Partly allowed

Sri. Abdulsaheb S/O Husensab Karnool v. State of Karnataka

Karnataka HC19 Dec 2023WP/104865/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka allowed the writ petition in part, directing the State to take appropriate steps to appoint Operation Theater Technologists/Assistants in government hospitals. The Court held that the State has a fundamental right to health obligation under Article 21 and cannot use lack of recruitment rules as a valid ground for inaction in service of public health.

What did the court decide?

Respondent No.1-State directed to take appropriate steps and measures in appointing Operation Theater Technologists/Assistants to ensure adequate facilities at Public Health Centers and Hospitals.

Sri. Abdulsaheb S/O Husensab Karnool Vs… — Pension and Retirement Benefits | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 19^TH DAY OF DECEMBER 2023

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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WRIT PETITION NO. 104865 OF 2023 (GM-RES)

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BETWEEN:

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SRI. ABDULSAHEB S/O. HUSENSAB KARNOOL, AGED ABOUT 39 YEARS, OCC: O.T. TECHNOLOGIST, R/AT NO.915 MOMIN GALLI, GUDUR S.P, TQ HUNAGUND, DIST BAGALKOTE - 587 202.

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MOHANKUMAR B SHELAR

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Digitally signed by MOHANKUMAR B SHELAR Date: 2023.12.27 11:20:28 +0530

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SRI. BASAVARAJ, S/O KALAKAPPA ADAVI, AGED ABOUT 34 YEARS, OCC: O.T TECHNOLOGIST, R/AT NO.176 AGASI ONI, GOGERI, DIST GADAG - 582 114.

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SRI. RAHUL, S/O RAVI KULKARNI, AGED ABOUT 31 YEARS, OCC: O.T TECHNOLOGIST R/AT * 77/.B MAHALINGESHAWAR GALLI, GOKAK, TQ GOKAKA DIST BELAGAVI - 591 307.

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SRI. MAHANTESH, S/O. DUNDAPPA KORISHETTI, AGED ABOUT 36 YEARS,

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OCC: O.T TECHNOLOGIST, R/AT NEAR PRIMARY SCHOOL, ARALIKATTI, TQ & BELAGAVI - 591 109.

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SRI. K. NAGAMUNI, S/O K. NARAYANA SWAMY, AGED ABOUT 40 YEARS, OCC: O.T. TECHNOLOGIST, R/AT WARD NO.31, NEAR GANESH TEMPLE, SANNAGAR COLONY, BHATHRI, BALLARI - 583 104.

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SRI. S.A. SADIQ, S/O. S.A. JABBAR, AGED ABOUT 32 YEARS, OCC: O.T. TECHNOLOGIST R/AT MOIN MANZIL, WARD NO. 25 VIJAY NAGAR COLONY, OPP J.S.W PARK, 2^ND CROSS, CANTONMENT, BALLARI - 583 104.

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SRI. KUMAR NAIK L., S/O. NEELYA NAIK .L, AGED ABOUT 35 YEARS, OCC: O.T TECHNOLOGIST, R/AT 2^ND WARD SEETHARAMA THANDA, HAMPI POWER HOUSE VIJAYNAGAR, BALLARI - 583 215.

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SRI. DILIPKUMAR S, S/O. GURURAJA AGED ABUT 29 YEARS, OCC: O.T. TECHNOLOGIST R/AT DOOR NO.25, SUDHA CROSS, OPP ZAM ZAM PETROL PUMP BELLARI, DIST

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BALLARI - 583 104. 9. SRI. P. RAJU S/O P YALLAPPA, AGED ABOUT 32 YEARS, OCC: O.T. TECHNOLOGIST, R/AT H.NO.160, WARD NO.25, HAZARATH STREET, BELLARI - 583 101.

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SRI. SANTOSH, S/O SHIVASHANKARAPPA HOSMANI, AGED ABOUT 36 YEARS, OCC: O.T. TECHNOLOGIST, R/AT GOVINDAPUR GALLI, WARD NO.5, MUDHOL, TQ MUDHOL, DIST BAGALKOTE - 587 313. ... PETITIONERS

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(BY SRI: RAJASHEKAR BURJI, ADVOCATE)

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AND:

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STATE OF KARNATAKA, REP. BY CHIEF SECRETARY, VIDHAN SOUDHA, DR. AMBEDKAR VEEDHI, BENGALURU - 560 001.

