Mohammed Ali Khan vs The State of Telangana

HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD (Special Original J urisdiction) THURSDAY, THE TENTH DAY OF FEBRUARY TWO THOUSAND AND TWENTY TWO WRIT PETITION NO: 7405 OF2022 Between: Mohammed Ali Khan, S/o.A.

Abid Ali Khan Aged about 41 years, FYo 10-4-2511 , Masab Tank' H,derabad ...PETrroNER AND 1.

The State of Telangana, rep. by its Princrpal Secretary, Health, IVledical,and Family Welfare, Department, D Block, 2* Floor, Secretariat, Hyderabad lhe nppetiaie Autnority'constituted u/s The Transplantation of Human Organs and Tissues Act 1994. z'stateautnorizationCommitteeFororganTransplant,TelanganaState,.

Constituted u/ s 9 (4) (b) Of The Transplantation of Human.orgal.'s ?1d, lls?Ies Act, ,1994, rep. by its Chairman,C/o Office of the Director of Nledical Equcalron, Koti, Hyderabad-sOO 095 ...RES'ONDENTS Petition under Article 226 of the constitution of lndia praying that in the circumstances stated in the affidavit filed therewith' the High Court may be pleased to issue an appropriate writ, order or direction more one in the nature of writ of Mandamus declaring the order of the 2nd respondent in RC No.47746lMAW 2021 daled 02.12.2021 in rejecting the petitioner's case for approval of kidney transplantation though all the ingredients are satisfied as per Law and further action of the 1.t respondent rejecting the appeal vide Memo.No.625l D12022 daled 02.O2.2022thoughpetitionerhealthisdeterioratingdaybydayasillegal'arbitrary and consequently direct the 1"tand 2nd respondents to immediately grant approval for thekidneytransplantationtoPetitionerforthwithbysettingasidetheaforesaidorders IA NO:1 OF 2022 PetitionunderSectionl5lCPCprayingthatinthecircumstancesstatedinthe affidavit filed in support of the petition, the High Court may be pleased to direct the 1st & 2nd respondents to grant permission for transplantation of kidney of the petitioner Counsel for the Petitioner : SRI ' RATHANGA PANI REDDY Counsel for the Respondent No'1 : GP FOR MEDICAL HEALTH AND FAMILY WEL FAMILY WELFARE Counsel for the ResPondent No'2 : -- The Court made the following: ORDER PRESENT THE HONOURABLE DT.

JUSTICE SHAMEEM AKTHER i THE HO {'BLE Dr.

JUSTICE SHAMEEM AKTHER w UT PETITION No.74Os OF 2022 ORDER This Writ )etition, under Article 226 of the Constitution of India, is filed b1 the petitioners, wherein the following prayer is made "...to issu( an appropriate writ, order or direction more one in th I nature of writ of Mandamus declaring the order of t re 2nd respondent jn RC No.47746lMAK/2O21, dated 02.12.2027 in rejecting the petitioner's case for approval of kidney transplantation though all the ingredien's are satisfied as per Law and further action of the 1si respondent rejecting the appeal vide Memo No.625/D'2022, dated 02.O2.2022 though petitioner health is Jeteriorating day by day as illegal, arbitrary and consr quently direct the 1.r and 2nd respondents to immediat:ly grant approval for the kidney transplan ation to Petitioner forthwith by setting aside the afore: aid orders and pass such orders.....,, 2.

Heard th I learned counsel for the petitioner, learned Assistant Goverlment Pleader for Medical and Health appearing on behalf of res )ondent No.1 and perused the record.

3.

Learned c)unsel for the petitioner would contend that the donor of the kicley is the cousin of the petitioner.

There is no ill intention between the donor and the donee.

The donor has come forward t ) donate his kidney to the petitioner out of love and affection, v'ithout any consideration.

The respondent No.1_ appellate autl ority had passed impugned order dated 02.02.2022 y/dl Memo No.625/D/2022, mechanicatry, without application of rtind and without adverting to Rule 7(3) of the Transplantation of Human Organs and Tissues Rules, 2014 (For short 'the Rul :s') and ultimately prayed to set aside the 2 impugned order dated 02.02.2022 and allow the writ petition as prayed for.

4. ed for.

4.

Learned Assistant Government Pleader for Medical and Health would submit that the Authorization Committee for Organ Transplantation had assigned reasons in rejecting the request of the petitioner for kidney transplantation and the appellate authority, having examined the issue, passed the impugned order, dated 02.02.2022, holding that there are no grounds to interfere with the decision of the Authorization Committee.

