Andhra Pradesh High Court - Amravati
A Siva Kumari vs The State Of Ap on 1 May, 2024
APHC010173292024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3328]
(Special Original Jurisdiction)
WEDNESDAY ,THE FIRST DAY OF MAY
TWO THOUSAND AND TWENTY FOUR
PRESENT
THE HONOURABLE SRI JUSTICE GANNAMANENI RAMAKRISHNA
PRASAD
WRIT PETITION NO: 8740/2024
Between:
1. A SIVA KUMARI, W/O. VALLABHANENI SATYANARAYANA, AGED
ABOUT 57 YEARS, OCC. S.A. (SOCIAL STUDIES), IN BSRK MC
HIGH SCHOOL, R/O. D. NO. 4848-11-7/1, TF-4,
4, SRI SAI NIVAS, 2ND
LANE, KETHINENI VARI STREET, CURRENCY NAGAR,
VIJAYAWADA-520008,
520008, NTR DISTRICT, A.P
...PETITIONER
AND
1. THE STATE OF AP, , REP. BY ITS CHIEF SECRETARY,
GOVERNMENT OF ANDHRA PRADESH, SECRETARIAT,
VELAGAPUDI AT AMARAVATHI, GUNTUR DISTRICT, A.P.
2. THE STATE OF AP, REP. BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF HEALTH AND MEDICAL, SECRETARIAT,
VELAGAPUDI AT AMARAVATHI, GUNTUR DISTRICT, A.P.
3. THE STATE OF AP, REP. BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF SCHOOL EDUCATION, SECRETARIAT,
VELAGAPUDI AT AMARAVATHI, GUNTUR DISTRICT, A.P.
4. DR YSR AAROGYASRI HEALTH
HEALTH CARE TRUST, , REP, BY ITS CHIEF
EXECUTIVE OFFICER, GOVERNMENT OF ANDHRA PRADESH, D.
NO. 241, MGM CAPITAL BUILDING, NEAR NRI JUNCTION,
MANGALAGIRI-522503,
522503, GUNTUR DISTRICT, A.P.
5. THE STATE OF AP, REP. BY ITS PRINCIPAL SECRETARY,
DEPARTMENT OF FINANCE SECRETARIAT BUILDINGS,
VELAGAPUDI AT AMARAVATHI, GUNTUR DISTRICT, A.P.
6. THE DISTRICT COLLECTOR, NTR DISTRICT, VIJAYAWADA, A.P.
7. THE HEAD MASTER, BSRK MC HIGH SCHOOL,
MOGHALRAJAPURAM, VIJAYAWADA, NTR DISTRICT, A.P. PIN.
520010
...RESPONDENT(S):
Counsel for the Petitioner:
1. M KISHORE BABU
Counsel for the Respondent(S):
1. GP FOR SERVICES I
2. GP FOR SERVICES IV
3. -
4. K.S.G. PADMAVATHI
5. GP FOR SERVICES I
The Court made the following Order:
Heard Sri K. Manikanteswara Rao, Learned Counsel representing
Sri M. Kishore Babu, Learned Counsel for the Writ Petitioner and Smt. K.S.G.
Padmavathi, Learned Standing Counsel appearing for Respondent No.4.
2. The prayer sought in the present Writ Petition is as under:
I, therefore pray that this Hon'ble Court may be pleased to
issue an appropriate Writ, order, orders or directions more
particularly one in the nature of Writ of Mandamus declaring the
inaction of the Respondent Authorities to grant of advance amount
upto 90% of Estimated expenditure for the Petitioner's Lungs
Transplantation Operation in KIMS Hospital, Secunderabad, which is
high cost, without considering her Representations, dt.07.02.2024,
as illegal, arbitrary, biased, unconstitutional and against the
principles of natural justice, and consequently, direct the
Respondent Authorities to grant of advance amount upto 90% of
Estimated expenditure i.e., Rs. 70 Lakhs only for the treatment of
Lungs Transplantation Operation of the Petitioner, and to pass such
other relief or reliefs as this Hon'ble Court may deem fit, just and
necessary in the circumstances of the case.
