Rajasthan HC: The govt can not deny medical reimbursement of its employee if he has taken treatment in Unrecognized Private Hospital in emergent situation

 Illustratively, reference may be had to the judgment

rendered by a Coordinate Bench of this Court in Kanhaiya Lal

Dave Versus State of Rajasthan & Ors.: S.B. Civil Writ

Petition No. 420/2009, which in turn relies on another division

bench precedent, wherein it is held as below:

“8.This Court considered the issue of emergent situation in the case

of Gyanendra Kumar Pareek Vs. State of Rajasthan & Ors. Reported

in 2009(4) WLC(Raj.)-95 and held that when a family member

suffers from cardiac ailment, the prime objective of the other family member would be to save his/her life. At that time, services of whichever hospital is suited could be utilized because emergency knows no law and no procedure and when human life is at stake, in such situation, ultimate responsibility of the State cannot be washed off. This Court relied upon the decision of the Division Bench of this Court in Anil Kumar Surolia Vs. State of Rajasthan reported in 2005(3) WLC(Raj.)- 396 wherein the Division Bench observed as under:-

“Government cannot insist upon an employee

to get himself treated at recognized government

institution. All that the Government in these

circumstances can do is to reimburse the concerned

employee at the rates that may be applicable in the

recognized government institution. Reference in this

connection may be made to the judgment of the

Honble Supreme Court in Surjit Singh Vs. State of

Punjab reported in AIR 1996 SC-1388 and State of

Punjab & Ors. Vs. Mohan Lal Jindal reported in

(2001) 9 SCC-217. Consequently, the reimbursement

of the medical expenses borne by the State

Government employees and pensioners has to be done

even if the treatment is undertaken at unrecognized

hospital outside the State even though reference may

not have been taken prior to treatment.”

x-x-x-x-x-x-x

10.Thus, as per scheme of medical concession applicable to the retired employees, the only hurdle against the petitioner for being granted reimbursement of the medical bills is that his wife was subjected to treatment at an unrecognised hospital outside the State and that too without a reference being made. However, as has been noted above, the Division Bench of this Court has already laid the issue to rest by observing that even if the treatment is taken at an unrecognized hospital and without any reference, the reimbursement thereof has to be done at the rates prescribed in the Concession Scheme. x-x-x-x-x-x”

11. On a specific query being put to the learned counsel for the respondents, as to whether the aforesaid judgment is applicable to the case of the petitioner herein; the answer given is in the affirmative. Not only that, it transpires that the aforesaid Single Bench Judgment has attained finality as no intra-Court appeal was filed against the same.

12. In the premise, I see no reason why the benefit thereof is

not also accorded to the petitioner, who is similarly situated.

Question framed in Para 5 of the preceding para of the instant

order is thus answered in affirmative.

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

S.B. Civil Writ Petition No. 5714/2011

Sohan Lal Sharma Vs  State Finance And Ors

HON'BLE MR. JUSTICE ARUN MONGA

Dated: 04/12/2024.

Citation: [2024:RJ-JD:49546]

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Whether government can refuse to reimburse medical claim of its employee if hospital in which he has taken treatment is not included in government order?

It is a settled legal position that the Government employee during his life time or after his retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. It is acceptable to common sense, that ultimate decision as to how a patient should be treated vests only with the Doctor, who is well versed and expert both on academic qualification and experience gained. Very little scope is left to the patient or his relative to decide as to the manner in which the ailment should be treated. Speciality Hospitals are established for treatment of specified ailments and services of Doctors specialized in a discipline are availed by patients only to ensure proper, required and safe treatment. Can it be said that taking treatment in Speciality Hospital by itself would deprive a person to claim reimbursement solely on the ground that the said Hospital is not included in the Government Order. The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds. Clearly, in the present case, by taking a very inhuman approach, the officials of the CGHS have denied the grant of medical reimbursement in full to the Petitioner forcing him to approach this Court. {Para 13}

14. This is hardly a satisfactory state of affairs. The relevant authorities are required to be more responsive and cannot in a mechanical manner deprive an employee of his legitimate reimbursement. The Central Government Health Scheme (CGHS) was propounded with a purpose of providing health facility scheme to the central government employees so that they are not left without medical care after retirement. It was in furtherance of the object of a welfare State, which must provide for such medical care that the scheme was brought in force. In the facts of the present case, it cannot be denied that the writ Petitioner was admitted in the above said hospitals in emergency conditions. Moreover, the law does not require that prior permission has to be taken in such situation where the survival of the person is the prime consideration. The doctors did his operation and had implanted CRT-D device and have done so as one essential and timely. Though it is the claim of the Respondent-State that the rates were exorbitant whereas the rates charged for such facility shall be only at the CGHS rates and that too after following a proper procedure given in the Circulars issued on time to time by the concerned Ministry, it also cannot be denied that the Petitioner was taken to hospital under emergency conditions for survival of his life which requirement was above the sanctions and treatment in empanelled hospitals.

 IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 694 of 2015 (Under Article 32 of the Constitution of India)

Decided On: 13.04.2018

Shiva Kant Jha Vs. Union of India (UOI)

Hon'ble Judges/Coram:

R.K. Agrawal and Ashok Bhushan, JJ.

Author: R.K. Agrawal, J.

Citation: AIR 2018 SC 1975,MANU/SC/0369/2018.

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Whether the government can refuse to grant medical reimbursement to govt servant if he has failed to obtain referral order before taking medical treatment?

The reply of the Government is short and opposes the prayer

of the petitioner on two grounds. Firstly that there was no referral order allowing the petitioner to take the treatment from outside the State and secondly, there were no extra ordinary urgent grounds for the petitioner to have travelled outside the State for his treatment without presenting himself before the Medical Board.

[5] Both the objections of the Government need to be overruled.

Firstly, as noted the petitioner was struggling with aggressive infection on

his nose which did not get cured despite his treatment at the hands of

ENT specialist and skin specialist. The petitioner therefore desired to

have further investigations and opinion from the experts. He, therefore,

approached the authorities for permission to travel outside State. His

request dated 29th November, 2019 met with no immediate response. He could not wait any longer. He started his travel on 5th December, 2019. It was only thereafter that the Medical Board conveyed to him that unless and until he is present a referral order cannot be issued in his favour. On 7th December, 2019 the hospital at Vellore detected that the petitioner was suffering from cancer. Under such circumstances it was not expected for the petitioner to have waited for the Medical Board to call him for

personal appearance for grant of referral order which would delay his

treatment. As things turned out, having gone to Vellore for investigations,

the petitioner ended up the undergoing entire treatment even without

returning home for which purpose his leave was sanctioned by the

employer.

[6] Under such circumstances to expect the petitioner to wait for

the referral order is unreasonable. It is not even the case of the

respondents that the specialized treatment needed for such cancer is

readily available within the State. In other words going by the stand of the

respondents if the petitioner had presented himself before the Medical

Board and waited for long enough for the Medical Board to respond to

his request for grant of referral order, the same would have been granted.

Only on that ground to deny the benefit of reimbursement of medical

expenditure would be interpreting the policy of the Government too

rigidly. Further, the ground that there was no urgency in the petitioner

departing for treatment, also must be rejected. After having waited for

long enough for the treatment prescribed by the local doctors to have

effect and the treatment having failed to have desired effect, the petitioner

had to have a proper diagnosis and line of treatment. It is not as if the

petitioner departed immediately without informing the employer or even

the Medical Board. The petitioner did approach the Medical Board but

could not give too long a time for Medical Board to respond. The

petitioner had to take a calculated risk of departing without prior referral

order.

HIGH COURT OF TRIPURA

AGARTALA

W.P(C) No. 289/2020

Sri Kali Sankar Baidya, Vs.  The State of Tripura, 

HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI

Dated: 30/09/2020

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Whether Judicial officer is entitled to get medical reimbursement in respect of the medical treatment of his parents if they are getting a pension?

Service - Medical Reimbursement - Family member - Rule 2(3)(Seven) of Maharashtra Civil Services (Medical Attendance) Rules, 1961 - Respondent refused to medical Reimbursement of expenses spend by Petitioner, on treatment of his mother - Hence present petition - Whether petitioner entitled to medical reimbursement - Held, according to Rule 2 (3)(Seven) of Rules, father and mother of Government employee who received pension more than Rs. 3500/- per month would not be considered wholly dependent - In present case, mother of Petitioner was getting pension more than amount specified in above clause - But following ratio of State of M.P. & others v. M.P. Ojha & Anr and Nand Rani, Principal Govt. Sr. v. The State of Punjab & Ors., observed that expression "wholly dependent" could not be confined to mere financial dependence - Therefore, Petitioner's mother being 85 years old, and both, physically and financially dependent on him, was wholly inadequate to meet her medical expenses - Hence, Petitioner entitled medical reimbursement - Petition allowed.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 8899 of 2012

Decided On: 03.04.2013

Anil Dattatraya Kulkarni Vs.   State of Maharashtra

Hon'ble Judges/Coram:

V.M. Kanade and F.M. Reis, JJ.

Citation;2013(5)ABR717, 2013(6)ALLMR804, 2013LabIC3612

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When parents of Judicial officer can be treated as dependent on him for the purpose of medical reimbursement?

