Medical records not under RTI: court

The Delhi High Court Tuesday ruled that income tax returns and medical records do not fall under the purview of Right To Information (RTI) Act "unless public interest is attached" holding in its landmark judgment that the Chief Justice of India (CJI) came under the ambit of the transparency law.

Quoting an American writer that "one man's freedom of information is another man's invasion of privacy", a full bench of Chief Justice Ajit Prakash Shah and Justices S. Muralidhar and Vikramjit Sen said: "Personal information including tax returns, medical records etc. cannot be disclosed in view of Section 8(1)(j) of the act."

"If, however, the applicant can show sufficient public interest in disclosure, the bar (preventing disclosure) is lifted and after duly notifying the third party (the individual concerned with the information or whose records are sought) and after considering his views, the authority can disclose it," they said.

Highlighting how the right to information often clashes with the right to privacy, the court noted that the government stores a lot of information about individuals, supplied by the individuals themselves in applications made for obtaining various licences, permissions including passports, or through disclosures such as income tax returns or for census data.

"When an applicant seeks access to government records containing personal information concerning identifiable individuals, it is obvious that these two rights are capable of generating conflict," the court said, adding that "in some cases, this will involve disclosure of information pertaining to public officials. In others, it will involve disclosure of information concerning ordinary citizens. In each instance, the subject of the information can plausibly raise a privacy protection concern."

However, the court ruled that notes made by the judges do not come under the RTI act, the court said the notes taken by judges while hearing a case cannot be treated as final views expressed by them on the case. "They are meant only for the use of the judges and cannot be held to be a part of a record 'held' by the public authority. However, if the judge turns in notes along with the rest of his files to be maintained as a part of the record, the same may be disclosed."

Maintaining that the right to information may not always have a linkage with the freedom of speech, the court said: "If a citizen gets information, certainly his capacity to speak will be enhanced."

"But many a time, he needs information which may have nothing to do with his desire to speak. He may wish to know how an administrative authority has used its discretionary powers. He may need information as to whom the petrol pumps have been allotted. The right to information is required to make the exercise of discretionary powers by the executive transparent and, therefore, accountable because such transparency will act as a deterrent against unequal treatment," the court said.

Supreme Court : Appeal (civil) 919 of 2007 DATE OF JUDGMENT: 23/02/2007

CASE NO.:
Appeal (civil) 919 of 2007

PETITIONER:
SHARE MEDICAL CARE

RESPONDENT:
UNION OF INDIA & ORS

DATE OF JUDGMENT: 23/02/2007

BENCH:
C.K. THAKKER & LOKESHWAR SINGH PANTA

JUDGMENT:
J U D G M E N T
(Arising out of SPECIAL LEAVE PETITION (C) NOs.10429 to 10431 OF 2005)

C.K. THAKKER, J.

Leave granted.
This appeal has been filed against a common
judgment and order passed by the High Court of Andhra
Pradesh, Hyderabad on December 31, 2004 in Writ
Petition Nos. 22734 & 22735 of 1996 and 3355 of 2001.
Few facts which are necessary for understanding the
controversy are that the appellantShare Medical Care is
a Society registered under the Andhra Pradesh (Telengana
Area) Public Societies Act, 1350 Fasli (Act 1 of 1350 F)
('Society' for short) and owes its origin to the desire of Non
Resident Indian (NRI) Scientists and Doctors based in the
United States of America (USA). The aim of the Society is
to share the advanced technology with the citizens of
India. The appellant-Society was established with the
intention to construct and run hospitals, medical and
diagnostic centers, etc. It is a charitable hospital and is
run on 'no-profit' basis. It is located at village Ghanapur,
about 40-50 kms away from the city of Hyderabad. It
started its activities in the year 1993. It has specialized in
treatment of heart and related ailments having the latest
equipments and specialist doctors.
In the year 1992-93, the appellant-Society imported
certain medical equipments for the use in its charitable
hospital. According to the appellant, under Notification
No. 64/88-Cus dated March 1, 1988, exemptions were
granted to hospital equipments imported by specified
category of hospitals (charitable) subject to certification by
Directorate General of Health Services (DGHS). The table
in the notification classified hospitals in four categories.
According to the appellant, it falls under Para No.3 of the
table of notification.
The appellant, however, along with several other
hospitals, had applied for the benefit of exemption
notification not under para 3 but para 2 of the table. The
benefit of exemption was granted. Since the Society was
also entitled to exemption under para 3 of the table, an
application was made to DGHS highlighting the fact that
the appellant is a non-profit organization and had been
permitted to import medical equipments by DGHS by
certification. It has been registered as an institution to
receive donations in foreign exchange and since the area
of operations of the main hospital at Ghanapur and the
Rural Health Hospital are in rural areas, it would be
entitled to invoke para 3 of the table of notification of
exemption. The Deputy Director General (Medical), DGHS,
by an order dated January 25, 2000 rejected the
application of the appellant observing therein that initially
the request was made by the appellant for exemption
under para 2 of the notification and accordingly, the
institution was granted such exemption. It was, therefore,
not open to apply for exemption under para 3 of the table
of the exemption notification and the application was
liable to be rejected.
Being aggrieved by the above order passed by the
Deputy Director General (Medical), the appellant-Society
filed the above petitions in the High Court of Andhra
Pradesh. The High Court also dismissed the petitions
observing that it was not in dispute that the appellant
(petitioner) claimed exemption in respect of import of
hospital equipments and was allowed on the basis of its
prayer under category para 2 of the table. The High Court
noted that the learned counsel for the appellant-petitioner
relied upon certain decisions in support of the contention
that a categorization could be changed but it held that the
exemption was granted in category 2 of the table, certain
information was sought which was not supplied by the
Society and the exemption was withdrawn. Regarding
category 3, however, the High Court observed that when
the appellant did not fulfill conditions relatable to category
2 institution, its claim for conversion of categorization
under category 3 was untenable. Accordingly, all petitions
were dismissed.

