JUDGMENT
D. Biswas, J.
1. The Government of Nagaland signed a Memorandum of Understanding dated 25th January, 2005 with Emmanuel Hospital Association, New Delhi for the purpose of revitalizing and upgrading the Referral Hospital at Dimapur on terms and conditions incorporated therein which, inter alia, provide that the conduct and the business and affairs would be looked after by a Society to be registered as Christ Institute of Health Sciences and Research. The salient features provide for registration of the Society under the Societies Registration Act which will have a General Body and a Board of Directors to manage the affairs of the Society as per Articles of Association and By-laws. The cost of the project estimated at Rs. 4,012.92 lakh would be provided by the Government of Nagaland along with the land and buildings of the Referral Hospital to the Emmanuel Hospital Association. The Government of India in the Ministry of DONER also agreed to assist the project by providing fund to the extent of 90 per cent as grant. The obligations of the Emmanuel Hospital Association are as follows:
(a) Facilitate the appointment of contractors for all the new constructions/renovations of the CIHSR and to ensure that the Society is enable to monitor the quality of construction on a regular basis by appointing a committee of independent professional architects, structural engineers and the director of the hospital. This committee shall report directly to the Board of directors of the Society.
(b) Appointment of purchase committee and place system for the purchase of equipment.
(c) In consultation with CMC, Vellore, providing help and support in the planning and development of CIHSR and its educational programmes by framing courses and presenting the educational programmes to the Board of directors of the society for its approval at least two months before the beginning of each academic year.
(d) Providing guidance and support in governing CIHSR. Submitting proposals as and when required to the Board of directors the Society for its consideration.
(e) Deputing staff as and when necessary both short-term and long-term, for the development of certain departments or imparting certain training both short-term and long-term to the staff of CIHSR.
(f) Monitor the quality of various services and diagnostic service on half-yearly or yearly basis so that CIHSR will always endeavour to provide highest quality of services to the patients.
(g) Providing guidance and support in governing CIHSR:
(h) Responsible for framing of the policy, the process and allocation of seats to all the medical, nursing and allied sciences courses. Subject to fulfilment of criteria for admission following percentage of seats shall be reserved for candidates from Nagaland:
• Nursing 50%
• Paramedical 35%
• Medical 35%
(i) Deputing staff as and when necessary for the development of certain departments or imparting certain training to the staff at CIHSR.
(j) All legal and financial liabilities that might arise in running CIHSR will be that of the Society.
2. The Government of Nagaland, as provided in Clause 19 of the Memorandum of Understanding (MoU), are required to discharge their assigned functions to enable the Emmanuel Hospital to go ahead with the project in greater interest of the public of the North East. The most important features which may be taken note of is the development of infrastructure to have an institute for imparting medical instructions with seats reserved for local candidates as indicated in Clause (h) above.
3. The Memorandum of Understanding dated 27th May, 2005 has been signed by the Christian Medical College and Hospital, Vellore as the First Party, the Government of Nagaland as the Second Party and the Emmanuel Hospital Association as the Third Party further indicating the role to be played by each of them. The Christian Medical College, Vellore has agreed to extend their services in the following manner –
1. To help CIHSR to develop its ethos and mission as a teaching and service institution in keeping with CMC’s overall vision and purpose.
2. Providing guidance in planning and development of CIHSR.
3. Providing guidance and assistance in undertaking construction activities and other engineering projects.
4. Providing technical assistance in the purpose of equipments,
5. Providing technical assistance in developing educational programs and courses and developing the needed faculty.
6. Provide guidance in monitoring the quality of various services and especially diagnostic services so that CIHSR will always endeavour to provide highest quality of service to the patients and that in close partnership and collaboration with the second and third parties to make CIHSR a centre of excellence.
7. Deputing staff as and when necessary for the development of certain departments or imparting certain skills to the staff at CIHSR when such deputation does not unduly affect the first party.
8. This MOU or CMC’s subsequent involvement with CIHSR will not entail or result in any legal or financial liability whatsoever to CMC Vellore but CMC Vellore hereby undertakes to perform its above obligations as a first party.
