DEVI SCANS (P) LTD Vs. STATE OF KERALA

JUDGEMENT

(1.) Petitioners in these writ petitions are Diagnostic Laboratories and Research Centres in Kerala, who were conducting various kinds of Covid-19 tests, including RT-PCR tests. Since the prayers in the writ petitions are similar, they are being heard and disposed of together. The exhibits are referred to as they are marked in W.P. (c)No. 10997/2021. The writ petition has been filed seeking to quash Ext.P7 order dated 08.02.2021 and Ext.P10 order dated 30.04.2021, whereby the State has re-fixed the rates of RT-PCR tests chargeable by the private Laboratories in Kerala and Ext.P11 order dated 01.05.2021 issued by the 1st respondent purporting to be under Section 20 read with Sections 24 and 65 of the Disaster Management Act, 2005 to ensure strict adherence to the prescribed rates for RT-PCR tests as revised from time to time by the State. There is also a prayer for the issuance of a writ of mandamus directing the 1st respondent to issue necessary guidelines/directions/orders to defray the expenses and reimburse to the private laboratories, the loss suffered by them, below the rate fixed in Ext.P7 order dated 08.02.2021 and to have the same paid at the end of each month on furnishing accounts to the appropriate authority. The petitioners have also sought for a declaration that the 1st respondent has no authority or jurisdiction to fix the rates for RT-PCR tests with respect to private laboratories, unless and until they are ready to subsidise the difference between the rates fixed by the State Government and the one prescribed by the 4th respondent Indian Council for Medical Research for Covid-19 tests. Even though the petitioners had sought for an interim stay of the operation of the implementation of Exts.P10 and P11 orders, the same was declined by a learned Single Judge in the order dated 07.05.2021. The petitioners had challenged the interim order in W.A.No.746 of 2021. By judgment dated 21.06.2021, the Division Bench dismissed the appeal leaving open the legal and factual contentions raised by the petitioners and the respondents. PETITIONERS' BRIEF

(2.) On 11.03.2020, the Government of India in the Ministry of Home Affairs, Disaster Management Division issued Ext.P20 whereby, in exercise of powers conferred under Section 69 of the Disaster Management Act, 2005, the Union Home Secretary who was the Chairman of the National Executive Committee delegated his powers under Clauses (i) and (l) of sub-section (2) of Section 10 of the Disaster Management Act, 2005 to the Secretary, Ministry of Health and Family Welfare, Government of India, to enhance the preparedness and containment of Novel Corona Virus (Covid-19) and other ancillary matters connected thereto. This was followed by Ext.P21 order dated 21.03.2020, whereby guidelines were laid down by the ICMR for Covid-19 tests in private laboratories in India. Ext.P21 says that the National Task Force recommended that the maximum cost for testing a sample should not exceed Rs. 4,500/-, which may include Rs. 1,500/- as a screening test for suspect cases and an additional Rs. 3,000/- for a confirmation test. It also says that ICMR encourages free or subsidised testing in this hour of National Public Health Emergency. A Public Interest Litigation was initiated before the Hon "?ble Supreme Court, invoking Article 32 of the Constitution of India seeking a direction to ensure free of cost testing facility for Covid-19 by all the testing labs, whether private or Government. Soon thereafter, the entire nation went into a lockdown owing to the spread of Covid-19. On 08.04.2020, the Hon "?ble Supreme Court directed that the tests relating to Covid-19 whether in approved Government laboratories or approved private laboratories shall be free of cost. It was also directed that Covid-19 tests should be carried out in NABL accredited laboratories or the agencies approved by WHO/ICMR. The above order was modified by the Hon'ble Supreme Court in Ext.P4 order dated 13.04.2020. Ext.P4 has been reported as Shashank Deo Sudhi v. Union of India and Ors. In [(2020) 5 SCC 134]. The order dated 08.4.2020 of the Hon'ble Supreme Court has been reported on page 132 of the very same volume of SCC. The Hon'ble Supreme Court ordered that its earlier order dated 08.04.2020 was intended to make testing in private labs free for economically weaker sections of the society who were unable to afford the payment of testing fee as fixed by ICMR and that it was never intended to make testing free for those who can afford the payment. The Court clarified that private laboratories can continue to charge for testing of Covid-19 from persons who can make payment of the testing fee as fixed by ICMR. It was also held that free testing for Covid-19 shall be available to persons eligible under the Ayushman Bharath Pradhan Manthri Jan Arogya Yojana which has been implemented by the Government of India and any other category of economically weaker sections of the society as notified by the Government for free testing of Covid-19 thereinafter. The Government of India was directed to issue necessary guidelines for reimbursement of the cost of free testing of Covid-19 undertaken by private labs and necessary mechanism to defray expenses and reimbursement to the private labs. On 16.04.2020, the Government of Kerala issued Ext.P25 order regarding testing of Covid-19 in the private sector in Kerala. The order contains several guidelines regarding how the tests are to be carried out and the reports of the results are to be generated.

(3.) On 25.05.2020, the Secretary to the Government of India in the Department of Health and Family Welfare in his capacity as Director General of ICMR, wrote to the Chief Secretaries of all States/Union Territories, stating that the upper ceiling of the rates suggested at Rs. 4,500/- on 17.03.2020 may not be applicable given the evolving prices of the testing commodities and that the State Governments/U.T. Administrations are advised to negotiate with the private labs and fix the mutually agreeable prices for samples being sent by the Government and also for private individuals desirous of testing by these labs. It was thereafter that the Government of Kerala came out with Ext.P1 order dated 02.07.2020. After referring to the directions issued by the Director General, ICMR, Ext.P23 letter from the ICMR and based on the discussions and further detailed analysis, it was ordered that the RT-PCR (Open System) Test are to be priced at Rs. 2,750/-, X Pert NAT Test to be priced at Rs. 3,000/-, True NAT Test Step I to be priced at Rs. 1,500/- and True NAT Test Step II (only for those tested positive in step I) to be priced at Rs. 1,500/-. Ext.P1 order says that the Department had held a meeting on 19.06.2020 with all private laboratories in Kerala performing Covid-19 tests before the issuance of the order.