We have heard learned counsel for the parties.

Learned counsel for the appellant submitted that it
is settled law that even if exemption is granted for one
category or under one notification and the applicant is
entitled to claim more or greater benefit under other
category or other notification, the authority is duty bound
to consider the case of the applicant in the other category
or other notification and there is no question of any
estoppel or bar to such plea. It was, therefore, incumbent
upon the Deputy Director General (Medical), DGHS to
consider the application of the appellant on merits and
rejection of application only on the ground that the
appellant had earlier applied under category 2 and,
therefore, it was not open to it to apply under category 3
and the application was not tenable was illegal and
contrary to law. The learned counsel for the appellant
further submitted that it was only because of rejection of
application on the ground of maintainability that it made
a limited prayer before the High Court to direct the
Deputy Director General (Medical), DGHS to consider and
decide the application of the appellant on merits. By not
doing so, the error of law committed by the Deputy
Director General (Medical), DGHS had been repeated by
the High Court and hence both the orders are liable to be
set aside. It was submitted that the Deputy Director
General (Medical), DGHS may be asked to consider the
matter of the appellant on merits as to whether it would
be entitled to exemption under category 3.
The learned counsel for the respondents, on the
other hand, supported the order of the authority relying
on an affidavit in reply filed by the Assistant Director
General (M) who stated that the representation of the
appellant was examined carefully by the authorities and it
was decided that when the appellant had voluntarily
applied under category 2 of the exemption notification, he
could not change it to category 3. Category 2 exemption
was not 'thrust upon' the appellant. The appellant-
hospital never objected the categorization of its hospital in
the past. When the said exemption benefits were
withdrawn for non-fulfillment of free treatment
obligations, the appellant represented its case as an
'afterthought' to category under para 3 of the table of
exemption notification which was rejected. It, therefore,
cannot be said that any illegality had been committed and
the appeal deserves to be dismissed.
Having heard learned counsel for the parties, in our
opinion, the appeal deserves to be allowed. It is, no doubt,
true that initially the appellant claimed exemption under
category 2 of exemption notification which was granted.
That, however, does not mean that the appellant could not
claim exemption under category 3. So far as cancellation
of exemption under category 2 is concerned, we are not
called upon to decide legality or otherwise of the said
decision as it has not been challenged before us in the
present proceedings. The short question which we have to
answer is whether the appellant could claim exemption
under category 3 and non-consideration of the said
application by the Deputy Director General (Medical) is in
consonance with law. Our reply is in the negative. And
we are supported in our view by the decisions of this
Court.
In this connection, attention of the Court has been
invited to certain decisions by the learned counsel for the
appellant.
In Collector of Central Excise, Baroda v. Indian Petro
Chemicals, (1997) 11 SCC 318, this Court held that if two
exemption notifications are applicable in a given case, the
assessee may claim benefit of the more beneficial one.
Similarly, in H.C.L. Limited v. Collector of Customs, New
Delhi, (2001) 130 E.L.T. 405 (SC), this Court relying upon
Indian Petro Chemicals, held that where there are two
exemption notifications that cover the case in question,
the assessee is entitled to the benefit of that exemption
notification which may give him greater or larger relief. In
Unichem Laboratories Ltd. v. Collector of Central Excise,
Bombay, (2002) 7 SCC 145 : JT 2002 (6) SC 547, the
appellant was a manufacturer of bulk drugs. Exemption
was granted to him under one item. He, thereafter, filed a
revised classification list categorizing its bulk drugs under
the other Head claiming more benefit. The claim was
rejected on the ground that the appellant had not claimed
the benefit of exemption at the time of filing the
classification list and subsequently it could not be done.
The appellant approached this Court.
Allowing the appeal and setting aside the order, this
Court held that if no time is fixed for the purpose of
getting benefit under the exemption notification, it could
be claimed at any time. If the notification applies, the
benefit thereunder must be extended to the appellant. The
Court held that the authorities as well as the Tribunal
were not right in holding that the appellant ought to have
claimed the benefit of the notification at the time of filing
of classification lists and not at a subsequent stage.
The Court then stated;
"There can be no doubt that the authorities
functioning under the Act must, as are in duty
bound, protect the interest of the Revenue by
levying and collecting the duty in accordance with
law - no less and also no more. It is no part of
their duty to deprive an assessee of the benefit
available to him in law with a view to augment the
quantum of duty for the benefit of the Revenue.
They must act reasonably and fairly".
(emphasis supplied)


In Kerala State Cooperative Marketing
Federation Ltd. & Ors. v. Commissioner of Income
Tax, (1998) 5 SCC 48 : JT 1998 (4) SC 145,
interpreting Section 80-P(2)(a) of the Income Tax
Act, 1961, this Court said;
"We may notice that the provision is introduced
with a view to encouraging and promoting growth
of co-operative sector in the economic life of the
country and in pursuance of the declared policy of
the Government. The correct way of reading the
different heads of exemption enumerated in the
section would be to treat each as a separate and
distinct head of exemption. Whenever a question
arises as to whether any particular category
of an income of a co-operative society is
exempt from tax what has to be seen is
whether income fell within any of the several
heads of exemption. If it fell within any one
head of exemption, it would be free from tax
notwithstanding that the conditions of
another head of exemption are not satisfied
and such income is not free from tax under
that head of exemption. The expression
"marketing" is an expression of wide import. It
involves exchange functions such as buying and
selling, physical functions such as storage,
transportation, processing and other commercial
activities such as standardisation, financing,
marketing intelligence etc. Such activities can be
carried on by an Apex Society rather than a
primary society". (emphasis supplied)