4. The parties also agreed to terminate this agreement by giving six months notice. It may be mentioned here that the Christian Medical College and Hospital, Vellore and the Emmanuel Hospital Association have come forward to assist the Hospital on no-profit basis. The agreements have received the seal of approval of the Union Government. Even a casual glimpse at the terms and conditions of the two MoUs would indicate that the purpose underlying the project is undoubtedly noble – it strives not only to revive the Referral Hospital but also to upgrade and revitalize it with provisions for imparting medical instructions to the students of the country, more particularly to the students hailing from North East. There cannot be any dispute that the project is ordained and orchestrated keeping in mind the interest of the people at large.
5. The Union Government in the Department of Development of North Eastern Region (DONER) by the letter dated 19th April, 2004 informed the Government of Nagaland their decision of approval for the costs of Rs. 3,561.56 lakh of the project. The letter reads as follows:
F.NO. DNER/NLP/NG/21/2002
Government of India
Department of Development of North Eastern Region
Vigyan Bhavwan Annexe,
New Delhi-110011
Dated: 19th April, 2004.
To
Shri Lalhuma
Additional Chief Secretary and
Development Commissioner, Government of Nagaland,
Kohima-797001.
Sub: Vitalisation of State Referral Hospital in Dimapur in Nagaland
Sir,
With reference to the subject cited above I am directed to state the project has been approved at the cost of Rs. 3,561.56 lakh.
2. The NLCPR support is to be utilized only for completion and operationalisation of the State referral project hospital at Dimapur and not to meet existing liabilities.
3. The committee further desired that State Government should get the project reviewed by special audit of CAG and to take all the necessary steps to ensure accountability and proper utilization of funds by constituting a committee under Chief Secretary with representatives of Ministry of Health Government of India. You are requested to kindly take necessary steps in this regard and intimate the DONER at the earliest.
4. The report of the status of MoU with the CMC Vellore for the project is still awaited by Government of Nagaland which may please be expedited.
Yours faithfully
Sd/-
(JOHNK.SELLATE)
Deputy Secretary to the Govt. of India
Tel: 23794689.
6. The above letter of the Government of India indicates their approval to the decision of the Government of Nagaland to go ahead with the project. This decision has been taken in the interest of the people at large and there cannot be any room for controversy as to the purpose underlying the project.
7. Ms. M. Hazarika, learned senior counsel argued that the project involves huge expenditure to be incurred alone by the State Government with funding from the Union Government and due care will have to be taken to secure the interest of the State particularly when it is apparent from the MoUs that neither the Emmanuel Hospital Association nor the Christian Medical College, Vellore is going to invest anything in cash or in kind. Ms. Hazarika further submitted that a State Law may be enacted establishing an autonomous body to run the Hospital by empowering the authority to manage the affairs and to take all steps to develop it into a multi-specialized hospital and medical college with post and undergraduate, nursing college and a paramedical institute. According to Ms. Hazarika, the Act should also provide for establishment of a autonomous body to run the Referral Hospital by the Act and the Governing Body should comprise of official functionaries with only two representatives from the Christian Medical College, Vellore and two representatives from the Emmanuel Hospital Association.
8. Mr. D.K. Mishra, learned senior counsel for the respondent No. 5, namely – the Nagaland Medicine Dealers Association while lauding the decision of the Government of Nagaland submitted that the interest of the State Government as well as the people of Nagaland do not seem to have been well protected for inadequate representation to the Society to be registered to look after the affairs of the Hospital. According to him, absolute Government control is needed so that outside agencies having no stake cannot act arbitrarily. According to Mr. Mishra, the Government of Nagaland should have effective representation to the Board of Directors to take care of the project for all times to come.
9. Mr. T. Khoza, learned Counsel for the respondent No. 4, namely -Emmanuel Hospital Association submitted that from very inception it was decided that the Government of Nagaland will have two members to the Board of Directors by virtue of their office and they will continue as such permanently. Mr. Goswami, learned Counsel appearing for the respondent No. 3, submitted that Christian Medical College, Vellore has agreed to render assistance to the Government of Nagaland in reviving the hospital in terms of the MoUs only for the benefit of the people of the North East on no profit basis.
