R.S. Chauhan, J.
1. In this petition, the petitioners have challenged the negligence on the part of the Doctors, who carried out the sterilization operation-onl4.2.2001 at a camp organized and supervised by the Surgeon of Family Welfare Center, Divisional Hospital, Gangapurcity, the respondent No. 2. The Doctors informed Smt. Uganti, petitioner No.2 that the operation was successful. But after the operation, Smt. Uganti became pregnant and gave birth to a child on 31.8.2002. Since the petitioner are poor, they did not want the fourth pregnancy. It was for the purpose of preventing the pregnancy, that Smt. Uganti had undergone the Sterlisation operation on 14.2.2001.
2. It is further claimed by the petitioner that due to the negligence of the Doctors, she has suffered not only physical hardship, but also mental agony. She is also saddled with the responsibility of the fourth child. Therefore, she claims a compensation of Rs. 13,65,000/-from the respondents.
3. Mr. Chetan Bairwa, the learned Counsel for the respondents, has raised a preliminary objection, namely though, the petitioner No. 2 gave birth to a child on 31.8.2002, the petitioners did not file this petition till 2004. Therefore, there is an inordinate delay of two years. Hence, the present petition suffers from delay and latches.
4. On the other hand, the learned Counsel for the petitioners, has contended that the concept of limitation does not apply to a writ petition. When the civil and/or fundamental rights of the petitioners are violated, they are well within their right to approach the Court in its writ jurisdiction. Therefore, the delay of two years is inconsequential.
5. Heard the learned Counsel for the petitioners on the preliminary objection.
6. Article 226 of the Constitution of India bestows vast powers on the High Courts. In case, the High Court is convinced that an illegality has been committed or the civil and/or Fundamental Rights of the people have been violated, the High Court is within its power to issue a writ, direction, or order in nature thereof in order to remedy the wrong. In course of justice, technicalities of delay and latches generally cannot be permitted to create an obstacle. It is the fundamental duty of the High Court under Article 226 of the constitution of India to do justice to the people. After all, the High Court has been robed with the role of an archangel, for protecting the rights of the people. Thus, in the present case, the mere delay of two years in filing the writ petition would not defeat or would not adversely affect the maintenance of the writ petition. Therefore, the preliminary objection raised by the learned Counsel for the respondents is, hereby, rejected.
7. The learned Counsel for the respondents has further contended that according to the consent given by the petitioners prior to undergoing the Sterlisation operation, they had clearly stated that in case of any fault committed during the course of operation they would not ask for any relief either against the Doctors or against the Hospital. According to the learned counsel, once such a consent letter has been signed by the petitioners, they are prevented for seeking any compensation from the respondents. In order to buttress his contention, the learned Counsel for the respondents has drawn the attention of this Court to the consent letter signed by the petitioners, namely-Annex.R/1/1.
8. Consent letters such as the one submitted before the Court are adhesive contract. In catena of cases, the Hon'ble Supreme Court has clearly held that in contract of adhesion, where one party is powerful and the other party is weak, unreasonable condition cannot be implemented through the judicial process. At' the relevant time the petitioners were already saddled with three children and they did not wish any further pregnancy to occur. Considering the fact that the petitioners are poor, illiterate persons, they did not have any other option but to sign the consent form and to undergo the sterlisation operation. But, merely because the consent orders has been signed by them, and due to their weak position both financially and otherwise, this Court cannot implement the condition of the consent order. In case of negligence, naturally the Doctors and the respondents would be held liable for the negligence committed by them. Therefore, the consent letter signed by the petitioner does not come to the rescue of the respondents.
9. The last contention raised by the learned Counsel for the respondents is that the writ jurisdiction cannot be invoked in case of complicated disputed question of facts. The petitioners would have to establish the negligence of the Doctors in order to succeed in claiming and compensation. According to the learned Counsel for the respondents such evidence can be proved, and decided only by a Civil Court.
10. On the other hand, the learned Counsel for the petitioner has contended that Ministry of Health and Welfare, Government of India had issued a circular dated July 06, 2006 whereby the Government had directed the State Government to provide a package under the Family Planning Insurance Scheme. According to the said circular, in case of failure of sterlisation operation, Rs. 20,000/- are to be paid to the woman. He has further contended that the petitioners be permitted to file a representation before the appropriate authority and to claim the compensation, as contained in circular dated July 06, 2006.
11. Considering the fact that the petitioner No.2 underwent sterlisation operation in 2001, she conceived and delivered a child in 2002, the negligence on the part of the Doctor is prima facie made out. Since sterlisation operation is done in order to prevent pregnancy, since in the present case, petitioner No. 2 became pregnant despite the sterlisation operation, the doctrine of res ipsa loquitur [sic] (a thing speaks for itself) can certainly be invoked. Therefore, this Court deems it proper to direct the petitioners to file representation before the appropriate authority for seeking compensation from the Central Government.
12. The respondents are directed to consider the petitioner's case sympathetically in the light of circular July 06, 2006 and to pass the necessary orders within a period of two months from the date of receipt of the certified copy of this judgment.
13. With these observations, this petition is, hereby, allowed.