From the above decisions, it is clear that even if an
applicant does not claim benefit under a particular
notification at the initial stage, he is not debarred,
prohibited or estopped from claiming such benefit at a
later stage.
In the instant case, the ground which weighed with
the Deputy Director General (Medical), DGHS for non-
considering the prayer of the appellant was that earlier,
exemption was sought under category 2 of exemption
notification, not under category 3 of exemption
notification and exemption under category 2 was
withdrawn. This is hardly a ground sustainable in law. On
the contrary, well settled law is that in case the applicant
is entitled to benefit under two different Notifications or
under two different Heads, he can claim more benefit and
it is the duty of the authorities to grant such benefits if
the applicant is otherwise entitled to such benefit.
Therefore, non-consideration on the part of the Deputy
Director General (Medical), DGHS to the prayer of the
appellant in claiming exemption under category 3 of the
notification is illegal and improper. The prayer ought to
have been considered and decided on merits. Grant of
exemption under category 2 of the notification or
withdrawal of the said benefit cannot come in the way of
the applicant in claiming exemption under category 3 if
the conditions laid down thereunder have been fulfilled.
The High Court also committed the same error and hence
the order of the High Court also suffers from the same
infirmity and is liable to be set aside.
Strong reliance was placed by the respondents on a
decision of this Court in Mediwell Hospital & Health Care
Pvt. Ltd. v. Union of India & Ors., (1997) 1 SCC 759 : JT
1997 (1) SC 270. In Mediwell Hospital, the Court was
considering the very same notification 64/88 and grant of
exemption to hospital equipments imported by specified
category of hospitals. The Court held that an Individual
Diagnostic Centre if covered by the notification, could
claim import of equipments without paying customs duty.
But in case of failure on the part of the persons availing
the benefit to satisfy conditions laid down in the
notification, it is incumbent on the authorities to recover
such duty.
The Court stated;
The competent authority, therefore, should
continue to be vigilant and check whether the
undertakings given by the applicants are being
duly complied with after getting the benefit of
the exemption notification and importing the
equipment without payment of customs duty
and if on such enquiry the authorities are
satisfied that the continuing obligation are not
being carried out then it would be fully open to
the authority to ask the person who have
availed of the benefit of exemption to pay the
duty payable in respect of the equipments
which have been imported without payment of
customs duty. Needless to mention the
government has granted exemption from
payment of customs duty with the sole object
that 40% of all outdoor patients and entire
indoor patients of the low income group whose
income is less than Rs.500/- p.m. would be
able to receive free treatment in the Institute.
That objective must be achieved at any cost,
and the very authority who have granted
such certificate of exemption would ensure
that the obligation imposed on the persons
availing of the exemption notification are
being duly carried out and on being satisfied
that the said obligations have not been
discharged they can enforce realisation of the
customs duty from them.


In the counter-affidavit, it has been asserted that in
the light of the observations in Mediwell Hospital, the
Director General of Health Services and Department of
Health decided to review cases of all (396) beneficent
institutions who had availed of benefits under notification
64/88, and the appellant was one of them. Since it was
found that the appellant was not fulfilling the conditions
set out in para 2 of the Table, the benefit was withdrawn.
In our opinion, the decision in Mediwell Hospital
would not take away the right of the appellant to claim
benefit under para 3 of the Table of exemption
notification. If the appellant is not entitled to exemption
under para 2, it cannot make grievance against denial of
exemption. But if it is otherwise entitled to such benefit
under para 3, it cannot be denied either. The contention
of the authorities, therefore, has no force and must be
rejected.
For the foregoing reasons, the appeal deserves to be
allowed and is accordingly allowed. The respondent-
authorities are directed to re-consider the case of the
appellant as to exemption in category 3 of the exemption
notification strictly in accordance with law, on its own
merits and without being inhibited by the observations
made by us hereinabove. The appeal is allowed with
costs.

Rural stint will fetch docs extra PG marks

http://timesofindia.indiatimes.com/india/Rural-stint-will-fetch-docs-extra-PG-marks/articleshow/5379228.cms

BANGALORE: Union health minister Ghulam Nabi Azad is dangling a carrot for medical professionals with a view to improving healthcare in villages

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-- do a one-year rural stint, get 10% marks in the national medical exam for post-graduate courses. Further, a two-year stint will fetch 20% marks, three years 30% marks.

Announcing the policy here on Friday, Azad said several modifications were being made to the Medical Council of India rules, under which an MBBS graduate would be entitled to additional marks while undergoing the PG course. He was speaking after inaugurating the modernized M S Ramaiah Medical Teaching Hospital.

The move to link marks with the village deputation, he hoped, would get more people to volunteer to work in rural areas, at a time when the National Rural Health Mission (NRHM) was suffering because of the unwillingness of many doctors to serve in remote areas.

This scheme would be available for new graduates. Older doctors, who have been serving in rural areas for three years or more, will be able to avail of 50% reservation for diploma courses.

Praising the southern states for being on par with several developed nations in terms of healthcare, he pointed out that the doctor-to-patient ratio needed to be brought down from the existing 1:1600 to 1:500.

To encourage more medical institutions in the country to fill the gap, he announced that the land required to set up a medical college had been brought down from the existing 25 acres to 20 acres. "In case of northeastern states, where it is hilly, the concession is that the 20 acres can be in two pieces -- which are within a radius of 10km. In case of bigger cities with a population of 20 lakh or more, the ministry will allow a medical hospital to be set up on 10 acres, taken vertically, not horizontally," Azad said.

Human resources, or rather the lack of it, has been affecting both private and government hospitals. Emphasizing that there would be no scope for touts in the ministry, Azad also said that the teacher-to-student ratio in case of specialty and super-specialty students would be raised from the existing 1:1 to 1:2. This would lead to an additional 700 specialty and 700 super-specialty students graduating every year. To fill the shortage of nurses, 200-260 nursing colleges would be opened all over the country, enabling an additional 20,000 nurses to graduate every year.

