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HIGH COURT OF ORISSA: CUTTACK
W.P.(C) No. 11675 of 2010
In the matter of an application under Articles 226 and 227 of the
Constitution of India.
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Ashirbad Nursing Home, Modipara, Sambalpur, Represented through Dr. Sachidananda Basa, S/o. Late Baikunthanath Basa, Vill: Modipara, Dist: Sambalpur and others ... Petitioners
-Versus-
State of Orissa and others ... Opp. Parties
For Petitioners : M/s. S.K. Sarangi, B.K. Behera,
J.K. Acharya & S. Sarangi
For Opp. Parties : Mr. R.K. Mohapatra,
Government Advocate
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P R E S E N T:
THE HONOURABLE THE CHIEF JUSTICE SHRI V.GOPALA GOWDA AND THE HONOURABLE SHRI JUSTICE B.N.MAHAPATRA Date of Judgment: 06.07.2012 B.N.Mahapatra,J. The petitioners claiming tobe owners of Clinical Establishments and Nursing Homes have filed this writ petition with a prayer to declare the Orissa Clinical Establishments (Control and Regulation) Amendment Rules, 2006 (for short, "Rules, 2006") published under Notification dated 1st February, 2006 (Annexure-1) ultra vires the Orissa Clinical Establishments (Control and Regulation) Act, 1990 (for short, "Act, 1990") or in the alternative to quash the provisions contained 2 in the said Notification being not in consonance with the Act, 1990 and declare the same ultra vires.
2. Mr. S.K. Sarangi, learned counsel appearing on behalf of the petitioners submitted that the Rules, 2006 being not in consonance with the Act, 1990, the very purpose of establishing Nursing Home and Clinical Establishments for rendering service to the common men is frustrated at the instance of the Rule implementing authorities. Under the provisions of the Act, 1990, the Clinical Establishments were to be registered with the Director of Medical Education and Training (for short, "DMET") through the respective Chief District Medical Officers (for short, "CDMOs") on payment of certain registration fees. The Act, 1990 further prescribes that on compliance of certain formalities, the registration certificate is to be issued to the Establishments. Referring to sub-rule (6) of Rule 3 of the Rules, 1994, Mr. Sarangi, submitted that certificate of registration shall remain valid for a period of two years from the date on which it is granted. The Rules, 2006 came into force with effect from 23.05.2006 which provide for payment of charges towards the Clinical Establishments. Though objections were invited to the Draft Rules, 2006 and several objections were received, without considering the same the Government made the Rules, 2006 which is not in consonance with the Act, 1990 and the earlier Rules, 1994. Therefore, it causes great prejudice, hardship and unequal treatment to the Clinical Establishments. According to Section 2(b) of the Act, 1990, "Clinical 3 Establishment" includes Nursing Home. However, under the Rules, 2006, all Clinical Establishments having nursing facilities are asked to separately register for Nursing Home paying the registration fees twice. The Rules, 1992 prescribed that Rs.1,500/- (Rs.1,000/- towards grant/renewal of licence fees and Rs.500/- for inspection) shall be charged for each Clinical Establishment for registration and same amount for renewal. The validity of the registration certificate was for a period of two years which continued till 2008. The Notification dated 1st February, 2006, however, enhanced the said registration fees by several times with new stipulations made therein regarding the same inasmuch as the fees so payable were made annually. The DMET is charging more than what is prescribed under the Act, 1990 in the matter of registration and renewal. The DMET in its letter dated 11.09.2008 has clarified the said anomaly stating that the Certificate though would be valid for a period of two years yet the fees for registration and renewal are to be charged double. The proviso to Clause (5) of Rules, 2006 to obtain clearance from Orissa State Pollution Control Board for disposal of Bio- medical waste is a condition precedent prior to grant of registration, though the Act, 1990 was silent about the same. As a result, clearance from the Pollution Control Board is insisted though the same is neither recognized under the Act, 1990 nor under the Air Pollution Control Act.
