The Delhi High Court has dismissed with Rs 5000 cost, a petition, seeking directions to quash the Delhi Government notification, wherein the Doctors and Medical Staff were directed to function in a single category, irrespective of their seniority and specialization in the best interest of the treatment of COVID-19 patients.
A Bench of Chief Justice DN Patel and Justice Jyoti Singh said that the order has not taken away any seniority, neither there is an impact upon a pay scale or the perks for the Doctors (including consultants, duty doctors, and junior duty doctor) nor for nurses cadre as well as the paramedical cadre and the patients (attendants).
“The order is an administrative order, which is purely based upon public need, specially looking into the pandemic situation in the city of Delhi, which is temporary in nature. This is a call of the duty to be performed by teaching and non-teaching specialists,” the Bench observed.
The Counsel for the petitioner submitted that the order is issued by the Principal Secretary, Department of Health and Family Welfare, without getting a sanction of the Lieutenant Governor and as per Section 44 subsection 2 of Government of NCT Act, which was amended in April 2021, the sanction from the Governor was a must, before such type of order was passed.
After hearing the Counsels for both sides and looking into the facts and circumstances, the Bench said that it sees no reason to entertain the writ petition and not inclined even to issue a notice in this case.
“The entire teaching and non-teaching specialist and all other doctors/staff shall be assigned the duty of COVID-19 management, irrespective of department or branch of specialisation,” it said.
In view of the aforesaid facts and circumstances of the case, the Court held, “In any kind of need and grave exigency, all power, jurisdiction and authority rests with the Government of National Capital Territory of Delhi to issue an order. There is no excess of jurisdiction of the Government of National Capital Territory of Delhi in issuing the aforesaid order. Specialist doctors also have to perform the duties assigned to them of COVID management.”
The Court further observed, “Looking at the order, it appears that the number of patients of COVID-19 increased in the relevant time, there is always less number of doctors and other staffs mentioned in the order available.
“The order has been passed, looking to the public need and exigencies. It ought to be kept in mind that when there are less number of doctors, nurses, paramedical staff and patient attendants and when there are many more number of patients coming day to day to the hospitals at the relevant time, all have to perform their duties which have assigned. Thus, we see no reason to interfere with a Covid Management Action initiated by the Government of National Capital Territory of Delhi, specially when they want to assign the duty to doctors (consultants, duty doctors and junior duty doctor) as well as the nurses cadre and paramedical cadre.”
“It appears that the doctors those have specialization in a particular branch, they want exemption from the Covid Management Duty. This is not permissible at all. When there is a need for public duty to be performed looking to the prevailing situation of the COVID-19 pandemic, no such exemption can be given. They have to perform their duty. If anybody is seeking exemption from performing their duty for Covid management, perhaps they are not suitable for the post at all. In a hospital, the Doctors, Nursing cadre, paramedical cadre, and patient attendants have to work,” it said.
The Court did do not agree with the arguments made by the petitioner that the order is voilative of Section 44 of the Act and held that, there is no violation of the said section. There can be several types of permutation and combinations of deceases along with Covid-19 and therefore, the impugned order is absolutely fair. Thus, no exemption can be granted to anyone.
The petition has been filed by Dr. Mohd. Ajazur Rehman, a frontline COVID health professional who is currently posted as a Sr. Chief Medical Officer (N.F.S.G.) at Guru Teg Bahadur Hospital, Delhi. The petition was filed challenging the impugned order by which Doctors and medical staff are directed to function in single category, irrespective of differences in their seniority and specialization in the treatment of COVID patients.
The petition stated that the impugned notification would lead to mismanagement of medical treatment of COVID patient and serious life and death situation to the public at large as it allows the treatment of covid patients by inexperienced Junior Doctors or interns; and is thus, violative of Article 21 of the Constitution of India.
It also stated that the notification is arbitrary and would lead to chaos in the administration of the health system. It further stated, “The said notification is arbitrary and purely an act of Ultra Vires as the Honorable Principle Secretary, Department of Health and Family Welfare, Government of NCT of Delhi, has issued the notification without any authority or without following any due process, as established by the law.”
The plea averred that only the Lt Governor is the appropriate authority under the aegis of the Constitution and the Government of NCT of Delhi Act, 1991, to issue any such notification; and that since the Lt Governor has not approved the notification, it is ultra vires by virtue of Article 239AA of the Constitution, read with the applicable provisions of the Government of NCT of Delhi Act, 1991.
In light of the above, the plea prayed for quashing of the said impugned notification, and to direct Lt. Governor to take appropriate remedial actions against the impugned notification. It further sought the grant of injunction or stay against the implementation of the impugned notification till the disposal of this petition.