10. Mr. Balagopal, learned Advocate General, Nagaland argued at length in order to show that the Government’s decision is in larger public interest and delay in implementation of the project will result in irretrievable loss to the people of North Eastern States, particularly the people of Nagaland. Besides, Mr. Balagopal submitted that this PIL has to be thrown out on the ground that the petitioner is an Association of serving doctors of the Government of Nagaland and being Government employees, they have no locus to challenge the policy decision of their employer.
11. It would appear that an affidavit has been filed for and on behalf of by the Executive Director of Emmanuel Hospital Association and Chairman of Christian Institute of Health Sciences and Research Society indicating therein that the Government of Nagaland will have two members on the Board of Directors by virtue of their office, namely -The Secretary to the Government of Nagaland in the Health Department and the Director of Medical Sciences and they will continue to be in the Board of Directors permanently. The deponent further made it clear that the affidavit filed to this effect may be treated as an addendum to the agreements made. The Commissioner and Secretary to the Government of Nagaland, Department of Health and Family Welfare in his affidavit dated 6.12.2005 also clarified that the arrangement to have two Directors on the Board of Directors from the Government of Nagaland is a permanent feature and under no circumstances they can be dropped from the Board of Directors. With reference to the letter dated 19th April, 2004 written by the Government of Nagaland, the Commissioner and Secretary clarified that the State Government will get the project reviewed by special audit of CAG on terms mentioned in the said letter by constituting a Committee with the Chief Secretary to the Government of Nagaland and representative of the Ministry of Health, Government of India.
12. The above two affidavits brought on file are indicative of the sincere desire on the part of the State Government to go strictly in terms of the instructions given to it by the Government of India by the letter dated 19.4.2004 and further that the Board of Directors will always have two representatives of the Government of Nagaland. Thus, it appears that the Government of Nagaland will have effective participation in formulating policy and other decisions by the Board of Directors in the matter. At this stage, it may be mentioned here that the agreement provides for registration of a Society, namely – Christian Institute of Health Sciences and Research with registered office at Dimapur, Nagaland. The management of the Society shall be as per Articles of association and bye-laws of the Society. It also provides that all the incomes, earnings, movable or immovable properties of the Society shall be solely utilized towards the promotion of its aims and objects as set forth in the Memorandum of Association and no portion thereof shall be paid or transferred directly or indirectly by way of dividends, bonus, profit or in any manner whatsoever, to the present or past members of the Society or to any person claiming through any one or more of the present or the past members. No member of the Society shall have any personal claim on any movable or immovable properties of the Society or make any profit, whatsoever, by virtue of his membership. That apart, the Board of Directors of the Society shall consists of the following:
Name Address Occupation Designation in the
1 DR.VARGHESE EHA, 808/92 Nehru Executive Chairman, Board of
PHILIP Place, New Director, EHA Directors - EHA
Delhi-110019 Members
2 DR. P.K. JOHN Christian Hospital, Medical Doctor Secretary, CIHSR
P.O. Nowrangpur Society Director,
Dist. Nowrangpur CIHSR EHA Nominee
Orissa-7610549
3 DR. B. EHA, 808/92 Nehru Medical Doctor Treasurer, CIHSR,
LANGKHAM Place, New Society, EHA Nominee
Delhi- 110019
4 MR. TEMJEN Secretary, Secretary Member, Board of
TOY Department of Government of Directors-Government
Health and Family Nagaland Nagaland
Welfare, Kohima Nominee
Nagaland
5 DR. Department of Director, Member, Board of
KEPPELHUSIE Health and Family Medical Directors Nagaland,
Nagaland Resident
Welfare, Kohima,
Nagaland
6 DR. LIONEL Department of Professor Member, Board of
GNANARAJ Urology, CMC Urology Directors
Hospital, Vellore,
632004.TN
7 MR. COLLIN 139, Infantry Road, Banker Member, Board of
TIMMS Bangalore, Directors
Karnataka-560001
13. It would appear from the above that the Board of Directors consists of the two officials of the Department of Health and Family Welfare and as indicated in the additional affidavits filed, they shall be permanent members to the Board. However, some changes appears to be necessary because their incorporation to the Board of Directors should be by official designations and not by names since they are Government servant subject to superannuation.
