the guidelines.
4. In the instant petition, though, initially prayer was made for appointment of regular Doctor at PHC Ganahatti, District Shimla, but during the course of hearing, it is found that the other parts of Himachal Pradesh and PHCs therein also require some attention, therefore, learned Senior Counsel Mr. Bimal Gupta has expanded his research on this aspect and this is how the issue of vacancy position of all the PHCs throughout the State is for consideration before this Court.
5. Learned Senior Counsel for the petitioners has produced the particulars in tabulated form reflecting the strength of the staff and vacancy position in the PHCs in the entire State.
6. The first table contained in the said information reflects the total number of PHCs in each District, in terms of the tabulation made available by the respondentsState, which reflects that the total number of PHCs in the entire State is ::: Downloaded on - 28/09/2020 20:18:35 :::HCHP 4
589. Each District has the number of PHCs depending upon its requirement, ranging from minimum 17 in District Lahaul .
& Spiti to maximum 122 in District Shimla. For ready reference, the said table is being reproduced hereunder:
Sr.No. NAME OF DISTRICT NUMBER OF PHCS 1. BILASPUR 38 2. CHAMBA 46 3. HAMIRPUR 32 4. KANGRA 87 5. KINNOUR 24 6. KULLU 28 7. LAUHAL & SPITI 17 8. MANDI 87 9. SHIMLA 122 10. SIRMOUR 44 11. SOLAN 40 12. UNA 24
7. The number of posts lying vacant in the PHCs has also been given in the tabulated form as under:
Sr. NAME OF POST VACANT EXCESS No.
1. Doctors/MOs 124 Surplus at 6 PHCs 2. Dental Doctors 26 3. Pharmacists 184
4. Laboratory Technicians 144
5. Nurses/FHW/Midwife 168 Surplus at three PHCs 6 Class IV/Dai 196 Surplus at Ten PHCs
7. Sweeper/Safai 210 Surplus at Karamchari two PHCs
8. MHW/MPW/SLT 49 Surplus at ::: Downloaded on - 28/09/2020 20:18:35 :::HCHP 5 One PHC 9. Radiographers 11 10 Superintends/ Senior 92 Assistants/Clerks .11 Dental hygienists/ 6/4
mechanics
8. The perusal of the said table does disclose that 124 posts of Doctors/Medical Officers, 26 posts of Dental Doctors, 184 posts of Pharmacists, 144 posts of Laboratory Technicians, 168 posts of Nurses/FHW/Midwife, 196 posts of ClassIV/Dai, 210 posts of Sweeper/Safai Karamchari, 49 posts of MHW/MPW/SLT, 11 posts of Radiographers, 92 posts of Superintendents/Senior Assistants/Clerks and 6/4 posts of Dental Hygienists/Mechanics are lying vacant in various PHCs throughout the State.
9. The table extracted hereinbelow refers to the three PHCs, where there are no sanctioned posts of Doctors:
Sr.No. Sr. No. in Page No. of District Annexure R3 paper book
1. 19 122 Bilaspur
2. 18 123 Bilaspur
3. 37 125 Bilaspur
10. The information furnished by the learned Senior Counsel for the petitioners also contains the following details, ::: Downloaded on - 28/09/2020 20:18:35 :::HCHP 6 in tabulated form, of 18 PHCs where there is no staff and Doctor; 10 PHCs with only classIV employees; 21 PHCs where .
only Doctors are working without any supporting staff; 9 PHCs which are running only with one Doctor and one supporting staff; 10 PHCs are functioning with only Pharmacist; 5 PHCs with Pharmacists and ClassIV employee; 4 PHCs with only Pharmacist and peon; seven PHCs with one staff; and 6 PHCs working with only three staff members:
PHCs WITHOUT ANY STAFF AND DOCTOR Sr.No. Sr. No. in Page No. of District Annexure R3 paper book 1 40 132 Chamba 2 21 143 Kangra 3 28 143 Kangra 4 54 148 Kangra 5 1 153 Kinnour 6 20 161 Kullu 7 22 161 Kullu 8 23 161 Kullu 9 24 162 Kullu 10 25 162 Kullu 11 68 173 Mandi 12 50 181 Shimla 13 51 181 Shimla 14 67 183 Shimla 15 112 189 Shimla 16 113 189 Shimla 17 114 189 Shimla 18 28 199 Solan ::: Downloaded on - 28/09/2020 20:18:35 :::HCHP 7 PHCs WORKING WITH ONLY CLASSIV EMPLOYEES Sr. Sr. No. in Page No. of District .
