Kerala High Court
Rajesh V.R vs Union Of India on 13 November, 2020
Author: S. Manikumar
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
FRIDAY, THE 13TH DAY OF NOVEMBER 2020 / 22ND KARTHIKA, 1942
WP(C).No.22579 OF 2012(S)
PETITIONER:
RAJESH V.R., RAJ BHAVAN,
THRICHATTUKULAM P.O,PANAVALLY VILLAGE,
CHERTHALA -688581.
BY ADVS. SRI.P.G.JAYASHANKAR
KUM.P.G.GAYATHRI
RESPONDENTS:
1 UNION OF INDIA,
REPRESENTED BY ITS SECRETARY,
MINISTTRY OF FINANCE, NEW DELHI-110 001.
2 STATE OF KERALA,
REPRESENTED BY ITS CHEF SECRETARY,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
3 SECRETARY,
LOCAL SELF GOVERNMENT DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695001.
4 SECRETARY,
HEALTH AND FAMILY WELFARE DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
5 SECRETARY,
TOURISM DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695001.
W.P.(C).22579/2012 2
6 INDIAN RAILWAYS
REPRESENTED BY ITS CHAIRMAN, RAILWAY BOARD,
RIAL BHAVAN, FAFI MARG, NEW DELHI-110001.
R1 BY ADV. SRI. GIREESH KUMAR
R2 TO R5 BY SR. GOVERNMENT PLEADER SRI. TEK CHAND
R6 BY ADV. SRI.A.DINESH RAO, SC, RAILWAYS
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION
ON 13.11.2020, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
W.P.(C).22579/2012 3
JUDGMENT
S. Manikumar, CJ Instant public interest writ petition has been filed by a resident of Cherthala, for a direction to the State Government and Railways to prevent pollution, particularly in the coastal areas of the State, on railway tracks and in adjoining areas, on account of open defecation of people. The reliefs sought for by the petitioner are as follows:
i. Direct the respondents to take steps to prevent open defecation in the State, by way of issuance of a writ of mandamus, or any other appropriate writ, direction or orders;
ii. Direct the respondents 2 to 4, viz., State of Kerala represented by its Chief Secretary; Secretary, Local Self Government Department; and Secretary, Health and Family Welfare Department, Thiruvananthapuram, to take steps to create awareness among the citizens of the State of Kerala about the need for safe sanitation, and the ill effects of open defecation;
iii. Direct the 5th respondent, Secretary, Tourism Department, Thiruvananthapuram, to take steps to ensure that the coastal areas as well as such other tourist destinations are kept clean.
iv. Direct the 6th respondent - Indian Railways, represented by its Chairman, New Delhi, to effectively implement measures to scientifically treat and dispose toilet sewage, including faecal matter, and to prevent the discharge of the same on to the railway track or any other open space, in a time bound manner.W.P.(C).22579/2012 4
2. Facts leading to the filing of the writ petition are that petitioner is aggrieved by the lethargy shown by the Union of India, as well as the State machinery, in effectively dealing with public defecation in the State of Kerala.
According to the petitioner, the statistics, as highlighted by the Census data, would show that a large number of households in the State still have no latrine or bathroom, and the inhabitants often resort to public defecation.
These dreadful facts have prompted even the Union Minister for Drinking Water and Sanitation to openly admit that India is the world capital of open defecation. Despite various schemes announced by the Union Government, including that of Nirmal Bharat Abhiyan, not many changes are seen.
3. The petitioner is also aggrieved by the age old practice of Indian Railways in still continuing with the system of open toilets. The open defecation in the State, and occasioned due to the operation of 6 th respondent, was causing much health hazards and contribute to the outbreak and spread of various contagious diseases. The inertia on the part of the respondents to take effective steps to prevent the same, is therefore, violative of the right of a citizen to have clean, healthy and disease free environment. Hence, the writ petition is filed, for the reliefs stated supra.
4. When this matter came up for admission on 27.09.2012, a Hon'ble Division Bench passed the following order:
W.P.(C).22579/2012 5"Asst. Solicitor General takes notice for the 1 st respondent. State Attorney takes notice for respondents 2 to 5. Standing Counsel for the Railways takes notice for the 6"' respondent.
2. This is a Public interest Litigation filed by a resident of Cherthala for a direction to the State Government and Railways to prevent pollution particularly in the coastal areas of the State and on railway tracks and in adjoining areas on account of open defecation by people. Already this Court has issued specific directions in another case to the Railways to take immediate steps to prevent discharge of human excreta and waste to open railway lines passing mostly through areas of human habitation, rivers etc. Learned Standing Counsel for the Railways submitted that steps taken will be intimated by filing counter affidavit. Learned State Attorney also sought time for getting instructions from the Government.
