# Smt.Vandana Dixit v. Visitor S.G.P.G.I. and others

- **Citation:** (2010) 3 ILRA 1058
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-08-20
- **Bench:** Pradeep Kant, Ritu Raj Awasthi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/smt-vandana-dixit-v-visitor-s-g-p-g-i-and-others-41725
- **Pages:** 20

## Text

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1058 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
working on the post of Bench Secretary,
Grade-I and Grade-II alongwith Section
Officers. The case of J.P.Chaurasia (supra)
seems not applicable in the facts and
circumstances of the present case as in the
present controversy, there appears single
post of Secretary of Zila Sainik Board and
persons appointed at later stage, were
appointed on the same post which the
petitioner was holding. It is a case where
discriminatory treatment was imparted by
the State Government with regard to the
payment of salary, perks and status. Once
the cadre is same, post is same, duties are
same, functions, and liabilities are the
same, then there cannot be two or more
pay scales merely because of source of
recruitment are different.

18. Accordingly, we are of the view
that
respondents
have
no
right
to
discriminate with regard to payment of
salary and status between the petitioner
and subsequent appointees on the post of
Secretary because of the different source of
recruitment. The petitioner seems to be
entitled for payment of same salary, perks
and status.

19. In view of the above, we are of
the view that the Tribunal has failed to
exercise the jurisdiction vested in it.

20. Accordingly, writ petition is
allowed. A writ in the nature of certiorari is
issued quashing the impugned order dated
29.11.1988 passed by the Tribunal, as
contained in Annexure No.2 is hereby
quashed. We also allow the claim petition
and grant relief as prayed by the petitioner
before the Tribunal with regard to the
parity in the pay scale, perks and status. A
writ of mandamus is also issued directing
the
respondents
to
take
decision
expeditiously for extension of benefit
keeping
the
observations
made
hereinabove, within a period of three
months from the date of receipt of present
judgment.

Recovery if any, made shall be
refunded to the petitioner forthwith.

With the aforesaid directions, the writ
petition is allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 20.08.2010

BEFORE
THE HON'BLE PRADEEP KANT, J.
THE HON'BLE RITU RAJ AWASTHI, J.

Writ Petition No. 4310 (MB) of 2010.

Smt. Vandana Dixit

 ...Petitioner
Versus
Visitor S.G.P.G.I. and others ...Respondents

Constitution of India-Art. 226 readwith
transplantation of Human Organs Rules
1995-Rule-6F(C) (xi)-Petitioner suffering
from
renal
failure
since
2004-after
getting
approved
from
state
level
committee
approached
the
Fortis
Hospital-who refused to operate as the
approval not obtained from Hospital
level
committee-held-illegal-no
such
statuary
requirement
after
having
approval from state level committee to
obtain
approval
from
hospital
level
committee-No hospital either Govt. or
Private can refused to go beyond Rulesdirection for prompt enforcement of
approval given subject to choice of
petitioner to either approach before
Fortis or P.G.I.

Held: Para 66

We, therefore, conclude with a note that
it is the responsibility of all the doctors
and hospitals to facilitate the treatment
in a deserving case to the patient who is
3 All] Smt.Vandana Dixit V. Visitor S.G.P.G.I. and others
1059
in emergent need of transplantation of
human
organs
by
following
the
provisions of the Act and the Rules at the
earliest
and
the
Authorization
Committees
so
formed
have
the
responsibility to give permission only
when they are satisfied about the
statutory
requirements
having
been
fulfilled. with promptitude. The delay in
giving such treatment sometimes may
prove fatal, for the ailing who has a right
to live a longer life which life should be
as comfortable as it could be. Transplant
of human organ can not be refused for
the reasons which do not flow from the
Act aforesaid.

(Delivered by Hon'ble Pradeep Kant, J.)

1. Heard Sri Akhilesh Kalra, learned
counsel for the petitioner and Sri Alok
Mathur for the Fortis Hospital, Sri Jai
Deep Narain Mathur for the Sanjay Gandi
Post
Graduate
Institute
of
Medical
Sciences, and Sri D.K. Upadhaya, learned
Chief Standing Standing Counsel for the
State,

2. The petitioner, Smt. Vandana
Dixit, a patient of renal failure since the
year 2004, has approached this Court
seeking a direction to the respondent State
authorities to ensure that Sanjay Gandhi
Post
Graduate
Institute
of
Medical
Sciences (hereinafter referred to as 'the
SGPGI' ) or Fortis Hospital, Noida, U.P.
be directed to undertake the renal
transplantation in view of authorization
given by the Authorization Committee,
whereas the SGPGI and the Fortis
Hospital are shifting their responsibility
and are avoiding transplantation.