14. After careful consideration of the above provisions, we are of the opinion that the Government of Nagaland in its wisdom has decided to revive the Hospital in the manner as indicted above with assistance of the Emmanuel Hospital Association and Christian Medical College, Vellore and the Central Government has also after due scrutiny approved the same and released fund to the Government of Nagaland. Due precaution has been taken to secure the interest of the State and the people. The continuance of the representatives of the Government of Nagaland to the Board of Directors as agreed to during the course of proceedings is a mitigating factor. What is needed to be done is that such representation of the Government of Nagaland should be by the officers on their official nomenclature and not by name. This correction seems to be necessary. The project has been undertaken by the Government of Nagaland with approval of the Government of India in its wisdom keeping in mind the interest of the people. Wisdom and advisability of the policy decision are not amenable to judicial review unless such decision is in conflict with the statutory provisions or the Constitution, It is beyond the domain of the Court to embark upon an enquiry to ascertain whether a particular policy is wise or whether a better public policy could be evolved. A policy cannot be interfered with merely because the petitioner succeeds in establishing that a wiser policy could have been taken. In Narmada Bachao Andaolan v. Union of India, , the Supreme Court held –
229. It is now well settled that the courts, in the exercise of their jurisdiction, will not transgress into the field of policy decision. Whether to have an infrastructual project or not and what is the type of project to be undertaken and how it has to be executed, are part of policy-making process and the courts are ill-equipped to adjudicate on a policy decision so undertaken. The court, no doubt, has a duty to see that in the undertaking of a decision, no law is violated and people’s fundamental rights are not transgressed upon except to the extent permissible under the Constitution.
15. The principles evolved in the aforesaid decision and in BALCO Employees’ Union (Registered) v. Union of India and Ors. indicate the scope and jurisdiction of a Court while dealing with a public policy. In the given circumstances of the case, we are of the opinion that the policy decision of the Government of Nagaland as approved by the Union Government is not in conflict with any provisions of law or the Constitution and is definitely not against public . interest.
16. There is no doubt that the petitioners are serving employees of the State Government. Therefore, it was not within their domain to challenge a policy decision of the State, particularly when the decision aims to fulfil the aspiration and desire of the people of the State. In Ugar Sugar Works v. Delhi Administration, , the hon’ble Supreme Court in a issue relating to the issuance of liquor licence observed that Courts in exercise of their powers of judicial review do not ordinarily interfere with the policy decision of the executive unless the policy can e be faulted on grounds of mala fide, unreasonableness, arbitrariness or unfairness. Something overwhelming must appear before the Court before a decision is taken to interfere with a State policy. The serving doctors of the State Government have utterly failed to make out a case of mala fide, unreasonableness, arbitrariness or unfairness in the instant case. A few years back in Tata Cellular v. Union of India reported in (1994) 6 SCC 651, the hon’ble Supreme Court precisely laid down the principles on which the Courts may interfere with the policy decision of the State. The duty of the Court has been confined to the question of legality, i.e., whether a decision-making authority exceeded its powers, 9 committed an error of law, committed a breach of the rules of natural justice, reached a decision which no reasonable person would have reached, or abused its powers. After careful consideration of the gamut of the entire situation, we are unable to find any such flaw which arms this Court to interfere with the decision of the State Government to h revitalize and upgrade the Referral Hospital at Dimapur in collaboration with the Emmanuel Hospital Association and the Christian Medical College, Vellore. Consequently, the writ petition deserves dismissal.
17. In the result, the writ petition is dismissed. However, it is made clear that the terms and conditions given by the Government of India in its letter dated 19th April, 2004 and the commitment given in the affidavit filed by Emmanuel Hospital Association on 6th December, 2005 to have permanent representatives from the Government of Nagaland to its Board of Directors are duly honoured for all times to come. We hope and earnestly desire that the project is implemented expeditiously and take care of the hope and aspiration of the people not only of Nagaland, but the people of the country as a whole.
No order as to cost.