On H1N1, Azad said most countries had introduced the vaccine without conducting human or animal trials. In India, animal trials had been conducted and human trials would be started in February or March. The vaccine was likely to be ready by April 2010.

http://www.deccanherald.com/content/43325/rural-stint-fetch-docs-rewards.html

Rural stint to fetch docs rewards
Bangalore, Dec 26, DH News Service :

The Centre on Friday announced a set of attractive incentives for doctors for working in the rural areas.


Union Health and Family Welfare Minister Ghulam Nabi Azad said here on Friday that doctors with MBBS degrees who serve in the rural areas for three years will be allotted 30 per cent more marks in the National Entrance Examination (NEE).

Quota in diploma

Besides, doctors who fail to get a diploma seat, even though they have served three years in the hinterland, will be given 50 per cent reservation for diploma in MD.

Azad’s proposals come in the wake of the acute shortage of doctors that the Centre is faced with in implementing the National Rural Health Mission (NRHM).

Although NRHM is a milestone that the UPA government has achieved, the mission is facing a number of problems due to the lack of doctors.

“To reduce the gap in health facilities in the rural and urban areas and to encourage doctors to work in villages, any MBBS doctor who will work in the rural areas for one year will get 10 per cent and those for two years 20 per cent marks, respectively, in NEE,” Azad said. The new scheme will be applicable for freshers who choose to enter medical education.

Azad said the shortage of doctors could be gauged from the fact that there was just one doctor for every 1,600 patients, where as the actual ratio should be one doctor for every 500 patients. Of the 300 medical colleges in the country, 150 colleges were in the private sector, with 80-85 per cent of the colleges located in south India, mainly in Karnataka, Andhra Pradesh, Maharashtra, Tamil Nadu and Kerala.

He said private hospitals have a total of 12,22,000 beds, compared to only five lakh beds in government hospitals. “Of the 12-13 lakh doctors, 60 per cent of them leave the country to work abroad. We wish to make certain changes in the Medical Council of India rules to retain them and their services,” Azad said.


http://www.expressbuzz.com/edition/story.aspx?Title=Grace+marks+for+doctors+for+rural+clinics&artid=aTNsTceT|3Y=&SectionID=Qz/kHVp9tEs=&MainSectionID=wIcBMLGbUJI=&SectionName=UOaHCPTTmuP3XGzZRCAUTQ==&SEO=

Grace marks for doctors for rural clinics

Express News ServiceFirst Published : 26 Dec 2009 08:33:23 AM ISTLast Updated : 26 Dec 2009 01:23:00 PM IST
BANGALORE: Union Minister for Health and Family Welfare Ghulam Nabi Azad has said that his ministry has come out with certain changes in the MCI regulations, with an aim to provide better healthcare services to the rural population.
He was speaking at the inauguration of the modernised MS Ramaiah Medical Teaching Hospital on Friday.
As per the new guidelines, any MBBS doctor serving in rural area either on ad hoc or contractual basis for one year, would get 10 per cent marks in national entrance examination.
Similarly, if he or she spends two years, he or she will get 20 per cent marks. For spending three years, 30 per cent marks would be allocated in the national entrance examination.
The National Rural Health Mission (NRHM) was suffering because of doctors did not want to work in primary healthcare centres (PHCs) or hospitals in rural areas due to the inadequate working facilities, Azad said. The Minister maintained that it was difficult to push the doctors to work at the PHCs.
South on top “There are 300 medical education institutes in the country, of which 50 per cent are in the private sector and 80 per cent of the institutes are situated in the southern part of the country.
Consequently, the southern states are far better compared to other areas in providing healthcare services,” he said.
The Minister also announced concessions offered to start more private medical institutes.
“For the northern and hilly states, the establishment of a institute is now allowed on 20 acres of land, instead of the stipulated 25 acres,” the Minister said.
He said quality education and proper human resource management would boost medical tourism in the country.
Responding to a query on new appointment to the post of director at NIMHANS as the term of the current director was coming to an end on January 31 next year, the Health Minister said that a search committee would be set up for the appointment of the right candidate, as the number of candidates applying for the post was large. Bangalore, December 25 UNION Minister for Health and Family Welfare Ghulam Nabi Azad has said that his ministry has come out with certain changes in the MCI regulations, with an aim to provide better healthcare services to the rural population.
He was speaking at the inauguration of the modernised MS Ramaiah Medical Teaching Hospital on Friday.
As per the new guidelines, any MBBS doctor serving in rural area either on ad hoc or contractual basis for one year, would get 10 per cent marks in national entrance examination.
Similarly, if he or she spends two years, he or she will get 20 per cent marks. For spending three years, 30 per cent marks would be allocated in the national entrance examination.
The National Rural Health Mission (NRHM) was suffering because of doctors did not want to work in primary healthcare centres (PHCs) or hospitals in rural areas due to the inadequate working facilities, Azad said. The Minister maintained that it was difficult to push the doctors to work at the PHCs.
South on top “There are 300 medical education institutes in the country, of which 50 per cent are in the private sector and 80 per cent of the institutes are situated in the southern part of the country.
Consequently, the southern states are far better compared to other areas in providing healthcare services,” he said.
The Minister also announced concessions offered to start more private medical institutes.
“For the northern and hilly states, the establishment of a institute is now allowed on 20 acres of land, instead of the stipulated 25 acres,” the Minister said.
He said quality education and proper human resource management would boost medical tourism in the country.
Responding to a query on new appointment to the post of director at NIMHANS as the term of the current director was coming to an end on January 31 next year, the Health Minister said that a search committee would be set up for the appointment of the right candidate, as the number of candidates applying for the post was large.
H1N1 vaccine by March-end
The Health Minister said that the clinical trials for H1N1 vaccines were still going on. The clinical trials on animal and human beings would be over by January and the vaccines will be launched by either end of March or beginning of April next year. The Health Minister said that the clinical trials for H1N1 vaccines were still going on. The clinical trials on animal and human beings would be over by January and the vaccines will be launched by either end of March or beginning of April next year.