3. The case of the petitioner is that she had initially joined as Secondary
Grade Teacher on 15.11.1989 and promoted as School Assistant (Social
Studies) in the year 2007; that she has been presented the best-teacher
award continuously for a period of 3 years and had received one such award
from the then President of India, Dr. Sri A.P.J. Abdul Kalam on 01.03.2006;
that 5 years ago, the Writ Petitioner was affected with lung disease("end stage
Interstitial Lung Disease") and due to the progression in the disease, the
damage to her lungs was about 70%; the All India Institute of Medical
Sciences, Mangalagiri, confirmed that the damage caused to the lungs is
about 70% and that there is no treatment for mitigating the situation except
bilateral lung transplantation; that the Writ Petitioner is affected by this lung
disease, which is very rare one; that she had consulted several hospitals at
Chennai, Mumbai, Pune, Delhi and Hyderabad; finally, the Krishna Institute of
Medical Sciences (KIMS), Secunderabad have tested the Writ Petitioner and
gave an estimated expenditure for lung transplantation surgery as Rs.
70,00,000/-(Rupees Seventy Lakhs only) on 24.02.2024 (Ex.P.2); that the Writ
Petitioner had approached the Respondent Authorities for reimbursing of 90%
of the expenditure, by placing reliance on an Office Memorandum,
dated 17.10.2016, issued by the Ministry of Health and Family Welfare,
Government of India (Ex.P.3); and that the Writ Petitioner has also placed
reliance on the Office Memorandum, dated nil.09.2021 issued by the Ministry
of Health and Family Welfare, Government of India.
4. When this matter was listed on18.04.2024, this Court had directed the
Respondents to obtain Written Instructions, keeping in mind the urgency that
is involved in this matter. As the name of the Learned Counsel appearing for
the Respondents was not printed in the Cause-list, the Learned Counsel for
the Respondents was not ready with the matter on 22.04.2024.This Court had
directed the matter to be listed again on 23.04.2024 on the top of the 'Motion
List'. On 23.04.2024, the Smt. K.S.G. Padmavathi, Learned Standing Counsel
appearing for the Respondent No.4 has submitted the Minutes of the EHS
Technical Committee meeting, which had recommended to issue Letter of
Credit (LOC) to "KIMS Hospital" for an amount of Rs.20,00,000/- (Rupees
Twenty Lakhs only) to undergo treatment for "Bilateral Lung Transplantation"
under the Employees Health Scheme (EHS).
5. Having considered the said Minutes of the EHS Technical Committee
meeting, dated 19.04.2024, this Court has observed in its Order on
23.04.2024, that there is a mismatch between the amount required by the
Petitioner as per the estimate given by the KIMS(Rs.70,00,000/-) and the
amount recommended by the EHS Technical Committee
meeting(Rs.20,00,000/-). This Court had directed the Learned Counsel to
submit the breakup of the details, as to how the Technical Committee has
arrived at Rs.20,00,000/- as the cost for undergoing Bilateral Lung
Transplantation Surgery. It was directed to list the matter again on
25.04.2024. On 25.04.2024, the Learned Counsel for the Writ Petitioner has
sought an adjournment with a request to list the matter on 29.04.2024 to place
some material on record. Therefore, the matter is listed today.