3. The grievance in nut-shell is that
despite authorization given by the State
Level Committee as required under the
Transplantation of Human Organs Act,
1994 (hereinafter referred to as 'the Act,
1994) none of the aforesaid two hospitals
are
proceeding
with
the
treatment/operation, which they cannot
do. Further, delay in undertaking the
transplant, is adversely affecting her
condition, which is deteriorating every
passing moment.

4. The petitioner, Smt. Vandana
Dixit aged about 47 years, is a housewife. Besides her husband, she has one
daughter aged about 12 years and one son
aged about 21 years. She suffered renal
failure in the year 2004. She was admitted
to SGPGI, Lucknow, as a patient in the
Nephrology Department and was advised
dialysis and renal transplant.

5. Renal transplant is only permitted
when the donor is a near relative of the
recipient or when the donor is not the near
relative
of
the
recipient,
then
on
authorization
being
given
by
the
Authorization
Committee.
The
near
relative namely; the brother and family
members, though offered their kidney for
such a transplant but they were rejected
on medical ground. Since no other
relative came forward to donate kidney to
the petitioner, the renal transplant could
not be done and, therefore, since 2004,
she is undergoing regular dialysis twice a
week which at the time of filing of the
writ petition was being done in the
Vivekanand Hospital, Lucknow under the
regular consultation and guidance of the
SGPGI.

6. When a query was made to the
learned counsel appearing for the SGPGI
by this Court as to why SGPGI is not
treating the petitioner and why renal
transplant is not being done, a statement
was given by Sri J.N. Mathur, appearing
1060 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
for the SGPGI that the patient alongwith
family members may present themselves
in Nephrology Department, where she
would
be
attended
without
any
inconvenience
being
caused
to
her
alongwith donor on the very next day.
Since thereafter, she is in the SGPGI
where dialysis is being regularly done.

7. The petitioner, since was not able
to arrange the donor for herself amongst
her own relatives therefore, she tried for a
non-relative
donor.
She
fortunately
contacted Sri Inderjeet, who stayed with
the family of the petitioner since long, and
has been settled by the family of the
petitioner, whereas he offered to donate
his kidney voluntarily.

8. The petitioner was given to
understand that the donor, not being a
near relative, transplantation can only be
done if the Authorization Committee
which has been constituted under the Act,
1994
permits
such
donation.
The
petitioner, therefore, jointly with Sri
Inderjeet,
applied
after
completing
necessary formalities alonwith necessary
affidavits to the Authorization Committee
for granting necessary permission to Sri
Inderjeet to donate his kidney and to the
petitioner for receiving the said kidney.

9. The Authorization Committee in
its meeting held on 21st November 2009
after completing all the formalities and
after examining the medical reports, etc.
granted the necessary authorization for
the donation of the kidney by Sri Inderjeet
to the petitioner after appending a note
that the petitioner should be made aware
of the fact that as the blood group of the
petitioner, and that of the donor do not
match therefore, the petitioner may have
difficulty after the renal transplantation.
The said authorization was communicated
to the petitioner from the office of the
Commissioner of Lucknow Division on
27th November 2009.

10. The petitioner after getting the
said authorization, approached the Fortis
Hospital, Noida for transplantation. Fortis
Hospital, Noida rejected the request of the
petitioner on the ground that even though,
renal transplant of emotionally related
donor is permissible under the Act, 1994
but a policy decision has been taken by
the Hospital that such operation will not
be performed by the Fortis Hospital,
Noida.

11. It may be stated that Fortis
Hospital is situate at Noida, which is
within the State of Uttar Pradesh.
Similarly SGPGI is not performing the
renal
transplant
despite
necessary
authorization
being
granted
by
the
Authorization Committee.

The requests and approaches to the
Hospitals aforesaid since resulted in vain,
the petitioner finding the Court as the last
hope has approached this Court by filing
the instant writ petition.