No. Annexure R3 paper book
1 21 129 Chamba
2 27 130 Chamba
3 4 154 Kinnour
4 7 159 Kullu
5 13 178 Shimla
6 25 179 Shimla
7 48 181 Shimla
8 65 183 Shimla
9 79 184 Shimla
10 29 194 Sirmour
PHCs IN WHICH THERE IS ONLY DOCTOR WITHOUT SUPPORTING STAFF Sr. Sr. No. in Page No. of District No. Annexure R3 paper book 1 28 131 Chamba 2 33 132 Chamba 3 35 169 Mandi 4 7 177 Shimla 5 11 177 Shimla 6 45 181 Shimla 7 46 181 Shimla 8 47 181 Shimla 9 52 181 Shimla 10 60 182 Shimla 11 62 182 Shimla 12 66 183 Shimla 13 71 184 Shimla 14 89 186 Shimla 15 92 186 Shimla 16 108 189 Shimla 17 121 190 Shimla 18 122 190 Shimla 19 18 193 Sirmour 20 39(ONLY MO 196 Sirmour DENTAL) 21 35 200 Solan ::: Downloaded on - 28/09/2020 20:18:35 :::HCHP 8 PHCs IN WHICH THERE IS ONLY DOCTOR AND ONE SUPPORTING STAFF .
Sr. Sr. No. in Page No. of District Designation No. Annexure paper book R3 1 26 179 Shimla Class IV 2 63 183 Shimla FHW 3 70 183 Shimla Class IV 4 82 185 Shimla Peon 5 86 186 Shimla Clerk 6 103 188 Shimla Sweeper 7 25 194 Sirmour Peon 8 27 194 Sirmour Peon 9 42 196 Sirmour Class IV PHCs IN WHICH THERE IS ONLY PHARMACIST Sr.No. Sr. No. in Page No. of District Annexure R3 paper book
1. 8 127 Chamba
2. 45 170 Mandi
3. 64 173 Mandi
4. 115 189 Shimla
5. 40 196 Sirmour
6. 9 197 Solan
7. 16 198 Solan
8. 26 199 Solan
9. 27 199 Solan
10. 13 203 Una PHCs IN WHICH THERE IS ONLY PHARMACIST AND CLASS IV Sr.No. Sr. No. in Annexure Page No. of District R3 paper book
1. 44 146 Kangra
2. 21 161 Kullu
3. 98 187 Shimla
4. 11 191 Sirmaur ::: Downloaded on - 28/09/2020 20:18:35 :::HCHP 9
5. 20 193 Sirmour PHCs IN WHICH THERE IS ONLY PHARMACIST AND PEON .
Sr.No Sr. No. in Page No. of District
Annexure R3 paper book
1. 84 185 Shimla
2. 87 186 Shimla
3. 105 188 Shimla
4. 109 189 Shimla
PHCs IN WHICH THERE IS ONLY ONE STAFF r Sr .N o.
1. 3 15 Sr. No. in Annexure R Page No. of paper book 157 District Kinnour Designation MHW
2. 24 158 Kinnour MHW
3. 17 165 Lauhal & FHW Spiti
4. 78 184 Shimla FHW(witho ut sanctioned post)
5. 83 185 Shimla Peon
6. 102 188 Shimla Peon
7. 111 189 Shimla MPW PHCs IN WHICH THERE ARE ONLY UPTO THREE STAFF MEMBERS Sr. Sr. No. in PAGE No. District DESIGNATION No. Annexure of paper R3 book
1. 56 182 Shimla Lab. Tech and Sweeper.
