Wednesday, 2 March 2016

When govt servant is entitled to get medical reimbursement for knee replacement surgery?

Before   we   proceed   further,   it   should   be   noted   that
respondent no.1 has not denied that the petitioner was suffering
from Osteoarthritis of knee joints since the year 2003 nor that the
petitioner underwent surgery for replacement of both her knees.  In
the fresh affidavit, the stand of the responldent is that osteoarthritis
is a chronic disease which has developed over a period of time and
the   surgery   is   a   planned   surgery     and   not   an   emergency   and,
therefore,  not  payable.  Respondent no.1  has  also   stated  that  the
petitioner   should   have   taken   prior   approval   or   advice   of   her
authorized medical attendant before she went for surgery from nongovernment
hospital. It is the case of the respondent no.1 that even
though Sancheti hospital where the surgery was performed was an
approved private hospital of respondent no.1, just because petitioner

did not take prior advice of her medical attendant, bills were not
payable.
9 Curiously respondent no.1 also states  in paragraph 12 that
as per the G.R. dated 16.11.2001, the approved diseases or disease
conditions are spine diseases, joint diseases, painful joint diseases
and   joint   replacement   surgery,   diagnostic   and   therapeutic
arthroscopy of knee joints and there are eight recognized hospitals
for these conditions and in case of emergency,  patients can directly
seek treatment from these hospitals. But in all other cases, patient
requires to get prior consent of her authorized medical attendant as
per   Rule   2(5)   of   the   Maharashtra   State   Services   (Medical
Attendance) Rules, 1961 ('Said Rules'). It is the case of respondent
no.1 that the treatment received by petitioner is not an emergency
but specialized treatment and that petitioner has not submitted any
emergency certificates issued by Sancheti Hospital and not submitted
any document of her authorized medical attendant referring her to
Sancheti   Hospital.   It   is   also   stated   that   the   petitioner's   medical
condition   is   chronic   disease   and   not   an   emergency.   Though
respondent   no.1   has   taken   various   stands,   the   main   grounds   for
rejection according to the respondent no.1 is that (a) in exceptional
cases   like   that   of   petitioner,   granting   approval   for   medical
reimbursement   has   to   be   decided   by   a   High   Level   Committee
constituted under the chairmanship of Additional Chief Secretary,
Public Health Department and it has been rejected by the committee,
and (b) Prior advice of her medical attendant was not taken.
     

10 On the ground of discrimination raised by petitioner that
one Mr. P.K.Chawre was reimbursed in the year 2004, it is stated that
same was sanctioned by Industrial, Energy and Labour Department at
their level on 19.5.2004 and before G.R. dated 19.3.2005 came into
existence.
11 It is true that Clause 8, Sub­clause 5 of the Said Rules,
provides that  written prior approval of an authorized medical officer
is required before the Government employee goes and seeks private
medical assistance. In this case, it is not the case of the petitioner
either that she had obtained any such prior approval. The question
that we are asking is, is it so vital to the case of the petitioner ?
Sancheti Hospital where the petitioner underwent surgery is in the
panel   of   hospitals   approved   by   the   Government.   The   knee
replacement surgery or joint related problems are also approved to
be   performed   at   Sancheti   Hospital.   By   a   letter   dated   28.5.2011
(Ex.'I')   to   the   petition,   it   is   stated   that   Sancheti   Institute   for
Orthopedic and Rehabilitation, Pune is an approved hospital where
Government   employee   or   the   members   of   the   family   of   such
Government   employee   can   take   treatment   for   the   ailments
mentioned therein. Items (2) and (3) of the said letter states “Painful
disease of joints and their replacement surgery” and “diagnostic and
surgical arthroscopy and knee joints”, respectively. If it has been so
approved, we fail to understand why the claim of the petitioner was
rejected as it appears from the said letter, the petitioner is entitled to
be reimbursed her medical cost. In the G.R. dated 16.11.2011, at