The trauma that, the petitioner and
his family is facing, cannot be less
realized and experienced by those who
know the family and also by those who
understand the plight and helpless-ness of
such a person. It is a different matter that
in a serious ailment like this, for very
many reasons, an organ transplant may
not be advisable medically and that the
risk in undertaking the transplant may be
much higher and beyond the limit of
permitted risk or that may be for any other
valid ground, if the experts namely;
medical experts are of the considered
3 All] Smt.Vandana Dixit V. Visitor S.G.P.G.I. and others
1061
opinion that no useful purpose would be
served, and that transplant is not feasible
and medically advisable, transplantation
may be avoided but in case authorization
certificate has duly been given by a
Committee constituted for the purpose by
the State Government, transplantation
cannot be rejected on the ground that the
Hospital
will
not
accept
such
authorization certificate, which has been
issued by a particular Committee, unless
such authorization is also given by
another Authorization Committee viz;
Hospital Based Committee.

Transplantation of any human organ
can also be not refused by any Hospital,
which undertakes such transplant, in
violation of the Act, 1994 and Rules,
1995 as amended, because it has taken a
policy decision, that it will not accept the
human organ of a non-relative donor,
though such donor is authorized under the
aforesaid Act to donate any of his organ
to the recipient.

12. On notice being issued, Sri Alok
Mathur, appearing for Fortis Hospital
made it clear that Fortis Hospital is not
unwilling to undertake the treatment, as
may
be
medically
advised,
viz;
transplantation of kidney, but since the
petitioner has gone to Indraprastha Apollo
Hospital, New Delhi, first, and the
Authorization Committee of the said
Hospital, in the meeting held on 10.2.2010,
has rejected to transplant the kidney, a fact
not disclosed by the petitioner, the hospital
therefore, has refused to undertake the
transplant.

13. The main plea of Fortis Hospital
as urged by the learned counsel and also as
stated on oath in their counter affidavit is
that though the petitioner had obtained
approval
from
the
State
Level
Authorization Committee but she has not
obtained
final
approval
from
the
Committee
of
answering
respondent
though the authorization of Hospital Based
Authorization Committee is mandatory.

14. It has also been submitted that
the Fortis Hospital in terms of the Rules
called upon the petitioner and the donor to
submit a joint application alongwith the
details
as
required
under
the
Transplantation of Human Organs Rules1995 (hereinafter referred to as the Rules,
1995) but they failed to turn up, hence the
answering respondent could not process
the case of the petitioner for being placed
before the Hospital based Authorization
Committee
for
considerations.
Submission is that the petitioner cannot
place reliance upon the approval given by
the Authorization Committee Lucknow as
the final approval for transplantation is to
be granted by the Hospital Based
Committee where transplant has to take
place.

15. Though it has been suggested by
the learned counsel for the Fortis that the
Authorization
Committee
of
District
Meerut would be competent to do so but it
is not clear if it is the Hospital Based
Authorization Committee , but even if it
be so, the question arises, whether after
getting the authorization by a Committee
duly constituted by the State Government,
any further authorization is needed from
any other Committee may be Hospital
based Authorization Committee.

16. A preliminary objection has also
been raised that Fortis Hospital is not the
State within the meaning of Article 12 of
the Constitution of India and therefore, no
1062 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
writ would lie nor any such direction can
be issued by the High Court.

17. Sri J.N Mathur appearing for
SGPGI also says that SGPGI may
undertake transplantation, as may be
reqired and is advisable and feasible but it
will still take atleast six months more, in
undertaking the operation which period
may stand further extended.

18. The plea of the petitioner is that
despite she having been given approval by
the statutory Authorization Committee for
transplantation of kidney by taking it from
Shri Inderjeet, who is a non-relative
donor, yet the hospitals aforesaid are
delaying the treatment and in fact refusing
to undertake transplantation merely on the
pretext that the petitioner must seek
authorization from a Hospital Based
Authorization Committee, which refusal
is not only against the provisions of the
Act of 1994 or the Rules framed
thereunder, but also against all medical
ethics, and violation of human right of the
petitioner to enjoy a better health, and
comfortable life, so long she is alive,
rather her condition is getting deteriorated
day by day

19. We do not find any reason either
for SGPGI or for the Fortis not to proceed
further with the matter and to refuse the
recipient the transplantation of kidney of
the
non-relative
donor
on
such
misconceived ground. In a case of human
organ transplant, it is the medical advice
of the experts, which counts for deciding
whether the transplant be undertaken, it
being medically advisable and feasible.
The Court would rarely give its opinion in
this regard but the Courts would in all
such cases can ensure that transplantation
of any organ in the body of any
person(patient) is not being refused
unethically, unprofessionally, arbitrarily
against the protection given under the Act
of 1994 and the Rules of 1995 and/or for
some extraneous reasons which do not
have any relevance with the medical
treatment.