3. Kerala has 600 KMs coastal belt providing excellent beaches as tourism centres. However, all these beaches are notorious for the pollution caused particularly on account of open defecation by the local people. Tourism is one industry promoted by the Government with all earnestness because Kerala is the major attraction for tourists both from India and outside. However, unfortunately the Government is unmindful of the primitive practice of allowing people to use beaches as open toilets. It is a matter of shame for the State to permit open defecation anywhere in the State particularly in beaches visited by large number of foreign tourists particularly Europeans who flock the Indian beaches to escape from the freezing cold of Europe. In fact, more people are attracted to the Goan Beaches probably because of better hygiene and cleanliness maintained by that State. We are very conscious of the limitation of the Government to prohibit or prevent open defecations without providing public toilets everywhere which we feel the Panchayats, Municipalities and Municipal Corporations should be compelled to establish as their first priority in the State. We feel the first step to be taken by the State Government is to direct all the Panchayats, Municipalities and the Municipal Corporations to establish at their cost within a time frame public toilets in all beach sides, and as and when these are established, prohibition should be introduced against open defecation by the public in beaches.
4. Besides the nuisance and deterrence created by open defecation to tourists and visitors in the beaches, this practice leads to contamination of drinking water in all rivers in Kerala. In W.P.(C).22579/2012 6 fact, river water in Kerala is notoriously contaminated with coliform, which is caused by human excreta. The Government should therefore direct all Panchayats, Municipalities and Municipal Corporations to provide assistance for construction of toilets in every household and in extremely congested areas of poor people. Local authority can consider construction of common toilets, so that the people do not engage in these primitive practice of open defecation. If Emerging Kerala has to be Clean Kerala, then the first step in this regard should be to make Kerala the first State where open defecation is prohibited and strictly implemented. This will improve the quality of drinking water and in turn prevent diseases on account of consumption of contaminated water by the people and the Government will in turn save in expenditure for public health. We notice that an Ordinance was issued in 2005 under the name and style Kerala Local Authorities Prohibition of Defecation) Amendment Ordinance, 2005. We do not know whether the Ordinance has become law and if so whether any step is taken to implement the same. What is lacking is not the law but the will to enforce it. We are of the view that in public interest, this would engage the first priority of the Government and local authorities so that effective steps are taken to provide toilet facilities, both private and public, which necessarily the Government has to provide and then to completely prohibit open defecation and enforce it through penal provisions. We also bring it to the notice of the Government the provisions of the Kerala Panchayat Raj (Construction and Maintenance of Public Latrines, Urinals, Bathing Places and Sanitation of Private Premises) Rules 1998, enforcement of which is already stated by us as an urgent need for public health and for promoting tourism in the State.
5. It is worthwhile for the Government to consider construction of public toilets for the large number of people residing on sea side in Kerala. The Government should consider rehabilitation of these people little inside from the mouth of the sea in multi- storeyed houses even at the cost of the Government, so that they do not live under constant threat of sea erosions, tsunami etc. In fact a Beach Development Authority should be constituted in Kerala for rehabilitation of fishermen and those residing in very poor conditions in unstable houses without any facility in beach areas. Our Beaches can be made excellent places of enjoyment for tourists and for water sports by providing quality multi-storeyed accommodation in buildings to the fishermen and poor people living in Beaches and by releasing land occupied by them and by retaining it as vacant land.W.P.(C).22579/2012 7
6. State Attorney will forward a copy of this order to the Secretary, Department of Local Self Government for immediate consideration by the Government and for filing report in this Court. If the Government is not serious about the matter, this Court will be constrained to consider appropriate directions for establishment of public toilets to prevent open defecation at least in public places like beaches.
Post after three weeks for the proposals/decisions of the Government in the matter."
5. On this day, when the matter came up for further hearing, Mr. A. Dinesh Rao, learned standing counsel for the Railways, submitted that this Court, on an earlier occasion in W.P.(C) No. 20190 of 2014, has considered a similar prayer and taking note of the guidelines and steps taken, disposed of the writ petition.