6. The Learned Counsel for the Respondent, during the course of the
hearing, has furnished an estimate given for "Lung Transplantation" by the
Apollo Hospital, Chennai, which is about Rs.50,00,000/-(Rupees Fifty Lakh
only) and also submitted the Proceedings from the Chief Executive Officer of
Dr.YSR Arogyasri Health Care Trust, dated 24.04.2024, indicating the break
up, which is supplied by the Superintendent of Government Hospital for Chest
and Communicable Diseases, Guntur. The relevant portion of the Letter dated
24.04.2024 addressed to the Learned Standing Counsel is extracted here
under:
"In this regard the Superintendent of Govt. Hospital for Chest & Communicable
Diseases, Guntur, has provided the breakup details regarding the sum of Rs. 20,00,000/- for
the Bilateral Lung Transplant Surgery to Smt. A. Siva Kumari as follows:
Sl.No. Component Amount
1 Special investigations Rs. 2 lakhs and Rs. 50,000/-
as buffer amount
2 Surgery disposables and drugs Rs. 3,00,000/-
3 Immunosupresssants for a period of two weeks Rs. 4,00,000/-
including induction agents (1L 2 blockers,
Tacrolimus, Mycophenolate, and steroids)
4 Professional incentives Rs. 4,00,000/-
5 Hospital incentive Rs.1,50,000/-
6 Follow-up package for one year Rs. 5,00,000/-
Total: Rs. 20,00,000/-
Sd/-
Chief Executive Officer,
YSR Aarogyasri Health Care Trust,
Dated: 24.04.2024"
7. Sri K. Manikanteswara Rao, Learned Counsel representing
Sri M. Kishore Babu, Learned Counsel for the Writ Petitioner has drawn the
attention of this Court to various Judgements, which are filed along with the
Memo, dated 13.04.2024. The Learned Counsel for the Writ Petitioner has
also drawn the attention of this Court to an Order passed by the Learned
Single Judge of this Court in W.P.No.5859 of 2022, dated 09.03.2022.The
said Judgment would indicate that the rough cost of treatment for 'Pompe
Disease' is estimated to be Rs.39,87,204/- and the Learned Single Judge of
this Court had directed the State Government as under:
"14. In the circumstances, the only way this case can
be closed by this Court is to allow it by directing the State of
Andhra Pradesh and the Commissionerate of Health and
Family Welfare & National Health Commission to ensure that
the petitioner herein is provided with Enzyme Replacement
Therapy (ERT),free of charge. The State is also free to
explore all means of financing the treatment of the petitioner,
including sourcing the funds through crowd funding.
15. Accordingly, the writ petition is allowed. There
shall be no order as to costs."
8. The Learned Counsel for the Petitioner has also placed reliance on the
Judgement rendered by the Hon'ble High court of Delhi in Mohd. Ahmed
(Minor) vs. Union of Indi &Ors :2014 SCC OnLine Del 1508, wherein, for a
similar disease namely "Pompe disease" the Hon'ble High Court of Delhi, after
having considered the various authorities, had directed the All India Institute of
Medical Sciences (AIIMS), New Delhi, to treat the patient free of charge taking
into account three factors namely:
i. That the State did not regulate the drugs meant for orphans
for treating the chronic diseases and rare diseases
ii. That the prognosis and success rate in treatment of
'Pompe disease' is very high.
iii. The patient, as an infant, cannot be allowed to die due to
the cost factor that is involved in the treatment.
9. The Learned Counsel for the Petitioner has also placed reliance on the
Judgement rendered by a Learned Single Judge of Hon'ble High Court of
Kerala in Manoj M vs. State of Kerala: 2016 (4) KerLT 491 on 22.09.2016.
The Learned Counsel for the Petitioner has drawn the attention of this Court to
the ratio in the Judgement. The Learned Single Judge of High Court of Kerala,
while referring the right to health and medical care as a facet of Article 21 of
Constitution of India, has held that a Welfare State like India has to guarantee
the life of its citizens and it is the obligation of the Welfare State to provide
adequate medical facilities for securing life of its citizens.
10. A reference has been made to the ratio in Brij Mohan Lal vs. Union of
India: (2012) 6 SCC 502 to state that in so far as the person, who cannot
afford to pay for their medical treatment, the State is certainly obliged
constitutionally to make adequate provision for their treatment, for, no
Government can say that it will not treat patients with rare diseases due to
financial constraints. It is noted that it does not mean that the State has to
make use of its resources for the said purpose, for, the resources of the State
are to be utilised for various other purposes as well. Having taken note of
these issues, the Learned Single Judge had observed that the Government
can utilise the other sources for meeting with the expenditure namely by
utilising the Chief Minister's Relief Fund which is created out of donations. The
government can also tap the resources of the civil society and non-
Government and charitable organisations to take care of the situation. It is
also stated that the initiative to tackle situations of this nature has to come
from the Government and it cannot shirk its responsibility by contending that is
has no resources.
