Uttarakhand High Court
Dr. Yashbir Singh Tomar And Others vs State Of Uttarakhand And Others on 22 September, 2017
Author: Sudhanshu Dhulia
Bench: Sudhanshu Dhulia
Reserved on: 16.08.2017
Delivered on: 22.09.2017
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Writ Petition (M/S) No. 975 of 2017
Dr. Yashbir Singh Tomar & others .........Petitioners
Versus
State of Uttarakhand & others ........Respondents
Present:- Mr. Arvind Vashishta, Senior Advocate assisted by Mr. Rajat Mittal,
Advocate for the petitioners.
Mr. Paresh Tripathi, Chief Standing Counsel for the State/respondent nos.
1 and 2.
Mr. V.K. Kaparwan, Central Government Standing Counsel for the Union
of India/respondent no. 3.
Hon'ble Sudhanshu Dhulia, J.
Heard learned counsel for the parties. Counter affidavit has been filed by the State to which Shri Arvind Vashishta learned Senior Counsel for the petitioners does not wish to file a rejoinder affidavit. Pleadings being complete matter is being heard finally.
2. All the petitioners before this Court are medical practitioners who are presently practicing in Dehradun. By means of the present writ petition, they have challenged the validity of various provisions of a Parliamentary Statute known as the Clinical Establishments (Registration and Regulation) Act, 2010 (from hereinafter referred to as "the Act"), and the Rules framed therein by the State of Uttarakhand in the year 2015. Admittedly, the Act is on a subject, which is in the State List at Item No. 6, which reads as under:-
"6. Public health and sanitation; hospitals and dispensaries."
Considering that the subject matter of Legislation was a State subject, the Act has been passed by the Parliament in exercise of its power under Article 252 of the Constitution of India, which read as under:-
"252. Power of Parliament to legislate for two or more States by consent and adoption of such legislation by any other State.- (1) If it appears to the Legislatures of two or more States to be desirable that any of the matters with respect to which Parliament has no 2 power to make laws for the States except as provided in articles 249 and 250 should be regulated in such States by Parliament by law, and if resolutions to that effect are passed by all the Houses of the Legislatures of those States, it shall be lawful for Parliament to pass an Act for regulating that matter accordingly, and any Act so passed shall apply to such States and to any other State by which it is adopted afterwards by resolution passed in that behalf by the House or, where there are two Houses, by each of the Houses of the Legislature of that State.
2) Any Act so passed by Parliament may be amended or repealed by an Act of Parliament passed or adopted in like manner but shall not, as respects any State to which it applies, be amended or repealed by an Act of the Legislature of that State."
3. The Act was passed by the Parliament after four States, namely, Arunachal Pradesh, Himachal Pradesh, Mizoram and Sikkim, had resolved that in respect to the above subject matter, which was in the State List, the Parliament should make Legislation. Hence, initially the Act had its application only for the four States, namely, Arunachal Pradesh, Himachal Pradesh, Mizoram and Sikkim and the Union Territories but the other States could adopt the Act by a resolution passed by their State Legislature in terms of Article 252 of the Constitution of India.
4. The State of Uttarakhand by a resolution of the State Assembly on 29.03.2011, duly notified in the official gazette later on 18.08.2011, adopted the above Act. Subsequent to its adoption by the State of Uttarakhand, the State of Uttarakhand under the powers vested with it under Section 54 of the Act have also framed the Rules known as the Uttarakhand Clinical Establishments (Registration and Regulation) Rules, 2015 on 31.10.2015.
5. The first challenge of the petitioners in the present writ petition is that the State Legislature of Uttarakhand has never resolved to adopt the Act. This though has been rebutted in the counter affidavit of the State where it has come specifically that the Act was adopted by the resolution of the State Assembly on 29.03.2011 and was notified in the official gazette on 18.08.2011. On this, the contention of the learned Senior Counsel for the petitioners Sri Arvind Vashishta was that the date on which the State Assembly had adopted the Act by a 3 resolution on 29.03.2011, the Parliamentary Legislation i.e. the Clinical Establishments (Registration and Regulation) Act, 2010 had not been enforced as though the Act had received the assent of the President of India on 18.08.2010 but it was only notified in the official gazette on 28.02.2012 (which is a date after its adoption by the State Legislature). Therefore, the very adoption by the State of Uttarakhand is of a Statute, which had not come into force at the time of its adoption.
