Nareshwar Singh Chandel And Others vs State Of Himachal Pradesh And Others

L. Narayana Swamy, CJ

CWP No. 1314 of 2020

Petitioner, who happens to be a practicing Advocate and incidentally, the President of H.P. High Court Bar Association, has presented this writ petition in public interest with regard to combat the prevailing COVID­19 pandemic situation in the State of Himachal Pradesh, seeking directions to the respondents to implement the measures referred to in paras 14 and 15 of the writ petition, which read as follows:

"14. Suggested preventive measures to stop spread of Covid 19 in the State of Himachal Pradesh :

a. Compliance with all the measures outlined in the Notifications/Guideline issued by Union of India detailed in Para 8 above.

b. Issue Covid Regulations para materia to those issued by Delhi Government i.e. Covid Regulations 2020.

c. Restrict entry of public in Official Buildings and Government Complexes including Courts:

­ -General Public to be restricted from entering Official Buildings and Government Complexes

­ -One Emergency Officer to be designated and his number displayed outside the Building / Complex. The Emergency Officer can be telephonically contacted in case entry is required into any Government complex by the general public, other than the employees of the Offices located in the said Buildings / Complexes.

d. Biometric attendance to be suspended. Attendance can be maintained by the old Register method, it is to ensured that no communal Pens etc. are used.

e. All Public Elevators / Lifts, Public Buses and other Public Transport to be Sanitized on a daily basis.

f. The educational institutions such as schools, colleges, universities, coaching centres, sports academies and other training institutions deserve to be directed to close­down until further orders in order to prevent the spread of COVID­19 pandemic, as students of all ages are vulnerable to get infected due to excessive contact.

g. Restrict gatherings which involve participation of more than 50 people including Public Conventions / Political Rallies / Religious Functions.

h. Measures to be implemented in Court Complexes : ­ Entry of litigants to the courts to be discontinued until the pandemic COVID­19 seems to have settled across the country. It is submitted that it is not possible to gauge the symptoms of COVID­19 in all the litigants visiting the court premises and screening each and every litigant visiting any of the court premises would be an additional burden on the health department. Therefore, in times of the pandemic it is the need of this hour that the entry of the litigants into court premises is withheld for at least a period of two months or until the spread of the existing pandemic seems to have gained control across the country. This shall avoid the spread of the contaminants across the entire path taken by the possibly affected litigants making their way to the court.

­ The matters requiring presence of parties to be postponed in all the courts during the upcoming period of two months.

­ The recording of evidence in routine matters can be postponed for a period of two months as for now in order to avoid the unnecessary influx of the litigants into the Court Complexes across the State and thereby preventing the major chances of spreading the COVID­19 pandemic by controlling the number of visitors to the courts.

­ Presence of Prisoners in Trials should be dispensed where possible.

­ Use of Video conferencing facility which is available at 27 Court complexes, supported with facility of document presenter at 23 Court complexes, thereby enabling these Court complexes to receive evidence and submissions from witnesses or the persons involved in the court proceedings in the circumstances, where it would be expensive, inconvenient or otherwise not desirable for a person to attend a court in person. This major achievement of the Judicial System of our State can of a great avail in times of pandemic as the recording of evidence can be postponed generally, but also be conducted through video conferences as and where needed. For example, the Hon'ble Single Bench of this Hon'ble Court in CMP No. 8134/2018 in RSA No. 212/2010 vide order dated: 05­04­2019 has already successfully recorded the statement of a government doctor by means of video conference. This did not only avoid the burden on the Health Department where a doctor's absence from the hospital was avoided but correlating it to the current scenario it can be a great relief in view of the existing medical emergency in times of pandemic, where the recording of evidence by means of video conference can avoid unnecessary travel of litigants, witnesses and the parties to cases. Accordingly this can control the chances of spreading of the pandemic COVID­19 and courts across the State deserve to be directed to adopt the process of video conferencing in order to record evidence. Copy of order dated 05.04.2019 in CMP No. 8134/2018 in RSA No. 212/2010 is annexed herewith as ANNEXURE P­ 10.

i. Based on the information gathered from the News articles highlighting the steps taken by the Respondent State in pursuit to control the spread of COVID­19 pandemic and the measures still required to be taken to stop the spread any further are as follows:

Steps taken so far

Measures ought to be taken

1.

