DB took serious note, directs CS to file an affidavit, and apprise this court about steps taken towards implementation of the court orders
Jammu February-14-2023-( JNF):- In a contempt petition filed by AV Gupta in public interest litigation regarding direction to the State to provide basic health facilities for treatment of cancer in the State of Jammu and Kashmir and also to provide adequate number of oncologists, Oncosurgeons, PET scan machines and all other experts in the relevant field for the treatment of various types of cancer in all the regions of the State of Jammu & Kashmir.
A Division Bench of Jammu & Kashmir and Ladakh High Court Comprising Chief Justice (A) Tashi Rabstan and Justice Moksh Khajuria Kazmi, took serious note and directed the Chief Secretary of the Union Territory to file an affidavit, and apprise this court about steps taken towards implementation of the court orders; the constraints faced, if any, the steps taken for overcoming such constraints and the exact amount of time needed for making the OPD operational and PET scan machine installed, besides making available the services of Oncologists and other allied staff to see that the State Cancer Institute, Super Specialty Hospital (Government Medical College) Jammu, is made functional in all respects.
When the contempt petition take-up for hearing, Division Bench observed that A writ petition, by way of a Public Interest Litigation had been filed by the petitioner seeking direction in the name of respondents to provide basic healthcare facilities for treatment of cancer in the State of Jammu and Kashmir and also to provide the services of adequate number of Oncologists, Oncosurgeons, PET scan machines and the allied staff as well as machinery needed for the treatment of various types of cancer in all the regions of the State of Jammu and Kashmir. 02/- Upon consideration, the court in terms of judgment dated 17th February, 2016, disposed of the PIL in the following manner:- “….There are oncologists in Medical Institutions in Srinagar and till selection is made through Public Service Commission to fill up the posts of Oncologists in Govt. Medical College, Jammu, a direction is issued to the respondents to send atleast one Oncologist on deputation basis to the Govt. Medical College, Jammu for diagnosing and suggesting treatment to the cancer patients. This direction we are issuing in the light of the right to life guaranteed under Article 21 of the Constitution of India, which the Government is bound to provide. It is not the case of the respondents that qualified Oncologists are not available in the State of Jammu and Kashmir and even if they are not available it is for the State to get the services of Oncologists from the neighbouring States. The said direction is directed to be complied with by the 1s respondent within period of two weeks from the date of receipt of this order.
DB observed that insofar as the prayer made to provide PET scan machine is concerned, the respondent is directed to take effective steps to get PET scan machinery in all the Medical Colleges, which is required for proper diagnosis and the said issue is to be taken note of with all seriousness and same shall be provided in all the Government Medical Colleges, where cancer patients are to be treated, within a period of six months wherever the said machinery is not available. ”
The failure of the respondents to comply with the directions passed by the Court in aforestated PIL, constrained the petitioner to file the present contempt seeking implementation of directions passed by the Court.
DB after hearing Adv Ajay Sharma for the petitioner observed that respondents filed the compliance report on 6 September, 2017 was accompanied by a Government Order No. 201-AHJ of 2017 dated 25.08.2017 by virtue of which Dr Nadeem Showkat, Medical Officer had been directed to report to the Administrative Officer, Govt. Medical College, Jammu for further duties in the department of Radiotherapy as Medical Oncologist. In the statement of facts dated 11th August, 2017, however, the respondents had taken a stand that establishment of PET scan is already under active consideration and the Ministry of Health and Family Welfare, Government of India has sanctioned two State Cancer Institutes’ one each at SKIMS, Soura, Srinagar, and Government Medical College, Jammu at a cost of Rs. 240.00 crore (Rs. 120.00 Crore each) during the year 2013-14. There was no specific mention made in the statement of facts as regards the timeline for establishment of such sanctioned Institutes, therefore, this Court directed for personal appearance of the respondent for apprising the court about the steps taken towards implementation of the directions and for removing the bottlenecks, if any, for establishment of the said institutes. 05/- On 20.12.2017, the respondent appeared and informed the court that PET/CT machine has already been installed at SKIMS in Srinagar and is ready for commissioning and the supporting medical staff is also in place. It had further been submitted that the insofar as Jammu is concerned, the equipment has not yet been procured as the project has not yet been sanctioned by the Government of India and the funds have also not been released. Accordingly, the learned ASGI of the time was directed to ensure that this proposal from the State Government be expedited from the Government of India, Ministry of Health and Family Welfare and a status report in that behalf be filed on the next date of hearing.
This Court, in terms of order dated 04.12.2018, while taking note of the status report filed on 17 September, 2018 by CGSC, observed that the report points out failure of the Government of Jammu and Kashmir to complete the necessary formalities. It would be profitable to reproduce It is unfortunate that even the Court orders and pendency of the present contempt petition has not moved the State Government to undertake necessary action for procurement of the PET scan machines or that there can be a province without even bare minimum facility of PET scan machines to diagnose/monitor a serious disease as cancer in a province which has the population of more than one crore. 6. It is difficult to comprehend as to why only one PET scan machine is being installed. The respondents do not appear to have considered the importance of the PET scan machines or the fact that the State covers an extensive geographical area and difficult topography and it may not be possible for the people living in remote areas to physically travel to undertake diagnostic steps or the follow up for the
purpose of effective treatment. This matter brooks no further delay. Let the Principal Secretary to Government, Health and Medical Education Department, J&K Govt., appear before this court on the next date of hearing. ”
DB further observed that subsequent thereto, yet another order was passed by this court vide order dated 28.12.2018. The relevant portion of the order is extracted hereinbelow, for facility of reference:- This Court is considering a petition alleging violation of the order dated 17th February, 2016 and calling upon this Court to initiate action under the Contempt of Court Act for the breach thereof against the respondents.
