IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.5921 of 1997 BASHISHTHA NARAIN HOSPITAL ALSO KNOWN AS ADDITIONAL PRIMARY HEALTH CENTRE, BARAO KALA, BLOCK DEHRI-ON-SONE, DISTRICT-ROHTAS THROUGH SHRI DR. VIJAY PRATAP SINGH, SON OF SHRI BASHISHTHA NARAIN SINGH, SECRETARY-CUM-SUPERINTENDENT OF THE HOSPITAL, BARAO KALA, ROHTAS. …….PETITIONER. VERSUS 1.THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, MAIN SECRETARIAT, PATNA. 2.THE COMMISSIONER AND SECRETARY, HEALTH MEDICAL EDUCATION AND FAMILY WELFARE DEPARTMENT, GOVT. OF BIHAR, NEW SECRETARIAT, VIKAS BHAWAN, PATNA. 3.THE JOINT SECRETARY, HEATH, DEDICAL EDUCATION AND FAMILY WELFARE DEPARTMENT, GOVT. OF BIHAR, NEW SECRETARIAT, VIKAS BHAWAN PATNA. 4.THE CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, ROHTAS AT SASARAM. 5.THE FINANCE COMMISSIONER AND SECRETARY, FINANCE DEPARTMENT, GOVERNMENT OF BIHAR, MAIN SECRETARIAT, PATNA. 6.THE ACCOUNTANT GENERAL, BIHAR, BIRCHAND PATEL PATH, PATNA. …………..RESPONDENTS. WITH CWJC NO.4263 OF 2002 DR.VIJAY PRATAP SINGH, SON OF LATE BASHISHTHA NARAIN SINGH, BASHISHTHA NARARIN HOSPITAL, ALSO KNOWN AS ADDITIONAL PRIMARY HEALTH CENTRE, BARAON KALA, BLOCK DEHRI-ON-SONE, DISTRICT ROHTAS, BIHAR, AT PRESENT SECRETARY-CUM-SUPERINTENDENT OF THE HOSPITAL, BARAON KALA, ROHTA……….PETITIONER. VERSUS 1.THE STATE OF BIHAR THROUGH THE CHIEF SECRETARY, MAIN SECRETARIAT, PATNA. 2.THE ACCOUNTANT GENERAL, BIHAR, BIRCHAND PATEL MARG, PATNA. 3.THE COMMISSIONER AND SECRETARY, HEALTH MEDICAL EDUCATION AND FAMILY WELFARE DEPARTMENT, GOVT. OF BIHAR, NEW SECRETARIAT, VIKAS BHAWAN, PATNA. 4.THE FINANCE COMMISSIONER AND SECRETARY, FINANCE DEPARTMENT, GOVERNMENT OF BIHAR, MAIN SECRETARIAT, PATNA. 2 5.THE JOINT SECRETARY, HEATH, DEDICAL EDUCATION AND FAMILY WELFARE DEPARTMENT, GOVT. OF BIHAR, NEW SECRETARIAT, VIKAS BHAWAN PATNA. 6.THE CIVIL SURGEON-CUM-CHIEF MEDICAL OFFICER, ROHTAS AT SASARAM. …….RESPONDENTS. ---------- For the petitioners: Mr. Ashok Kumar Choudhary,Adv. Mr.Prushottam Kr. Jha,Adv. Mr.DR. Kislay Adv., Mr.Dharmendra Kumar Singh Adv. and Mr. Jyoti Ranjan Jha, Adv. For the State : Mr. Alok Kumar Rahi, A.C to AAG-2 and Mr. Ram Subhas Singh, A.C to AAG-15. For the Central Govt.(Union of India): Mr. P.L Jaiswal (C.G.C) --------------------- P R E S E N T HON'BLE MR. JUSTICE MIHIR KUMAR JHA ORDER (18.10.2011) Mihir Kumar Jha, J. In C.W.J.C No. 5921 of 1997 Heard counsel for the parties. Petitioner Vasist Narayan Hospital (hereinafter referred to as the Hospital) has made the following prayer:- “i)Issuance of a direction , order or writ in the nature of certiorari setting aside the order of the Commissioner dated 12.01.1996 contained in annexure-27 whereby and whereunder the Commissioner has passed the order that the State has decided not to take over the Bashishtha Narayan Hospital, Barao Kala, Block Dihri, District Rohtas under the provisions of the Bihar Provincialisation of Roads and Hospitals Act 1947(herein after referred to as the Act). ii) Issuance of a direction, or-der or writ in the nature of mandamus commanding the respondents to take over the petitioner as Additional Primary Health Centre, Baro Kala by issuance of an appropriate notification under section 3 of the Act with effect from the year 3 1987-88. iii) Issuance of a direction, order or writ in the nature of mandamus commanding the respondents to take over the services of the Medical Doctors and para medical staffs along with clerical etc., within the yardstick for such hospital approved by the State Government. iv) Issuance of a direction, order or appropriate declaration that the decision as far back as in the year 1989 (see annexure-22) was already made at the highest level of the Commissioner, Health Minister and the Chief Minister to take over this Hospital and only the formality of issuing notification under section 3 of the Act remained. v) Issuance of a direction, order of appropriate declaration that there is no other state Additional Primary Health Centre and in the petitioners hospital grants have been made right from the very beginning up to the year 1996-97. vi) Issuance of a direction, order of appropriate declaration that the officers of the Department are making contradictory and false statement and tried to harass and on one pretext or the other is illegally not taking over the petitioner Hospital.” The long and short of the aforementioned exhaustive prayer is that this Court should quash the impugned order dated 12.01.1996, passed by the Health Commissioner and issue a consequential direction for take over of the said hospital by the State Government. Mr. Ashok Kumar Choudhary, learned counsel for the petitioner appearing on behalf of the petitioner has drawn attention to a notification dated 29.03.1989, published in the Official Gazette, whereby and whereunder, a draft 4 notification in terms of proviso to Section-3(1) of Bihar Road and Hospital Act 1947 (hereinafter referred to as the Act) was issued expressing intention of the State Government to take over the Hospital with its all lands, buildings, fixtures medicines, stores, equipments, furnitures, other articles and all categories of staff of the said hospital if fit for government service. For the sake of clarity the relevant portion of the notification dated 29.03.1989 is quoted hereinbelow:- The 29th March 1989 “S.O. 728.