20. Each hospital is legally obliged
and every Doctor has a moral duty who is
not only under Hippocratic oath taken at
the time of joining the medical profession
but also under the constitutional mandate
and professional ethics, to give and
provide
such
medical
advice
and
treatment which cures the patient and
lessens the agony of the patient. If the
disease is not fully curable, the treatment
is to be given, for improving the quality
of life, of the ailing, so that he/she can
live with less discomfort and pain even
during the last lap of his/her life. If such
treatment requires transplant of any
human organ, it can not be refused merely
because of some technical objection
raised by the Hospitals, though no such
objections can be substantiated under the
Act, 1994 and the Rules, 1995 enforced
for the purpose.

21. Refusing to undertake the
necessary transplant despite there being
due
authorization
given
by
one
Authorization Committee and there being
no other reason for not undertaking such
treatment/operation but only for his
insistence that the approval be taken by
the
Hospital
Based
Authorization
committee also would not only prick the
conscious of the court as no person can be
deprived of his life and health care by
adopting such a course and indifferent
attitude, but would also be against all
norms of professional ethics, and morality
3 All] Smt.Vandana Dixit V. Visitor S.G.P.G.I. and others
1063
besides it will defeat the very provisions
of the Act, 1994 and the Rules, 1995.

22. Right to life includes protection
of health and health care. In the case of
Chameli Singh vs State of U.P. (1996)2
page 549, right to food, water, decent
environment, education, medical care and
shelter, has been found to be in the
components of right to live. In the case of
Pt. Parmanand Katara vs Union of India
and others reported in (1989)4 SCC 286,
instant medical aid for the injury suffered
by injured persons, has been held to be
the requirement of Articles 21 and 32.
The apex court in the aforesaid case did
not make any distinction between the
private
practitioner
(Doctor)
or
a
Government Doctor. Their Lordships
observed that all doctors, including
private doctors are obliged to render
immediate medical aid in injury cases.

23. In the case of Unni Krishnan vs
State of Andhra Pradesh, (1993) 1 SCC
645 and Mohini Jain(Miss) vs State of
Karnataka and others reported in (1992)
3 SCC 666 the right to eduction was
found to be implicit in Article 21 and it
was
directed
that
private
unaided
recognized/affiliated professional colleges
can not charge fee higher than that
charged
in
government
institutions.
Commercialization
of
education
is
impermissible. The scheme was framed
by the Supreme Court itself for admission
in private colleges.

24. The plea that Fortis is not a
Government Hospital, therefore, no writ
petition will lie, is thus, a completely
misplaced argument. No hospital, may be,
private or Government hospital, can
refuse appropriate, adequate and prompt
treatment to any person who requires
medical aid.

25. The Hospital is not doing only
commercial activity or business for
earning huge profits but also social
service and is supposed to provide right,
effective and prompt medical treatment
and
health
care
like
any
other
Government Hospital, therefore, it cannot
violate the spirit and soul of Article 21 of
the Constitution. If private Hospitals are
allowed to run a mock or permitted to
refuse treatment of any patient at their
own whims and caprice, unethically, it
would defeat the very purpose and the
meaning and extent of right to health care
which is embodied in Article 21 of the
Constitution.

26. Apart from the aforesaid reasons
the writ petition is also maintainable
because each and every hospital has to be
registered under the Transplantation of
Human Organs Act, 1994, if it transplants
human organs, and is governed and
controlled by the provisions contained
therein. Any violation on its part in giving
effect to the statutory provisions of the
Act or that of the Rules framed
thereunder, would be statutory violation.
Thus, even if the hospital is a private
hospital with no Government aid, the
courts would have jurisdiction to issue a
writ in the nature of mandamus and to
compel such a hospital to perform its
duties otherwise legally enforceable. In
this regard let us have a glimpse of the
Act, 1994 and The Transplantation of
Human Organs Rules, 1995 (as amended
on 31.7.2008), (hereinafter referred to as
'the Rules, 1995' ) framed thereunder.