6. Learned Chief Standing Counsel for the State would argue that there is absolutely no anomaly. It is clear in the Act itself (i.e. the Parliamentary Legislation), as to what would be the date of its commencement. The Act shall commence at once from the date of the notification in the official gazette in the four States and the Union Territories and in other States the date of commencement would be the date when it is so resolved by the State. Therefore, there is no scope of any anomaly as the date of commencement in Uttarakhand, would be that date when it was resolved by the State Legislature.
7. The submissions of the learned Senior Counsel for the petitioners that the manner in which the Act has been adopted by the State Assembly on 29.03.2011 makes it ineffective and non-applicable in Uttarakhand, cannot be accepted for the following reasons.
8. It is well understood that there is a process under which a Bill becomes an Act and merely because this process has come to an end would not mean that the moment it has become an Act, it has also come into force, or in other words it has also commenced. The coming into operation of an enactment is given under Section 5 of the General Clauses Act, 1897, which reads as under:-
"5. Coming into operation of enactments.- (1) Where any Central Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which it receives the assent,-
(a) in the case of a Central Act made before the commencement of the Constitution of the Governor- General, and
(b) in the case of an Act of Parliament, of the President. * * * (3) Unless the contrary is expressed, a Central Act or Regulation shall be construed as coming into operation 4 immediately on the expiration of the day preceding its commencement."
9. The Act which is the Clinical Establishments (Registration and Regulation) Act, 2010 was enacted on 18.08.2010 by the Parliament. The Clinical Establishments (Registration and Regulation) Act, 2010 itself is an Act of (23 of 2010) which prescribes its date of commencement in sub-section 3 of Section 1 of the Act, which reads as under:-
"1. Short title, application and commencement.-
(1)....
(2)......
(3) It shall come into force at once in the States of Arunachal Pradesh, Himachal Pradesh, Mizoram and Sikkim and the Union territories, on such date as the Central Government may, by notification, appoint and in any other State which adopts this Act under clause (1) of article 252 of the Constitution, on the date of such adoption; and any reference in this Act to the commencement of this Act shall, in relation to any State or Union territory, mean the date on which this Act comes into force in such State or Union territory."
(emphasis provided)
10. Thereafter, the Central Government by a notification appointed the 1st day of March, 2012 as the date on which the provisions of the Act shall come into force in the States of Arunachal Pradesh, Himanchal Pradesh, Mizoram and Sikkim and the Union territories. The notification dated 28.02.2012 in official gazette reads as under:-
"S.O. 342 (E).- In exercise of the powers conferred by sub-section (3) of Section 1 of the Clinical Establishments (Registration and Regulation) Act, 2010 (23 of 2010), the Central Government hereby appoints the 1st day of March, 2012, as the date on which the provisions of the said Act shall come into force in the States of Arunachal Pradesh, Himachal Pradesh, Mizoram and Sikkim and the Union Territories."
11. Even if the Act has come into force for the four States and the Union Territories on 28.02.2012, the date of commencement of this Act for the State of Uttarakhand would be the date, when it has been adopted by the State Legislature in terms of Article 252 of the Constitution of India and sub-section (3) of Section 1 of the Act, 5 referred above. Hence, the contention of the learned Senior Counsel Shri Arvind Vashishta for the petitioners is rejected.
12. The Act has come into force in the State of Uttarakhand on the date of its adoption i.e. on 29.03.2011 and that will be the date when it will be deemed to have commenced for the State of Uttarakhand. The Rules in any case have been framed by the State of Uttarakhand in the year 2015 after the notification in the official gazette of the Central Government i.e. after 28.02.2012.
13. The second ground of challenge by the petitioners is that certain provisions of the Act are in violation of Article 14 of the Constitution of India. The Act defines a "Clinical Establishment"
under Section 2 (c) of the Act, which reads as under:-
"2. Definitions.- In this Act, unless the context otherwise requires,-
(a)
(b)
(c) "clinical establishment" means-
(i) a hospital, maternity home, nursing home, dispensary, clinic, sanatorium or an institution by whatever name called that offers services, facilities requiring diagnosis, treatment or care for illness, injury, deformity, abnormality or pregnancy in any recognised system of medicine established and administered or maintained by any person or body of persons, whether incorporated or not; or
(ii) a place established as an independent entity or part of an establishment referred to in sub-clause (i), in connection with the diagnosis or treatment of diseases where pathological, bacteriological, genetic, radiological, chemical, biological investigations or other diagnostic or investigative services with the aid of laboratory or other medical equipment, are usually carried on, established and administered or maintained by any person or body of persons, whether incorporated or not, and shall include a clinical establishment owned, controlled or managed by-
(a) the Government or a department of the Government;
(b) a trust, whether public or private;
(c) a corporation (including a society) registered under a Central, Provincial or State Act, whether or not owned by the Government;
(d) a local authority; and
(e) a single doctor, 6 but does not include the clinical establishments owned, controlled or managed by the Armed Forces."
