The Janatha Service Society Vs the State of Ap

THE JANATHA SERVICE SOCIETY, REP BY ITS PRESIDENT, KANDULA NARAYANA RAO, S/O.KOTAIAH, AGED 65 YEARS. AN ORGANISATION SERVING PUBLIC FREELY WITH HUMANITY VISSANNAPETA VILLAGE AND MANDAL, ERSTWHILE KRISHNA DISTRICT,PRESENT N.T.R. DISTRICT.

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...PETITIONER

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AND

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THE STATE OF AP, REP BY ITS CHIEF SECRETARY, SECRETARIAT, VELAGAPUDI, AMARAVATHI.

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THE STATE OF ANDHRA PRADESH, REP BY ITS PRINCIPAL SECRETARY, HEALTH AND FAMILY WELFARE DEPARTMENT, SECRETARIAT VELAGAPUDI, AMARAVATHI.

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THE DIRECTOR OF PUBLIC HEALTH FAMILY WELFARE, GOLLAPUDI, VIJAYAWADA, ANDHRA PRADESH.

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THE DIRECTOR OF MEDICAL EDUCATION, GOLLAPUDI, VIJAYAWADA, ANDHRA PRADESH

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THE ANDHRA PRADESH MEDICAL COUNSEL CHAIR PERSON, FLOOR, N.T.R. GOVERNMENT HOSPITAL, VIJAYAWADA.

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D M H O, KRISHNA DISTRICT, MACHILIPATNAM.

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D M H O, N.T.R. DISTRICT, ERST WHILE KRISHNA DISTRICT, VIJAYAWADA.

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...RESPONDENT(S):

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Petition under Article 226 of the Constitution of India praying that in the circumstances stated in the affidavit filed therewith, the High Court may be pleased topleased to issue a writ, order or direction more particularly one in the nature of a writ of mandamus or any other appropriate writ, order or directing the above respondents to implement court orders and also other relevant enactments thereon with request to invoke the extraordinary jurisdiction under Article 226 of Constitution of India, due to the following pressing and grave circumstances which warranted immediate judicial intervention, a) to direct that any willful non-compliance of the orders passed by this court shall be viewed seriously and appropriate proceedings for contempt of court may be initiated against the erring officials. Kindly consider this to be included in the direction for the reasons as follows, 1) First of all, it is a gross violation of human rights that is Right to life-Right to health, 2) All these illegalities are happening since a long time, timed over decades, to be very well known to the concerned authorities, 3) Nothing has been done/no action has been taken so far for the reasons best known to all, 4) Tremendous breach in the ethical grounds of noble profession of doctor. (b). directing the concerned authorities to take immediate steps to ban and prevent the practice of quackery in accordance with the provisions of the Indian medical council act, NMC act-2019, Clinical establishments Act or any other applicable law. (c). directing the concerned authorities to take immediate steps to ban and prevent the quackery in clinical laboratories/path labs/Diagnostic centers/Flospital laboratories etc., in accordance with the provisions of the NMC 15 ACT-2019, Supreme court of India order dated 1212-2017 or any other applicable law. (d). directing the concerned authorities to take immediate steps to prevent the qualified doctors from sending their patient/patients samples to illegal laboratories, the labs without a qualified Pathologists physically present, in accordance with the provisions of the Honble Supreme court order dated 12- 12-2017, NMC ACT-2019 or any other applicable law. (e). directing the concerned authorities to take immediate steps to prevent the pathologists from selling their signatures to illegal laboratories, in accordance with the provisions of NMC guidelines, IPC 120 B, IPC 420, IPC 419 or any other applicable law. (f). directing the concerned authorities to take immediate steps to ban and prevent the over-the-counter sales of medicines, amounting to quackery, in accordance with the provisions of NMC ACT-2019, Drugs and cosmetics act, 1940, pharmacy act-1948 or any other applicable law and to pass

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Counsel for the Petitioner:

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1.VEDURUPARTHY GOPI KRISHNA

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Counsel for the Respondent(S):

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1.GP FOR MEDICAL HEALTH FW

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2.GP FOR GENERAL ADMINISTRATION

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The Court made the following:

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ORDER:-

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The Writ Petition is filed seeking following relief:

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“…..to issue a writ, order or direction more particularly one in the nature of a writ of mandamus or any other appropriate writ, order or directing the above respondents to implement court orders and also other relevant enactments thereon with request to invoke the extraordinary jurisdiction under Article 226 of Constitution of India, due to the following pressing and grave circumstances which warranted immediate judicial intervention, a) to direct that any willful non-compliance of the orders passed by this court shall be viewed seriously and appropriate proceedings for contempt of court may be initiated against the erring officials. Kindly consider this to be included in the direction for the reasons as follows, 1) First of all, it is a gross violation of human rights that is Right to life-Right to health, 2) All these illegalities are happening since a long time, timed over decades, to be very well known to the concerned authorities, 3) Nothing has been done/no action has been taken so far for the reasons best known to all, 4) Tremendous breach in the ethical grounds of noble profession of doctor. (b). directing the concerned authorities to take immediate steps to ban and prevent the practice of quackery in accordance with the provisions of the Indian medical council act, NMC act2019, Clinical establishments Act or any other applicable law. (c). directing the concerned authorities to take immediate steps to ban and prevent the quackery in clinical