Item 7, the name of Sancheti Institute of Orthopedic Rehabilitation is
included for treatment of the ailments relating to knee joints. If one
considers the minutes of the meeting held on 23.10.2012, petitioner's
case is simply rejected on the basis that “Operation of the petitioner
is not disease”. In the minutes, it is nowhere explained as to how the
operation performed on the petitioner is not a disease. The relevant
column of the said Minutes is as under:
Decision   taken   in   the   meeting   of   the
Committee on        23.10.2012
An   operation   on   the   knee   of   Smt.
M.P.Patil,   Asst.   Registrar   was   done   in
Sancheti   Institute   of   Orthopedic   &
Rehabilitation, Pune. But as the disease of
knee was  not included in the list of the
prescribed   disease     and   hence   it   was
proposed  by the Dept. to present the case
of Smt. M.P.Patil before the Committee as
a special case. But the operation on Smt.
Patil is not any disease but it is a decided
operation  and “when such cases had been
presented   before   the   formed   Secretariat
Committee   before   this,   then   as   the
Committee had rejected such cases, hence
the  above said  case cannot  be presented
before Committee” and such remarks were
recorded   by   the   Health   Department   and
had denied to present the case before the
Committee.
                         But as Smt. M.P.Patil again
requested   for   to   present   the   above   said
proposal before the Committee , hence the
Dept. has presented the above said case for
the consideration of the committee as the
Special   point   but   the   committee   has
rejected the above said proposal.

This is also contrary to the affidavit filed by the Government on
7.5.2015 where it is stated that the condition of the petitioner is a
chronic disease. The Committee has rejected without even going into
the case in detail or applying its mind  and  simply stated that when
such   cases   had   been   presented   before   the   Formed   Secretariat
Committee   before   this,   then   as   the   committee   had   rejected   such
cases, hence the case of the petitioner cannot be presented before the
Committee and the Health Department had denied to present the
case before the committee but because the petitioner again requested
for to present her case before the  committee as a special point, the
department has presented the case   before the committee but   the
committee has rejected the proposal. This shows there is total nonapplication
  of   mind   and   from   the   decision   as   recorded   by   the
Committee,   it   shows   the   petitioner's   case   has   not   even   been
considered and analysed. The proposal of the petitioner was rejected
simply for the sake of rejecting because in the past committee had
rejected   such   proposal.   That   cannot   be   a   ground   to   reject.   The
committee ought to have given detailed reasons after considering the
proposal of the petitioner.
 Therefore,   impugned   communication   of   the   respondent
ought to be quashed and set aside.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE  JURISDICTION
WRIT PETITION NO.7305 OF 2013
Mrs. Madhuri Praful Patil

V/s.
 The State of Maharashtra, 

CORAM : ANOOP V.MOHTA AND
 K.R.SHRIRAM, JJ.

 PRONOUNCED ON: 14.8.2015 
Citation; 2016(1)ALLMR210

Rule. Rule made returnable forthwith. With consent of the
parties, petition is taken up for final hearing forthwith. 
1 Petitioner  has filed this petition under Article 226 of the
Constitution   of   India   challenging   the   communication   dated
21.11.2012 passed by respondent no.1 pursuant to which claim of
petitioner for medical reimbursement was rejected by  respondent
no.1.
2 Petitioner, on 20.10.1976, joined the Industrial Court at
Mumbai   as   Junior   Clerk.   Thereafter,   petitioner   was   promoted   as
Senior Clerk in 1978 and as Clerk of Court  in 1984.
3 Petitioner thereafter was promoted to the post of Assistant
Registrar in the year 2004. It is the case of the petitioner that she had
been suffering from pain in both her knees and was taking treatment
for   the   same   since   2003.   The   pain   in   the   knees   was   due   to
osteoarthritis. Over the years muscles in the knees got wasted.  The
pain in the knees became unbearable and the petitioner found it
difficult to commute to her work and was a cause for concern. The

petitioner   was   advised   by   an   orthopedic   surgeon   to   go   for  knee
replacement surgery. Petitioner, therefore, got  her knees replaced by
surgery at Sancheti Hospital, Pune which is a multispeciality hospital
specially  known for knee joint replacements, ortho problems and
related diseases. Though it is   a private hospital, the said Sancheti
Hospital   is   recommended   and   recognized   by   the   Government   of
Maharashtra   in   its   hospital   panel   for   treatment   and   medical
reimbursement.
4 Petitioner underwent the surgery on 28.4.2011. The whole
medical expenditure incurred by petitioner for replacement of both of
her knees by surgery is about Rs.4,02,244.77. After recovering from
the surgery, petitioner resumed her duties and retired from services
on   30.6.2011   after   rendering   34   years   of   service.   Petitioner
submitted her medical bills for reimbursement to respondent no.2
who forwarded it to respondent no.1. This claim of petitioner has
been rejected. It is the case of petitioner that her claim has been
wrongly rejected. It is also submitted that as per the Government
Resolution   dated   15.7.1986,   the   Public   Health   Department   has
specified that 100% medical reimbursement will be provided for the
surgery of painful diseases of joints as well as their replacements and
the   treatments   done   at   Sancheti   Institute   for   Orthopedic   &
Rehabilitation,   Pune.  Moreover,   the   benefit   of   the   said   G.R.   was
extended   to   one   Mr.   P.K.Chaware,   President,   Industrial   Court   at
Mumbai   by giving him 100%   medical reimbursement. Therefore,
there is discrimination.

