ORDER
Mukesh Kumar Gupta, Member (J)
1. The common question of law involved in these O.As. (773 & 774/2004) and 107/2005) is whether the respondents 1 and 2 action in overruling the decision of a Committee of relevant experts regarding supply of life savings drug of a particular brand is justified or not.
2. The issue raised on the face of it may not appear to be a matter which calls for adjudication by this Tribunal but in the context and the background in which this issue has been raised has necessitated adjudication by this Forum as it has direct bearing upon good medical care to the Government employees needing super speciality treatment. Further issue that call for urgent consideration by this Tribunal was the binding effect of Committee of super specialists constituted pursuant to the order of this Tribunal, on the respondents and whether a High Court Powered Committee constituted later by the respondents could over rule the recommendations and decision of a super specialists committee referred to above, more so when no super specialist was a member of said High Power Committee and the respondents had not approached the Tribunal to review/reconsider the decision of such super specialists committee.
3. In brief the facts are: daughter of applicant in O.A. No. 773/2004 had a renal transplant in the year 1999 while the wife of applicants in O.A. No. 774/04 and 107/05 also had the said renal transplant in the year 1993 and 2001 respectively. Accordingly, based on recommendation of super specialists they were supplied life saving drug Cyclosporine from Novartis Company called “Sandimmune Neoral”. All of a sudden during November, 2003, the CGHS supplied them another brand of medicine named Cyclosporine Imusporin. The Specialist concerned advised them that the drug should not be substituted by generic drugs as risk of losing graft (transplant kidney) is very high. This action of the respondents had been challenged before this Tribunal in O.A. Nos. 301/04 and 302/04. The respondents contested the aforesaid O.As. and stated that initially Sandimmune Neoral was the only brand of Cyclosporine available in the market and the said medicine was being supplied till September, 2003 after procuring the same directly from the manufacturers. As subsequently some companies started manufacturing and marketing Cyclosporine. A medicine under different brand, the same were included by generic names by the CGHS and supplied to its beneficiaries and therefore there was nothing wrong in the said action. They also stated that there was no change in the therapeutic value and molecules of the said medicine. After examining the rival contention of the parties, the aforesaid O.As. were disposed of by this Tribunal vide order dated 13th April, 2004 with the following observations:
We are inclined to dispose of this O. A. with a direction to the respondents to apply their mind to the question whether new medicine as manufactured by CIPLA and others would in any way be having any serious effect of the applicants or similarly placed cases if they had been taking earlier a different brand of medicine of the same generic value, namely, Cyclosporine A as advised by the treating physicians. The said respondents may appropriately get the matter examined by a Committee of relevant experts on the subject and come out with a proper reply based on scientific examination and analysis and to inform the applicants accordingly. With this, the O.A. stands disposed of in terms of the above directions with no order as to costs.
(Emphasis supplied)
4. Pursuant to the aforesaid directions, meeting of Experts of Nephrology department was held on 12th August, 2004 under the Chairmanship of Deputy Director General (M) and the decision of the said Expert Committee reads as follows:
As per discussion on Cyclosporin “A’.
Treatment of Renal Transplant should not be compared with other ordinary disease treatment,
Comparative cost of the drugs should not nave much weightage seeing the huge expenditure involved on Renal Transplant procedure.
1. It should be left to the treating Nephrologist to choose the particular brand of Cyclosporin ‘A’.
2. It is not advisable to change the brand of Cyclosporin in a patient who is already using one particular brand and is stable on that.
3. There is no authentic scientific study in our country to evaluate the comparative efficacy of the brands of Cyclosporin available in India in clinical patients set up.
4. Drug manufacturing companies may be asked to submit the evaluation studies of different brands of Cyclosporine in clinical set up, if any available with them.
