Wednesday, December 7, 2022

Public authorities should serve people, not fight, says Bombay HC

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The Bombay High Court has observed that the public authorities should devote themselves to the service of the people instead of involving themselves personally in such clashes.

The Goa Division Bench of Justice M.S. Sonak and Bharat P. Deshpande disposed of a Public Interest Litigation (PIL) filed by one Allwyn Jorge complaining that the Medical Officer of Chinchinim Primary Health Centre, under whom a Rural Medical Dispensary cum Sub-Health Centre operates at Government Primary School, Carmona, Goa, has locked the public recreational facilities and toilets at Carmona Village.

The petitioner contended that this action of locking the facilities was high-handed and without the authority of law. Additionally, the petitioner argued that this facility is put up and managed by the village panchayat. Simply because in one portion of the Government Primary School premises at Carmona, the Rural Medical Dispensary cum Sub-Health Centre operates, the Medical Officer had no right or authority to lock the facility and prevent the people from enjoying the recreational facility laid out for them.

The Court noted that Carmona is a tiny village; therefore, the recreational facility which is the subject matter of this petition, though small, is a significant facility for the people of Carmona, particularly children and senior citizens. Therefore, in the entirely avoidable dispute between the Medical Officer and the Panchayat authorities, neither had a right to close down the facility and prevent the public from using it.

From the photographs produced, the High Court noted the facility is nothing but a small open space in which provisions have been made for children to play and senior citizens to sit, lounge, and walk. There are swings and slides. There is a small tile Court where children are seen playing. There are some toilets. All this is around the Government primary school premises.

The Rural Medical Dispensary cum Sub-Health Centre is a portion of these premises. On the alleged ground that some miscreants broke some tubelights in the facility or that the Panchayat did not properly maintain toilets, the Medical Officer, who operates from a centre almost six kilometres away, locked the facility, and prevented the people from using the same, the Bench further noted.

The Court said that there is no justification whatsoever for locking down this small but significant facility and depriving the members of the public, including in particular the children and the senior citizens the use of this facility. The medical officer has referred to no provisions of the law that entitled him to take such action. He does not claim to have exercised any statutory powers under the Public Health Act or any other law.

“The Medical Officer and the Panchayat authorities should have sorted out differences between them, keeping in mind that these facilities are for the benefit of members of the public and cannot be held hostage to sort out unfortunate differences between the Medical Officer and the Panchayat authorities. The apparent ego issues between such officials cannot be at the cost of depriving the members of the public, the use of the recreational facility and open space established through public funds,” the Court held.

In the case, the matter was considered at the highest levels after the Medical Officer locked out the facility. In May 2022, the Chief Minister of Goa intervened in the matter and instructed the Medical Officer to open the gate immediately. He also instructed the Panchayat to appoint a caretaker to avoid untoward incidents. However, neither the Medical Officer nor the Panchayat authorities bothered to implement timely directions issued by the Chief Minister.

“The public authorities should devote themselves to the service of the members of the public rather than involve themselves personally in such clashes. Moreover, in such conflicts, they should not involve the facilities of which they are merely the public trustees. In any case, the public functionaries should ensure that their acts do not deprive the members of the public of the use of the park and recreational facilities created out of public funds. Moreover, in case there are any issues about maintenance, etc., they must strive to sort out such problems rather than taking the extreme step of closing down or locking out such park and recreational facilities without the authority of the Law, and even in defiance with the timely directions issued by the Hon’ble Chief Minister,” the Bench observed.

The Court went on to observe that importance of having some park and recreational facilities for the public, especially children and senior citizens, cannot be underscored. Such facilities entertain and encourage exercise and recreation. They enable people to breathe fresh air, meet, and interact with others. They enable and promote sports. The State and the local authorities like Panchayats must provide such facilities within their economic capacities. Where such facilities are provided, they should be properly maintained so the public can use them. Undoubtedly, the facility must not be locked out or closed down due to inter se disputes between a medical officer and ex sarpanch or the Panchayat as a body. This would be a downright arbitrary exercise of power, assuming such authority vested in the Medical Officer.

The petitioner has averred, and the same is not at least disputed before us, that a family of village Carmona in fact gifted the property where the recreational facility has been set up to the Government for setting up a school and recreational and educational use of the villagers. The Panchayat, or may be the Government, has spent public funds to put up this recreational facility for the benefit of members of the public, particularly the children and senior citizens.

“The Government and the Panchayat should work in tandem to ensure that this facility is maintained properly so that the members of the public for whose benefit it has been created can enjoy the same. There is no question of keeping open this recreational facility only during office hours. Most people are busy with their services during office hours and cannot use this recreational facility. Before the high-handed action, the use of this facility was not restricted only during office hours. The users of these facilities can be office goers and school children, who may not, for obvious reasons, be able to use such facilities during office hours effectively. The weather is also generally conducive for using such facilities in the early mornings and evenings. Several people can effectively access such facilities on weekends and holidays.”

Therefore, to shut out such facilities precisely on such days and at such timings and offer to keep them open during ‘office hours only’ sounds arbitrary. In this way, the public facility created out of public funds cannot be wasted. Of course, some reasonable timings can always be provided by the authorities so that there is scope for maintenance and upkeep of such facilities or so that such facilities are not misused. But this is far from keeping such facilities open only during office hours or on office working days, held the High Court.

“The public servants must remember that they are employed for the service of the public. Therefore, the issues of timings and closure must be decided by focusing on the people’s needs and welfare. If the officials have to make any adjustments or work shifts, that must be considered rather than prejudice the public interest. The primary focus can certainly not be on their convenience or comfort,” the Bench reiterated.

In view of the High Court, there should be serious consideration on the issue of keeping such sports stadia, parks, museums, libraries, and recreational places created from public funds open on weekends and holidays. The usual excuses about the holiday for staff etc. can always be overcome by providing shifts. The Government and public authorities should encourage the public to utilize sports stadia, public parks, and recreational facilities created from their own funds.

The Court disposed of the PIL, directing the respondents to keep the park and recreational facility open for the public at least from 6 am till 10 pm each day. This is until the concerned authorities adopt some reasonable policy decision according to law, on timings. The Panchayat should also ensure that the community toilets are cleaned and that there is sufficient water supply and electricity supply therein. The Panchayat and the State Government should also discuss the issue of appointment of suitable caretaker/watchman and take necessary action in that regard, the Court further directed.

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