2. 61 182 Shimla FHW,Class V, & Clerk
3. 73 184 Shimla Lab. Tech. and Class IV
4. 74 184 Shimla Lab Tech . And Class IV
5. 104 188 Shimla Clerk and Peon ::: Downloaded on - 28/09/2020 20:18:35 :::HCHP 10
6. 42 196 Sirmour Class IV and Sweeper .
11. Perusal of the aboveextracted tabulated information does demonstrate that in some of the PHCs, the Government has not filled up the posts of Doctors and supporting staff and in some of them, the posts have not even been sanctioned. In some PHCs, the Dental Doctors are working and some PHCs are working either with Pharmacists or supporting staff or even without any staff. This shows that the adequate health facilities are not catering to the need of people in rural and tribal areas in the State of Himachal Pradesh.
12. As per the above information, 124 posts of Doctors are lying vacant in various PHCs, which itself shows that most of the PHCs are not being manned by the Doctors. In the absence of Doctors, Pharmacists, Lab Technicians, Nurses/ FHW and other supporting staff, no PHC can function properly. Merely a building and little furniture itself cannot be called as a PHC, unless and until fullfledged staff, including Doctors are provided.
::: Downloaded on - 28/09/2020 20:18:35 :::HCHP 1113. The particulars provided by the learned Senior Counsel for the petitioners show that it is not a problem of this .
year or the previous years, but, it seems to be there since the inception of the PHCs.
14. It is observed from the statement made by learned counsel on both sides that the system has not provided adequate primary health facilities to the needy people in the State. The apex Court, in a catena of cases, has repeatedly held that right to health is a fundamental right. While going through the above information, it appears that the people in the State of Himachal Pradesh have been deprived of their fundamental right to health, without there being adequate number of Doctors and supporting staff, which is a very sorry state of affairs.
15. In order to have a viable solution to the pathetic condition of the health system at PHCs level throughout the State, this Court, vide order, dated 25 th September, 2020, had directed the Chief Secretary and Secretary (Health) to the Government of Himachal Pradesh to remain present before this Court, pursuant to which Mr. R.D. Dhiman, Additional ::: Downloaded on - 28/09/2020 20:18:35 :::HCHP 12 Chief Secretary (Health) to the Government of Himachal Pradesh is present in Court today, however, memo for .
exemption has been filed on behalf of the Chief Secretary in view of the Cabinet meeting, already fixed for today, where his presence is very much required. He is granted the exemption.
16. Learned Senior Additional Advocate General, on instructions from the Additional Chief Secretary (Health), submits that appropriate steps to fillup the vacant posts would be taken at the earliest.
17. At this stage, the Additional Chief Secretary (Health) is permitted to make submissions, who submits that the vacant posts of 124 Doctors will be filledup within a period of three months. It is further submitted that in case some more time is given to the State, all the vacant posts will be filledup by 31st March, 2021. His submissions are taken on record.
18. The submissions of the learned Senior Additional Advocate General and the Additional Chief Secretary (Health) that given fourfive months' time, they will fillup all the vacant posts. Though, this assurance is well founded, but, by ::: Downloaded on - 28/09/2020 20:18:35 :::HCHP 13 looking at the importance and immediate need of the health facilities to the needy people, we direct the State Government .
to speed up the process of appointments to these vacant posts.
19. During the course of hearing, it is submitted that the Doctors are being appointed initially on contract basis by paying ₹ 25,000/ per month alongwith other allowances, which comes to about ₹ 45,000/ per month, which is the most discouraging aspect for the Doctors.