A total number of 4 designated isolation wards for suspects/ patients being treated for Corona Virus have been allotted, i.e. 2 isolation wards in Indra Gandhi Medical College, Shimla and 2 isolation wards in Rajinder Prasad Medical College, Tanda, District: Kangra, H.P.

Whereas, considering the wildfire like spread of this pandemic, where the countries like China and Italy and Spain are imposing a complete lockdown in their affected areas and in entirety respectively, the Respondent State needs to endeavor towards avoiding the situation of complete lockdowns considering the gravity of the pandemic.

Accordingly, every District Hospital within the State should have at least one isolation ward, particularly assigned to the patients or suspects exposed to COVID­19.

This shall primarily deaccelerate the spread of this pandemic as this will cut down on the travel part of the COVID19 infected or suspected persons who may otherwise have to travel to either Shimla or Tanda for treatment. This will help in avoiding the spread across the various modes of transportation, eateries, public conveniences and other places vulnerable to spread of the virus content.

­-In addition to this, this will also apportion the workload between the Medical Officers as well as the Health Workers deployed state­wide in the hospitals, as the entire COVID19 care system would not just be focused on the above stated

­ two State­level hospitals and avoid the situation of shortage of beds, wards, doctors or staff.

2.

Health out­post created at Primary Health Centre Mecleodganj

-Though the initiative taken by the Respondent State to this effect is noteworthy but not sufficient to prevent the spread of COVID­19 within the State.

-Undoubtedly Mcleodganj attracts major number of foreign tourist and establishment of Health OutPost at this tourist destination is of utmost importance. But at the same time such specialized Health Out­Posts established to screen the tourists, also need to be established in other major tourist destinations, such as, Shimla, Manali, Dalhousie and all other viable central locations that act as a gateway to other tourist destinations.

-Moreover, the focus of the screening for COVID­19 in these centres should be regularly monitored by the concerned District or Local Authorities, as the case may be.

3.

108 Ambulance Service equipped with personal protective kit against COVID­19

­ -There should be a constant check on the availability of these personal protective kits in these ambulances.

-Private Hospitals and private practitioners should also be directed to ensure the availability of these kits in their ambulances.

-Primary Health Centres to also make these kits available.

-Concerned medical officers be directed to keep a regular check on the hospitals and primary health centres in order to ensure that these kits are made available to the ones in need.

4

Regional Rapid Transit System (RRTs) at state, as well as the district level, has been re­notified and sensitized.

­ -The Respondent State to furnish clearer details regarding this.

5.

Self-­Notification of travelers through hoteliers is being ensured by involvement of Deputy Commissioner's Office

- The Respondent State should ensure that the basic thermal temperature screening of the travellers is conducted before the hotels check them in. For example the Hotels run by Oberoi Group are already subjecting all the Guests to thermal temperature checks.

- Hotels to be duty bound to report immediately to the nearest medical facility, may it be a hospital, primary health centre or even a private practitioner, in case any symptoms of COVID­19 are seen in their guest(s).

Further Measures required to be taken to ensure a smooth functioning of life in State:

a. All the Pharmacies to disclose and declare the stocks of Alcohol Based Hand Sanitizers and Masks available with them. Make Alcohol Based Hand Sanitizers available for purchase at Government run Pharmacies and Dispensaries. The sale can be made on the basis of Ration Cards / Adhar Cards to avoid hoarding and black marketing.

b. Alongwith the Covid 19 awareness messages already being run in Media, include a message to explain 'Quarantine' and how it can be life saving. From the News it is evident that in India there have been incidents of people avoiding health official's efforts to quarantine them. This is due to misinformation and lack of awareness. A message explaining the simple requirement and methodology will go a long way in voluntarily being tested and cooperating with the health officials when required."

A direction has also been sought to the respondents to submit a report on the measures adopted with regard to prevention of spread of COVID­19 in the State of Himachal Pradesh. A further prayer has been made for appointing an Expert Body/Committee of Doctors and Executives to monitor the rapidly evolving situation with regard to COVID­19 in the State of Himachal Pradesh.