6. Mr. Tek Chand, learned Senior Government Pleader, submitted that State of Kerala is an open defecation free State.
7. Heard the learned counsel for the parties and perused the material on record.
8. While disposing of W.P.(C) No.20190/2014 by judgment dated 06.07.2020, this Court has considered the guidelines issued by the Ministry of Railways, Railway Board, Government of India dated 29.06.2020, for review of the cost of housekeeping of trains and stations. Said guidelines are reproduced hereunder:
"GOVERNMENT OF INDIA MINISTRY OF RAILWAYS RAILWAY BOARD W.P.(C).22579/2012 8 No.2018/EnHM/13/01 New Delhi, dt. 29.06.2020 General Managers All Zonal Railways Sub : Review of Cost of Housekeeping of trains and stations.
Railways have put in significant efforts in improving cleanliness of trains and stations, which is also being appreciated. Cleanliness is essential part of passenger service and must be carried out at improved level. However, scope exists to review the increasing cost on cleanliness of trains and stations. There is a specific dashboard item to reduce this expenditure by half.
With the outbreak of Covid-19 pandemic, passenger carrying trains are likely to have lesser occupancy due to reduction of discretionary, non-essential travel. Lesser footfalls and 100% provision of bio- toilets in BG coaches is expected to reduce certain cleaning requirements at stations including reduced frequency of cleaning of washable aprons. However, requirements of frequent cleaning and disinfection can increase.
In the light of above, following actions may be taken for reduction/ control of expenditure,on housekeeping of trains and stations:
1. Critically review contracts where feasible, find alternatives.
Review area and work content. Practical feasibility like availability of space/ area/coach for cleaning work may be reviewed/ considered on case to case basis.
2. The requirement of workers may be critically assessed, keeping in view the area and work content, as minimum wages are being ensured. Housekeeping staff may be taken in unskilled and supervisor in semi-skilled category. They should however be trained in necessary skills including soft skills. Considering better efficiency, yardsticks provided for the Railway stall need not be followed for contractor's workers for outsourced activities. With rationalisation of work, wherever lump sum provisions are made, an indicative yardstick of around 1/3 of railways yardsticks may be followed for W.P.(C).22579/2012 9 contract work. Some additional manpower may be provided for premium services as per requirement.
3. Leveraging technology and IT. e.g. linking bio-metric attendance to contractual payments, use of Shramik Kalyan portal to ensure payments to workers.
4. Mechanised cleaning contracts may be restricted to 325 NSG1-3 and 35 SG1 stations. Cleaning contracts should not be done for flag stations, suitable cleaning imprest may be made available. In case of seasonal requirement with very high footfall, some temporary arrangement can be made for flag stations. Normal cleaning contracts may be done as per requirement for other stations, where adequate Railway cleaning staff is not available.
5. Manpower required in each shift for cleaning of Stations may be suitably linked to footfalls. Requirement and frequency of cleaning of washable aprons should be reviewed in view of 100% provision of bio-toilets in BG coaches. Frequency of certain activities may be curtailed, like cleaning of glasses etc. The reduction can be done by having 1 or 2 shifts instead of 3 shifts in certain areas on the basis of footfalls etc.
6. Tenders for Cleaning/ sanitation contracts for Stations may be done based upon activity without mentioning the specified manpower, and the tenderer should be asked to quote lump sum price duly indicating the manpower proposed to be deployed along with the deployment plan. Activities to be undertaken and areas to be cleaned will be specified in the tender documents, such as no. of platforms and approx. platform area, toilets, waiting rooms, FOBs, dust bins and waste handling, drains, track area / length, rag picking, circulating area etc. Some basic machines may be indicated, without specifying numbers. Suitable measures of performance should be specified. Exemplary penalty can be introduced to prevent quoting of unworkable rates.
7. Cleaning of electrical, signal, telecom and other equipment such as lights, fans, ACs, lifts, escalators, switch boards, panels, DG sets, I-IT/LT equipment etc, if covered in maintenance, should not be included in cleaning contracts of stations or depots.
8. Number of machines to be deployed in mechanised cleaning contracts of stations and trains may be reviewed and reduced where feasible.
9. Rationalise man power requirement with automation such as proliferation of Automatic Coach Washing Plants (ACWP).
W.P.(C).22579/2012 1010. Review of unit of AMC of bio-toilets from population/ holding based to no. of attentions or per shift based as now nearly 100% bio-toilet fitment has been achieved on BG coaches.
11. As per the present criteria all important mail / express trains except purely overnight journey trains (running between 2200 hrs to 0600 hrs) are eligible for coverage under OBI-IS scheme. These time limits need not be rigidly applied in each case. Railways may examine actual utilisation of OBHS depending on timings of each train covered/ eligible, time slots available for service, occupancy and any other relevant factor(s), and review the provision. If required, some of the trains left out may be provided additional time for cleaning attention at suitable enroute CTS station. Some additional trains, where major occupancy takes place enroute, may have to be provided coverage under OBHS.