3. Mr. Sarangi, learned counsel further submitted that though the applications have been made in time, yet the registration certificates 4 have not been issued for years together, thus, the Nursing Homes were uncertain as to whether their applications for registration were allowed or not. The Rules regarding registration have not been followed uniformly. There are cases, where the registration is being done once in every two years with one set of registration fee as would be evident from letter dated 09.04.2009 (Annexure-4) issued by the DMET. Despite bringing this unequal treatment in the matter of registration to the notice of the concerned authorities, no action has been taken on such allegation. It is further submitted that the competent authorities are not registering the Nursing Homes and thereby the Nursing Homes are not aware of the date of renewal as per Clause 2(ii) of the Rules, 2006. On the other hand, they are charging 10% for the delayed registration. This action of the opposite parties, does not stand to logic. This anomaly has been brought to the notice of the Chief Secretary by way of representation dated 06.07.2009 (Annexure-5) but the same has not yet been considered.
4. Per contra, Mr. R.K. Mohapatra, learned Government Advocate referring to the counter affidavit dated 30.06.2011 submitted that the writ petition is misconceived in fact and law and is liable to be dismissed at the threshold. Rule 2 of the Rules, 2006 is very clear wherein the annual rate of Clinical Establishments for Registration/ Renewal for M.R.I., C.T. Scan, Ultrasound, Endoscopy, Bio-Chemical and Pathological Examination has been defined in a Table as categorized 5 under category of A.B.C.D. Further, category has also been indicated as A.B.C.D. for Nursing Homes depending upon number of beds provided in the Nursing Homes. In Rule 5 of the Rules, 2006, it has been clarified that "A fee of Rs.10,000/-, Rs.8,000/-, Rs.6,000/-, Rs.5,000/- whichever is applicable has to be credited to Government under the Head of Account-0210-Medical & PH-020-Receipt from patients for Hospital & Dispensary Services-9906480-other fees". All C.D.M.Os have been issued with clarification to the effect that those clinical establishments having beds and diagnostic facilities are required to deposit Registration/Renewal fees for both the facilities. The Rules, 2006 has been proportionately applied with regard to the renewal/registration fees vis-à-vis number of beds in the Nursing Home. The Act, 1990 and the Rules, 2006 are having laudable objects. Rule 5 of the Rules, 2006 indicates that all the Clinical Establishments and Nursing Home shall possess clearance certificate from Orissa State Pollution Control Board for disposal of their Bio-Medical Waste under Bio-Medical Waste (Management & Handling) Rules, 1998 prior to grant of registration/renewal. Pollution Control Board Authorities are inspecting and issuing authorization certificates to the proposed Clinical Establishments/Nursing Homes and the Clinical Establishments/ Nursing Homes already established are observing the said formalities. On receipt of complete documents, the renewal/registration is being considered observing all paraphernalia under the Act, 1990 and the 6 Rules, 2006. The Rules, 2006 regarding registration is always followed uniformly. Prior to deposit of Rs.6,000/- the Clinical Establishments had deposited Rs.21,300/- as against Rs.27,300/- (due fees + 10% fine) for grant of renewal for the period from 20.02.2008 to 19.02.2010. In support of the contention, Mr. Mohapatra, learned Government Advocate referred to letter dated 21.09.2008 addressed to DMET, Orissa (Annexure-C/2). Once the Clinical Establishment/Nursing Home has been registered, the owner of the Clinical Establishment should have been aware of the date of next renewal before one month of expiration of period of renewal. It is the duty of the owner to take steps for deposit of dues in shape of Treasury Challan failing which, 10% of the prescribed fees will be charged for every month of subsequent delay as per Rule 2(ii) of the Rules, 2006. Taking a plea of non-receipt of information from the Directorate, the fees are not being deposited in time. The registration of applications of the Clinical Establishments/Nursing Homes is considered within the prescribed period. For want of documents, some cases are being delayed and lingering. After complete compliance, the registration/ renewal is being done. Therefore, question of pick and choose in the matter of registration and/or renewal does not arise. The Rules, 2006 is not contrary to the provisions of the Act, 1990 rather both are complimentary and intended to carry out the purpose of the Act. The Rules, 2006 is intra vires the Act, 1990. There is not a single tenable proposition of law or submissions stated in the entire writ petition which 7 can even remotely support the plea of invalidity of Rules, 2006. Concluding his argument, Mr. Mohapatra, learned Government Advocate submitted for dismissal of the writ petition.
