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Delhi High Court

Ramesh Chander vs Union Of India & Ors. on 22 September, 2017

Author: S. Ravindra Bhat

Bench: S. Ravindra Bhat, S.P. Garg

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      W.P.(C) 9350/2014
       RAMESH CHANDER                       ..... Petitioner
                   Through: Mr. Sunil Dalal with Ms. Mansi
                   Agarwal, Advocates.
                          versus
       UNION OF INDIA & ORS.                      ..... Respondents
                     Through:Mr. Anil Soni, CGSC with Ms. Priyanka
                     Singh, Advocate for R-1/UOI.
                     Mr. Deeptakirti Verma, Advocate for R-4.
       CORAM:
       HON'BLE MR. JUSTICE S. RAVINDRA BHAT
       HON'BLE MR. JUSTICE S.P. GARG
                     ORDER

% 22.09.2017

1. On 12.04.2017, this Court had required respondents 2-4 to file detailed affidavit indicating the following:

"(i) The number of vacancies and the reasons thereof and the historical nature of vacancies i.e. the time period for which vacancies have existed;

(ii) The steps taken by the Delhi Government to invite the sanctioned specialised posts for the last three years and the timeline within which it is proposed to be done shall also be disclosed;

(iii) Additionally the Government of NCT of Delhi shall outline the specialised equipment procured by these institutions and the reasons for such procurement as well as duty assessments obtained thereof in order to shed light as to whether such equipment has been utilised for the purpose for which they were procured."

2. On 02.08.2017, the petition was again heard. The matter was subsequently adjourned on two days.

3. During the hearing the Court was informed about the affidavit of the Superintendent working as Director, Janakpuri Super Speciality Hospital dated 31.07.2017. The affidavit, which is on record, indicated that the hospital has a total covered area of 9,000 sq. mts. and receives substantial grant-in-aid allocations from the Government of NCT of Delhi. The picture relating to the funding vis-a-vis grant-in-aid/allocation and expenditure presented in the note prepared which is part of the affidavit reads as follows:

FUND/GRANT-IN-AIDS ALLOCATION/EXPENDITURE S.NO. Heads Allocations(in `) Expenditure (in `) Expenditure in % 2014-15 2014-15 2014-15

1. GIA-SALARIES 20,00,00,000 5,75,51,241 28.78

2. GIA-OTHER THAN 52,30,00,000 7,32,57,058 14.00 SALARIES

3. GIA-FOR CREATION 12,00,00,000 1,76,34,688 14.70 OF CAPITAL ASSETS

4. GIA-M&E --- --- ---

S.NO. Heads Allocations (in `) Expenditure(in `) Expenditure in % 2015-16 2015-16

1. GIA-SALARIES 16,24,48,759 8,74,10,475 53.81

2. GIA-OTHER THAN 30,93,23,871 5,52,13,090 17.85 SALARIES

3. GIA-FOR CREATION 11,23,65,312 2,84,67,319 25.33 OF CAPITAL ASSETS

4. GIA-M&E 17,04,19,071 1,81,51,336 10.65 Total 75,45,57,013 18,92,42,220 S.NO. Heads Allocations(in Expenditure(in `) Expenditure in % `) 2016-17 2016-17

1. GIA-SALARIES 15,50,38,284 11,35,60,140 73.24

2. GIA-OTHER THAN 17,41,10,781 4,62,10,009 26.54 SALARIES

3. GIA-FOR CREATION OF 8,38,97,993 20,58,000 2.45 W.P.(C) No.9350/2014 Page 2 of 9 CAPITAL ASSETS

4. GIA-M&E 15,22,67,735 12,61,01,641 82.81 Total 56,53,14,793 28,79,29,790

4. The other details furnished include particulars of equipment purchased and the facilities available (such as Digital Video EEG Machine; Electromyography/nerve conduction/evoked potential; Stress Test System TMT; Digital Holter Machine; 12 Channel ECG Machine; Holter Sound Machine; 3D Eco Machine; Immunoassay System; Five Part Haematology Analyzer; Fully Automated Biochemistry Analyzer; GI Endoscope and 300mA X-Ray Machine etc).