12. For non-AC coaches, one OBHS janitor may be provided for 4 coaches instead of 3 coaches presently specified. For AC coaches, integration of work may be done as provided in para 15 c. No contractual staff may be deputed for petty repair on board.
13. In view of limited time available at platforms, in Clean Train Station (CTS) scheme, the activity of AC window glass cleaning may be dropped. CTS cleaning in OBHS trains may be restricted to toilets, floor cleaning in doorway and vestibule area, collection & disposal of garbage and watering. Aisle cleaning under CTS is not required. Dry sweeping of complete coach is required for platform return trains only.
14. Considering that the Cleanliness requirement of Railways is now widely known to the contractors, evaluation criteria in SBD has been reviewed. Marks for Turnover and Minimum qualifying score for Technical bid have been revised and enclosed at Annexure - I. This would enable more broad basing of the tenders, without sacrificing the competency and experience, and is expected to reduce the cost through increased competition. In case Railways had to discharge the tender due to rates not being reasonable or not finding any eligible bidder on the basis of `Score for Technical Bid' (STB) in the first round of tendering, suitable lowering of STB limit may be considered during the retendering.
15. Integration of work for cost optimisation. Following may be adopted a. Combining areas / activities e.g. integrated contracts at Stations, combining Stations cleaning contract with CTS including watering.
W.P.(C).22579/2012 11b. Integrated / combined contracts of mechanised coach cleaning (MCC) in depots and OBHS.
c. A typical 24 coach train having 6 AC coaches and 14 non-AC vestibuled sleeper coaches would have 7 OBHS staff, 6 linen attendants, 2 AC attendants. By combining linen attendant/ AC attendant with OBHS in AC coaches, this 15 staff requirement can be reduced to 11 giving savings of around 25% for combined on-board services.
d. Cleaning of washing lines and depot premises may be combined with integrated mechanised coach cleaning contract.
e. IRCTC was to provide integrated services in Humsafar express which has not been done. IRCTC should takeover complete services on these trains.
f. Similarly, savings can be achieved with integration in other areas also. 16.0rders / supply of linen items for 2020-21 may be deferred by 3 - 6 months as feasible.
17. Facilities like Plastic bottle Crusher machines and Namma toilets should be provided on earning contract / CSR basis.
18. Sponsorship with suitable branding of trains and stations and use of CSR for cleaning activity may be explored for resultant savings in expenditure. If NGOs want to adopt stations for cleaning activity, it may be permitted by DRMs with the condition that it should result in savings in contract. Suitable display of their name, logo etc may be allowed similar to that permitted in CSR policy.
19. No new item for sanitation beyond the core area of stations, coaches and depots should be included in scope of work.
20. In third party survey on Cleanliness of Stations, suitable weightage will also be given to footfall and proportionately lesser expenditure.
21. Input tax credit should be availed on machines and material, as applicable.
22. The liability under these activities should be commensurate with the fund availability. Model SOP 2018, page A13 - Notes for Item 2 (C) for revenue budget may be followed in this regard, duly accounting for periodical increase in minimum wages during the year.
W.P.(C).22579/2012 1223. The entry to station premises should be strictly restricted to bonafide passengers / platform ticket holders. Platform tickets rates may be enhanced suitably to regulate rush (CC No. 17 of 2015).
24. To convey a clear message to public, enforcement of Indian Railway (Penalties for activities affecting cleanliness at railway premises) Rules, 2012 (Anti-littering Rules) may be intensified.
25. Railways may accordingly review the scope, work out the estimates and invite fresh tenders, and work with quotations in interim period.
26. Similar review may also be carried out for other service contracts.
These instructions are being issued with the approval of MRS, MT, FC and CRB.
Sd/-
(Shivendra Mohan) Executive Director EnHM/ME Copy to : PCMEs, PCCMs, PFAs, all Zonal Railways"
9. It is also worthwhile to reproduce a few paragraphs from the counter affidavit filed by the Railways in W.P.(C) No.20190 of 2014 regarding the steps taken, as hereunder:
(xi) Indian Railways, which is popularly known as the Lifeline of India, is the principal mode of transportation in the country.