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DEPARTMENT OF HEALTH AND FAMILY WELFARE, VIKASA SOUDHA, BENGALURU - 560001. REP BY UNDER SECRETARY,

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DEPARTMENT OF MEDICAL EDUCATION, 610, 6^TH FLOOR, 4^TH GATE, M.S. BUILDING, BENGALURU - 560 001. REP BY ITS PRINCIPAL SECRETARY.

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DEPARTMENT OF FINANCE, VIDHAN SOUDHA, DR. AMBEDKAR VEEDHI. BENGALURU - 560 001. REP BY ITS PRINCIPAL SECRETARY. 5. COMMISSIONER, HEALTH AND FAMILY WELFARE SERVICES, AROGYA SOUDHA, MAGADI ROAD, BENGALURU - 560 023. 6. DIRECTOR, DEPARTMENT OF HEALTH AND FAMILY WELFARE SERVICES, ANAND RAO CIRCLE, BENGALURU - 560 096. 7. DIRECTORATE OF MEDICAL EDUCATION, PARA MEDICAL BOARD, REP BY ITS CHAIRMAN, PARA MEDICAL BOARD, "LAKSHMI COMPLEX", 1^ST FLOOR, OPP. VANI VILAS HOSPITAL, FORT, BENGALURU - 560 002. 8. RAJIV GANDHI UNIVERSITY OF HEALTH SCIENCE, KARNATAKA, 4^TH 'T' BLOCK, JAYANAGAR, BENGALURU - 560 041. REP BY ITS REGISTRAR. ….RESPONDENTS

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(BY SRI: SHIVAPRABHU S. HIREMATH, AGA FOR R1 TO R7 SRI: AVINASH BANAKAR, ADVOCATE FOR R8)

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THIS PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA PRAYING TO A) QUASH THE ENDORSEMENT BEARING NO. AA.KU.KA.51.HSM.2022 DATED. 31.01.2023 ISSUED BY THE 2^ND RESPONDENT PRODUCED AT ANNEXURE-P IN SO FAR AS PETITIONER CONCERNED AND ETC.,

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THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 10.10.2023, COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The captioned petition is filed seeking following

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reliefs:

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"1. Quash the endorsement bearing No.Aa.Ku.Ka.51. HSM.2022 dated 31.01.2023 issued by the 2nd Respondent produced at Annexure-P in so far as petitioners concerned.

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Direct the Respondent No.1 to 3 to consider the representation dated 09.01.2018, 09.02.2018 and 07.12.2019 produced at Annexure-B, C, D and G respectively.

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Further direct the Respondent No.1 to 3 to resolve the anomaly in recruitment to the

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past of Operation Theatre Technologist/Assistants in the Government Hospitals.

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Pass such other order or direction, this Hon'ble Court deems fit in the circumstances of the case."

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The petitioners have completed course in

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Operation Theater Technology. It is contended by the petitioners that the Committee constituted by first respondent-State has emphasized that there is an acute shortage of Para Medical Personnel in the State and this prompted the State Government to constitute a Para Medical Board which came into existence in 1997 with a view to improve the efficiency and better administration. Petitioners who have completed Para Medical Course and have completed the course in Operation Theater Technology are aggrieved by the impugned endorsement issued by respondent No.2 as per Annexure-P indicating that there are no Cadre and Recruitment Rules in the Health and Family Welfare

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department to recruit paramedics to the post of Operation Theater Technologists. The petitioners ventilating their common grievance have knocked the doors of the writ Court by contending that respondent No.1-State even in absence of Cadre and Recruitment Rules has recruited various posts under other heads and therefore, the action of the respondents in not considering the case of petitioners for recruitment for the post of Operation Technical Assistants on the ground that no Cadre and Recruitment Rules are framed in the Health and Family Welfare Department is violative of Articles 14 and 21 of the Constitution of India. The petitioners hence are seeking suitable direction at the hands of this Court.