5. The contentions taken in the counter affidavit filed by the State are denied in the rejoinder affidavit filed by the petitioners. In the rejoinder affidavit, the petitioners have reiterated the contentions as taken in the writ petition.
6. On the rival contentions advanced by the parties, the following questions fall for consideration by this Court :
(i) Whether the Rules, 2006 provides for grant of registration for one year and the same is contrary to the Act, 1990, which provides that the certificate of registration shall be valid for a period of two years w.e.f. the date on which it is granted ?
(ii) Whether charging of separate registration/renewal fees i.e. one for clinical establishment and other for Nursing Home is contrary to the Scheme of the Act, 1990 in which Section 2(b) defines Clinical Establishment means a Nursing Home, Physical Therapy etc. ?
(iii) Whether there is any discrimination in the matter of fixation of fee with regard to investigation undertaken by any Clinical Establishment/Nursing Home ?
(iv) Whether the newly amended Rule 5 of the Rules, 2006 requiring the Clinical Establishment and Nursing Home to possess clearance certificate from Orissa State Pollution Control Board for disposal of their Bio-
Medical Waste under the Bio-Medical Waste 8 (Management & Handling) Rules, 1998 prior to grant of registration and renewal from the authority is ultra vires the Act, 1990 ?
(v) Whether the opposite parties are adopting unequal treatment with regard to grant of registration to different Nursing Home/Clinical Establishments?
(vi) Whether the opposite parties are justified in charging 10% for the delayed registration while keeping pending renewal application with them ?
7. Question No.(i) is with regard to validity of period of registration. The Act, 1990 came into force with effect from 1st February, 1992. Sub-Section (4) of Section 6 of the Act, 1990 provides that every certificate of registration shall, unless revoked earlier under section 8 or deemed to be revoked under the first proviso to sub-section (1) of section 5, be valid for a period of two years with effect from the date on which it is granted. The Rules, 2006 does not contain any provision to the effect that certificate of registration shall be granted for a period of one year. It may be noted that in the writ petition the petitioners have not referred to any particular rule of the Rules, 2006 which provides that the certificate of registration shall be granted for one year. Therefore, question no. (i) is answered against the petitioner.
8. Question Nos.(ii) and (iii) being interlinked, they are dealt with together.
To deal with the aforesaid two questions, it is necessary to extract here Clauses (b), (e) and (f) of Section 2 of the Act, 1990, which 9 defines "clinical establishment", "maternity home" and "nursing home" respectively.
Section 2(b) "Clinical establishment" means a nursing home, a physical therapy establishment, a clinical laboratory or an establishment analogous to any of them, by whatever name called, and includes a maternity home, a blood bank, a private hospital, a dispensary, a place used for medical termination of pregnancy as approved under the Medical Termination of Pregnancy Act, 1971 an X-Ray institution or establishment and such other institutions or establishments as the Director of Health Services may, with the approval of the State Government, by notification from time to time, specify."
Section 2(e) "Maternity home" means an establishment where women are usually received or accommodated for the purpose of antenatal and postnatal care in connection with child-birth."
Section 2(f) "Nursing home" means an establishment or premises used or intended to be used for the reception of, and providing medical care including nursing care in any form to, persons suffering from sickness, injury or infirmity."
It is true that the Clinical Establishment means a nursing home and it includes maternity home. Thus, in a Clinical Establishment not only the various medical examinations are undertaken but also Nursing Homes are provided for reception and medical care including nursing care in any form to persons suffering from sickness, injury or infirmity. Therefore, it is not necessarily meant that all clinical establishments provide facility of nursing home, maternity home and also provision for medical investigation. Hence, the Amended Rules, 2006 10 provides a fee structure for registration and renewal of Clinical Establishments without having Nursing Home and Clinical Establishments having different types of medical investigation. Similarly, there is also different fee structure provided for Nursing Homes on the basis of number of beds provided in the Nursing Homes. This classification is reasonable and beneficial to the Clinical Establishments and Nursing Homes. Without such classification, if a consolidated fee is charged for Clinical Establishments, a Clinical Establishment without having Nursing facility for running Nursing Home and providing lesser number of medical investigations would be required to pay same/equal registration/renewal fee with that of a Clinical Establishment which with all facilities would pay. Similarly, in case of Nursing Home, if a consolidated fee will be charged, then the Nursing Homes having lesser number of beds will pay the same/equal registration and renewal fee with that of the Nursing Homes having more number of beds. Therefore, the different fee structure provided for the Clinical Establishments on the basis of the facilities available with it and in case of Nursing Homes providing more or less number of beds is perfectly justified and reasonable.