The Indian Railway transports millions of passengers everyday binding the social, cultural and economic fabric across the country. Indian Railway is one of the world's largest railway networks with 63974 route kilometers. With over 47,000 passenger coaches, there are more than one and half lakh coach toilets. Indian Railways is always committed to hygiene, which is its top most priority. Sincere efforts have been made by the Indian Railways, as a mission, to eliminate the problem of open discharge of human excreta on railway tracks. Over the years, the railway has researched, tested and implemented various modalities to effectively tackle the issue of open discharge. A mulch-pronged strategy for development of W.P.(C).22579/2012 13 suitable bio-toilets has been under implementation. Trials have been conducted with technologies like onboard processing and retention-evacuation.
(xii) First respondent has further contended that after a detailed evaluation and research, it has been found that the designs will necessarily have to take care of Indian passengers habit of using excessive water in toilets, when compared to western countries where use of water is minimal or absent. Further, a major challenge in the design is to accommodate the passenger habit of using the train toilets as garbage bins. With excessive use of water, habit of passengers of throwing bottles, waste, clothes, sanitary napkins etc. into the toilets, the relative longer distance between stations, especially on long distance express trains, the retention tanks get filled up quickly and toilets get blocked, rendering it useless and emitting foul smell etc. Similarly, the weight of the four retention tanks on each coach, put extra load on the locomotive. Considering the vast differences in the operating environment of such toilets used elsewhere and operating environment in our country, action has been taken for developing indigenous solutions. Several trials have been carried out for the implementation of bio-toilets and a Memorandum of Understanding has been executed between Railways and Defense & Research Development Organization (D.R.D.O). A joint working group of Mechanical Engineers from both sides are working continuously to evolve an effective design.
(xiii) Bio-toilets have been inducted into the railway system in a phased and experiential manner, in different parts of the country. Railways have reached a take off stage due to the synergistic working between the railways and D.R.D.O. The railway is targeting elimination of coaches with open discharge system by the end of the 12 th Five year plan, ie, 2016-17, provided, no significance set back is experienced during the development and induction process.
(xiv) In the long term, the railways have to come up with retrofitment solution and completely eradicate direct discharge toilet system in trains by the end of the 13 th Five Year Plan, ie., 2021- 22, provided, no significance set back is experienced during the development and induction process. At the cost of repetition, it is reiterated that the Railway Administration is taking all endeavours to maintain hygiene, cleanliness and a W.P.(C).22579/2012 14 pollution free environment at the Shornur Junction Railway Station, to redress the grievance of the petitioner."
10. Going through the guidelines issued by the Ministry of Railway, we are of the view that there is no need to issue any direction in the nature of Mandamus against the Railways. Steps taken to create awareness and to ensure cleanliness, be continued and tourist destinations be periodically verified.
With the above directions, this writ petition is closed.
Sd/-
S. MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P. CHALY JUDGE krj W.P.(C).22579/2012 15 APPENDIX PETITIONER/S EXHIBITS:
EXHIBIT P1 COPY OF REPORT PUBLISHED IN THE HINDU DATED 15.03.2012 ENTITLED '70% HOUSES IN KERALA LACK ACCESS TO SAFE DRINKING WATER'.
EXHIBIT P2 COPY OF THE CENSUS DATA 2011, PERTAINING TO THE AVAILABILITY AND TYPE OF LATRINE FACILITIES FOR THE STATE OF KERALA FOR THE PERIOD 2001-2011 EXHIBIT P3 COPY OF THE CENSUS DATA PERTAINING TO "HOUSE AND HOUSEHOLD AMENITIES AND ASSETS: LATRINE FACILITY" PERTAINING TO THE STATE OF KERALA FOR THE YEAR 2011.
EXHIBIT P4 COPY OF THE NEWS REPORT PUBLISHED IN IBN LIVE ENTITED 'INDIA IS WORLD'S CAPITAL FOR OPEN DEFECATION: RAMESH', DATED 26.07.2012.
EXHIBIT P5 COPY OF THE INTERVIEW OF THE UNION MINISTER FOR DRINKING WATER AND SANITATION, MR JAIRAM RAMESH, AS AVAILABLE FROM IBN LIVE ENTITED 'INDIAN RAILWAY WORLD'S BIGGEST OPEN TOILET: JAIRAM RAMESH', DATED 27.07.2012.
EXHIBIT P6 COPY OF THE WRITE UP PUBLISHED IN THE HINDU ENTITLED 'INDIA IS DROWNING IN ITS OWN EXCRETA' DATED 14.06.2012.
EXHIBIT P7 COPY OF THE SURVEY DONE BY INDIA TODAY ENTITLED 'LACK OF HYGENE BIGGEST CONCERN OF FREQUENT TRAIN TRAVELLERS' DATED 12.06.2012.
RESPONDENTS' EXHIBITS:- NIL //TRUE COPY// P.A. TO C.J.