(emphasis provided)
14. The argument of the petitioners would be that though the definition of a "Clinical Establishment" is extremely wide, which includes within its ambit an establishment which could be from a super-specialty hospital right down to a clinic having only a single doctor, yet it does not include a clinical establishment which is owned, controlled or managed by the "Armed Forces". Hence, it is submitted by the Senior Counsel for the petitioners Sri Arvind Vashishta that this is violative of Article 14 of the Constitution of India.
15. This ground of the petitioners again cannot be sustained, for the reason that though Article 14 prohibits class legislation, it permits "reasonable classification". The challenge on Article 14 can only be made in case it is established that the classification is not reasonable and has no nexus with the object sought to be achieved. The Armed Forces by its very nature is a different class altogether. Considering the nature of service, the Armed Forces perform, it has always been treated as a class apart, and therefore, the Rules and Regulations which apply to establishments which are primarily civil establishments, cannot always be enforced on Armed Forces.
16. Since Armed Forces in India have been treated as a distinct class, Armed Forces or Armed Forces establishments have at times been excluded from the purview of such laws which are ordinarily applicable to a civil establishment, and the validity of such laws and such exclusion have been upheld. The case which must be referred here is the seminal decision of the Hon'ble Apex Court in case of The State of Bombay and another Vs. F.N. Balsara, reported in AIR 1951, SC pg 818. In the year 1949, in the erstwhile State of Bombay, prohibition was imposed but while imposing prohibition for the State of Bombay, certain establishments and certain areas were left out of the purview of prohibition laws. Army canteens and Army establishments were such areas.
717. Undoubtedly, F.N. Balsara (supra) was a case relating to a pre-constitutional legislation and what was examined by both the Bombay High Court as well as by the Hon'ble Apex Court were not constitutional provisions but the Bombay Prohibition Act (Act 25 of 1949) and Government of India Act, 1935, yet the findings of the Hon'ble Apex Court on the validity of the classification i.e. holding Armed establishments to be a distinct class is presently valid for our purposes as well.
18. The Hon'ble Apex Court in the case of F.N. Balsara (supra), inter alia, held the classification to be a valid classification by stating as under:-
"The armed forces have their own traditions & mode of life, conditioned and regulated by rules and regulations which are the product of long experience and which aim at maintaining at a high level their moral and those qualities which enable them to face dangers and perform unusual task of endurance and hardship when called upon to do so qualities such as dash and courage unbreakable tenacity and energy ready for any sacrifice which should be unfaltering for long days together. By these rules and regulations, drinking among the forces is not prohibited, but it is properly and carefully regulated. It is easy to understand that the legislature choose not to interfere with the mode of life to which the forces have been accustomed, lest such interference should affect their moral and lead to subterfuges which may prove unwholesome for their discipline and good behaviour. Besides, when drinking is regulated among a class of persons by specific rules and regulations and drunkenness is made an offence, the relaxation of the law of prohibition in their case is not likely to produce the same evil results as it may produce under other circumstances. I find therefore nothing wrong 'prima facie' in the legislature according special treatment to persons who form a class by themselves in many respects and who have been treated as such in various enactments and statutory provisions. In my opinion, therefore, S. 39, in so far as it affects the military and naval messes and canteens, warships and troopships, cannot be held to be invalid."
19. In the case at hand, the Parliament has considered the special circumstances and special conditions of service of the Armed Forces while keeping them out of the purview of the Act. Considering the special conditions and the requirement of the logistics and difficult 8 circumstances and the terrains under which the Armed Forces have to operate they have been rightly kept out of the purview of Act. Not only is the classification valid but it has a reasonable nexus with the objects sought to be achieved. Hence, it cannot be held to be violative of Article 14 of the Constitution of India.
