S.K. Rout vs. Ministry of Health and Family Welfare, Union of India & Anr. - (High Court of Delhi) (05 May 2020)

Court cannot create a law or policy. However, if there is a law, the Court can certainly enforce it

MANU/DE/1006/2020

Civil

Present public interest litigation has been filed with the prayers for issuance a Writ of Mandamus to the Respondents to make provisions for the payment of salaries to the Health Workers in time and to make provisions for the payment “risk and hardship” allowance, incentives in form of bonus, additional salary to the Health Workers who are presently serving on the frontline in view of the present lock down situation due to the COVID 19. Further, to direct the Respondents to identify such health workers who are above the age of 48 years with health conditions such as diabetic etc and direct not to deploy them in any duty which comes in direct or indirect contacts with COVID-19 patients. Further, to issue a Writ or direction to the Respondents to supply the basic Personal Protection Equipments (PPE) to all health workers.

Learned counsel for the Petitioner states that, the benefit of Hazard or Risk pay which has been extended to officers in high-active field areas such as the country’s borders or counter-insurgency operations in accordance with the Seventh Central Pay Commission should be extended to health workers who are dealing with or treating COVID-19 patients.

The Petitioner had not even filed a representation seeking any relief either with the State or the Central Government, before approaching present Court. There is no averment in the writ petition with regard to shortage of PPE kits or a complaint/grievance by any health worker with regard to non payment of salaries. It is settled law that, newspapers are second-hand, secondary evidence and no Court can grant relief only on the basis of what is published therein.

Further, neither the High Court of Bombay (Nagpur Bench) nor the Karnataka High Court, in the orders placed on record, has given any binding direction with regard to hazard and risk pay. They have only expressed a hope/expectation. The orders of the said High Courts are interim in nature. The Press Note with regard to the 7th Central Pay Commission Report does not specifically recommend payment of Hazard or Risk pay to health workers deployed on COVID-19 duty.

Undoubtedly, the health workers are doing commendable job under very odd and difficult circumstances, but it is settled law that the Constitution does not permit the Court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature or executive. If there is a law, the Court can certainly enforce it; but Court cannot create a law or policy and seek to enforce it. Accordingly, the present petition and application are dismissed being bereft of merits.

Tags : HEALTH WORKERS BENEFIT EXTENSION