The sum and substance of the writ petition is with regard to prevailing COVID­19 situation and the measures to be taken and adopted by the State Government. The prayers, as referred to in paras 14 and 15 of the petition, are to comply with the guidelines issued by the Government/Union of India and COVID Regulations, 2020 issued under the provisions of the Disaster Management Act, 2005 and Pandemic Rules. A prayer has also been made to restrict the entry of general public from entering official buildings/Government complexes.

To substantiate, the learned counsel for the petitioner has referred to order, dated 19th June, 2020, passed by the apex Court in Suo Motu Writ Petition (Civil) No. 7 of 2020, in re : the proper treatment of COVID 19 patients and dignified handling of dead bodies in the Hospitals etc.,. It is submitted that the State of Himachal Pradesh is also party before the apex Court in the writ petition (supra). After considering the submissions made by the respective States, a direction has been issued by the apex Court in para 12 (iv) of the aforesaid order, which is extracted hereinbelow:

"12 .........

(IV) We further direct that all States shall also constitute an expert team of Doctors and other experts for inspection, supervision and guidance of Government hospitals and other hospitals dedicated to Covid­19 in each State who may inspect, supervise the hospitals in the State and issue necessary directions for the improvement to the concerned hospital and report to the Government. Chief Secretary of each State shall ensure that such Committees are immediately constituted and start their works within a period of seven days."

Learned counsel for the petitioner submits that, in terms of this direction, the respondent­Government through its Chief Secretary has been directed to constitute an Expert Team of Doctors and other Experts for inspection, supervision and guidance of Government Hospitals and other Hospitals dedicated to COVID­19. She further submits that since the State of Himachal Pradesh is a tourist dominated State, many tourists come from outside the State and in this background, a systematic monitoring, restricting and regularization of the entrants is required, for which suitable directions are to be issued to the Department of Tourism and Civil Aviation Department, Himachal Pradesh, and until and unless the necessary steps are not taken by the State, it may not be possible to combat the COVID­19 situation in the State of Himachal Pradesh.

Petitioner has also filed CMP No. 3476 of 2020 seeking a direction to the respondents to implement the measures detailed in para 3 of the said application, most of which are the replica of the prayers made in the main writ petition and also the directions issued by the apex Court in its order, dated 19th June, 2020, referred to supra.

Mr. Ajay Vaidya, learned Senior Additional Advocate General, submits that what has been sought to be implemented by the State in terms of this writ petition, considerable steps have already been taken by the State, for which necessary orders/directions have been issued by the concerned Departments. It is his further submission that much before the directions issued by the apex Court in its order, dated 19th June, 2020, referred to supra, there was already an order in place issued on 4th June, 2020 by the Government of Himachal Pradesh, Department of Medical Education & Research, in which COVID Clinical Committees have been constituted in six Government Medical Colleges in the State to monitor the cases on day­to­day basis, wherein the allocation of Districts to the respective Government Medical Colleges in the State has also been done.

It is submitted by the learned Senior Additional Advocate General that the State has taken effective steps in combating further spread of the COVID­19 in the State, hence, question of issuing further direction to the State does not arise, however, in case any further directions are issued by this Court, the same would be complied with by the State.

We have heard learned counsel for the respective parties and perused the record made available to this Court.

It would be profitable to reproduce para 1 of order, dated 4th June, 2020, issued by the Government of Himachal Pradesh, Department of Medical Education & Research, the copy whereof has been furnished by the learned Senior

Additional Advocate General, across the Board, herein:

"1. COVID Clinical Committees to be constituted in the six Government Medical colleges in State to monitor the cases on day to day basis. The allocation of Districts to Government Medical colleges in the State shall be as following:

Medical College

CCC/DCHC located in

IGMC Shimla

Shimla Shimla, Kinnaur, Bilaspur & Spiti part of Lahaul and Spiti

Dr. YSPGMC Nahan

Solan & Sirmour

Dr. RKGMC Hamirpur

Hamirpur

SLBSGMC Nerchowk

Kullu, Mandi, Lahaul part of Lahaul and Spiti

Dr. RPGMC Tanda

Kangra & Una

Pt. JLNGMC Chamba

Chamba

The Chief Secretary, State of Himachal Pradesh was represented before the apex Court in the suo motu writ petition (supra) and in compliance of the directions issued and in continuation of the steps taken vide its order, dated 4th June, 2020, further order came to be issued on 14th July, 2020, in which Committees have been constituted as it was directed by the apex Court in sub­para (IV) of para­12 of order, dated 19th June, 2020 (supra).