20. The third ground of challenge of the petitioners is that under Section 2 (d), the definition of "emergency medical condition", is vague and arbitrary and is liable to be abused by the concerned authorities. Section 2 (d) defines "emergency medical condition", which is as follows:-
"2. Definitions.- In this Act, unless the context otherwise requires,-
(a).....
(b)....
(c)....
(d) "emergency medical condition" means a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) of such a nature that the absence of immediate medical attention could reasonably be expected to result in-
(i) placing the health of the individual or, with respect to a pregnant women, the health of the woman or her unborn child, in serious jeopardy; or
(ii) serious impairment to bodily functions; or
(iii) serious dysfunction of any organ or part of a body;"
21. Learned Senior Counsel for the petitioners has further relied upon Section 12 of the Act, which reads as under:-
"12. Condition for registration.- (1) For registration and continuation, every clinical establishment shall fulfill the following conditions, namely:-
(i) the minimum standards of facilities and services as may be prescribed;
(ii) the minimum requirement of personnel as may be prescribed;
(iii) provisions for maintenance of records and reporting as may be prescribed'
(iv) such other conditions as may be prescribed. (2) The clinical establishment shall undertake to provide within the staff and facilities available, such 9 medical examination and treatment as may be required to stabilise the emergency medical condition of any individual who comes or is brought to such clinical establishment."
22. In other words, the argument of the learned Senior Counsel for the petitioners would be that a clinical establishment must have minimum facilities and conditions available to stabilise a patient who has an emergency medical condition. According to the petitioners what is actually an "emergency medical condition" is best left to the discretion of a doctor who is attending a patient and it is a term which cannot be precisely defined in law. This argument of the petitioners is again misconceived and is liable to be rejected inasmuch as it is the Legislature which has defined the emergency medical condition which means a medical condition which needs urgent medical attention so that such a condition can be stabilized. This definition cannot be said to be either unreasonable or arbitrary. The definition of "emergency medical condition" as given in Section 2 (d) of the Act reads as under:-
"2. Definitions.- In this Act, unless the context otherwise requires,-
(a).....
(b)....
(c)....
(d) "emergency medical condition" means a medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) of such a nature that the absence of immediate medical attention could reasonably be expected to result in-
(i) placing the health of the individual or, with respect to a pregnant women, the health of the woman or her unborn child, in serious jeopardy; or
(ii) serious impairment to bodily functions; or
(iii) serious dysfunction of any organ or part of a body;"
23. A perusal of the above definition shows that the definition of emergency medical condition is with a purpose. The purpose being that special care and special medical attention be given to a patient in a given condition. The definition is precise at it ought to be. In any case, 10 this alone cannot be a ground for declaring the provision as ultra vires. The arguments of the learned Senior Counsel for the petitioners which are to the contrary, are rejected.
24. The fourth and final ground of the petitioners is that under Section 33 of the Act, the authority concerned who can inspect a clinical establishment is a "multi-member inspection team", whereas in the Rules, inspection can be done even by an individual.
25. Section 33 of the Act reads as under:-
"Section 33. Inspection of registered clinical establishments.- (1) The authority or an officer authorized by it shall have the right to cause an inspection of, or inquiry in respect of any registered clinical establishment, its building, laboratories and equipment and also of the work conducted or done by the clinical establishment, to be made by such multi-member inspection team as it may direct and to cause an inquiry to be made in respect of any other matter connected with the clinical establishment and that establishment shall be entitled to be represented thereat.
(2) The authority shall communicate to the clinical establishment the views of that authority with reference to the results of such inspection or inquiry and may, after ascertaining the opinion of the clinical establishment thereon, advise that establishment upon the action to be taken.
(3) The clinical establishment shall report to the authority, the action, if any, which is proposed to be taken or has been taken upon the results of such inspection or inquiry and such report shall be furnished within such time, as the authority may direct.
(4) Where the clinical establishment does not, within a reasonable time, take action to the satisfaction of the authority, it may after considering any explanation furnished or representation made by the clinical establishment, issue such directions within such time as indicated in the direction, as that authority deems fit, and the clinical establishment shall comply with such directions."
26. The submission of the learned Senior Counsel for the petitioners would be that though the Act mandates "inspection" by a "multi-member inspection team", yet under Rule 22 of the Rules inspection can be made by the District Registering Authority or any Officer or team duly authorized by it under Section 22 of the Uttarakhand Clinical Establishments (Registration and Regulation) 11 Rules, 2015. Rule 22 of the Uttarakhand Clinical Establishments (Registration and Regulation) Rules, 2015 reads as under:-
"22. Power of Enter.- (1) Enter and search of the clinical establishment can be done by the District Registering Authority or an officer or team duly authorized by it or subject to such general or special orders as may be made by the authority such a decision will be required to be taken by majority of the present members of the District Registration Authority.