sd/- sd/-- sd/- (Dr. Sham Sunder) (Dr. Sanjay Agarwal) (Dr. Vindu Amitabh) HOD, Nephrology HOD, Nephrology HOD, Nephrology DR.RML Hospital A.I.I.M.S Safdarjung Hospital
Pursuant to the aforesaid decision of the Expert Committee concerned, CMO In-charge, CGHS Dispensaries were requested “to take necessary action for supply of Cyclosporin as prescribed by treating Nephrologist” vide office memorandum dated 27th August, 2004. All of a sudden, the aforesaid decision of the Expert Committee was over-ruled and it was decided that Cyclosporine ‘A’ should be procured under the generic medicine as per the Government policy for procurement of a single ingredient drug and there was no ground to insist for a particular brand by a CGHS patient. The aforesaid decision was arrived at on a review meeting held on 14th September, 2004 under the Chairmanship of Additional D.G (Health Services), minutes of which reads as under:
A review meeting was held under the chairmanship of Addl. DG (VKA) on 14.9.2004 at 11.00 on the CAT case by Sh. K.P. Kannan, Bangalore regarding non-supply of branded medicine prescribed to his daughter. The following attended the meeting:
1. Sh. Ashwini Kumar, DCG(I), Dte.GHS
2. Dr. S.K. Agarwal, HOD, Medicine, MAMC
3. Dr. R.N. Salhan, MS, SJ Hospital
4. Dr. S.K. Nagpal, Addl. DDG(HG)
A detailed discussion was held and the earlier opinion of use of a specific brand Cyclosporine for treatment of renal transplantation by three experts (flag/A) was also taken into consideration. The Committee unanimously has come to the following conclusion :
The DCG(I) has opined that once the product Cyclosporine-A has been entered in the pharmacopia it amounts to the fact that it conforms to the quality prescribed therein of the molecule. In addition, bio-equivalence and bio-availability of solid oral dosages forms like capsules and tablets has already been established by the different manufacturing companies. In view of this the Committee was of the opinion that there is no reason to believe for possible differences in Cyclosporine-A formulas available under different brand names or as generic drug. The Committee further opined that Cyclosporine A formulation as manufactured by Indian Companies like Cipla, Panacea and Zydus are standard Companies in the market and there is no ground to doubt the efficacy of their formulation. The choice of a particular brand by different physician is their personal liking/disliking and should have no bearing on the quality or efficacy of the drug-Cyclosporine A.
sd/- sd/- sd/-
Ashwini Kumar Dr. S.K. Agarwal Dr. R.N. Salhan
DCG(I) HOD, Medicine MS, SJ
DTE.GHS MAMC Hospital
sd/- sd/-
Dr. S.K. Nagpal Dr. V.K. Arora
Addl.DDG (HQ) ADDL.DG
5. Mr. M.R. Shailendra, learned Counsel appearing for the applicants strenuously contended that while implementing the directions issued by this Tribunal dated 13th April, 2004, a Committee of experts of Nephrology department of 3 reputed Hospitals of the country had been constituted, which recorded a clear finding and opined that the comparative cost of drugs should not have much weightage seeing the huge expenditure involved on renal transplant procedure and it was not advisable to change the brand of cyclosporin in a patient who is already using one particular brand and stable on that; as well as there was no authentic scientific study in our country to evaluate the comparative efficacy of the brands of such medicine in clinical patients set up. As per communication dated 12th August, 2004, the said decision was required to be brought to the notice of this Tribunal. In such circumstances, there was no justification to review the said decision by constituting another Committee and terming it as high powered Committee and further reversing the said decision of experts without their being any cogent material either in the shape of scientific study to evaluate the comparative efficacy of the brand of medicine in question or evaluation studies of different brands of cyclosporin in clinical set up. There was no justification to take a different view particularly when the alleged high powered Committee, which held its meeting on 14th September, 2004 did not include officials from the “relevant experts on the subject”, as directed by this Tribunal. Merely because there had been some procedural irregularity, as alleged, in the form of non-consultation with the Drugs Controller General of India, it was not open to respondents to constitute an altogether different Committee and arrive at an apposite and contrary decision than the one taken by the expert Committee on the subject. It was also contended that such a power of review had not been available to the respondents particularly in the given circumstances. The learned Counsel also forcefully submitted that respondents action in constituting such review Committee was illegal, arbitrary, unjust and untenable in law. The sudden change in supply of prescribed drug contrary to the advise of the Specialist in question carry a greater risk and endanger the life of the patient as noticed by the experts on the said field. Our attention was also drawn to the fact that Ministry of Health and Family Welfare issued O.M. dated 11th September, 1988, which reads as under:
OPD medicines prescribed by specialist of private hospital recognised under CGHS for treatment of disease like Cancer, Heart, Nemo-Surgery, Organ Transplant and Hip replacement would be provided through CGHS dispensaries on the basis of prescription of the specialist of the private hospitals recognised under CGHS, subject to the following conditions:
A utilisation Certificate from the treating Specialist should be obtained by the patient from time to time for accountability.
(Emphasis supplied)
6. Mr. S. Sugumaran, learned Counsel appearing for the respondents in O. A. No. 7737 2004 reiterated the submissions made in the reply affidavit and stated that the decision of the DGHS was reasonable one and the patients cannot insist for supply of a particular brand of Cyclosporin-A medicine. Initially Sandimmun Neoral was the only brand of Cyclosporin-A (generic name) available in the market for kidney transplant and subsequently, different companies started manufacturing the same in different brand and the very fact that the said product has been entered in the pharmacopia it conforms to the quality prescribed molecules and there was no difference in the formulation.