Govt cannot be forced to give quotas: Supreme Court

From http://indiatoday.intoday.in/site/Story/73303/India/Govt+cannot+be+forced+to+give+quotas:+Supreme+Court.html

The Supreme Court on Wednesday held that citizens belonging to backward classes, including scheduled castes (SC) and scheduled tribes (ST), could not move courts to force the government to provide them reservation.

A three-judge bench comprising Chief Justice K.G. Balakrishnan, Justice P. Sathasivam and Justice J.M. Panchal noted that the government was the best judge to take a decision on reservation and it could not be claimed as a matter of fundamental right.

Dismissing petitions seeking a direction to the Haryana government to provide reservation to SCs and STs in post-graduate medical courses, the bench pointed out that it was for the state governments to decide whether to provide reservation or not.

"In our view, every state can take its own decision with regard to reservation depending on various factors," the bench observed. "Article 15(4) (of the Constitution) does not make any mandatory provision for reservation and the power to make reservation under Article 15(4) is discretionary and no writcan be issued to effect reservation," the bench held.

The bench accepted the contention of the state government that Article 15(4) - whichprovided for reservation in educational institu-tions - was merely an "enabling provision"which entitled the government to provide forreservation. Though the judgment pertained to reserva-tion in educational institutions, Article 16(4)which provided for reservation in public employment was also couched in a simi-lar language.

The bench specifically recorded in its judg-ment that "sub-clause (4) in both Articles 15and 16 is only an enabling provision for the stategovernment to bring forward legislation or passan executive order for the benefit of socially andeducationally backward classes of citizens andfor the Scheduled Castes andScheduled Tribes".

Thus, a policy decision to pro-vide reservation, unless unreason-able, would be protected by arti-cles 15(4) and 16(4) from beingassailed before courts but a peti-tion could not be filed to force thegovernment to provide reservaprovide for mandatory reservation.

Holding that Article 15( 4) did not make a mandatory provision for reservation, the bench pointed out that the principle behind the provision was that " preferential treatment can be given validly when the socially and educationally backward classes need it". It further accepted the contention that the state government was the competent authority to decide the reservation in the state.

The petitioners, who had challenged the decision of the state government not to provide reservation in post- graduate medical courses, had pointed out that several states had provided reservation to SCs and STs at the postgraduate level. They pointed out that the All India Institute of Medical Sciences also provided reservation to SCs and STs in post- graduate medical courses.

The bench rejected an argument that the state government was bound to follow the policy of the central government which had provided for reservation in postgraduate medical courses. Rejecting the argument, the court said " the same ( policy) automatically cannot be applied in other selections where state governments have the power to regulate." Article 15( 4) states that the government could not be prevented from " making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes". Though it gives the state ( government) the right to provide reservation for the backward classes, it does not give the latter a corresponding right to claim reservation as a right.

Opposing the petition, the state government had argued that it had taken a conscious decision of not providing reservation to SC/ ST categories in admission at the post- graduate level and " such a decision of the government suffers no infirmity". The state government said the matter regarding reservation of seats in the PG courses had been considered by it from time to time and the decision had been taken keeping in view the recommendations of the Medical Council of India and decisions in some other states.

" Since the government of Haryana has decided to grant reservation for SC/ ST categories/ backward class candidates for admission at MBBS level i. e.

undergraduate level then it does not mean that it is bound to grant reservation at the postgraduate level also," Justice Sathasivam, who wrote the judgment for the bench, said.

Though the court dismissed the petitions, it said Haryana government would, however, be free to reconsider its decision. " However, we make it clear that irrespective of above conclusion, the state of Haryana is free to reconsider its earlier decision, if it so desires, and circumstances warrant in the future years," the bench clarified.

The word of law
Article 15: Prohibition of discrimination on grounds of religion, race, caste, sex, birth place 15( 4) Nothing in this Article... shall prevent the state from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the SCs and the STs.

Article 16: Equality of opportunity in public employment 16( 4) Nothing in this Article shall prevent the state from making provisions for the reservations in favour of any backward class of citizens, which the state feels are not adequately represented in the services under the state.

Kidney removed in postmortem, HC awards Rs 10L compensation

New Delhi: The Delhi High Court on Monday awarded Rs ten lakh in compensation to a woman whose husband's kidney was illegally removed during his postmortem.

The removal of kidney from the deceased's body came to light when a second postmortem was conducted on the plea of the wife of the deceased. After going through both reports, the court found that in first postmortem report the doctor had mentioned that only a portion of kidney was taken from the body for chemical examination while the second report said the left kidney was missing.

"The doctor who conducted postmortem on the dead body of a person is expected to be a fair person as full faith is reposed on him by the family members. This faith is shattered by such instances where an organ is totally removed by the doctor who conducted the postmortem," Justice Aruna Suresh said while directing the Centre to pay compensation.

The Bench passed the order on a petition filed by the wife of deceased Ajai Kumar, an armyman, seeking a fresh investigation into the death of her husband who had allegedly
committed suicide in Jammu and Kashmir.

"I find it a fit case where the Respondent(government) should compensate the petitioner for their own wrongs committed while conducting postmortem on the body of the
deceased. Respondents are directed to pay Rs 10 lakh as damages/compensation to the petitioner within three months," the court said.

Contract Staff need not be regularised and cannot claim regularisation

CASE NO.:
Appeal (civil) 6337 of 2003

PETITIONER:
National Fertilizers Ltd. & Ors.

RESPONDENT:
Somvir Singh

DATE OF JUDGMENT: 12/05/2006

BENCH:
S.B. Sinha & P.P. Naolekar

JUDGMENT:
J U D G M E N T

W I T H
CIVIL APPEAL NOS. 464, 465, 466, 467 of 2004 AND 7575 of 2005


S.B. SINHA, J :

The Appellant is a Government Company. It is a public sector
undertaking. It is a 'State' within the meaning of Article 12 of the
Constitution of India. A policy decision was taken by the Appellant not
to make any further recruitment in Marketing Division in any category of
post stating:

"It has been decided that with immediate effect the
strength of the Marketing Division be pagged to the
number of individuals in position in the Marketing
Division as on 31.03.1998. It has also been decided
that no further recruitment be made in the Marketing
Division in any category of post. However, as and
when if any post is required to be filled up in any
category due to exigencies of work, the approval of
D(F)/MD be obtained and the paper routed through
the Corporate Office Personnel Department."