There is neither procedural irregularity in passing the impugned order nor violation of principles of natural justice against the petitioner and ultimately prayed to dismiss the writ petition.

5.

In view of the submissions made by both the learned counsel, the question that arises for determination in this writ petition is as fo llows: "Whether the impugned order, dated O2.O2.2O22, passed by the respondent No.1/Secretary to Government, Health, Medical & Family Welfare Department, Government of Telangana, is sustainable under law." 6.

Rule 7 (3) of The Transplantation of Human Organs and Tissues Rules, 2014, reads as under: 7(3) - When the proposed donor and the recipient are not near relatives, the Authorization Committee shall- (i) evatuate that there is no commercial transaction between the recipient and the donor and that no payment has been made to the donor or promised to be made to the donor or any other person; (ii) prepare an explanation of the link between them and the circumstances which led to the offe r being made; (iii) examine the reasons why the donor wishes to donate; (iv) examine the documentary evidence of the link, e.g. proof that they have lived together, etc; 3 (v) examine ol, photographs showing the donor and the recipient tog eth e r; evaluate th, t there is no middleman or tout involved; evaluate th it financial status of the donor and the recipient by asking ther to give appropriate evidence of their vocatlon and lncome for the previous three financial years and anv gross disparity be:ween the status of the twc must b twc must be evaluated in the backdrop 01 objective of preventing commercial dealing; ensure that the donor is not a drug addict; ensure that the near relative or if near relative is not available, any adult F3rson related to donor by blood or marriage of the proposed L lrelated donor is lnterviewed regarding awareness about his ( r her intention to donate an organ or tissue, the authenticit) of the tink between the donor and the recipient, and the reasons for donation, and any strong vlews or disagreement or objectior of such kin shall also be recorded and taken note of. ( vi) (v ii) (viii) (ix) t 7.

Paragraph No.3 of the impugned order, dated 02.02'..2022, reads as follows - "After hear rg both sides and upon careful examination of the matter . it is held that there are no grouncs to interfere vith the decision of the Authorizaticn Committee Accordingly the orders oF the Authorization Committee are upheld and the appeal is hereby rejected." B.

As seen fr rm the impugned order, the respondent No.1 did not apply its mir d and did not advert to the provisions laid down under Rule 7(3 of the Rules and passed the impugned order mechanically sti ting that there are no grounds to interfere with the decision of the Authorization Committee.

No reasons, much less cogent reas)ns, were assigned by respondent No.1 to arrive at such conclus ln.

There is no mention in the impugned order as to what wei-r hed the appellate authority to arrive at such a conclusion, Th r appellate authority has to examine the issue independently g oing through the material on record.

No such indication is an rwhere in the impugned order.

The appellate authority ought to have examined the material placed on record accordance with the Rules, which is patently absent in this case.

9.

Under these circumstances, the impugned order, dated vide Memo 02,02.2022 passed by respondent No.1 No.625/D/2022, is set aside.

The appeal against the order, dated 02.12. ted 02.12.202t, of the 2nd respondent is restored to file and the respondent No.1 is directed to examine the issue afresh and pass necessary orders, in accordance with the Rules, within a period oF seven (7) days from the date of receipt of a copy of th is order.

10.

With the above observations/directions, the Writ Petition is disposed of.

Miscellaneous Petitions, if any, pending in this Writ Petition shall stand closed.

There shall be no order as to costs.

4 in detail and thereafter would have passed an order, in SD/-N.CHANDRA SEKHAR RAO ASSISTANT REGISTRAR q To //TRUE COPY// SECTION OFFICER Hyderabad-500 095 3.

One CC to Sri K.Rathanga Pani Reddy, Advocate IOPUCI 4.

Two CCs to GP for lVedical Health and Family Welfare, High Court for the State of Telangana at Hyderabad [OUT] 5.

Two CD Copies 6.

One Spare Copy Kj.

BS '1 .

The Principal Secretary, Health, Medical and Family Welfare, Department, D Block, 2no Floor, State of Telangana, Secretariat, Hyderabad The Appellate Authority constituted u/s The Transplantation of Human Organs and Tissues Act 1S94.

2.

The Chairman, State Authorization Committee For Organ Transplant, Telan State, Constituted u/ s 9 (a) (b) of The Transplantation of Human organs an Tissues Act, 1994, C/o Office of the Director of [\/edical Education, Koti, s d ana \ HIGH COURT DATED:10102120t'.2 ORDER WP.No.7405 ot 2)22 DISPOSING OF ..HE WRIT PETITION WITHOUT COST S.

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