5 As   per   G.R.   dated   16.11.2011,   the   Public   Health
Department   has   provided   that   the   reimbursement   of   medical
expenses of more than Rs.1 Lakh will be sanctioned by the head of
the   Ministerial   Administrative   Department.   The   said   G.R.   also
provides the list of the ailments and the private hospitals where such
treatments can be taken and in the list of ailments, painful diseases
of  joints and their replacement is included as well as the name of
Sancheti Hospital, where  petitioner got her knees replacement  by
surgery  performed.
6 The Government had to be pushed to file a proper reply.
The first affidavit that was filed on behalf of the Government of
Maharashtra was on 1.4.2015 by one Mr. D.S.Rajput. In the said
affidavit, it was stated that  the G.R. dated 19.3.2005 provided that
only   27  diseases  which   are  mentioned   therein   are  applicable   for
medical   reimbursement   and   in   exceptional   cases,   which   are   not
covered in the said 27 diseases, the file is kept before the  committee
headed  by the Additional Chief Secretary, Public Health Department
for   consideration.   It   is   stated   that   the   Public   Health   Department
returned the proposal of the petitioner and again at the request of
the   petitioner,   proposal   for   medical   reimbursement   was   placed
before the said committee. In a meeting of the committee held on
23.10.2012,   the   petitioner's   proposal   for   medical   reimbursement
came to be rejected by the committee. As the details as to who

attended the said meeting and who were in the committee was not
available  in the affidavit, the respondents were told to file fresh
affidavit on 6.4.2015 providing all details. Respondent No.1 filed the
fresh   affidavit   annexing     explanation   given   by   the   Public   Health
Department. It is stated in the said affidavit that as the disease of the
petitioner was not covered by 27 emergency diseases and 5 serious
diseases as mentioned in Annexure A to the Government Resolution
dated 19.3.2005, claim was not payable.
7 Thereafter, as per our directions, respondent no.1 filed one
more affidavit dated 7.5.2015. In the said affidavit, the stand taken
by respondent no.1 is different. 
8 Before   we   proceed   further,   it   should   be   noted   that
respondent no.1 has not denied that the petitioner was suffering
from Osteoarthritis of knee joints since the year 2003 nor that the
petitioner underwent surgery for replacement of both her knees.  In
the fresh affidavit, the stand of the responldent is that osteoarthritis
is a chronic disease which has developed over a period of time and
the   surgery   is   a   planned   surgery     and   not   an   emergency   and,
therefore,  not  payable.  Respondent no.1  has  also   stated  that  the
petitioner   should   have   taken   prior   approval   or   advice   of   her
authorized medical attendant before she went for surgery from nongovernment
hospital. It is the case of the respondent no.1 that even
though Sancheti hospital where the surgery was performed was an
approved private hospital of respondent no.1, just because petitioner

did not take prior advice of her medical attendant, bills were not
payable.
9 Curiously respondent no.1 also states  in paragraph 12 that
as per the G.R. dated 16.11.2001, the approved diseases or disease
conditions are spine diseases, joint diseases, painful joint diseases
and   joint   replacement   surgery,   diagnostic   and   therapeutic
arthroscopy of knee joints and there are eight recognized hospitals
for these conditions and in case of emergency,  patients can directly
seek treatment from these hospitals. But in all other cases, patient
requires to get prior consent of her authorized medical attendant as
per   Rule   2(5)   of   the   Maharashtra   State   Services   (Medical
Attendance) Rules, 1961 ('Said Rules'). It is the case of respondent
no.1 that the treatment received by petitioner is not an emergency
but specialized treatment and that petitioner has not submitted any
emergency certificates issued by Sancheti Hospital and not submitted
any document of her authorized medical attendant referring her to
Sancheti   Hospital.   It   is   also   stated   that   the   petitioner's   medical
condition   is   chronic   disease   and   not   an   emergency.   Though
respondent   no.1   has   taken   various   stands,   the   main   grounds   for
rejection according to the respondent no.1 is that (a) in exceptional
cases   like   that   of   petitioner,   granting   approval   for   medical
reimbursement   has   to   be   decided   by   a   High   Level   Committee
constituted under the chairmanship of Additional Chief Secretary,
Public Health Department and it has been rejected by the committee,
and (b) Prior advice of her medical attendant was not taken.
     