27. Prior to enforcement of the Act,
1994 there was no effective law in India
1064 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
for regulating transplantation of organs in
human beings, as a result of which many
scams were detected, where human
organs were purchased and sold for a
price and at times even without making it
known to the patient/persons for whom
such organ was extracted with the
assistance of doctors without their consent
therefore with a view to check, control
and protect the innocent persons, for
becoming the victims of unscrupulous
people, including the Doctors and their
staff, the Act, 1994, was enacted to
regulate
the
removal,
storage
and
transplantation of human organs for
therapeutic purposes.

28. The Act mainly ensures the
prevention of commercial dealings in
human organs and for matters connected
therewith or incidental thereto.

The Act, 1994 was made applicable
in the first instance, to the States of Goa,
Himachal Pradesh and Maharashtra and to
all the Union territories and it was also to
apply to such other State which adopted
this Act by resolution passed in that
behalf under clause (1) of Article 252 of
the Constitution. The Act, 1994 is in force
in the State of U.P.

29. The Act, 1994 defines the
'hospital' in section 2(g) which includes a
nursing home, clinic, medical centre,
medical
or
teaching
institution
for
therapeutic purposes and other like
institution. It does, thus, apply to every
hospital without any distinction, of it
being run by the Government or privately.

30. The 'donor' has been defined in
sub section 2(f) of the Act, 1994 which
means any person, not less than eighteen
years of age, who voluntarily authorizes
the removal of any of his human organs
for therapeutic purposes under sub section
(1) or sub-section (2) of section 3;

And 'recipient' means a person into
whom any human organ is, or is proposed
to be, transplanted.

'Registered medical practitioner' has
been defined in section 2(n) of the Act,
1994 which means a medical practitioner
who possesses any recognized medical
qualification as defined in clause (h) of
section 2 of the Indian Medical Council
Act, 1956 (102 of 1956), and who in
enrolled on a State Medical Register as
defined in clause (k) of that section.

'Near relative' has been defined in
section 2(i) of the Act, 1994, which
means spouse, son, daughter, father,
mother, brother or sister.

31. Chapter II of the aforesaid Act,
1994 deals with the authority for the
removal of human organs from the body
of the deceased or from the body of a
person in the event of his brain-stem
death, etc.

Section 9, places restrictions on
removal and transplantation of human
organs from the body of any person,
during his life time, unless he is a near
relative of the recipient. The aforesaid
section 9 reads as under:-

"9. Restrictions on removal and
transplantation of human organs.--(1)
Save as otherwise provided in sub-section
(3), no human organ removed from the
body of a donor before his death shall be
transplanted into a recipient unless the
donor is a near relative of the recipient."
3 All] Smt.Vandana Dixit V. Visitor S.G.P.G.I. and others
1065

32. Sub section 3 of section 9 of the
Act, 1994, reproduced below would stand
attracted in the present case as the donor
is not the near relative of the recipient.
The aforesaid provision provides that if
any donor authorises the removal of any
of his organs for transplantation into the
body of such recipient, for reasons given
therein, such human organ shall not be
removed and transplanted without the
prior approval of the Authorization
Committee.

"Section 9(3) If any donor authorizes
the removal of any of his human organs
before his death under sub-section (1) of
section 3 for transplantation into the body
of such recipient, not being a near
relative, as is specified by the donor by
reason of affection or attachment towards
the recipient or for any other special
reasons, such human organ shall not be
removed and transplanted without the
prior approval of the Authorization
committee.

33. Sub section 4 of section 9
aforesaid in sub clause (a) obligates the
Central Government to constitute one or
more
Authorization
Committees
consisting of such members as may be
nominated by Central Government on
such terms and conditions as may be
specified in the notification for each of
the Union territories whereas the State
Government is to constitute one or more
Authorization committees consisting of
such members as may be nominated by
the State Government on such terms and
conditions as may be specified in the
notification for the purposes of this
section.