—The following draft of notification which the Governor of Bihar propose to issue, in exercise of the powers conferred by sub-section (1) of Section 3 of the Bihar Provincialisation of Roads and Hospitals Act, 1947 (Bihar Act VI of 1948), is hereby published as required under the first proviso to the said sub-section for information of the persons likely to be affected thereby and notice is hereby given that the said draft will be taken into consideration by the State Government after fifteen days from the date of its publication in the Bihar Gazette. Any objection or suggestion which may be received from any local body or person with respect to the said draft, before expiry of the said period will be considered by the State Government. DRAFT NOTIFICATION. In exercise of the powers conferred by sub-section (1) of section 3 of the Bihar Provincialisation of Raods and Hospitals Act’, 1947 (Bihar Act VI of 1948), the Governor of Bihar is pleased to direct that the Hospital mentioned in the Schedule annexed hereto shall, subject to the provisions of Section 6 of the said Act and to the conditions and exceptions prescribed by the State Government vest in the 5 State Government on the date of publication of the notification in the Bihar Gazette. SCHEDULE (1) Bashisht Narayan Hospital maintained by Rajeev Hospital in village Baraonkala in Dihri Block in the district of Rohtas. (2) All lands, buildings, fixtures medicines, stores, equipments, furnitures, other articles and all categories of staff of the said hospital if fit for Government service shall vest in the State Government. By order of the Governor of Bihar, S.K Sinha, Joint Secretary to Government.” Basing his submission on the aforementioned notification, he would explain that the impugned order does not actually has given any cogent reason for denying the take over of the Hospital by the Government. In this regard, he has emphasized that the additional Primary Health Centre at Barao Kala, district Rohtas was never made functional and as such the intention of the State Government for take over of the Hospital as expressed in the aforementioned notification ought to have been completed by issuing a final order for take over of the Hospital. He has also referred to paragraph no. 33 and 34 of the writ application which reads as follows:- “That apart from the aforesaid orders of the then Health Minister, and chief Minister the petitioner categorically states that there is no Additional Primary Health Centre at Barao Kala and the statement of the respondents in their counter affidavit 6 (Annexure-24) is out and out tissues of lies and falsehood. Indeed the respondent’s stand that a primary Health Centre was sanctioned in the year 1988 is given a total lie inter alia by the contents of Annexure-22 which contains a note of the Commissioner dated 9.3.1989 the proposal of the Health Minister dated 13.3.1989 and the order of the then Chief Minister dated 10.3.1989 which show that the petitioner Hospital be taken over and be used as Referal Hospital by increasing 10 beds in the petitioner Hospital. It is apparent that one in 1989 the Commissioner is giving the note contained in annexure-22, the question of an additional primary health centre other than that of the petitoenr hospital in Barao Kala is a total lie. Indeed the petitioner challenges the respondents to produce the aforesaid sanction order by which alleged sanction for an additional Primary Health Centre was made for Barao Kala other than that of the petitioner Hospital. 