 It would also be appropriate to refer the observations made by the Hon'ble Supreme Court in paragraph 13 of the judgment in the matter of State of M.P. and ors vs. M.P. Ojha and anr. - (1982) 2 SCC 554, which read thus:

"13. The expression "wholly dependent" is not a term of art. It has to be given its due meaning with reference to the Rules in which it appears. We need not make any attempt to define the expression "wholly dependent" to be applicable to all cases in all circumstances. We also need not look into other provisions of law where such expression is defined. That would likely to lead to results which the relevant rules would not have contemplated. The expression "wholly dependent"

has to be understood in the context in which it is used keeping in view the object of the particular rules where it is contained. We cannot curtail the meaning of "wholly dependent" by reading into this the definition as given in SR 8 [sic SR 2(8)] which has been reproduced above. Further, the expression "wholly dependent" as appearing in the definition of family as given in Medical Rules cannot be confined to mere financial dependence. Ordinarily dependence means financial dependence but for a member of family it would mean other support, maybe physical, as well. To be "wholly dependent" would therefore include both financial and  physical dependence. If support required is physical and a member of the family is otherwise financially sound he may not necessarily be wholly dependent. Here the father was 70 years of age and was sick and it could not be said that he was not wholly dependent on his son. Son has to look after him in his old age. Even otherwise by getting a pension of Rs.414 per month which by any standard is a paltry amount it could not be said that the father was not "wholly dependent" on his son. That the father had a separate capacity of being a retired Government servant is immaterial if his case falls within the Medical Rules being a member of the family of his son and wholly dependent on him. A flexible approach has to be adopted in interpreting and applying the Rules in a case like the present one. There is no dispute that the son took his father to Bombay for treatment for his serious ailment after getting due permission from the competent authority. It was submitted before us that the father being a retired government servant could himself get sanction for treatment outside the State as a special case from the competent authority. It is not necessary for us to look into this aspect of the matter as we are satisfied that under the relevant Medical Rules, the father was member of the family of his son and was wholly dependent on him and the 2nd respondent was thus fully entitled to reimbursement for the expenses incurred on the treatment of his father and other travelling expenses."

Bombay High Court

Nazera Sadique Shaikh vs The State Of Maharashtra And Anr on 13 February, 2019

Bench: R.M. Borde

                   CORAM : R. M. BORDE AND
                           PUSHPA V. GANEDIWALA, JJ.

DATE : 13th FEBRUARY 2019.

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Whether individual medical reimbursement can be denied to husband and wife if they both are on service?

Let us consider the case of two individuals; a male employee (A) and a female employee (B). If the two are not married, each would independently be entitled to a medical reimbursement subject to the ceiling provided independent of each other. Thus, if the ceiling be Rs. 30,000/- and (A) incurs expenses of Rs. 20,000/-, he would get full reimbursement of Rs. 20,000. At the same time, in the same financial year (B) would similarly get reimbursement of Rs. 20,000/- for medical expenses incurred by her. The sum total of the medical reimbursement received by (A) and (B), who are not married, would be a sum of Rs. 40,000/-. They may be in a live-in relationship or divorced. But, the movement (A) and (B) gets into holy matrimony, they are put to disadvantage. (A) being the husband and (B) being the wife, would not have to make a declaration to claim medical benefits only on one of their accounts and in default of that option, it would be the husband's account.

10. If we refer back to the illustration, what will now happen? The maximum ceiling in one account is Rs. 30,000/-. Either the wife's full medical reimbursement would be curtailed to Rs. 10,000/- or the husband's medical reimbursement would be curtailed to Rs. 10,000/-. Thus seen, upon holy matrimony, they would be put to serious disadvantage. This is what is arbitrary. It is for this reason we have held that medical reimbursement is an individual entitlement and by reason of matrimony parties cannot be put to disadvantage. A caveat would be necessary. Parties being entitled to independent claims there cannot be duplication of the claim, in the sense, the wife cannot claim her medical reimbursement from her account as her own independent claim and then for the same event, claim through her husband's account showing herself to be the dependent spouse. That would be duplication of claim and is impermissible. Thus, the circular to the extent to which it directs recovery of amount, when the same is claimed by both the spouses is bad to the extent indicated above. It could apply only in case of duplication of claims and not otherwise.

11. Thus, we have to hold that there cannot be any discrimination or any arbitrary application of the provisions in relation to medical allowances/reimbursement putting persons to disadvantage merely by reason of marriage.

In the High Court of Kerala at Ernakulam

(Before Navaniti Prasad Singh, C.J. and Raja Vijayaraghavan V, J.)

S. Venugopal S/o V. Sukumaran Nair, 

v.

Airports Authority of India

W.A. No. 1225 of 2017

Decided on June 20, 2017

Citation: 2017 SCC OnLine Ker 7397

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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

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Delhi HC rejects plea to make public med reimbursements of SC judges

Delhi high court today dismissed a plea seeking details of medical reimbursements of Supreme Court judges, saying it had personal information and providing it would amount to invasion of their privacy. 

A bench of Chief Justice G Rohini and Justice Deepa Sharma said there was no larger public interest involved in seeking details of medical facilities availed by individual judges and no direction whatsoever can be issued under the Right to Information (RTI) Act. 

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