Kerala High Court
Agappe Diagnostics Limited vs The State Of Kerala on 22 December, 2020
Bench: C.T.Ravikumar, K.Haripal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE K.HARIPAL
TUESDAY, THE 22ND DAY OF DECEMBER 2020 / 1ST POUSHA, 1942
WP(C).No.28722 OF 2020(M)
PETITIONER:
AGAPPE DIAGNOSTICS LIMITED
X283-C, AGAPPE HILLS, CHENGARA, PATTIMATTOM P. O.,
ERNAKULAM DISTRICT, KERALA - 683 562,
REP. BY AUTHORISED OFFICER, PAUL M. ABRAHAM
BY ADVS.
SRI.DENU JOSEPH
SHRI.BIBIN BABU
RESPONDENTS:
1 THE STATE OF KERALA
REPRESENTED BY CHIEF SECRETARY,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
KERALA - 695 001.
2 TRAVANCORE DEVASWOM BOARD
REPRESENTED THROUGH ITS SECRETARY, NANTHANCODE,
KAWADIAR POST, THIRUVANANTHAPURAM, KERALA - 695 003.
3 HEALTH AND FAMILY WELFARE DEPARTMENT
REPRESENTED BY ITS PRINCIPAL SECRETARY,
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM,
KERALA - 695 001.
4 SPECIAL COMMISSIONER, SABARIMALA
ADDITIONAL / DISTRICT AND SESSIONS JUDGE - VI,
KOLLAM, KERALA - 691 013.
R1 BY SR. GOVERNMENT PLEADER SRI. T.K. ANANDAKRISHNAN
R2 BY SRI. G. BIJU, STANDING COUNSEL, TDB
R3 BY STATE ATTORNEY SRI. K.V. SOHAN
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
22.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.28722 OF 2020(M) 2
JUDGMENT
Ravikumar, J.
The petitioner company is a licensed manufacturer of 'Real Time RT- LAMP COVID 19 Testing Kit'. It is its contention that the Indian Council of Medical Research (ICMR) conducted the performance evaluation of testing kit manufactured by the petitioner company and approved the same for real time detection of SARS- CoV-2-RNA for the diagnosis of Covid-19 infection. Ext.P2 is the report of ICMR in that regard. It is also its case that the High Level Committee, constituted for streamlining the Sabarimala pilgrimage in view of the pandemic situation created owing to Covid - 19, took into consideration the Revised Health Advisory on Sabarimala Pilgrimage in the context of Covid- 19 dated 14.12.2020 viz., Ext.P4. Thereafter, an amendment to Revised Health Advisory on Sabarimala Pilgrimage in the context of Covid- 19 was issued on 15.12.2020, as can be seen from Ext.P5. Clause 4 of Ext.P4 and Ext. P5 would reveal that usage of RT- LAMP COVID 19 Testing WP(C).No.28722 OF 2020(M) 3 Kit for diagnosis of Covid-19 infection besides RT-PCR/Express NAT Test, at costs from NABL accredited ICMR approved laboratories is permissible for Sabarimala pilgrimage. The insistence, in relation to the Sabarimala pilgrimage, is for production of COVID - 19 negative certificate obtained after conducting any one of such tests within 48 hours of reaching Nilakkal. The further contention is that the aforesaid relevant aspects were not brought to the notice of the Court when this Court passed judgment in W.P.(C.) No. 23183/2020 and connected cases on 18.12.2012 (Ext.P6). Paragraph 18 of Ext.P6 judgment is relevant in the context of the contentions. It reads thus:-
"18. Taking into account all the aforesaid circumstances and also the pandemic situation we are of the view that the number of permissible pilgrims can be safely fixed as 5000. It is so fixed and such number of pilgrims shall be allowed to undertake pilgrimage from 20.12.2020. We have noticed that taking into account the pandemic situation the High Level Committee resolved to insist that Covid-19 Negative certificate should be one obtained after conducting RTPCR test within 48 hours of reaching Nilakkal, from NABL accredited ICMR approved laboratories. We are of the view that it should also be insisted from 30.12.2020, when the shrine opens for Makaravilakku season, taking into account the fact that the antigen test cannot be considered as a conclusive test, regarding the covid positivity. We make it clear that this judgment will not stand in WP(C).No.28722 OF 2020(M) 4 the way of the High Level Committee to consider the question of further increase in the pilgrims during the Mandala- Makaravilakku season of 1196 M.E."
We have noticed that taking into account the pandemic situation, the high level committee resolved to insist that Covid-19 Negative certificate should be one obtained after conducting RTPCR test within 48 hours of reaching Nilakkal, from NABL accredited ICMR approved laboratories. We are of the view that it should also be insisted from 30.12.2020, when the shrine opens for Makaravilakku season, taking into account the fact that the antigen test cannot be considered as a conclusive test, regarding the covid positivity.
2. Heard the learned Senior Counsel appearing for the petitioner, the learned Standing Counsel appearing for the Travancore Devaswom Board as also the learned State Attorney.
3. After hearing the learned counsel on both sides and perusing Exts.P4 and P5, it is evident that virtually the insistence for production of Covid- 19 negative certificate is not confined to the one obtained after RTPCR test. Exts. P4 and P5 would reveal that such certificate could be obtained after undergoing Real Time RT- LAMP COVID 19 Test, using the kit manufactured by the petitioner company or the Express NAT Test.
WP(C).No.28722 OF 2020(M) 5
4. In the said circumstances, it is made clear that as resolved by the High Level Committee in relation to the Covid - 19 negative certificate to be produced from 30.12.2020, besides such certificate obtained after conducting RTPCR test, the certificates produced after conducting Real Time RT- LAMP COVID 19 Test and Express NAT Test shall also be accepted.
With the above observation, this writ petition is disposed of.
SD/-
C.T.RAVIKUMAR JUDGE SD/-
K.HARIPAL JUDGE DCS/22.12.2020 WP(C).No.28722 OF 2020(M) 6 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 THE COPY OF THE LICENSE NO.MFG/IVD/2020/000055 DATED 12.10.2020 TO MANUFACTURE FOR SALE OF REAL RT LAMP COVID 19 TESTING KIT ISSUED TO THE PETITIONER. EXHIBIT P2 THE COPY OF PERFORMANCE EVALUATION REPORT DATED 21.09.2020 ISSUED BY ICMR TO THE PETITIONER.
EXHIBIT P3 THE COPY OF THE ADVISORY OF ICMR ON MOLECULAR TESTING OF COVID 19 DATED 10.11.2020.
EXHIBIT P4 THE COPY OF THE REVISED HEALTH ADVISORY ON SABARIMALA PILGRIMAGE DATED 14.12.2020 ISSUED BY THE 3RD RESPONDENT.
EXHIBIT P5 THE COPY OF THE AMENDMENT TO REVISED HEALTH ADVISORY ON SABARIMALA PILGRIMAGE DATED 15.12.2020 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P6 THE COPY OF THE COMMON JUDGMENT DATED 18.12.2020 IN WRIT PETITION NO.23183/2020 AND OTHER CASES.