34. That apart from the above the petitioner brings on record the following correspondence to show that there is no Additional Primary Health Centre of Bihar Govt., in Barao Kala. In support of this the petitioner brings on record the following, documents. The certificate issued by the Block Pramukh of Dihri and Akorhi Gola, Rohtas district, Sri Birendra Singh to the effect that in village Barao Kala there is no Govt. run Additional Primary Health Centre. (b) The Medical Officer, Incharge Dihri block on 12.3.1995 addressed a letter to the Secretary of the petitioner Hospital in response to laters letter dated 11.3.1995 to the effect that there is no additional Primary Health Centre or Health Sub Centre in Barao Kala. Indeed he stated that in Barao Kala a Hospital is being run known as Rajiv Chikitsalaya and recommendation was being made to grant for that hospital. As pointed out earlier the name of Rajiv Hospital was subsequently changed as Bashishta Narayan Hospital, Barao Kala. (c) The letter of the Civil Surgeon cum Chief Medical Officer No. 299 dated 27.3.1995 addressed to the Secretary of the petitioner Hospital to the effect that at present in village Barao Kala there is neither any Additional Primary Health Centere nor any Health Sub 7 Centre.” Based on the aforementioned submissions he had assailed the impugned order relevant portion whereof reads as follows:- “3. On examination of the available records the following facts emerge: a) The State Government had issued a resolution dated 08.07.1981 in which itw was resolved that a proposal for opening Additional P.H.Cs below Block level for population of 50 thousand has been approved by the Planning Commission. Therefore, in areas where such Additional P.H.Cs are not available, if any institution can hand over building etc. to the Government then the Government may name such Additional P.H.C in the name of the doner. This resolution nowhere mentions the desire of the Government to take over the services of the staff, if any, working in these places. b) One Additional P.H.C in the village Baraokala, Dehir Block of Rohtas district was sanctioned in the year 1987-88. The petitioner’s hospital i.e. Bashishth Narain Hospital has never been treated as Additional P.H.C, Baraokala. c) Vide letter dated 29.12.93, it was decided that Bashishth Narain Hospital Baraokala which is a private hospital shall not be taken over by the Government. This letter has been quashed by the order of the Hon’ble High Court. d) From perusal of the writ application it is clear that the intention of the petitioner is to be absorbed in Government service and for that purpose various documents have been enclosed in support of the fact that this institution has been functioning for providing health services to the people of the area. The State Government had never taken nay decision under the relevant law to take over this privately run hospital. e) Though the State Government has sanctioned an Additional P.H.C for Baraokala, it appears from the report of the Civil Surgeon, Rohtas sent vide letter no. 39 dated 8 7.1.96 that the Additional P.H.C has not started functioning in the concerned village till now. The Civil Surgeon, Rohtas has also reported in the same letter that within a radius of 2-3 kilometeres two Additional Primary Health Centres are functioning. The Civil Surgeon, Rohtas be directed to take necessary steps to start the sanctioned Additional P.H.C for Baraokala. f) Due to financial constraints, the State Govt.is not in a position to take over the concerned private hospital. 4.In the circumstances mentioned above and especially since the financial position of the State Govt. is not conducive to create further liability, it is hereby decided that the petitioner’s privately run hospital cannot be taken over by the State Government. Hence, the claim of the petitioner is rejected.” Learned counsel for the State on the other hand while defending the aforementioned order of the Commissioner cum Secretary to the Government in the department of Health, Education and Family Welfare has submitted that mere intention of take over of the Hospital in terms of Section-3(1) of the Act can never be a safer yard stick to issue a writ of mandamus unless especially there is some statutory provision or even an executive instruction under which the State is bound to take over the Hospital. He has further submitted that either the reason of existence of two additional Primary Health Centres in the vicinity of 2 to 3 Kilometers of village Barao Kala or a cautious Government decision of also starting one additional 9 Primary Health Centre in the village of Barao Kala, itself cannot be said to be wholly alien to the consideration for take over of the petitioner- Hospital. In this regard, learned counsel for the State has emphasized that the financial constraint by itself would be a major factor for not taking over of the assets and liabilities of the Hospital. He has submitted that in absence of any statutory provision, this Court may not interfere in a matter purely in the realm of executive decision of the State. In the considered opinion of this Court, the take over of the Hospital could be made under the ambit of Section 3 and 4 of the Act, which for the sake of clarity is also quoted hereinbelow:- “3. Vesting of roads and hospitals in the Government.