Written by Omkar Gokhale | Mumbai | Published: March 26, 2020 11:31:09 am
The Bombay High Court’s Aurangabad bench has held that failure of government hospitals to provide timely medical treatment to a person in need amounts to a violation of the fundamental right of personal liberty and life with dignity provided by the Constitution and that it is the obligation of the state to ensure the creation of congenial conditions for good health.
The court on March 20 set aside Government Resolutions (GRs) of 2015 that increased the retirement age of district health officers, civil surgeons and superior officers across Maharashtra from 58 to 60 years, calling it illegal. However, the court said that in view of the COVID-19 pandemic, the state need not “unsettle” medical officials who have been given the benefit of the GRs, as their service and medical expertise are required at the moment.
The HC, however, directed the state not to consider the increased retirement age anymore. The government had justified the increase in the retirement age as being necessitated by shortage of doctors, but the court noted that the state had done nothing to fill up hundreds of vacancies.
As many as 984 of 1,551 positions for medical officers, including district health officers, civil surgeons and special cadre officers are vacant. The HC directed the state to fill up these posts quickly.
A division bench of Justice S V Gangapurwala and Justice Anil S Kilor was hearing a plea filed by seven medical officials working with the public health department in Beed district, challenging the GRs issued on May 30, 2015 and September 3, 2015, increasing the retirement age due to non-availability of specialist doctors.
The seven medical officials, between 43 to 53 years of age, had claimed in their plea that the resolutions blocked their legitimate right of promotion and future prospects.
Advocate Avinash Deshmukh, appearing for the petitioners, alleged that the GRs were issued to benefit officers close to ministers and secretaries. The state could have promoted the petitioners or filled up vacant posts as large number of candidates are available for fresh recruitment, he argued. No cogent and valid reason was given for the decision and therefore, it is arbitrary and not sustainable in the eyes of law, including the state civil services rules, the petitioners argued.
However, opposing the plea, Assistant Government Pleader (AGP) V M Kagne said that the retirement age was increased due to shortage of medical officers leading to difficulties in providing health services to the needy.
He informed the court that 377 of 643 sanctioned posts of civil surgeons are vacant, whereas 141 of 281 positions of district health officers are yet to be filed up. In the speciality cadre, of the 627 sanctioned posts, 466 are vacant, AGP Kagne said. He added that the government is making efforts for speedy recruitment and committees under district collectors have been formed in 2016 for the purpose.
After hearing the submissions, the bench observed that maintenance and improvement of public health through services of medical officers is of paramount importance and relates to the life of every person.
It said, “Failure on the part of government hospitals to provide timely medical treatment to a person in need of treatment resulting violation of fundamental right guaranteed under Article 21 (right to life) of the Constitution of India.”
It also observed that state has not been serious and failed to take sufficient measures to fill up posts by granting promotions or conducting fresh recruitment despite a large number of medical graduates being available every year and that the government’s claim of public interest behind the issuance of the GRs was “created” one.
Disposing of the plea, Justice Kilor ruled that the GRs were illegal and issued without any authority or power under the law. The bench held, “The government resolutions are arbitrary in nature and are liable to be set aside.”
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