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The petitioners have further contended that there are 18 District Hospitals, 151 Taluka Hospitals and 208 Community Health Centers. Petitioners further claim that there are 411 Major Surgery

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Theaters and 378 Minor Surgery Theaters. The petitioners are questioning the action of the State in availing the services of Group-D employees and Staff Nurses, while carrying out surgeries and operations in the Operation Theaters, who are not equipped with knowledge and skill with regard to surgical procedure.

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On these set of grounds, the captioned petition is filed by the petitioners.

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The first respondent-State and respondents 2 to 7 have not contested this petition by filing statement of objections.

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Heard the learned counsel for the petitioners and learned AGA. I have examined the law laid down by the Apex Court in the case of The State of Maharashtra .vs. Bhagwan and Others[Civil Appeal Nos.7682-7684 of 2021].

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The learned AGA has contended that the

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impugned endorsement vide Annexure-P does not call for any interference at the hands of this Court. Placing reliance on the judgment cited supra, he would contend that this Court should refrain from interfering with policy decisions that could have cascading effects and financial implications.

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The first respondent-State vide impugned endorsement has resolved not to absorb the technicians holding Diploma and Master Degree in Operation Theater Technology for want of Cadre and Recruitment Rules. The first respondent in absence of statement of objections has strongly resisted the captioned petition on the ground that petitioners, as a matter of right, cannot seek a mandamus against the State to provide employment to the petitioners who hold Diploma in Operation Theater Technology.

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8. Though this Court is fully conscious of its

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powers under Articles 226 and 227 of the Constitution of India, the case on hand depicts very sorry state of affairs. The impugned endorsement vide Annexure-P issued by first respondent-State clearly reflects its unwillingness in safeguarding the health and well being of its populace. The duty and obligations of a State to provide enhanced Health Care to its citizens are grounded in principles of Social justice, human rights and public welfare. This commitment is often enshrined in Constitutional and legal frame works, emphasizing the State's responsibility to safeguard the health of the citizens.

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9. Constitutional provisions and statutes often

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underscore the fundamental right to health as an integral component of right to life. This legal recognition establishes a paramount obligation on the State to ensure the availability, accessibility, and

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quality of healthcare services. The principle of nondiscrimination further underscores the State's duty to provide healthcare without prejudice, addressing the diverse needs of its citizens.

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The State's duty extends beyond the mere

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provision of medical services; it encompasses the creation of comprehensive healthcare infrastructure, encompassing preventive, curative and rehabilitative measures. Adequate funding, efficient management and equitable distribution of healthcare resources are imperative to fulfill this obligation. In the Legal Lexicon, this commitment is often articulated as a positive duty, mandating proactive measures to progressively realize the right to health.

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Hospitals serve as pivotal institutions for

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both preventive and curative healthcare measures. The State's role in establishing such facilities ensures

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that citizen's have access to preventive services like vaccinations, health screenings, and education, while also providing advanced medical treatment for those in need. This comprehensive approach aligns with the legal principles that emphasize the holistic nature of healthcare.

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In the captioned petition, the first respondent has not come with its response to the contentions raised by the petitioners.

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While the debate prioritizing qualified candidates for specific roles is crucial, it is equally important to acknowledge the potential risk associated with assigning unqualified existing employees to critical positions when employees lack the necessary qualification, the quality of service provided to the public is likely to suffer. The hospitals run by State which offer lifeline to a commoner often provide very

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substandard treatment and the tasks are performed sub-optimally leading to potential errors and delays. Placing unqualified personnel in these positions can pose a direct risk to the safety of the citizens.

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The first respondent-State has not filed its

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response and therefore, its stand on this issue is unclear. However, the impugned endorsement vide Annexure-P gives an indication that the State for want of Cadre and Recruitment Rules is not recruiting Para Medical Staffers. Learned AGA on behalf of State has made a statement that fixing Cadre and framing Recruitment Rules is a policy decision and bearing in mind the fiscal burden on the State, no recruitment relating to absorbing para medical staff is possible as of now.