- The State Government may, by notification, direct that, with effect from such date as may be specified therein and subject to the provisions of section 6 and such conditions and exceptions as may be prescribed, any hospital or road which is vested in, or is under the control or administration of, the Commissioners of any Municipality, any District Board or other local authority or any Committee or Joint Committee or other body thereof constituted under the Bihar or Orissa Local Self- Government Act of 1985, the Bihar and Orissa Municipal Act, 1922, or any other law whereby the local authority was constituted or any person or trustee shall notwithstanding anything contained in any law for the time being in force, be vested in the State Government: Provided that before issuing such 10 notification, the State Government shall give such notice as it considers reasonable of its intention to issue notification and shall consider any objections or suggestions that may be put forward by the local authority concerned or other interested persons: Provided further that nothing in this sub-section shall be deemed to apply to any hospital, which is vested in, or is under the control of administration of any religious or philanthropic mission. (2) Subject as aforesaid, all rights and liabilities of the Commissioners of the Municipality, the District Board or other local authority or of any Committee, Joint committee, body, person or trustee referred to in sub-section (1) in, appertaining to, or arising out of, the property covered by the notification issued under that sub-section shall, with effect from the date mentioned in the notification pass and be transferred to the Government and State Government shall from such date be in charge of the administration, control, maintenance and management of the said property. 4. Vesting of endowments and funds appertaining to a hospital.- All endowments or funds, which appertained to or were appropriated specifically for the purpose of any hospital immediately before it was vested in the State Government under section 3, shall be vested in the State Government for those purposes and continue to be applied by the State Government to the same purposes as those to which they were lawfully applicable immediately before the date when the endowment or fund concerned was so vested.” Section 6 contains the provisions regarding payment of compensation whenever right and interest in any private hospital is acquired by the State Government.” From the reading of the aforementioned statutory provision, it would be clear that the expression ‘may’ used in Section-3 of the Act gives discretion to the Government to take over any 11 Hospital. Section-3 cannot be read as a compelling provision under which the Hospital has any right of its being taken over by the State Government. As with regard to the Government notification dated 29.03.1989 expressing intention of take over, it can be safely said that in the event the State would desire to take over any Hospital, it will first issue a draft notification expressing its intention to its take over by inviting objections or suggestions from the persons concerned. Issuance of such notification under first proviso to Section 3(1) merely being an intention to takeover by itself cannot be a final word, inasmuch as, the State Government even thereafter for reasons recorded in writing can refuse to take over a Hospital by not issuing the notification under Section 3(1). Admittedly no such final notification under Section 3(1) of the Act was made after issuance of a draft notification dated 29.3.1989, already quoted above. In the present case two definite reasons have been given for refusal of takeover of the Hospital by the State Government as contained in Commissioner's order dated 12.1.1996 which was also passed in terms of the earlier direction given by 12 this Court in its order dated 28.6.1995 in C.W.J.C. No. 5450/1993 after quashing the earlier decision dated 29.12.1993 (Annexure-23) which in the opinion of this Court had contained no reasons. The reason given in the impugned order for refusal to take over the Hospital that there are two additional Primary Health Centres of the State Government in the vicinity of the village Barao Kala, in fact has not been even questioned by the petitioner in the writ petition and therefore, this Court will proceed to hold that there are two additional Primary Health Centres of the State Government, which by itself could have been a good ground for Government not to take over any private Hospital including that of the petitioner. Even otherwise there is no such decision of the Government which requires that every village must have a full fledged Hospital. Additionally, learned counsel for the State has brought to the notice