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2020 Supreme(Ker) 157
IN THE HIGH COURT OF KERALA AT ERNAKULAM
S.MANIKUMAR, SHAJI P.CHALY, JJ.
Seema Lal, W/o.Sunumon Ponmelil – Appellant
Versus
State Of Kerala – Respondent
WP(C).No.15436 of 2017(S)
Decided on : 22-01-2020
Advocate Appeared:
For the Appellant : SRI.SANTHOSH MATHEW, SRI.ARUN THOMAS, SRI.ANIL SEBASTIAN PULICKEL, SRI.JENNIS STEPHEN, SMT.KARTHIKA MARIA, SMT.MARIA ROY, SRI.VIJAY V. PAUL, SMT.VEENA RAVEENDRAN
For the Respondent: SRI.K.V.SOHAN, SRI.P.FAZIL,SC
Important points:
In the absence of a rule executive powers can be exercised under Article 162 of the Constitution of India. Guidelines have been finalised. Government have decided to give effect to the guidelines from 1.1.2020. Though in the matter of issuance of guidelines by way of an executive order, State Government, at paragraph 6 of the counter affidavit dated 22.1.2020 have taken a stand on the basis of the judgment reported in ONGC Limited stated supra, State Government have also accepted to implement the rules if direction is issued by this court, subject to the ratification of the Subject Committee.
Headnote:
Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 2016 (49 of 2016)-- There is delay in issuing the Rules as contemplated under section 101 of the Act, 2016, enforcement of the provisions of the Act cannot be delayed-In the absence of a rule executive powers can be exercised under Article 162 of the Constitution of India. Guidelines have been finalised.
Statement of facts:
Instant public interest writ petition is filed for a writ of mandamus directing State of Kerala, represented by the Principal Secretary, Department of Social Welfare, Thiruvananthapuram, respondent No.1, and Department of Health and Family Welfare, represented by the Additional Chief Secretary, Thiruvananthapuram, respondent No.2, to implement Exhibit-P5 order of the State Commission for Protection for child rights- Petitioner has sought for a further direction to respondents 1 and 2 to take emergent steps to establish Therapy Centers for children with Autism Spectrum Disorder and other neurological disabilities in line with Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 2016 (49 of 2016), which came into force with effect from 19.4.2017.
Finding of the court:
Considering the decision already taken in this regard for establishment of Therapy Centers, for which a specific sum has been allocated-Direct the respondents to take steps to establish Therapy Centers, at the earliest and at any rate within three months from the date of receipt of a copy of this judgment. State Government is further directed to prescribe the time line for the submission of applications for the purpose of obtaining certificate of registration from the competent authorities and issuance thereof. The said exercise should be completed within four months from the date of issuance of the executive order.
Result: Writ petition disposed of.
JUDGMENT :
S.MANIKUMAR, J
Instant public interest writ petition is filed for a writ of mandamus directing State of Kerala, represented by the Principal Secretary, Department of Social Welfare, Thiruvananthapuram, respondent No.1, and Department of Health and Family Welfare, represented by the Additional Chief Secretary, Thiruvananthapuram, respondent No.2, to implement Exhibit-P5 order of the State Commission for Protection for child rights.
2. Petitioner has sought for a further direction to respondents 1 and 2 to take emergent steps to establish Therapy Centers for children with Autism Spectrum Disorder and other neurological disabilities in line with Persons With Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 2016 (49 of 2016), (hereinafter called 'Act, 2016'), which came into force with effect from 19.4.2017.
3. A counter affidavit has been filed on behalf of State of Kerala, Represented by the Principal Secretary, Department of Social Welfare, Secretariat, Trivandrum, 1st respondent, to the effect that the Act, 2016 was enforced on 19.4.2017. As per section 49 of the Act, the State Government have to appoint a competent authority for registration of institutions for persons with disabilities. Section 101 of the Act, 2016 provides for framing of rules for carrying out the provisions of the Act. Section 101(2)(c) empowers the State Government to frame rules for the form and manner for making an application for obtaining certificate of registration and section 101(2) (d) speaks about the facilities to be provided and the standards to be met out by the institutions for grant of certificate of registration.
4. Going through the affidavit filed on 11.9.2018, a Hon'ble Division Bench of this Court has observed that the guidelines for certification for Therapy Centers should be in conformity with the requirement under Chapter IX of the Act.
5. Counter affidavit dated 25.6.2019 states that Government of Kerala have framed draft guidelines prescribing the minimum standard for registration of Therapy centres in Kerala. It is further stated that, as regards draft guidelines sought to be finalised, the Law Department has pointed out that without the support of a rule in force, a guideline issued as an executive order will not have the force of law. Reference has been made to a decision of the Hon'ble Supreme Court in ONGC Limited v. Petroleum, Coal, Labour Union and Others [2015 KHC 4307:[(2015) 6 SCC 494). Counter affidavit also states that, in the light of the objection raised by the Law Department, Government of Kerala, the guideline could not be issued as an executive order having the force of law.
6. It is stated that draft rules were already published in the Government gazette on 19.7.2019 calling for objections and suggestions from the public. After obtaining the suggestions from the public and other stake holders, rules have to be placed before the Law Department and to be approved by the Subject Committee of Legislative Assembly, as per the rules of procedure and conduct of business. Counter affidavit further states that rules cannot be finalised without the approval of the Subject Committee. However, states that if specific directions are issued by the court, by practice, rules can be finalised and published subject to the ratification of the Subject Committee. It is further stated that, in other circumstances, it may require a minimum period of three months to finalise draft rules [Ext.R1(a)] and immediately after finalisation of the draft rules, the guidelines have already produced in court, if necessary with modifications, could be published as an executive order. It is further stated the delay in finalisation of the rules and guidelines, has occurred due to the procedure, to be followed for public hearing, hearing of other stake holders and also obtaining the opinions of Doctors and Speciali