Despite such ban the Respondents had been appointed. Before
such appointment the employment exchange was not intimated about the
vacancy in terms of the provisions of Employment Exchange
(Compulsory Notification of Vacancies) Act, 1959 (for short "the 1959
Act"). Admittedly, no advertisement was also issued. According to the
Respondent, he worked at the Shimla Office of the Appellant for a period
of six months and, thus, he was entitled for recruitment in terms of Rule
1.5(g) of the Recruitment and Promotion Rules. Rule 1.5(g) of the Rules
does not envisage regular recruitment but a recruitment on a contractual
basis. The Respondent, thus, on his own showing was appointed on a
contractual basis. It is trite that a person who obtained recruitment on
contractual basis cannot claim regularisation in service. The
Respondents herein filed applications for their recruitment without any
vacancy having been notified. They were said to have been interviewed
on 24.3.1991 by a purported Committee constituted by the General
Manager. Appointment letters were issued on or about 9.4.1991. An
advertisement was admittedly issued only on 30.11.1993 for the post of
Peon-cum-Messenger.

The Appellant in the year 1994, however, took a decision to fill up
the posts in the Marketing Division inter alia stating:

"During the coordination committee meeting held in
October 1994, at C.O. the recognized union of
marketing division requested for removal of ban in
filling up vacant posts in marketing division. It was
agreed that action to fill up the vacant posts in
marketing division will be taken by marketing
division, keeping in view the recruitments within the
overall manpower strength."

Actions were initiated to fill up the vacant posts on permanent
status by following the recruitment procedure. The Respondents were
also granted an opportunity to file applications thereagainst. Relaxation
of age to the extent of their services as temporary employees had also
been granted.

The Appellant has framed its own Recruitment and Promotion
Rules. The recruitment of an employee is governed by the said Rules.
The terms and conditions of services are also governed by the same
Rules. In terms of Rule 1.5 of the said Rules, recruitment of various
posts were to be made inter alia from the following sources:

(a) Employment Exchange as per the provisions of the 1959 Act.
(b) Zila Saink Boards Director General Resettlement.
(c) Direct Recruitment by advertisement.

Rule 1.6.1 provides for method and procedure for recruitment in
terms whereof all posts in the scale of pay of Rs. 1560-2160 is required to
be considered as 'corporate level'. Direct recruitment can be resorted to
only when no suitable candidate for promotion was available in the
appropriate rank. Rule 1.6.8 provides for the mode and manner in which
the advertisement is to be issued. Rule 1.6.9 provides for reservation.
The manner in which Selection Committee has to be constituted has been
laid down in paragraph 1.11. Such Selection Committee inter alia must
consist of two members from the discipline for which recruitment is to be
made apart from an officer from the Personnel Department as Member
Secretary. In the event, a selection is to be made for reserved category,
an officer of appropriate status belonging to SC/ST will be included as a
member. In a case of recruitment to Group C & D posts, a member
representing minority community will also be associated in the selection
committee. The matter relating to interview is provided for in paragraph
12.1. Appointments are to be made in terms of paragraph 1.13.

The said Rules, therefore, lay down in great details as to how and
in what manner the selection process was to be initiated, the minimum
qualification therefor, the constitution of Selection Committee and other
relevant factors.

It is not in dispute that the Respondents herein were appointed
without any advertisements and without any intimation to the
employment exchange. Appointments are said to be made at the instance
of two officers. Only after retirement of the said officers, writ petitions
were filed before several High Courts including Chhattisgarh, Punjab and
Haryana, Himachala Pradesh, Delhi, Madhya Pradesh and Rajasthan.

The writ petitions involved 52 employees. Different views were
expressed by different High Courts.

The writ petitions filed by the Respondents were allowed directing
the Appellant to regularise the services of the Respondents to pay them
all monetary benefits in terms of the appointment letters.

Mr. Bhaskar P. Gupta, learned senior counsel appearing on behalf
of the Appellant submitted that the matter relating to regularisation of
services recruited on ad hoc basis is no longer res integra in view of the
recent Constitution Bench decision of this Court in Secretary, State of
Karnataka and Others v. Umadevi and Others [2006 (4) SCALE 197].

Mr. Ashok Mathur, learned counsel appearing on behalf of the
Respondents, on the other hand, submitted that the appointments of the
Respondents may be irregular but not illegal and in that view of the
matter, the impugned judgments need not be interfered with.
The Respondents herein were appointed only on applications made
by them. Admittedly, no advertisement was issued in a newspaper nor
the employment exchange was notified as regard existence of vacancies.
It is now trite law that a 'State' within the meaning of Article 12 of the
Constitution of India is bound to comply with the constitutional
requirements as adumbrated in Articles 14 and 16 thereof. When
Recruitment Rules are made, the employer would be bound to comply
with the same. Any appointment in violation of such Rules would render
them as nullities. It is also well-settled that no recruitment should be
permitted to be made through backdoor.

It was contended that for Class IV employees, the Employment
Exchanges were not required to be notified in view of Section 3(1)(d) of
the 1959 Act. Section 3(1)(d) of the 1959 Act reads as under:

"3. Act not to apply in relation to certain vacancies
 (1) This Act shall not apply in relation to
vacancies 
(a) ***
(b) ***
(c) ***
(d) in any employment to do unskilled office
work;"

Such a plea does not appear to have been raised before the High
Court. The question as regards the nature of duties required to be
performed by the Respondents having not been raised. No material was
placed by the employer to show as to whether the job of the Respondents
was within the purview of the aforementioned provision. The
Respondents themselves stated that they raised the question of
applicability of the said provision of the Act in a suit filed at Jagadhri
when another person was appointed as Peon-cum-Messenger. It,
therefore, cannot be said that they were not aware of the statutory
provisions contained in the said suit.