34. When such Committee is made
then an application jointly has to be made
in such form and in such manner as may
be prescribed, by the donor and the
recipient and thereafter the Authorization
Committee shall hold an enquiry and after
satisfying itself that the applicants have
complied with all the requirements of this
Act and the Rules made thereunder, grant
the applicants, approval for the removal
and transplantation of the human organ.

In view of sub Section-6 of Section 9
of the Act, 1994, if after the inquiry and
after giving an opportunity to the
applicants
of
being
heard,
the
Authorization Committee is satisfied that
the applicants have not complied with the
requirements of this Act and the rules
made thereunder, it shall, for reasons to
be recorded in writing, reject the
application for approval.

35. The Act, 1994 therefore, makes
the Central Government as well as the
State
Government
responsible
for
constituting the Authorization Committee
and it is the mandate of the Act that such
Committee has to be necessarily formed.
The benefit of the provisions of the Act
otherwise would not be made available to
the persons who have the donors ready for
donating their organs to them because of
their emotional attachment but they are
not the near relatives. Non-constitution of
Authorization Committee thus would
defeat the very purpose of the Act as it
would endanger the life of many persons
who urgently need transplantation of one
organ or the other.

36. Chapter III deals with the
provisions for regulating the Hospitals
and section 10 of the Act, 1994
specifically says in sub section 1(a) that
on and from the commencement of this
Act, no hospital, unless registered under
1066 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
this Act, shall conduct, or associate with,
or help in, the removal, storage or
transplantation of any human organ; sub
clause
(b)
says
that
no
medical
practitioner or any other person shall
conduct, or cause to be conducted, or aid
in conducting by himself or through any
other person, any activity relating to the
removal, storage or transplantation of any
human organ at a place other than a place
registered under this Act; and sub clause
(c) says that no place including a hospital
registered under sub-section (1) of section
15 shall be used or cause to be used by
any person for the removal, storage or
transplantation of any human organ
except for therapeutic purposes. The
removal of the eyes or the ears may be
done at any place from the dead body of
any donor, for therapeutic purposes, by a
medical practitioner.

37.

The
aforesaid
section
specifically prohibits every hospital from
undertaking
removal,
storage
or
transplantation of human organs unless it
gets itself registered under this Act. This
leaves no doubt that Fortis Hospital which
is undertaking the transplantation of
human organs with facilities of removal
and storage has necessarily to be
registered under the provisions of the Act,
1994 and it having been registered under
the said Act, it would be governed by the
provisions of the aforesaid Act.

38. Again section 12 says that no
registered
medical
practitioner
shall
undertake the removal or transplantation
of any human organ unless he has
explained, in such manner as may be
prescribed,
all
possible
effects,
complications and hazards connected with
the removal and transplantation to the
donor and the recipient respectively.

39. Appropriate Authority has been
defined in Chapter IV of the Act, 1994
which
provides
that
the
Central
Government shall appoint by notification,
one or more officers as 'Appropriate
Authorities' for each of the Union
territories and the State Government shall
appoint by notification, one or more
officers as 'Appropriate Authorities' for
the purpose of this Act. The Appropriate
Authority shall perform the following
functions namely:-

(i)to grant registration under subsection (1) of section 15 or renew
registration under sub-section (3) of that
section;

(ii)to suspend or cancel registration
under sub-section (2) of section 16;

(iii)to enforce such standards, as
may be prescribed, for hospitals engaged
in the removal, storage or transplantation
of any human organ;

(iv)to investigate any complaint of
breach of any of the provisions of this Act
or any of the rules made thereunder and
take appropriate action;

(v)to inspect hospitals periodically
for
examination
of
the
quality
of
transplantation and the follow-up medical
care to persons who have undergone
transplantation and persons from whom
organs are removed; and

(vi)to undertake such other measures
as may be prescribed.

40. The requirement under the
aforesaid provisions is that every hospital
whether Government or private engaged
either partly or exclusively, with any
3 All] Smt.Vandana Dixit V. Visitor S.G.P.G.I. and others
1067
activity relating to the removal, storage or
transplantation
of
human
organ,
immediately before commencement of
this Act, shall apply for registration
within sixty days from the date of
commencement of the Act. But such a
hospital so engaged in such activity shall
cease to engage in any such activity on
the expiry of three months from the date
of commencement of the Act unless such
hospital has applied for registration and is
so registered or till such application is
disposed of, whichever is earlier.