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laboratories/path labs/Diagnostic centers/Flospital laboratories etc., in accordance with the provisions of the NMC 15 ACT-2019, Supreme court of India order dated 1212-2017 or any other applicable law. (d). directing the concerned authorities to take immediate steps to prevent the qualified doctors from sending their patient/patients samples to illegal laboratories, the labs without a qualified Pathologists physically present, in accordance with the provisions of the Honble Supreme court order dated 12- 122017, NMC ACT-2019 or any other applicable law. (e). directing the concerned authorities to take immediate steps to prevent the pathologists from selling their signatures to illegal laboratories, in accordance with the provisions of NMC guidelines, IPC 120 B, IPC 420, IPC 419 or any other applicable law. (f). directing the concerned authorities to take immediate steps to ban and prevent the over-the-counter sales of medicines, amounting to quackery, in accordance with the provisions of NMC ACT-2019, Drugs and cosmetics act, 1940, pharmacy act-1948……”

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Heard Sri Veduruparthy Gopi Krishna, learned counsel for the

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petitioner and Sri Government Pleader for Medical, Health & Family Welfare, appearing for the respondents.

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It is stated by the learned Government pleader for Medical and Health that the petitioner had previously filed a Public Interest Litigation before this Court in W.P.(PIL).No.44 of 2023. And the same was disposed of by the Division Bench vide order dated 13-03-2024. The petitioner herein after disposal of the said Writ Petition, has once again filed the instant Writ Petition with the similar relief to issue directions to the respondents in accordance with guidelines issued by the Supreme Court of India dated 12-12-2017.

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The Division Bench disposed of the W.P.(PIL).No.44 of 2023

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observing as follows:

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“2. The issue that was highlighted was that the diagnostic laboratories were issuing the pathology reports without the signatures and certification by competent medical professionals.

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Reliance was placed upon the order, dated 12.12.2017, whereby the Apex Court while disposing of the Special Leave Petition and considering the stand of the Medical Council of India ordered that the laboratory report could be counter-signed only by a registered medical practitioner with a post graduate qualification in pathology.

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3. Learned Advocate General appearing for the State, however, drew our attention to a previous order, dated 12.09.2017 wherein the Supreme Court had observed as under:

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"Learned Solicitor has also pointed out that certain guidelines under Section 12 of the Act read with Rule 9(3) of the Rules have been circulated and objections have been invited. The said guidelines are available on record.

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It is further submitted that various associations have participated in the discussions and the guidelines presently are at draft stage and will be finalized soon.

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We have perused the said guidelines and it is our considered view that guidelines Nos.5.4 and 5.5, if finalized, will adequately take care of the issues arising subject to the concerned states choosing to adopt the provisions of the Act and the Rules framed thereunder as contemplated under Section 1(3) and Section 56 of the Act. To enable the exercise to WP(PIL) 44 2023 be completed we adjourn the cases to 6th December, 2017 by which date the learned Solicitor General will inform the Court about the progress achieved in respect of finalization of the guidelines as well as the amendments proposed to the Act."

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With reference to the order referred to hereinabove, what was

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sought to be highlighted was that an option had been given to the States to choose to adopt the provisions of the Act and the Rules framed there under more so in terms of Section 1(3) and Section 56 of the said Act. What was sought to be highlighted was that in the State of Andhra Pradesh, there was already in force the Andhra Pradesh Allopathic Private Medical Care Establishments (Registration and Regulation) Act, 2002 [for short, 'Act of 2002'] under which Andhra Pradesh Allopathic Private Medical Care Establishments (Registration and Regulation) Rules, 2007 [for short, 'Rules of 2007'] were also framed and were in operation prescribing the requirement of having a competent medical practitioner depending upon whether the diagnostic laboratory was a small, medium or a large diagnostic laboratory attached to a hospital. 4. It is stated that with a view to enforce the provisions of the Act of 2002 and the Rules of 2007, notices have since been issued to some of the laboratories to ensure strict compliance with the requirement of the same and that replies have also been received on which appropriate orders would be passed.

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Learned Advocate General submits that all those notices which had been issued with reference to the provisions of the Central Act would be withdrawn and fresh notices, if necessary would be issued.

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5. Mr. K.S. Murthy, learned Senior Counsel, appearing for the Andhra Pradesh Private Medical Laboratories and Radiology Technicians Association, however, undertakes that the members of the Association would strictly comply with the provisions of the Act of 2002 and Rules of 2007 framed by the State in that regard.

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6. Considering the fact that there is already in place a mechanism as prescribed under the Act of 2002 and the Rules of 2007 and the authorities are already in the process of enforcing strictly the provisions thereof, we do not find any need to proceed further in the matter.

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Nevertheless, with a view to ensure proper regulation as

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assured by the learned Advocate General, a mechanism would be put in place to have periodic checks and surprise visits on these establishments with a view to also ensure proper compliance at all times.

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7. In view of the above, we do not wish to continue with the present WP(PIL) any further, which is accordingly closed. No order as to costs.”

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Having regard to the above, since the Division Bench of this

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Court had already disposed of the Public Interest Litigation for the same relief, I’m of the considered view that the instant Writ Petition is not maintainable, and apart from the same, the relief sought in the Writ Petition is in the nature of public interest.

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