Kerala High Court
Pauly Vadakkan vs State Of Kerala on 11 August, 2021
Author: P.B.Suresh Kumar
Bench: P.B.Suresh Kumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
WEDNESDAY, THE 11TH DAY OF AUGUST 2021 / 20TH SRAVANA,
1943
WP(C) NO. 16026 OF 2021
PETITIONER:
PAULY VADAKKAN,
AGED 50 YEARS, S/O JOSEPH, VADAKKAN,
"VADAKKAN HOUSE", ANNAMANADA P.O.,
THRISSUR DISTRICT, KERALA-680 741.
BY ADV JOMY K. JOSE
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE CHIEF SECRETARY TO THE
GOVERNMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
2 DISTRICT MEDICAL OFFICER,
DISTRICT GENERAL HOSPITAL CAMPUS,
ERNAKULAM-682 011.
3 CHIEF SECRETARY,
(CHAIRPERSON, STATE EXECUTIVE COMMITTEE,
STATE DISASTER MANAGEMENT, AUTHORITY),
GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
4 UNION OF INDIA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
MINISTRY OF HEALTH & FAMILY WELFARE,
ROOM NOS 514 B/A, NIRMAN BHAWAN,
NEW DELHI-110 011.
W.P.(C) No.16026 of 2021 2
5 INDIAN COUNCIL FOR MEDICAL RESEARCH,
REPRESENTED BY ITS DIRECTOR GENERAL,
ANSARI NAGAR, NEW DELHI-110 029
6 DEPARTMENT OF PHARMACEUTICALS,
REPRESENTED BY ITS SECRETARY,
SHASTRI BHAWAN, NEW DELHI-110 001.
7 SERUM INSTITUTE OF INDIA PRIVATE LIMITED,
REPRESENTED BY ITS MANAGING DIRECTOR, 212/2,
HADAPSAR, OFF SOIL POONAWALLA ROAD, PUNE ,
MAHARASHTRA-411 028.
8 BHARAT BIOTECH INTERNATIONAL LIMITED,
REPRESENTED BY ITS MANAGING DIRECTOR, GENOME
VALLEY SHAMEERPET, HYDERABAD, TELANGANA-500 078.
SRI.V.MANU GOVERNMENT PLEADER
SRI.P.VIJAYAKUMAR ASG
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR
ADMISSION ON 11.08.2021, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
W.P.(C) No.16026 of 2021 3
W.P.(C) No.16026 of 2021
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JUDGMENT
The petitioner is stated to be a person suffering from drug allergy. It is stated that though the petitioner has approached various hospitals for Covid-19 vaccine, the hospitals are not administering vaccine on him as he is suffering from drug allergy. It is also stated by the petitioner that he needs to travel abroad and he is unable to do so without Covid-19 vaccination. It is alleged by the petitioner that though he has approached the Covid Nodal Officer of the District for taking appropriate measures for administering the vaccine, he is also taking the stand that the petitioner cannot take the vaccine. The petitioner, in the circumstances, preferred Ext.P2 representation before the second respondent requesting him to take appropriate measures to enable the petitioner to take the vaccine. While so, the Executive W.P.(C) No.16026 of 2021 4 Committee of the State Disaster Management Authority issued revised guidelines for preventing the spread of the pandemic Covid -19 with effect from 04.08.2021. Ext.P3 is the Order issued by the Chief Secretary of the Government in this regard. It is stated by the petitioner that in the light of Clause iv of Ext.P3 order, the petitioner who is not infected with Covid-19 and who is unable to take vaccine cannot go out of his house without taking RT-PCR negative certificate. According to the petitioner, the guideline aforesaid in Ext.P3 order violates the fundamental right guaranteed to the petitioner under Article 21 of the Constitution. The petitioner, therefore seeks the following reliefs in the writ petition.
(i) To issue a writ of certiorari and quash Clause IV of annexure to Exhibit P3.
(ii) Declare that unreasonable restrictions imposed against unvaccinated persons in Clause IV of annexure to Exhibit P3 is against the provisions of Article 14, 19 and 21 of Constitution of India.
(iii) Direct the respondents 1 & 2 to give test dose of Covid vaccine and thereafter give the vaccine to the petitioner if W.P.(C) No.16026 of 2021 5 it is found safe for him.
(iv) Declare that the Government through executive orders cannot impose restrictions violating the provision of Article 14, 19 and 21 of Constitution of India.
(v) To grant such other reliefs as may be prayed for at the time of hearing and the court may deem fit.
(iv) To grant Costs of this Writ petition.