The order of ban suggests that if any appointment was to be made
due to exigencies of work, the approval of the Director (Finance) or
Managing Director was to be obtained and the paper routed in respect
thereof should be through the corporate office. The Respondents contend
that as at the point of time the Managing Director, Shri S.S. Jain had been
placed under suspension, the file was placed before the General Manager
(Marketing). The said plea cannot be accepted for more than one reason.
If the regular incumbent or the Managing Director was placed under
suspension, somebody else must be incharge of the said post.
Furthermore, the file could be placed before the Director (Finance). The
General Manager by no stretch of imagination could accord approval for
appointment.

Submission of the learned counsel appearing on behalf of the
Respondents to the effect that the ban was only on paper is not a matter
which would fall for consideration of this Court inasmuch as it is not in
dispute that the ban was lifted only on 16.12.1994. On what premise, an
advertisement was issued on 30.11.1993 is not known. It is not the case
of the Respondent that despite existence of ban some other workman was
appointed prior to the lifting thereof. Even if, recruitments have been
made illegally, the Respondents cannot claim any legal right on the basis
thereof.

Regularisation, furthermore, is not a mode of appointment. If
appointment is made without following the Rules, the same being a
nullity the question of confirmation of an employee upon the expiry of
the purported period of probation would not arise. The Constitution
Bench in Umadevi (supra) made a detailed survey of the case laws
operating in the field.

The referral order to the Constitution Bench was made by a 3-
Judge Bench of this Court stating:

"1. Apart from the conflicting opinions between
the three Judges' Bench decisions in Ashwani Kumar
and Ors. Vs. State of Bihar and Ors., reported in
1997 (2) SCC 1, State of Haryana and Ors vs., Piara
Singh and Ors. Reported in 1992 (4) SCC 118 and
Dharwad Distt. P.W.D. Literate
Daily Wage Employees Association and Ors. Vs.
State of Karnataka and Ors. Reported in 1990 (2)
SCC 396, on the one hand and State of Himachal
Pradesh vs. Suresh Kumar Verma and Anr., reported
in AIR 1996 SC 1565, State of Punjab vs.
Surinder Kumar and Ors. Reported in AIR 1992 SC
1593, and B.N. Nagarajan and Ors. Vs. State of
Karnataka and Ors., reported in 1979 (4) SCC 507
on the other, which has been brought out in one of
the judgments under appeal of Karnataka High Court
in State of Karnataka vs. H. Ganesh Rao, decided on
1.6.2000, reported in 2001 (4) Karnataka Law
Journal 466, learned Additional Solicitor General
urged that the scheme for regularization is repugnant
to Articles 16(4), 309, 320 and 335 of the
Constitution of India and, therefore, these cases are
required to be heard by a Bench of Five learned
Judges (Constitution Bench).

2. On the other hand, Mr. M.C. Bhandare,
learned senior counsel, appearing for the employees
urged that such a scheme for regularization is
consistent with the provision of Articles 14 and 21 of
the Constitution.

3. Mr. V. Lakshmi Narayan, learned counsel,
appearing in CC Nos.109-498 of 2003, has filed the
G.O. dated 19.7.2002 and submitted that orders have
already been implemented.

4. After having found that there is conflict of
opinion between three Judges Bench decisions of
this Court, we are of the view that these cases are
required to be heard by a Bench of five learned
Judges.
5. Let these matters be placed before Hon'ble the
Chief Justice for appropriate orders."

The Constitution Bench opined that any appointment made in
violation of the Recruitment Rules as also in violation of Articles 14 and
16 of the Constitution would be nullity. The contention raised on behalf
of the employees that those temporary or ad hoc employees who had
continued for a fairly long spell, the authorities must consider their cases
for regularisation was answered, thus:

"With respect, why should the State be allowed to
depart from the normal rule and indulge in
temporary employment in permanent posts? This
Court, in our view, is bound to insist on the State
making regular and proper recruitments and is bound
not to encourage or shut its eyes to the persistent
transgression of the rules of regular recruitment.
The direction to make permanent -- the distinction
between regularization and making permanent, was
not emphasized here -- can only encourage the
State, the model employer, to flout its own rules and
would confer undue benefits on a few at the cost of
many waiting to compete. With respect, the
direction made in paragraph 50 of Piara Singh
(supra) are to some extent inconsistent with the
conclusion in paragraph 45 therein. With great
respect, it appears to us that the last of the directions
clearly runs counter to the constitutional scheme of
employment recognized in the earlier part of the
decision. Really, it cannot be said that this decision
has laid down the law that all ad hoc, temporary or
casual employees engaged without following the
regular recruitment procedure should be made
permanent."

It was furthermore opined:

"26. It is not necessary to notice all the decisions of
this Court on this aspect. By and large what emerges
is that regular recruitment should be insisted upon,
only in a contingency an ad hoc appointment can be
made in a permanent vacancy, but the same should
soon be followed by a regular
recruitment and that appointments to non-available
posts should not be taken note of for regularization.
The cases directing regularization have mainly
proceeded on the basis that having permitted the
employee to work for some period, he should be
absorbed, without really laying down any law to that
effect, after discussing the constitutional scheme for
public employment."

