ASHIRBAD NURSING HOME Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioners claiming tobe owners of Clinical Establishments and Nursing Homes have filed this writ petition with a prayer to declare the Orissa Clinical Establishments (Control and Regulation) Amendment Rules, 2006 (for short, "Rules, 2006") published under Notification dated 1 st February, 2006 (Annexure -1) ultra vires the Orissa Clinical Establishments (Control and Regulation) Act, 1990 (for short, "Act, 1990") or in the alternative to quash the provisions containedin the said Notification being not in consonance with the Act, 1990 and declare the same ultra vires.

(2.) MR . S.K. Sarangi, learned counsel appearing on behalf of the petitioners submitted that the Rules, 2006 being not in consonance with the Act, 1990, the very purpose of establishing Nursing Home and Clinical Establishments for rendering service to the common men is frustrated at the instance of the Rule implementing authorities. Under the provisions of the Act, 1990, the Clinical Establishments were to be registered with the Director of Medical Education and Training (for short, "DMET") through the respective Chief District Medical Officers (for short, "CDMOs") on payment of certain registration fees. The Act, 1990 further prescribes that on compliance of certain formalities, the registration certificate is to be issued to the Establishments. Referring to sub -rule (6) of Rule 3 of the Rules, 1994, Mr. Sarangi, submitted that certificate of registration shall remain valid for a period of two years from the date on which it is granted. The Rules, 2006 came into force with effect from 23.05.2006 which provide for payment of charges towards the Clinical Establishments. Though objections were invited to the Draft Rules, 2006 and several objections were received, without considering the same the Government made the Rules, 2006 which is not in consonance with the Act, 1990 and the earlier Rules, 1994. Therefore, it causes great prejudice, hardship and unequal treatment to the Clinical Establishments. According to Section 2(b) of the Act, 1990, "Clinical Establishment" includes Nursing Home. However, under the Rules, 2006, all Clinical Establishments having nursing facilities are asked to separately register for Nursing Home paying the registration fees twice. The Rules, 1992 prescribed that Rs.1,500/ - (Rs.1,000/ - towards grant/renewal of licence fees and Rs.500/ - for inspection) shall be charged for each Clinical Establishment for registration and same amount for renewal. The validity of the registration certificate was for a period of two years which continued till 2008. The Notification dated 1 st February, 2006, however, enhanced the said registration fees by several times with new stipulations made therein regarding the same inasmuch as the fees so payable were made annually. The DMET is charging more than what is prescribed under the Act, 1990 in the matter of registration and renewal. The DMET in its letter dated 11.09.2008 has clarified the said anomaly stating that the Certificate though would be valid for a period of two years yet the fees for registration and renewal are to be charged double. The proviso to Clause (5) of Rules, 2006 to obtain clearance from Orissa State Pollution Control Board for disposal of Biomedical waste is a condition precedent prior to grant of registration, though the Act, 1990 was silent about the same. As a result, clearance from the Pollution Control Board is insisted though the same is neither recognized under the Act, 1990 nor under the Air Pollution Control Act.

(3.) MR . Sarangi, learned counsel further submitted that though the applications have been made in time, yet the registration certificates have not been issued for years together, thus, the Nursing Homes were uncertain as to whether their applications for registration were allowed or not. The Rules regarding registration have not been followed uniformly. There are cases, where the registration is being done once in every two years with one set of registration fee as would be evident from letter dated 09.04.2009 (Annexure -4) issued by the DMET. Despite bringing this unequal treatment in the matter of registration to the notice of the concerned authorities, no action has been taken on such allegation. It is further submitted that the competent authorities are not registering the Nursing Homes and thereby the Nursing Homes are not aware of the date of renewal as per Clause 2(ii) of the Rules, 2006. On the other hand, they are charging 10% for the delayed registration. This action of the opposite parties, does not stand to logic. This anomaly has been brought to the notice of the Chief Secretary by way of representation dated 06.07.2009 (Annexure -5) but the same has not yet been considered.