2. Heard the learned counsel for the petitioner as also the learned Senior Government Pleader.
3. When the matter was taken up, it was pointed out by the learned Senior Government Pleader that a few additional guidelines/clarifications have been issued by the Chairman of the State Disaster Management Authority on 10.08.2021. The learned Government Pleader has also made available a copy of the order bearing No.G.O. (Rt)No.575/2021/DMD issued in this regard on 10.08.2021.
4. Clauses iv and v of Ext.P3 guidelines read thus:
iv. Only persons who have taken at least one dose of COVID- 19 vaccine before two weeks, or who are in possession of RT-W.P.(C) No.16026 of 2021 6
PCR negative certificate taken 72 hours before or who is in possession of COVID-19 positive results more than a month old will be allowed inside (workers/visitors) in shops, markets, banks, public and private offices, financial institutions, factories, industrial establishments, open tourist spaces and other establishments.
v. All persons (whether belonging to the categories mentioned in point(iv) or not) can move out of home for essential activities like vaccination, COVID-19 testing, medical emergency, purchase of medicine, death of relatives, marriage of close relatives, local travel to catch long route bus/train/flight/ship, examinations etc. It is clarified in the Government Order dated 10.08.2021 that those who are yet to receive Covid-19 vaccination or cannot take the vaccine due to drug allergy or other ailments, can move out of their homes for essential activities like purchase of food items, including grocery, milk, meat, fish etc., if there are no other persons in the household falling under clause (iv) of Ext.P3 guidelines. It was also clarified in the Government Order dated 10.08.2021 that if such persons visit shops, they shall be given priority service by the traders and that the traders and Local Self Government Institutions shall give special attention W.P.(C) No.16026 of 2021 7 to those persons and give home delivery of essential items. The relevant clause in the order dated 10.08.2021 reads thus:
"iv. As per point (v) of annexure to the Government Order read 2nd above, all persons (whether belonging to the categories mentioned in point (iv) or not) are allowed to undertake certain essential activities. It is clarified that those who are yet to receive COVID- 19 vaccination or cannot take the vaccine due to drug allergy or other ailments, can move out of their homes for essential activities like purchase of food items, including grocery, milk, meat, fish etc., if there are no other persons in the household belonging to point(iv) of G.O.read 2nd above. If they are required to visit shops they shall be given priority service by the traders. Traders and LSGIs concerned shall give special attention to these categories of persons and ensure home delivery of essential items."
In the light of the order dated 10.08.201, the grievance raised by the petitioner against Ext.P3 order stands redressed.
5. As noted, in so far as the petitioner is suffering from drug allergy, he seeks directions to respondents 1 and 2 to give test dose of Covid vaccine and give vaccine thereafter, if it is found safe for him. The relief aforesaid is sought on the premise that the hospitals, to whom the petitioner has W.P.(C) No.16026 of 2021 8 approached for vaccine, are not administering vaccine as he is suffering from drug allergy. This is a medical issue to be resolved on the advice of the experts. In matters of this nature, the power of this court under Article 226 of the Constitution is invoked only in exceptional cases involving infringement of fundamental rights. The approach to this court in a matter like this cannot be casual at all. In the case on hand, the petitioner has not even approached the second respondent for advice. He has rushed to this court after sending a representation to the second respondent to administer vaccine to him after giving a test dose. The issue whether vaccine could be administered to the petitioner after giving a test dose is one to be examined by expert doctors. Needless to say that the approach to this court by the petitioner is casual. A Writ petition of this nature cannot be entertained.
6. Be that as it may, the learned Government Pleader submits that if the petitioner approaches the second W.P.(C) No.16026 of 2021 9 respondent, all possible measures would be taken to resolve the medical issue raised by the petitioner.
In the circumstances, the writ petition is closed giving liberty to the petitioner to approach the second respondent with a request to take appropriate measures to enable the petitioner to administer vaccine, if vaccine could be administered at all to the petitioner.
Sd/-
P.B.SURESH KUMAR, JUDGE.
YKB W.P.(C) No.16026 of 2021 10 APPENDIX OF WP(C) 16026/2021 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY THE ERNAKULAM MEDICAL CENTRE DATED 27.10.2006 Exhibit P2 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 16.7.2021 Exhibit P3 TRUE COPY OF GO(RT) NO 564/2021/DMD DATED 4.8.2021 Exhibit P4 TRUE COPY OF THE ORDER ISSUED BY THE GAUHATI HIGH COURT IN WPC NO 37/2020 DATED 2.7.2020