7. Mr. M.V. Rao, learned S.C.G.S.C., adopted the said argument. However, he added that the issue regarding supply/non-supply of a particular medicine did not effect the service conditions of a civil servant and such it was not a service matter as defined under Section 3(q) of the Administrative Tribunals Act, 1985. It was further contended that 20 other CGHS patients have been taking Cyclosporin supplied by the CGHS dispensaries in different brand other than what is prescribed by the different specialists.
8. We heard learned Counsel for the parties at length and perused the pleadings carefully. Before we proceed further, it would be expedient to note provisions of Section 3(q) of the said Act, which reads as under:
3(q): “service matters”, in relation to a person, means all matters relating to the conditions of his service in connection with the affairs of the Union or of any State or of any local or other authority within the territory of India or under the control of the Government of India, or as the case may be, of any Corporation or Society owned or controlled by the Government, as respects:
(i) remuneration (including allowances), pension and other retirement benefits;
(ii) tenure including confirmation, seniority, promotion, reversion, premature retirement and superannuation;
(iii) leave of any kind;
(iv) disciplinary matters; or
(v) any other matter whatsoever.
9. As far as the respondents objection regarding non-maintainability of the O.As. supply or non-supply of a particular brand of medicine being not a service matter is concerned, we have given careful consideration to the above aspects and are of the opinion that the said objection has no force and justification. As per Article-47 of the Constitution of India, the State, under Part-IV, owe a duty towards each citizen to improve their public health and it is further well settled that the fundamental rights and directive principles constitute the “conscience” of our Constitution. The said Article reads as follows:
47. Duty to the State to raise the level of nutrition and the standard of living and to improve public health.-The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption, except for medicinal purposes of intoxicating drinks and of drugs which are injurious health.
(Emphasis supplied)
10. The term “improvement of public health”, in our considered view is a wider connotation and has to be interpreted liberally and objectively. It is an undeniable fact that the applicants being a member of Central Government Health Scheme, certain contribution is charged depending on the status and the pay range enjoyed by a Government servant. It is well settled as laid down in , Chameli Singh and Ors. v. State of U.P. and Anr., that:
Right to live guaranteed in any civilised society implies the right to food, water, decent environment, education, medical care and shelter. These are basic human rights known to any civilised society. All civil, political, social and cultural right enshrined in the Universal Declaration of Human Rights and Convention or under the Constitution of India cannot be exercised without these basic human rights.
11. It is well settled that Constitution being a living organ, its ongoing interpretation is permissible. We may also note that the applicants in O.A. Nos. 773 and 774/2004 had approached this Tribunal on an earlier occasion vide O.A. Nos. 301 and 302/2004 and at that stage no such objection had been raised regarding maintainability of the O.As. Therefore, examining the case from any angel, we are of the considered view that the respondents are not justified in raising such objection as the procedural laws like estoppel, waiver and acquiescence are equally applicable. The respondents cannot be allowed to take such objection at this belated stage. Accordingly, finding no substance and justification, we overrule the objection raised by the respondents on this account.
12. The term “any other matter whatsoever”, employed under Section 3(q) of A.T. Act, 1985 has to be given ordinary, grammatical and purposive meaning. It is a well recognised rule of construction that when two or more words which are susceptible of analogous meaning are coupled together, noscuntur a sociis. They are understood to be used in their congnate sense. They take, as it were, their colour from each other, i.e., the more general being restricted to a sense analogous to that of the less general. (Maxwell on The Interpretation of Statues – 12th Edition, Page 289). “Noscitur a sociis”, is a well known rule of construction, which means that the meaning of the word is to be judged by the company it keeps. As held by the Privy Council in Angus Robertson v. George Day (1879) 5AC 63 p. 69, which was referred and quoted in M.K. Ranganathan v. Government of Madras “it is a legitimate rule of construction to construe words in an Act of parliament with reference to words found in immediate connection with them.” The noscitur a sociis is a rule wider than a rule of ejusdem generis; rather the latter rule is only an application of the former as lucidly explained by the Hon’ble Supreme Court in , State of Bombay v. Hospital Mazdoor Sabha. “Noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear that the wider words have been deliberately used in order to make the scope of the defined word correspondingly wider. It is only where the intention of the Legislature in associating wider words with words of narrower significance is doubtful, or otherwise not clear that the present rule of construction can be usefully applied”. The word “any other matter whatsoever” inserted by the legislature with clear purport and object has to be interpreted with reference to words found in immediate connection with the same. The said term cannot be given a restricted meaning. In our considered view, the said term would embarrass all other matters which are not specified and are faced during the employment by a Government servant, and the said term obviously include medical facilities provided and extended to a Government servant. We are fortified in taking such a view from the observations made by the Hon’ble Supreme Court in Civil Appeal No. 171/2005, Lawman Thamappa Kotgiri v. G.M., Central Railway and Ors., wherein it was observed that “there is no dispute that the Hospital in question has been set up for the purpose of granting medical treatment to the Railway employees and their dependents. Apart from nominal charges which are taken from such an employee, this facility is part of service conditions of the Railway employees.