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9. At this juncture, it is necessary to reproduce the fee structure provided in the Notification published on 1st February 2006 in a tabular format under the Rules, 2006:
"Sl. Description of Private Category Amount of No. Clinics/ Nursing Homes with Registration/ status and Bed strength Renewal fees annually (1) (2) (3) (4)
1. Clinical Establishment "A" 10,000 Registration having M.R.I., C.T. Scan, 10,000 Renewal Ultrasound, Endoscopy, Biochemical & Pathological Examination
2. Clinical Establishment "B" 8,000 Registration having all facilities as at 8,000 Renewal Sl.No.1 except M.R.I., Test
3. Clinical Establishment "C" 6,000 Registration having all facilities as at 6,000 Renewal Sl.No.1 except M.R.I. Test & C.T. Scan
4. Clinical Establishment "B" 5,000 Registration having all facilities as at 5,000 Renewal Sl.No.1 except M.R.I., C.T.
Scan & Ultrasound Test
5. Nursing Home having 25 "A" 10,000 Registration
beds and more 10,000 Renewal
6. Nursing Home having 15 "B" 8,000 Registration
beds to 24 beds 8,000 Renewal
7. Nursing Home having 10 to "C" 6,000 Registration
14 beds 6,000 Renewal
8. Nursing Home having 5 to 9 "D" 5,000 Registration
beds 5,000 Renewal"
10. From the above table, it is crystal clear that the Clinical Establishments undertaking more medical investigation facilities had to 12 pay higher charge than the Clinical Establishments having provisions for lesser number of medical investigations. Similarly, the Nursing Homes having more number of beds are required to pay more fee than the Nursing Homes having lesser number of beds. If any Clinical Establishment has both medical investigation facility as well as Nursing Home facility, it has to pay fees for both. Again that fee varies according to number of medical facilities and number of beds provided in the Nursing Home. Moreover, sub-Section (3) of Section 4 of the Act, 1990 provides that every application under sub-section (1) or sub-section (2) shall be in such form and be accompanied by such fee, as may be prescribed. Therefore, it cannot be said that the fee prescribed under the Rule is contrary to the fee provided under the Act, 1990. Thus, question Nos.(ii) and (iii) are answered against the petitioners.
11. Question No.(iv) is with regard to obtaining clearance from Orissa State Pollution Control Board for disposal of their Bio-Medical Waste.
Proviso to sub-Rule (5) of Rule 3 of the Rules, 2006 provides that all Clinical Establishments and Nursing Homes shall possess clearance certificate from Orissa State Pollution Control Board for disposal of their Bio-Medical Wastes under Bio-Medical Waste (Management & Handling) Rules, 1998 prior to grant of registration/renewal certificate from the authority. Needless to say that every citizen of the Nation has a right to get pollution free air and water. 13 Therefore, Air (Prevention and Control of Pollution) Act, 1981 and Water (Prevention and Control of Pollution) Act, 1974 have been enacted. Under the Bio-Medical Waste (Management & Handling) Rules, 1998, if the Amended sub-rule (5) of Rule 3 of the Rules, 2006 requires the Clinical Establishments and Nursing Homes to possess clearance certificate from the OSPCB prior to grant of registration/renewal certificate from the authority, there is nothing wrong in it. It is in consonance with the Bio- Medical Waste (Management & Handling) Rules, 1998. The law is now well settled that Parliament cannot only enact a law for avoidance or evasion of commission of an illegal trade, but also make law to see that the law is not evaded by taking recourse to machination or camouflage. The loopholes, if any, in such matters can and should be plugged. "Means affecting means" principle as adumbrated in United States v. Darby is an illustration on the point. Both substantial and procedural provisions can be made to make a law in furtherance of the object for which the Act has been enacted and to see that what is sought to be prohibited directly may not be achieved by the traders indirectly. [See Indian Handicrafts Emporium and others vs. Union of India and others, (2003) 7 SCC 589] In view of the above, it cannot be said that proviso to sub- rule (5) of Rule 3 of the Rules, 2006, which provides the pre-condition of obtaining clearance certificate, is ultra vires the Act, 1990. Therefore, question no.(iv) is answered against the petitioners. 14
12. Question No.(v) is as to whether the opposite parties are adopting unequal treatment with regard to grant of registration to the Nursing Homes/Clinical Establishments.