5. So far as recruitments are concerned, it is stated that the GNCTD had sanctioned 529 posts in 2007 and 2014. Apparently, till 2013, the hospital was functioning under the GNCTD after which it attained autonomous status.

6. The Government of NCT of Delhi's affidavit reveals that as against the proposed bed strength of the Rajiv Gandhi Super Speciality Hospital, Tahirpur of 650 beds, 250 were approved for functioning in the first phase of November, 2015, of which only 64 beds were functional and 186 beds were unutilized. The reasons attributed for these are shortage of faculty members, nursing and para-medical staff. The Government of NCT of Delhi states that the Governing Council of the hospital has not yet been constituted. As against a proposal of 650 beds and the actual sanction of 250 beds, only 6 beds are functional in the Emergency Ward and in the Day- Care Ward 10 beds are functioning. The General Ward is functional only to the extent of 30 beds. The month-wise patient footfall in respect of various facilities and disciplines has been outlined in the affidavit. This too paints a W.P.(C) No.9350/2014 Page 3 of 9 very dismal picture. The ECG facility has been used only to the extent of 9128 patients in the whole year; X-Ray facilities have been used to the extent of 2113 patients;Pathology to the extent of 19431 and OPD to the extent of 66125. The status report of doctors and nursing and para-medical staff in respect of this hospital has been provided; the tabular charts disclosed to the Court read as follows:

STATUS REPORT OF DOCTORS S.No. Category Number of Number of Number of sanctioned posts filled as vacancies yet posts for 250 on 15th July, to be filled beds 2017

1. Professor 12 NIL 12 No advertisement issued so far.

2. Associate 14 NIL 14 No Professor advertisement issued so far.

Professor 4. Blood Bank 01 01 0 Officer 5. Senior 104 44 60 Resident 6. Junior 48 42 6 Resident 7. Medical 10 02 8 Officer STATUS REPORT OF NURSING STAFF S.No. Category Number of Number of sanctioned posts filled as posts for 250 on 15th July, beds 2017

1. Nursing 01 NIL The nursing staff is Superintendent being outsourced

2. Dy. Nursing 02 NIL through ICSIL, the Superintendent executive committee of

3. Assistant 06 NIL Respondent No.3 has in Nursing principle took decision Superintendent to fill the vacancies.

Nurses/Nursing Sisters PARAMEDICAL STAFF:

S.No. Category Number of Number of Number of sanctioned posts filled as vacant posts posts on 15th July, 2017 1. Dietician 04 01 3

2. Physiotherapist 03 NIL 3 Approximately

3. Clinical 01 NIL 1 1500 Psychologist applications

4. Technician 20 NIL 20 have been Grade-I received by

5. Technician 102 19 83 virtue of Grade-II recruitment

6. Pharmacist 05 03 2 notice dated June, 2017, likely to be filled in _____ weeks

7. A common feature of the Janakpuri Super Speciality Hospital as well as the Rajiv Gandhi Super Speciality Hospital is that considerable financial outlay for the physical infrastructure of the hospitals was provided. These hospitals were constructed at great public expense. Likewise, the medical infrastructure in the form of equipments and highly specialized diagnostic machines, etc. were procured. The acute shortage of staff in both hospitals has led to a woeful situation of inadequacy of services to the general public who deserve it and for whom there is a crying need for such services. This has translated into both severe lack of access to cheap or free medical aid to the general public and scarcity of such public resources, though physical infrastructure has been created. OPD footfalls are less than the expected level - intuitively one can infer that the OPD footfalls in both the institutions are less than half - of the capacity made available. In the case of bed W.P.(C) No.9350/2014 Page 5 of 9 utilization, the situation is far worse.

8. The acute shortage of staff is attributable to the high vacancy position.

During the course of hearing, it was stated that most of the posts in the hospitals and those advertised are not permanent or encadred but contractual or tenure posts. This appears to be an important reason why either there is a large proportion of vacancies or there is a considerable turnover - or both.