Taking note of some recent decisions of this Court, it was held that
the State does not enjoy a power to make appointments in terms of
Article 162 of the Constitution of India. It further quoted with approval a
decision of this Court in Union Public Service Commission v. Girish
Jayanti Lal Vaghela & Others [2006 (2) SCALE 115] in the following
terms:

"The appointment to any post under the State can
only be made after a proper advertisement has been
made inviting applications from eligible candidates
and holding of selection by a body of experts or a
specially constituted committee whose members are
fair and impartial through a written examination or
interview or some other rational criteria for judging
the inter se merit of candidates who have applied in
response to the advertisement made. A regular
appointment to a post under the State or Union
cannot be made without issuing advertisement in the
prescribed manner which may in some cases include
inviting applications from the employment exchange
where eligible candidates get their names registered.
Any regular appointment made on a post under the
State or Union without issuing advertisement
inviting applications from eligible candidates and
without holding a proper selection where all eligible
candidates get a fair chance to compete would
violate the guarantee enshrined under Article 16 of
the Constitution..."

It was clearly held:
"These binding decisions are clear imperatives that
adherence to Articles 14 and 16 of the Constitution
is a must in the process of public employment."

The contention of the learned counsel appearing on behalf of the
Respondents that the appointments were irregular and not illegal, cannot
be accepted for more than one reason. They were appointed only on the
basis of their applications. The Recruitment Rules were not followed.
Even the Selection Committee had not been properly constituted. In view
of the ban in employment, no recruitment was permissible in law. The
reservation policy adopted by the Appellant had not been maintained.
Even cases of minorities had not been given due consideration.

The Constitution Bench thought of directing regularisation of the
services only of those employees whose appointments were irregular as
explained in State of Mysore v. S.V. Narayanappa [(1967) 1 SCR 799],
Nanjundappa v. T. Thimmiah & Anr.[(1972) 2 SCR 799] and B.N.
Nagarajan & Ors. v. State of Karnataka & Ors. [(1979) 3 SCR 937]
wherein this Court observed:

"In B.N. Nagarajan & Ors. Vs. State of Karnataka &
Ors. [(1979) 3 SCR 937], this court clearly held that
the words "regular" or "regularization" do not
connote permanence and cannot be construed so as
to convey an idea of the nature of tenure of
appointments. They are terms calculated to condone
any procedural irregularities and are meant to cure
only such defects as are attributable to methodology
followed in making the appointments"

Judged by the standards laid down by this Court in the
aforementioned decisions, the appointments of the Respondents are
illegal. They do not, thus, have any legal right to continue in service.

It is true that the Respondents had been working for a long time. It
may also be true that they had not been paid wages on a regular scale of
pay. But, they did not hold any post. They were, therefore, not entitled
to be paid salary on a regular scale of pay. Furthermore, only because the
Respondents have worked for some time, the same by itself would not be
a ground for directing regularisation of their services in view of the
decision of this Court in Uma Devi (supra).

In view of the authoritative pronouncement of the Constitution
Bench, in our opinion, the impugned judgments cannot be sustained.
They are set aside accordingly.

S/Shri Somvir Singh, Hansraj Benewal, Malkiat Singh, Ranjit
Singh are said to be working. They may be relieved of their posts. We
may, however, observe that their cases may be considered for future
appointment and age bar, if any, in view of the policy decision of the
Appellant itself may be relaxed to the extent they had worked. The salary
or any remuneration paid to them, however, may not be recovered. This
order, however, is being passed in exercise of our jurisdiction under
Article 142 of the Constitution of India keeping in view the principles
embodied in Section 70 of the Contract Act. The appeals are allowed. No
costs.

Doctors acquitted of criminal negligence

http://www.hindu.com/2009/08/09/stories/2009080959691000.htm

New Delhi: The Supreme Court has upheld a Calcutta High Court judgment acquitting three doctors of criminal negligence in the death of Anuradha Saha, wife of Kunal Saha, a doctor based in the United States.

Anuradha Saha, a child psychologist, died in 1998 at 36, following complications in treatment at the Advanced Medicare Research Institute (AMRI), Kolkata. Dr. Saha’s relative, Malai Ganguly, registered a criminal case against doctors Abani Roy Choudhury, Mukherjee and Baidyanath Halder, alleging medical negligence.

While Dr. Choudhury was acquitted by the trial court, it sentenced the other two to three months’ imprisonment. The High Court, on appeal, acquitted both.

Meanwhile, a complaint filed by Dr. Saha seeking a compensation of Rs. 77 lakh was dismissed by the National Consumer Disputes Redressal Commission. The present appeals were filed by Malai Ganguly and Dr. Saha against the High Court judgment and the Commission’s order.

On Friday, A Bench, consisting of Justices S.B. Sinha and Deepak Verma, dismissed the criminal appeals but slapped costs of Rs. 5 lakh on the AMRI and Rs. 1 lakh on Dr. Mukherjee.

Criminal intention
The Bench, in its 132-page judgment, said: “For negligence to amount to an offence the element of mens rea [criminal intention] must be shown to exist. For an act to amount to criminal negligence, the degree of negligence should be much high. Negligence which is not of such a high degree may provide a ground for action in civil law but cannot form the basis for prosecution. To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his senses and prudence would have done or failed to do.”

In the instant case, “negligent action has been noticed with respect to more than one respondent. A cumulative incidence, therefore, has led to the death of the patient. It is to be noted that doctrine of cumulative effect is not available in criminal law. The complexities involved in the instant case, as also the differing nature of negligence exercised by various actors, make it very difficult to distil individual extent of negligence with respect to each of the respondents.”

Writing the judgment, Justice Sinha said: “The law on medical negligence also has to keep up with the advances in medical science as to treatment as also diagnostics. Doctors must increasingly engage with patients during treatment, especially when the line of treatment is a contested one and hazards are involved. Standards of care in such cases will involve the duty to disclose to patients the risks of serious side-effects or about alternative treatments. In the times to come, litigation may be based on the theory of lack of informed consent.”

As regards the civil appeal, the Bench said the Commission was clearly wrong in opining that there was no negligence on the part of the hospital or the doctors. It, therefore, remitted the matter to the Commission for determining the quantum of compensation preferably within six months. “We further direct that if any foreign expert is to be examined, it shall be done only through videoconferencing and at the cost of respondents.”