Under Section 15, a certificate of
registration is issued to the hospital by
Appropriate Authority after completing
the requirement as provided therein.

41. Chapter VI deals with the
offences and penalties in case there is any
violation of the provisions of the Act.

Section 23 of the Act protects all
action taken in good faith.

Section 24 gives power to make rules
to the Central Government in pursuance
of which the transplantation rules have
been enacted by the Central Government.

The
rules,
again
defines
the
'registered practitioner' in continuation of
the definition given in clause (n) of
section 2 of the Act, 1994 which also
includes an allopathic doctor with MBBS
or equivalent degree under the Medical
Council of India Act.

All other words and expressions used
and not defined in these Rules, but
defined in the Act, shall have the same
meaning respectively assigned to them in
the Act.

Rule 4A speaks for Authorization
Committee and Rule 6A provides for
composition
of
Authorization
Committees.

Sub clause (1) of Rule 4A says that
'the medical practitioner who will be part
of the organ transplantation team for
carrying out transplantation operation
shall
not
be
a
member
of
the
Authorization
Committee
constituted
under the provision of clauses (a) and (b)
of sub-section (4) of section 9 of the Act'.

Sub clause (2) of Rule 4A relates to
transplantation between a married couple
whereas sub clause (3) of Rule 4A relates
to proposed donor or recipient or when
both are not Indian Nationals/citizens
whether 'near relatives' or otherwise. Sub
clause (4) of Rule 4A deals with situation
where the proposed donor and the
recipient are not 'near relatives', as
defined under clause (i) of section 2 of the
Act.

Sub clause (4) of Rule 4A reads as
under:-

4A(4). When the proposed donor and
the recipient are not "near relatives', as
defined under clause (i) of section 2 of the
Act, the Authorization Committee shall
evaluate that,-

i. there is no commercial transaction
between the recipient and the donor and
that no payment or money or moneys
worth as referred to the Act, has been
made to the donor or promised to be
made to the donor or any other person;

ii the following shall specifically be
assessed
by
the
Authorization
Committee:-
1068 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

a .an explanation of the link between
them and the circumstances which led to
the offer being made;

b. reasons why the donor wished to
donate;

c .documentary evidence of the link,
e.g. proof that the have lived together,
etc;

d. old photographs showing the
donor and recipient together;

iii. that there is no middleman or tout
involved;

iv. that financial status of the donor
and the recipient is probed by asking
them to give appropriate evidence of their
vocation and income for the previous
three financial years. Any gross disparity
between the status of the two must be
evaluated in the backdrop of the objective
of preventing commercial dealing;

v. that the donor is not a drug addict
or known person with criminal record;

vi. that the next of the kin of the
proposed unrelated donor is interviewed
regarding awareness about his or her
intention to donate an organ, the
authenticity of the link between the donor
and the recipient and the reasons for
donation.
Any
strong
views
or
disagreement or objection such kin shall
also be recorded and taken note of.

42. The requirements thus, for
consideration
of
Authorization
Committee, in case of non relative donor
and recipient has been specifically and
categorically mentioned in the aforesaid
provision. Any authorization given in
terms of aforesaid Rules, would be a valid
and binding authorization given by the
duly authorized committee.

The argument of the learned counsel
for the Fortis is that though there is an
authorization given by the State Level
Committee,
Lucknow
but
final
authorization has to be given by the
Meerut District Authorization Committee
which allegedly is a Hospital Based
Committee and therefore, in absence of
such authorization, transplantation cannot
be done, for which he relies upon Rule 6A
of the Rules, 1995 but on scrutiny of this
rule, it does not substantiate the aforesaid
plea.

Rule
6A
only
prescribes
the
Composition
of
Authorization
Committees.