10 On the ground of discrimination raised by petitioner that
one Mr. P.K.Chawre was reimbursed in the year 2004, it is stated that
same was sanctioned by Industrial, Energy and Labour Department at
their level on 19.5.2004 and before G.R. dated 19.3.2005 came into
existence.
11 It is true that Clause 8, Sub­clause 5 of the Said Rules,
provides that  written prior approval of an authorized medical officer
is required before the Government employee goes and seeks private
medical assistance. In this case, it is not the case of the petitioner
either that she had obtained any such prior approval. The question
that we are asking is, is it so vital to the case of the petitioner ?
Sancheti Hospital where the petitioner underwent surgery is in the
panel   of   hospitals   approved   by   the   Government.   The   knee
replacement surgery or joint related problems are also approved to
be   performed   at   Sancheti   Hospital.   By   a   letter   dated   28.5.2011
(Ex.'I')   to   the   petition,   it   is   stated   that   Sancheti   Institute   for
Orthopedic and Rehabilitation, Pune is an approved hospital where
Government   employee   or   the   members   of   the   family   of   such
Government   employee   can   take   treatment   for   the   ailments
mentioned therein. Items (2) and (3) of the said letter states “Painful
disease of joints and their replacement surgery” and “diagnostic and
surgical arthroscopy and knee joints”, respectively. If it has been so
approved, we fail to understand why the claim of the petitioner was
rejected as it appears from the said letter, the petitioner is entitled to
be reimbursed her medical cost. In the G.R. dated 16.11.2011, at

Item 7, the name of Sancheti Institute of Orthopedic Rehabilitation is
included for treatment of the ailments relating to knee joints. If one
considers the minutes of the meeting held on 23.10.2012, petitioner's
case is simply rejected on the basis that “Operation of the petitioner
is not disease”. In the minutes, it is nowhere explained as to how the
operation performed on the petitioner is not a disease. The relevant
column of the said Minutes is as under:
Decision   taken   in   the   meeting   of   the
Committee on        23.10.2012
An   operation   on   the   knee   of   Smt.
M.P.Patil,   Asst.   Registrar   was   done   in
Sancheti   Institute   of   Orthopedic   &
Rehabilitation, Pune. But as the disease of
knee was  not included in the list of the
prescribed   disease     and   hence   it   was
proposed  by the Dept. to present the case
of Smt. M.P.Patil before the Committee as
a special case. But the operation on Smt.
Patil is not any disease but it is a decided
operation  and “when such cases had been
presented   before   the   formed   Secretariat
Committee   before   this,   then   as   the
Committee had rejected such cases, hence
the  above said  case cannot  be presented
before Committee” and such remarks were
recorded   by   the   Health   Department   and
had denied to present the case before the
Committee.
                         But as Smt. M.P.Patil again
requested   for   to   present   the   above   said
proposal before the Committee , hence the
Dept. has presented the above said case for
the consideration of the committee as the
Special   point   but   the   committee   has
rejected the above said proposal.

This is also contrary to the affidavit filed by the Government on
7.5.2015 where it is stated that the condition of the petitioner is a
chronic disease. The Committee has rejected without even going into
the case in detail or applying its mind  and  simply stated that when
such   cases   had   been   presented   before   the   Formed   Secretariat
Committee   before   this,   then   as   the   committee   had   rejected   such
cases, hence the case of the petitioner cannot be presented before the
Committee and the Health Department had denied to present the
case before the committee but because the petitioner again requested
for to present her case before the  committee as a special point, the
department has presented the case   before the committee but   the
committee has rejected the proposal. This shows there is total nonapplication
  of   mind   and   from   the   decision   as   recorded   by   the
Committee,   it   shows   the   petitioner's   case   has   not   even   been
considered and analysed. The proposal of the petitioner was rejected
simply for the sake of rejecting because in the past committee had
rejected   such   proposal.   That   cannot   be   a   ground   to   reject.   The
committee ought to have given detailed reasons after considering the
proposal of the petitioner.
12 Therefore,   impugned   communication   of   the   respondent
ought to be quashed and set aside.
13 In our view, in view of the G.R. dated 16.11.2011 read
with   the   communication   dated   28.5.2011   (Ex.'I'   to   the   petition),
petitioner's case has to be considered and the Government is directed

to   reimburse   petitioner's   claim   of   Rs.4,02,244.77   together   with
interest  @ 9% p.a. from  the date of the impugned communication
i.e. 21.11.2012, within 4 weeks. Respondent no.1 also to pay a sum
of Rs.25,000/­ as cost to the petitioner.
14 Rule made absolute accordingly.      
15 Petition stands disposed. 
(K.R.SHRIRAM, J.)     (ANOOP V. MOHTA, J.)

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