9. Health care and right to wellness are an intrinsic and important component of the right to life. The Directive Principle of State Policy contained in Article 47 considers it the primary duty of the state to improve public health, securing of justice, humane condition of works, as well as extension of sickness, old age, disablement and maternity benefits.

10. In several judgments, the Supreme Court explained the substantive content of the right to life, and held that the right to life included the right to live with human dignity including the right to good health. (Bandhua Mukti Morcha v Union of India AIR 1984 SC 812). In Consumer Education and Research Center v. Union of India (AIR 1995 SC 636) the Supreme Court declared that the right to health was an integral factor of a meaningful right to life. The court held that the right to health and medical care is a fundamental right under Article 21. Examining the issue (i.e. the constitutional right to health care under arts 21, 41 and 47 of the Constitution of India), the Supreme Court in State of Punjab v Ram Lubhaya Bagga, 1998(4) SCC 177 observed that the right of one person is connected with a duty cast upon another individual, employer, government or authority. Consequently, citizens' right to life under Art 21 casts obligations on the state. This obligation is underlined by Article 47. The state has to secure health to its citizens as its primary duty. The government strives to W.P.(C) No.9350/2014 Page 6 of 9 fulfil this obligation by setting up public healthcare facilities, government hospitals and health centers. They must be within the reach of its people, if they are to be effective.

11. Again, in Paschim Banga Khet Mazdoor Samity v. State of West Bengal 1996 (4) SCC 37 it was held that " It is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. In the context of the constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State has to be kept in view."

The Court made certain additional direction in respect of serious medical cases:

"(a) Adequate facilities be provided at the public health centers where the patient can be given basic treatment and his condition stabilized.

(b) Hospitals at the district and sub divisional level should be upgraded so that serious cases be treated there.

(c) Facilities for given specialist treatment should be increased and having regard to the growing needs, it must be made available at the district and sub divisional level hospitals.

(d) To ensure availability of bed in any emergency at State level hospitals, there should be a centralized communication system so that W.P.(C) No.9350/2014 Page 7 of 9 the patient can be sent immediately to the hospital where bed is available in respect of the treatment, which is required.

(e) Proper arrangement of ambulance should be made for transport of a patient from the public health center to the State hospital.

(f) Ambulance should be adequately provided with necessary equipment and medical personnel."

12. In these circumstances and having regard to the glaring deficiencies in the healthcare system in the two hospitals and related health care centres (both being superspeciality hospitals) established at great public expense, with substantial annual grants- a large part of which appears to be unutilized, this Court is of the opinion that the Government of NCT should take urgent steps to have both the hospitals and other such public medical institutions which are under its control (and are independently governed through Governing Councils, etc.), audited through a third party agency, to point out the deficiencies and shortcomings and suggest remedial measures to ensure availability of clinical, diagnostic and full panoply of medical services that each hospital was designed to cater to. A direction is issued to the Cabinet Secretary to examine the matter and with the assistance of an appropriate Committee, consider the feasibility of appointing an Expert Audit Committee which will go into all aspects and suggest effective reforms. The reforms should also consider appropriate long term measures to recruit crucial medical and para medical staff, to ensure stability in personnel availability, which appears to be a critical and glaring cause for the ineffectiveness of the two hospitals' delivery system.

The Committee/experts may be also tasked with examining the feasibility of evolving a common on-line portal, showing to the members of the public the availability of various services on a dynamic basis linked centrally so that the bed position in each public hospital is updated on a daily basis. Such a web portal may also display the relevant disciplines that each hospital would cater to the bed capacity, etc.

13. Let a comprehensive affidavit be filed by the Principal Secretary, Health, Government of NCT of Delhi in the light of the above directions within 4 weeks, after considering the above directions.

List on 27.10.2017.

S. RAVINDRA BHAT, J S.P. GARG, J SEPTEMBER 22, 2017 kks W.P.(C) No.9350/2014 Page 9 of 9