Sub rule (1) of Rule 6A says that
there
shall
be
one
State
Level
Authorization Committee and sub rule (2)
of
Rule
6A
says
that
Additional
Authorization Committees may be set up
at various levels as per norms namely;

(i) no member from transplant team
of the institution should be a member of
the respective Authorization Committee.
All
foreign
Nationals
(related
and
unrelated) should go to 'Authorization
Committee' as abundant precaution needs
to be taken in such cases; and

(ii) Authorization Committee should
be Hospital based in Metro and big cities
if the number of transplants exceeds 25 in
a year at the respective transplantation
centers. In small towns, there are State or
District Level Committees if transplants
are less than 25 in a year in the respective
districts.
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1069

Sub clause 2(ii)A deals with the
composition
of
Hospital
Based
Authorization Committees which are to
be constituted by the State and in case of
Union
territories
by
the
Central
Government.. Such committee has to be
constituted as under:-

Senior most person officiating as
Medical
Director
or
Medical
Superintendent of the Hospital, two senior
medical practitioners from the same
hospital who are not part of the transplant
team; and two members being persons of
high
integrity,
social
standing
and
credibility, who have served in high
ranking Government positions, such as in
higher judiciary, senior cadre of police
service or who have served as a reader or
professor
in
University
Grants
Commission approved University or are
self employed professionals of repute
such as lawyers, chartered accountants
and
doctors
(of
Indian
Medical
Association) etc; and Secretary (Health).

Whereas sub rule 2(ii) B prescribes
composition of State or District Level
Authorization
committees,
to
be
constituted by the State Government and
in case of Union territory by the Central
Government). It shall consists of the
following:-

a. Medical Practitioner officiating as
chief Medical Officer or any other
equivalent
post
in
the
main./major
Government Hospital of the District;

b. two senior medical practitioners
to be chosen from the pool of such
medical practitioners who are residing in
the concerned District and who are not
part of any transplant team;

c. two senior citizens, non-medical
background (one lady) of high reputation
and integrity to be chosen from the pool
of such citizens residing in the same
district, who have served in high ranking
Government positions, such as in higher
judiciary, senior cadre of police service
or who have served as a reader or
professor
in
University
grants
Commission approved University or are
self- employed professionals of repute
such as lawyers, chartered accountants
and
doctors
(of
Indian
Medical
Association) etc; and

d. Secretary (Health) or nominee and
Director Health Services or nominee.

(Effort should be made to have most
of the members 'ex-officio so that the
need to change the composition of
committee is less frequent.)

Rule 6B says that the State Level
Committee shall be formed for the
purpose of providing approval or no
objection certificate to the respective
donor and recipient to establish the legal
and residential status as a domicile State.
It is mandatory that if donor, recipient and
place of transplantation are from different
states, then the approval or "no objection
certificate" from the respective domicile
State Government should be necessary.
The institution where the transplant is to
be undertaken in such case the approval
of
Authorization
Committee
is
mandatory.

Rule 6C speaks about the quorum of
the Authorization Committee and 6D
speaks about the format of the of the
Authorization Committee. Rule 6E deals
with Secretariat of the Committee.
1070 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

Rule 6F lays down the area on which
focus has to be made by the Authorization
Committee. Rule 6F is reproduced as
under:-

6F. The Authorization committee
shall focus its attention on the following,
when the proposed transplant is between
individuals

C. .................. .......... .....................

i. ..................... .......... .....................

ii..................... .......... .....................

iii..................... .......... .....................

iv. ..................... .......... .....................

v. ..................... .......... .....................

vi. ..................... .......... .....................

vii. Where the proposed transplant is
between individuals who are not "near
relatives". The authorization committee
shall evaluate;-

i that there is no commercial
transaction between the recipient and the
donor. That no payment of money or
moneys worth as referred to in the
sections of the Act, has been made to the
donor or promised to be made to the
donor or any other person. In this
connection, the Authorization Committee
shall take into consideration:-

a. an explanation of the link between
them and the circumstances which led to
the offer being made.

b. documentary evidence of the link
e.g. proof that they have lived together
etc.

c. reasons why the donor wishes to
donate; and

d. old photographs showing the
donor and the recipient together.

ii. that there is no middleman/tout
involved;

iii. that financial status of the donor
and the recipient is probed by asking them
to give appropriate evidence of their
vocation and income for the previous
three financial years. Any gross disparity
between the status of the two, must be
evaluated in the backdrop of the objective
of preventing commercial dealing;

iv. that the donor is not a drug addict
or a known person with criminal record;
that the next of kin of the proposed
unrelated donor is interviewed regarding
awareness about his\her intention to
donate an organ, the authenticity of the
link between the donor and the recipient
and the reasons for donation.