(Emphasis supplied).
13. We may also note the fact that the respondents did not approach this Tribunal either for constituting High Powered Committee or to review/reconsider the decision arrived by a Committee of relevant experts on the subject, which indeed included super specialists, i.e. Nephrologists. The Tribunals’ direction in earlier proceedings dated 13th April, 2004 was not an academic exercise and had to be taken in its all seriousness including follow up action. If there was no consultation with the Drugs Controller of India while taking a decision on 12th August, 2004, it was merely an irregularity and could have been easily cured and brought to the notice of this Tribunal, and permission sought. Instead of taking such recourse, the respondents it appears were bent upon to undo the decision of super specialist Committee of “relevant experts on the subject”. We may observe that the purported decision taken by the High Powered Committee apart from noticing the fact that it took into consideration the opinion rendered by the Committee of relevant experts, made no efforts either to examine as to whether the drug manufacturing companies undertook evaluation studies of different brands or any authentic scientific study was conducted to evaluate the comparative efficacy of the brands in clinical patient set ups. In our considered view merely because the decision taken on 14th September, 2004 by a Committee consisting of senior officials in comparison to a Committee which held its meeting on 12th August, 2004, its recommendation cannot outweigh supersede or modify the decision taken by the super specialists, i.e. relevant experts on the subject. No provision of rule, regulation or law has been brought to our notice which authorises, confers jurisdiction on respondents to review, recall, modify, rescind etc., the decision taken by a Committee of relevant experts on the subject particularly when such a Committee was constituted pursuant to directions issued by this Tribunal.
14. Despite our repeated query raised as to whether members who participated in a review meeting dated 14.9.2004 were the specialists or the expert of the relevant subject, learned Counsel for the respondents did not furnish any convincing answer, apart from stating that members of such Committee were senior in rank to members who constituted Committee on earlier occasion. Perusal of designation, indicated against their name, extracted herein above, indeed goes to show that none of them was related to the relevant subject, i.e. Nephrology. We may also note the fact that the said High Power Committee had no additional, extra and different material or documents before it, for arriving at an altogether different and apposite decision. Twin directions issued vide Order dated 13.4.2004 have been grossly violated by respondents as it is not the case of the respondents that High Power Committee, which held its meeting on 14.9.2004 was firstly considered of relevant expert on the subject and secondly its decision was based on any “scientific examination and analysis”. Therefore, we have no hesitation to conclude that there had been no objectivity, fairness in the respondents action dated 14th September, 2004. Fairness is a rule to ensure that vast power in the modern State is not abused but properly exercised. The State power is used for proper and not for improper purposes. Fairness is also a principle to ensure that statutory authority arrives at a just decision either in promoting the interest or affecting the rights of persons. Justice should not only be done but be seen to be done is the essence of fairness. [See ]. We also hold that in the given facts and circumstances, the supply of medicine of a particular brand as prescribed by the specialist is a service matter within the meaning of Section 3(q) of the Administrative Tribunals Act, 1985.
15. Considering the issues raised from all angles, we are of the considered view that the decision of the high powered Committee dated 14.9.2004 was unreasonable, outrageous in its defiance of logic and lack transparency. It was not open for it to take a different view that the one arrived at by a Committee of relevant experts on the subject. Accordingly, the said decision dated 14.9.2004 being unsustainable in law, is quashed and set aside with all its consequences. We also hold that the decision of the super specialists i.e. experts on the subject cannot be overruled, ignored and bye pass by such Committee even if it was consisted of senior administrative officials of the concerned Department/Ministry.
16. Accordingly, O.As. are allowed. The respondents are directed to supply life saving medicine of that particular brand to applicants, as has been advised by the concerned specialist as well as Committee of relevant experts on the subject. No costs.