Further case of the petitioners is that the DMET is unequally treating the Nursing Homes and Clinical Establishments, who are applying for registration/renewal. There are cases where the registration is being done once in every two years with one set of registration fee. In support of his contentions, Mr. Sarangi, learned counsel for the petitioners has referred to letter No.3530 dated 09.04.2009 (Annexure-4) issued by the DMET. According to Mr. Sarangi, in some other cases DMET insists upon registration of the Clinical Establishments every year. As stated above, there is nothing available in the Rules, 1994 and the amended Rules, 2006 for grant of registration annually. Mr. Sarangi has also not brought to our notice any instance where registration or renewal has been granted for one year by the DMET. Charging of fee annually for registration and renewal is different from granting registration for a period of two years. Therefore, there is no substance in the submission of Mr. Sarangi, learned counsel appearing for the petitioners on this score.
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13. Question No.(vi) is as to whether the opposite parties are justified in charging 10% for the delayed registration while keeping pending renewal application with them.
Petitioners' case is that the authorities are not registering the Nursing Homes within the time specified in the statute. Therefore, the Nursing Homes are not aware of the date of their renewal as per Rule 2(ii) of the Rules, 2006. When the Nursing Homes are not aware of the date of renewal of their registration, they were unable to make application for further renewal of the registration. However, opposite party-authorities are insisting on charging 10% of the registration fee for delayed registration. This allegation of the petitioners has been denied in the counter affidavit, wherein it has been stated that in some cases the registration is delayed due to want of some documents. After completion of all formalities, the registration is done. Under Section 5 of the Act, 1990, power is vested with the Supervising Authority to grant or refuse registration. However, under sub-section (5) of Section 6 of the Act, 1990, it is prescribed that a certificate of registration may be renewed from time to time on an application made in that behalf to the Supervising Authority, in such form and accompanied by such fee, as may be prescribed, and every such application shall be made not less than one month before the date on which the period of validity of the certificate of registration is due to expire. Section 5 of the Act, 1990 provides that the Supervising Authority before making any order refusing to grant 16 certificate of registration, the applicant is required to be given reasonable opportunity of being heard and the reasons for such refusal shall be communicated to the applicant in such manner as may be prescribed. Provided that the renewal of certificate of registration shall not be refused unless the supervising authority is satisfied that the certificate holder--
(i) is not in a position to comply with the requirements envisaged in Section 5, or (ii) has contravened any of the provisions of this Act or any rules made thereunder.
Sub-rule (8) of Rule 3 of the Rules, 2006 provides that the order of refusal to grant of registration shall be communicated to the applicant by Registered post with A.D.
14. In view of the same, the opposite party-authorities are required to communicate to the petitioners the fate of their applications for registration or renewal of registration within a reasonable period of time. If the competent authority grants registration or renewal of registration certificate, the same shall also be communicated to the applicant by Registered post with A.D. so as to enable him to apply for renewal before expiry of validity of the registration certificate. Question No.(vi) is answered accordingly.
15. With the aforesaid observations and direction, the writ petition is disposed of.
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B.N.Mahapatra, J.
17V. Gopala Gowda, C.J. I agree.
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Chief Justice Orissa High Court, Cuttack Dated 6th July, 2012/SKJ