The submission of the petitioner for constitution of the Monitoring Committee, as referred in para 12 (IV) of order, dated 19th June, 2020 passed by the apex Court, has been met out by the State Government by constituting the Committee vide its order, dated 14th July, 2020, the relevant portion of which reads as under:

"In continuation to this office order of even No. dated 4­06­2020, the COVID Clinical Committees constituted in all the Medical Colleges of the State shall discharge the following functions:

Conduct a detailed death audit of any death occurring due to COVID­19 in the districts under their mentorship. This detailed death audit report should be accompanied with suggestions, if any, to prevent mortality in similar patients in future.

Conduct periodic inspections/surprise visits of the facilities dedicated to COVID­19 in the districts under their mentorship and issue necessary directions for the improvement to the concerned facility.

Report to the State level COVID Clinical Team and State Surveillance Unit with details of the reports etc. received from various Nodal Officers of DCCC/DCHC/DCH in the Districts attached with them."

With regard to the submission of the learned counsel for the petitioner for constitution of Monitoring Committee or directions to be issued to the Department of Tourism and Civil Aviation, learned Senior Additional Advocate General has placed on record an order issued on 26th August, 2020 by the Government of Himachal Pradesh, Department of Tourism and Civil Aviation, in which existing guidelines for the Tourism Department have been amended for which amended guidelines have been circulated.

At this juncture, learned counsel for the petitioner submitted that the directions issued by the apex Court to constitute a Committee to monitor the situation in the Hospitals may be extended to the Department of Tourism and Civil Aviation also.

The State Government has already issued an order, dated 26th August, 2020, pertaining to the Department of Tourism and Civil Aviation, Annexure ­ A whereof contains the amended guidelines for the existing guidelines. The same is well placed, however, there is no monitoring Committee and until and unless, a monitoring Committee is not constituted, the effort of the State Government to amend the guidelines/SOPs is of no use.

Therefore, the only direction which is required to be issued is with regard to Constitution of the Committee. At this stage, learned Senior Additional Advocate General submits that the monitoring Committee constituted vide order, dated 14th July, 2020, in compliance of the order of the apex Court, by the Government of Himachal Pradesh, with respect to the Department of Medical Eduction and Research, may also be directed to monitor the Department of Tourism and Civil Aviation also.

It is pertinent to record herein that the Chief Secretary to the Government of Himachal Pradesh has already constituted a monitoring Committee with respect to the Government Hospitals and the Hospitals dealing with COVID­ 19, in compliance to the order of the apex Court. Therefore, the State Government is directed to issue appropriate orders directing the said monitoring Committee to monitor the steps/measures being taken by the Department of Tourism and Civil Aviation also.

Sufficient steps have been taken by the State Government in compliance of the directions issued by the apex Court in the suo motu writ petition. Hence, we do not propose to issue any other direction to the respondents.

We hope and trust that the State Government will take all the required steps/measures for combating the COVID­19 situation in the State of Himachal Pradesh with promptness in near future also.

The effort made by the petitioner in filing this writ petition in public interest is well founded. The same is highly appreciated and taken on record. It would also not be out of place to place on record a word of appreciation for the efforts made by the learned counsel for the petitioner for seeking such directions from this Court to prevent the spread of COVID­19 pandemic in the State of Himachal Pradesh.

In view of the above, this writ petition is disposed of reserving liberty to the petitioner to make necessary application/memo for revival of this petition, if so advised.

CMP No. 7873 of 2020 in CWP No. 2240 of 2020

The application is allowed and the applicant is permitted to intervene in the matter. The application is disposed of.

CWP No. 2240 of 2020

Mr. Bipin C. Negi, learned Senior Counsel, has also made submissions/suggestions in order to combat the COVID­19 situation in the State of Himachal Pradesh. His submissions are placed on record.

This writ petition is disposed of in terms of the order passed in CWP No. 1314 of 2020 (supra).

All the pending miscellaneous applications, if any, are also disposed of accordingly.