20. In order to understand the mode of appointment on contract basis, we have examined the rules prevailed at the time of inception of the concept of appointment on contract basis. It appears that the said mode of appointment was introduced in order to bear the financial constraints faced by the State at that time. The financial constraints may not be there at present. Be that as it may, when a person becomes a Doctors, he has some aspirations that he will get a suitable and respectable job/placement and working for a meagre salary of ₹ 25,000/ is not an encouraging factor, but, will lead to attrition. Though, for immediate purpose, a person may report to work as a Doctor on contract basis, but, he always ::: Downloaded on - 28/09/2020 20:18:35 :::HCHP 14 will strive to get a respectable posting and salary. That may be the reason that at present, 124 posts of Doctors are lying .
vacant.
21. The State is directed to relook into the matter for the reason that even a regular GroupD employee, like sweeper, gets a salary of more than ₹ 25,000/. In such a situation, paying ₹ 25,000/ to a person holding a Doctor's Degree is most disrespectful.
22. The payment of ₹ 25,000/ to a Doctor appointed on contract basis and making him to work at par with a Doctor appointed on regular basis, who gets handsome salary of ₹ one lac, is atrocious and is in violation of Articles 14, 16 (1) and 39
(d) of the Constitution of India. This practice should be discontinued, to be extended to other areas also.
23. It is submitted that some steps have been taken to appoint Pharmacists, Laboratory Technicians, Nurses/FHW/ Midwife, ClassIV/Dai, Sweeper/Safai Karamchari, MHW/ MPW/SLT, Radiographers, Dental Hygienists etc., which is to be done by State Staff Selection Commission. The said process, which includes issuing advertisement notice, inviting ::: Downloaded on - 28/09/2020 20:18:35 :::HCHP 15 applications etc. takes a considerable long time. Since health is a very important issue, the matter should be resolved at the .
earliest. The State should adopt some other methods also, for appointment either through walkininterviews or any other mode, but, without bypassing any rule or constitutional provisions, including Articles 14, 16 (1) and 39 (d) of the Constitution of India.
24. The request of the respondents is that another fivesix months' time is required to fillup all the posts. In this regard, it is pertinent to observe that the patients shall not be made to wait till the time all the posts are filledup, which may lead to loss of lives, which cannot be compensated by any means.
25. For this specific reason, we direct the Government to make recruitments, as a special drive, to fill up this shortfall in various PHCs, for which the State Government is directed to constitute a monitoring committee, which is to be armed with power to make selections to 184 posts of Pharmacists, 144 posts of Laboratory Technicians, 168 posts of Nurses/FHW/ Midwife, 196 posts of ClassIV/Dai, 210 posts of Sweeper/Safai ::: Downloaded on - 28/09/2020 20:18:35 :::HCHP 16 Karamchari, 49 posts of MHW/MPW/SLT, 11 posts of Radiographers, 92 posts of Superintendents/Senior .
Assistants/Clerks and 6/4 posts of Dental Hygienists/Mechanics, which are presently lying vacant in various PHCs throughout the State.
26. The Additional Chief Secretary (Health) is directed to take steps for the purpose of issuance of notification(s) notifying the State Staff Selection Commission to forthwith advertise the said posts, make selections and complete the entire process in a time bound manner, for which the State Government shall take immediate steps to fill up all the vacant posts.
27. The Chief Secretary is directed to look into the matter, speed up the recruitment process and file an affidavit with regard to the steps taken for appointment to all these vacant posts and the progress made in that regard, by or before the next date of hearing.
28. Director NRHM is also directed to file an affidavit with regard to the funds made available to the State from the ::: Downloaded on - 28/09/2020 20:18:35 :::HCHP 17 date of inception of PHCs, funds spent and the mechanism in place to that effect.
.
29. We are passing this order given the current COVID19 pandemic situation where number of cases are increasing every day.
30. With regard to the staff pattern of IGMC, it is submitted by the learned Senior Counsel for the petitioners that IGMC is running shortage of staff. Additional Chief Secretary (Health) is directed to file an affidavit indicating therein the vacancy position at IGMC, by the next date.
31. List in regular Court on 13th October, 2020.
(L. Narayana Swamy) Chief Justice (Anoop Chitkara) Judge September 26, 2020 ( rajni / pk ) ::: Downloaded on - 28/09/2020 20:18:35 :::HCHP