(2) Such entry and search of clinical establishment can be conducted if anyone is carrying on a clinical establishment without registration or does not adhere to the prescribed minimum standards or has reasonable cause to believe the clinical establishment is being used for purposes other that it is registered or contravenes any of the provisions of this Act & Rules, shall at all reasonable times enter and inspect any record, register, document, equipment and articles as deemed necessary under the provisions of section 34 of the Act.
(3) The inspection team shall intimate the establishment in writing about the date of visit. The team shall examine all portions of the premises used or proposed to be used for the clinical establishment and Inspect the equipment, Furniture and other accessories and enquire into the professional qualifications of the technical staff employed or to be employed and shall the application for registration as grant of license. All persons connected with the running of the clinical establishment shall be bound to supply full and correct information to the inspection team.
(4) The Officer and/or inspection team so constituted by the Registering Authority shall submit a report as per Format-10 within a week of the inspection to the District Registration Authority with a copy of the State Council."
27. The above submissions of the learned Senior Counsel for the petitioners that the Rules are in violation of the Act are totally misconceived. Under the Act, there are two different provisions given under Section 33 and Section 34 of the Act respectively. Section 33 of the Act, which has already been referred above, is regarding inspection of a registered clinical establishment by a "multi-member inspection team", whereas the power has been given to an authority to enter and search of a clinical establishment under Section 34 of the Act. Section 34 of the Act reads as under:-
"34. Power to enter.- The authority or an officer by it may, if there is any reason to suspect that anyone is 12 carrying on a clinical establishment without registration, enter and search in the manner prescribed, at any reasonable time and the clinical establishment, shall offer reasonable facilities for inspection or inquiry and be entitled to be represented thereat:
Provided that no such person shall enter the clinical establishment without giving notice to his intention to do so."
28. Rule 22 refers to enter and search by an authority as well as inspection by a team. Under sub-rule (1) of Rule 22, the District Registering Authority or an Officer or a team can enter and search a clinical establishment to see whether the establishment is duly registered and has adhered to the minimum standards or not. Sub-rule (3) of Rule 22 of the Rules then relates to the inspection team. In other words, there is a different provisions for "enter and inspection" which are sub-rule (1) and sub-rule (3) of Rule 22 of the Rules read with Section 34 of the Act and another provision for "inspection" by a multi-member team under sub-rule (3) of Rule 22 of the Rules read with Section 33 of the Act.
29. There is always a presumption on the validity of a legislation. A statute can only be declared ultra vires on two grounds.
(a) When it is without any legislative competence.
(b) When it is in violation of the fundamental rights granted under the Constitution, and Now there is also a third ground for declaring a statute ultra vires which is when it is in violation of any constitutional provision.
30. The submission of the legislative competence has already been discussed in the beginning of this order. The subject of the statute is undoubtedly in the State List at Item No. 6, which is "Public health and sanitation; hospitals and dispensaries." All the same, Article 252 of the Constitution of India gives powers to the Parliament to legislate one subject in the State list, subject to certain conditions. These conditions have been fulfilled and hence there is no effective challenge as to the legislative competence.
1331. As far as violation of any fundamental rights are concerned, the argument of the learned Senior Counsel for the petitioners Sri Arvind Vashishta was that it is violative of Article 19 (1) (g) and Article 14 of the Constitution of India. As far as this freedom of practicing a trade and profession is concerned, the same comes within a reasonable restriction under clause (6) of Article 19 of the Constitution of India. To carry on any occupation, trade or business can be restricted under clause (6) of Article 19 of the Constitution by the State by making a law relating to professional or technical qualifications necessary before practicing of any profession or carrying on any occupation, trade or business. By placing restrictions or qualifications for practicing a profession or carrying on an occupation or trade, the State is within its powers as given to it by the Constitution.
32. No arguments have been advanced by the learned Senior Counsel for the petitioners as to the violation of any other constitutional rights or any constitutional provision of the law. This writ petition, therefore, has absolutely no merit and is hereby dismissed.
(Sudhanshu Dhulia, J.) 22.09.2017 Ankit/