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The Government Hospitals often employ unskilled staff due to acute shortage of Para Medics.

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Pursuant to constitution of Para Medical Board in 1997, the Board has granted affiliations to Educational Institutions to impart para medical courses. At para 12 of the writ petition, it is specifically averred that in 30 districts of the State, there are 18 District hospitals, 151 Taluka hospitals and 208 Community Health Centers. The petitioners have also pleaded that there are about 411 major surgery theaters and 378 minor surgery theaters in the said hospitals with modern equipments. Petitioners have seriously alleged that Group-D employees and Staff nurses are discharging duties in the Operation Theaters. These contentions are not seriously refuted by first respondent-State. What is evident from the material on record is that the doctors from Government Hospitals are facing staff crunch and untrained workers are doing paramedics' work in most Government Hospitals. Though petitioners have not

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placed official data, it is clearly evident that though para medic graduates are available, the State Government has not made any efforts to recruit para medics who are qualified for the post.

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Though, this Court is not inclined to

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examine the validity of the impugned endorsement vide Annexure-G, the material on record however would compel this Court to issue suitable directions to the State. Right to healthcare is a fundamental right. Apex Court in the case of Paschim Banga Khet Mazdoor Samity and others .vs. State of West Bengal and others¹ while widening the scope of Article 21 of the Constitution held that it is the Government's responsibility to provide medical aid to every person in the Country. The Apex Court was of the view that in a welfare state, the primary duty of the Government is to secure welfare of the people.

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1 (1996) 4 SCC 37

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Providing adequate medical facilities for the people is an obligation undertaken by the Government in a welfare state. Article 21 of the Constitution imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The Government Hospitals run by the State are duty bound to extend medical assistance for preserving human life. Failure on the part of a Government Hospital to provide timely medical treatment to a person in need of such treatment, results in violation of his right to life guaranteed under Article 21 of the Constitution.

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The first respondent State's contention that

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creation and sanction of post is sole prerogative of the Government and therefore, this Court in exercise of powers under Article 226 of the Constitution cannot issue directions to the Department to sanction and create posts cannot be acceded to as the present

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issue deals with right of a citizen to have access to health care. The objections raised by the State in the present case on hand is found to be totally misconceived. This Court exercising jurisdiction under Article 226 of the Constitution has power to issue directions if the State or public authority has failed to exercise the discretion conferred upon it by the Statute or such discretion is exercised with malafides or policy decision is based on irrelevant considerations. Therefore, this Court under Article 226 of the Constitution can issue a writ of mandamus and give directions to compel the performance in a proper and lawful manner of the discretion conferred on the State or public authority. The role of the Constitutional Courts under the Constitution is crucial to ensure that Rule of Law is implemented. Therefore, whenever there is inaction on the part of the State, the Courts' power under its writ jurisdiction are

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necessarily broad. They are conferred powers in aid of justice and therefore, no limitations can be placed on the powers of the Court in exercise of its writ jurisdiction. It is a well settled principle that writ jurisdiction of a High Court cannot be completely excluded by a Statute and if it is tasked with being a final recourse to upholding the Rule of Law within its territorial jurisdiction, it has the power to examine any case before it and make a determination of whether or not its writ jurisdiction is engaged. Judicial Review under Article 226 of the Constitution is an intrinsic feature of basic structure of Constitution.

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Though no reliefs can be granted to the petitioners, in the light of the observations made by this Court in the preceding paragraphs, this Court feels that certain directions need to be issued to respondent No.1-State.

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For the reasons stated supra, I pass the

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following:

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ORDER

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(i) The writ petition is allowed in part.

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(ii) The respondent No.1-State is hereby

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directed to take appropriate steps and measures in appointing Operation Theater Technologists/Assistants so that adequate facilities are provided at Public Health Centers as well as Hospitals at District and Sub-Division levels.

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Sd/JUDGE

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*alb/-

Sri. Abdulsaheb S/O Husensab Karnool v. State of Karnataka

Case brief

What is this about?

What did the court decide?

Sri. Abdulsaheb S/O Husensab Karnool v. State of Karnataka

Case brief

What is this about?

What did the court decide?

What the court decided

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