of this Court by way of an order issued by the Civil Surgeon of the Rohtas district dated 03.12.1999, which itself would go to show that in furtherance of the direction given by the Secretary of the Health Department, the existing additional Primary Health Centre of the government was made functional in the 13 Village of Barao Kala. The notification dated 03.12.1999 being relevant for this purpose is also quoted hereinbelow:- vlSfud 'kY; fpfdRld lg eq[; fpfdRlk inkf/kdkjh] jksgrkl ¼lklkjke½ vkns'k ljdkj ds vij lfpo] LokLF; fpfdRlk f'k{kk ,oa i0d0 foHkkx] fcgkj] iVuk ds vf/klwpuk la[;k 552 ¼2½ fnukad 27-11- 99 ds Øekad 24 }kjk Mk0 gfj'kpUn] fpfdRlk inkf/kdkjh dks vfrfjDr izkFkfed LokLF; dsUnz] ljfodyk] jksgrkl esa inLFkkfir fd;k x;k gSA ;s fnukad 2-12-99 ds iwokZg~u esa bl dk;kZy; esa ;ksxnku fn;s gSA budk ;ksxnku Lohd`r djrs gq, vkns'k fn;k tkrk gS fd vfrfjDr izkFkfed LokLF; dsUnz] cjfodyk esa fpfdRlk inkf/kdkjh dk izHkkj xzg.k dj izHkkj izfrosnu vkB izfr;ksa esa v|ksgLrk{kjh ds dk;kZy; esa izLrqr djsaA g0 vLi"V vlSfud 'kY; fpfdRld lg eq[; fpfdRlk inkf/kdkjh] jksgrkl ¼lklkjke½ Kkikad 2142 lklkjke fnukad 3-12-99 izfrfyfi Mk0 gfj'kpUnz] fpfdRlk inkf/kdkjh] vfrfjDr izkFkfed LokLF; dsUnz] cjfodyk ¼jksgrkl½ @ izHkkjh fpfdRlk inkf/kdkjh] izkFkfed LokLF; dsUnz] fMgjh ¼jksgrkl½ @ dks"kkxkj inkf/kdkjh] jksgrkl ¼lklkjke½ dks lwpukFkZ ,oa vko'o;d dk;Zokgh gsrw izsf"krA g0 vLi"V vlSfud 'kY; fpfdRld lg eq[; fpfdRlk inkf/kdkjh] jksgrkl ¼lklkjke½ The aforesaid decision which is based on the directions contained in the order passed by the Secretary of the department or the action taken by the Civil Surgeon will leave nothing for speculation that there are three additional Primary Health Centres of the Government which are functioning in and around village Barao Kala. In such a situation, it cannot be said that the reason 14 given by the Health Secretary while rejecting the claim of the petitioner for its being taken over of the Hospital is alien or irrelevant. The Government policy with regard to take over of the Hospital having also a financial impact, if the Secretary to the Government in the impugned order has also dwelt upon the aspect of the financial grant as another reason for not taking over the Hospital, this Court in absence of a statutory provision or any executive decision, of there being any compulsion for the State to set up a Hospital in each and every village of this State cannot hold the said reason of financial constraint for not taking over the Hospital by the Government to be also bad on fact or in law. Such exercise of an executive power with regard to providing the health care for the people of a village in this State cannot be made the subject matter of judicial review except on the limited parameters of Article- 14. The reasons given in the impugned order however, are not bad and also not violative of Article 14 of the constitution of India. This Court accordingly will have no difficulty in holding that the impugned order contain germane reasons for not taking over of the 15 Hospital. The factors taken into consideration while refusing take over of the petitioner-Hospital are also relevant and valid and would require no interference from this Court. Mr. Choudhary, however, seems to be correct that there may be a requirement of fresh consideration for take over of the Hospital in future on account of change in circumstances including the population explosion as also the increasing requirement of health care in the intervening 15 years since the date of passing of the impugned order which may requier the Government to reconsider this issue. It is true that a welfare State is expected to provide sufficient infrastructure and amenities of health care to the people and therefore, if the State Government may arrive at a decision that a full fledged Hospital like the petitioner-Hospital would subserve the interest of the people of the area, nothing said in this order will come in the way of the State Government to reconsider its decision. With the aforementioned observation, the main writ application is disposed of. CWJC NO.4263 of 2002 Coming to the second writ petition, wherein, 16 the prayer has been made by the petitioner, Dr. Vijay Pratap Singh for payment of salary, there would be no difficulty in dismissing the second writ application, inasmuch as, the Hospital in question was never taken over by the State Government and therefore, the Government had no liability to make payment of salary to the petitioner, Dr. Vijay Pratap Singh. The second writ application which was wholly dependent on the result of the first writ application, therefore, must fail and is, accordingly, dismissed. (Mihir Kumar Jha, J.) Patna High Court Dated the 18th October 2011 N.A.F.R./Ranjan