11. Following facts are taken into consideration in the instant case:
i. That the Writ Petitioner is in Government service, presently
working as School Assistant.
ii. She has secured best-teacher awards on three occasions,
and on one such occasion, the award was presented to the
Writ Petitioner by the then President of India, Dr. Sri A.P.J
Abdul Kalam on 01.03.2006; and that she has also received
several other best-teacher awards from the local authorities.
iii. That the Writ Petitioner has been diagnosed with the rare lung
disease that has caused damage of lungs up to 70%, as
confirmed by All India Institute of Medical Sciences,
Mangalgiri; that the All India Institute of Medical Sciences,
Mangalgiri has also confirmed that there is no treatment to
mitigate the present disease and the only alternative is lungs
transplantation.
iv. That the Writ Petitioner has explored places for treatment at
Chennai, Mumbai, Pune, Delhi and Hyderabad for lung
transplantation; that the Krishna Institute of Medical Sciences
(KIMS), Hyderabad has given an estimated expenditure for
lung transplantation operation as Rs.70,00,000/-(Rupees
Seventy Lakhs only). Representation was made by the Writ
Petitioner to the Respondent Authorities on 07.02.2024, for
which there is no response; and, that the Apollo Hospital,
Chennai has given an estimate for "Lung Transplantation" as
Rs.50,00,000/-(Rupees Fifty Lakh only).
v. That the Union Of India vide Office Memorandum, dated
17.10.2016 would advance 90% of the package rates for all
Indoor Treatments, irrespective of major or minor diseases just
on the receipt of Certificate from the treating physician either
by the Government Hospital or from the recognised Hospital
as per the guidelines; that the Union of India, would advance
an amount of 90% for outdoor treatment as well for the above
mentioned diseases and the same shall be released within ten
(10) days (Ex.P.3).
vi. The Writ Petitioner is only aged about 57 years.
vii. The percentage of success in lung transplantation is more
than 80% as per the available data (source: Google).
viii. As the EHS Technical Committee in its meeting held on
19.04.2024, had recommended for LOC for a sum of
Rs.20,00,000/- (Rupees Twenty Lakhs only); that vide
proceeding dated 24.04.2024, on the direction of this Court,
had given a breakup of the expenditure by the Superintendent
of Government Hospital for Chest and Communicable
Diseases, Guntur(extracted supra).
12. Having considered the above facts and the legal authorities on this
issue, this Court is inclined to issue the following directions:
i. The Respondent Authorities shall immediately issue Letter
of Credit (LOC) for sum of Rs.20,00,000/- (Rupees Twenty
Lakhs only) as resolved in the Minutes of the EHS Technical
Committee meeting held on 19.04.2024.
ii. As this Court is of the opinion that there is a mismatch
between the actual expenditure suggested by KIMS
(Rs.70,00,000/-) and the recommendation of the Minutes of
the EHS Technical Committee meeting (Rs.20,00,000/-) and
that this Court has also taken into consideration the
estimated expenditure given by Apollo, Chennai, this Court
would deem it appropriate to award additional sum of
Rs.20,00,000/- (Rupees Twenty Lakhs only) in favour of the
Writ Petitioner for the purpose of meeting with the Lung
Transplantation Surgery and an additional amount of
Rs.5,00,000/- (Rupees Five Lakhs only) for meeting the
Post Operative Expenditure (this makes the total amount to
Rs.45,00,000/- (Rupees Forty Five Lakhs only) as total
contribution from the State of Andhra Pradesh).
iii. Accordingly, the balance amount of Rs.25,00,000/- shall
also be made ready through Letter of Credit (LOC) by the
Respondents within one (01) week from today.
13. In the above premise, this Writ Petition stands allowed. No order as to
costs.
14. Interlocutory Applications, if any, stand closed in terms of this order.
_________________________________
GANNAMANENI RAMAKRISHNA PRASAD, J
Dt: 01.05.2024
Note: Issue CC today,
B/o,
DSV