Court orders are required to be strictly complied with. The official respondents, who are discharging public functions are bound to not only comply with the orders passed by the Court but also to discharge their public obligations with seriousness, specially when the same impacts the health of the citizens who they serve. The present case is concerned with the patients suffering from a critical disease as Cancer. The record of the case and the manner in which the orders passed by this Court are being treated compel us to implead the Secretary, Ministry of Health and Family Welfare, Government of India as a party respondent No. 3 in the present matter. Amended memo of parties be filed within three days….” The matter, thereafter, came up for consideration on 25th February, 2019, when the court passed the following order. A status report regarding appointment of faculty to different posts in Nuclear Medicine in terms of SRO 24 dated 10th of January, 2019 has been placed on record by the State Government. The same is taken on record. Let the appointments be completed at the earliest.
DB further observed that so for as the setting up of the State Cancer Institute in Jammu is concerned, we are informed by Central Government Standing Counsel that he has received instructions in this regard, that the Central
Government was implementing ” Strengthening of Tertiary Care Cancer Facilities Scheme” under the National Programme for Prevention and Control of Cancer, Diabetes, Cardiovascular Diseases (NPCDCS). This scheme has lapsed, however, proposal for extension thereof has been made by the Ministry concerned and is pending consideration before the Government of India. It is submitted that for this reason, the amount of Rs.120.00 crores which has been proposed by the State Government cannot be released pending extension of the scheme.
Let the position with regard to this scheme and availability of the funds for setting up cancer facilities in Jammu be placed before us before the next date of hearing.
Duringt the course of hearing Adv Ajay Sharma counsel for the petitioner has drawn our attention to the direction contained in para 9 of the final order dated 17th of February, 2016 passed in WPPIL No.21/2015 to the respondents to provide PET scan machinery in all Medical Colleges which was required for proper diagnosis so far as cancer the patients are concerned. Time of six months was granted to do so wherever machinery was not available. Repeated directions have been made by this Court as well in our orders dated 7th September, 2017, 4th December, 2018, 24th December, 2018 and thereafter. Unfortunately, this issue has not been considered by the respondents at all so far.
Court further observed that subsequently, the matter was considered by this Court on 30th December, 2021, when Mr Amit Gupta, AAG, submitted that by the mid of 2022 a PET Scan Machine would be installed, after necessary infrastructure for the purpose is in place, in the Super Specialty Hospital, Jammu. Mr F. A. Natnoo, appearing for the Secretary, Public Service Commission, had also made a statement that selection process would be completed very shortly. 10/- A copy of the Government Order No. 365-JK(HME) of 2021 dated 06.05.2021 is placed before us to indicate 196 posts have been created for the State Cancer Institute (SCI) at Super Specialty Hospital, (Government Medical College), Jammu, for various departments. The order details out the number of posts created for each department like Radiation Oncology; Anesthesia/ ICU Faculty; Pathology Faculty; Bio-Chemistry Faculty; Microbiology Faculty; Radio-diagnosis Faculty; Medical Physics Faculty; Radiation Oncology Technical Staff; Brachytherapy Theatre/Tech Staff; Oncology Rehabilitation Staff; Medical Oncology Paramedical Staff; BMT Unit Medical Oncology; Other Staff; Administrative/ Ministerial Staff. The Nuclear Medicine branch does not even figure in the list vindicating the stand of the learned counsel for the petitioner that the Nuclear Medicine branch has not been given any consideration.
Adv F. A. Natnoo, learned appearing for Public Service Commission informed the court that PSC has made the selection in respect of the post of Professor referred to it by the Government, which was challenged before the Central Administrative Tribunal. The CAT allowed the petition against which a Writ petition was filed which also stands dismissed and now a review petition has been filed which is pending consideration. The exhaustive narration of the proceedings has been recorded for a reason that a disease as deadly as Cancer is not getting any attention not to speak of a due attention even on the intervention of this Court. The only direction that was given by the court to the respondents, way back on 17 February, 2016, was to get the services of Oncologists and to ensure availability of PET scan machines in all the Medical Colleges. The respondents are just passing the buck on and no substantive progress is visible on ground. The disease concerns us all in one way or another, and all the Government machinery need to be in place, to make a difference, especially if one looks at the stark numbers looming in the future which projects a very grim picture. Thus, we cannot afford to be bystanders with no control over our lives or our health, DB observed.
DB further observed that one cannot imagine of a life without a basic healthcare facility like PET Scan and the services of an oncologist in a 21st Century. The court cannot keep the people of an area of more than one crore human population at the mercy of the respondents who have failed to provide them such basic healthcare facilities/ infrastructure. The Government officers are reminded that they are not meant to rule but serve their people and the dereliction on their part to fulfill their duties especially in a serious matter like the one in hand would be dealt with sternly.
DB observed that given the fact that no fruitful outcome has been witnessed despite tireless efforts made by this Court, this Court feel constrained to direct the Chief Secretary of the Union Territory to file an affidavit, and apprise this court about steps taken towards implementation of the court orders; the constraints faced, if any, the steps taken for overcoming such constraints and the exact amount of time needed for making the OPD operational and PET scan machine installed, besides making available the services of Oncologists and other allied staff to see that the State Cancer Institute, Super Specialty Hospital (Government Medical College) Jammu, is made functional in all respects. JNF