Bombay High Court
Ms. Pratibha Prabhakar Khape vs State Of Maharashtra Through The ... on 28 September, 2017
Bench: Naresh H. Patil
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE SIDE JURISDICTION
WRIT PETITION NO. 13438 OF 2016
Ms. Pratibha Prabhakar Khape .....Petitioner
V/s.
State of Maharashtra through the Secretary ....Respondents
Law and Judiciary Dept and another
Mr. R. S. Kadam for Petitioner.
Mr. A. I. Patel AGP for Respondent no. 1.
Mrs. Neha Bhide for Respondent no. 2.
CORAM : NARESH H. PATIL &
Z. A. HAQ, JJ.
DATE : 28th SEPTEMBER 2017.
P.C.
1 Rule. Rule made returnable forthwith.
The petitioner is a Judicial Officer posted at Sangli as Jt. Civil Judge
Junior Division and Judicial Magistrate First Class at the time of filing of the
petition.
2 The learned counsel appearing for the petitioner submitted that he is
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not pressing for prayer clause (A). Prayer clause (B) and (C) reads as follows:
"(B) That this Hon'ble Court under its Civil Appellate extra ordinary
territorial Writ Jurisdiction under Article 226 and 227 of the
Constitution of India, 1950 be pleased to call for record and
proceedings of the entire matter and after going through the same be
pleased to quash and set aside the order dated 03.10.2016 passed by
the respondent No. 1 authority of rejecting the application of the
petitioner for the medical reimbursement and thereafter, further
communication dated 07.10.2016 issued by the respondent No. 2 be
also pleased to quash and set aside.
(C) That this Hon'ble Court under its Civil Appellate extra ordinary
territorial Writ Jurisdiction under Article 226 and 227 of the
Constitution of India, 1950 be pleased to allow the application of the
petitioner dated 31.03.2016 for the claim of reimbursement to the tune
of Rs. 4,97,104/-, that the said claim further may be allowed along
with the interest at the rate of 12% p.a. from the date of Application."
3 It is contended by the petitioner that late mother of the Petitioner Smt.
Pratibha Khape was residing with her. Petitioner's father died long back. The
Petitioner's mother died on 11/08/2016 at the age of 63 years. It is the
petitioner's case that her mother was suffering from serious illness and was
under constant medical treatment and supervision. She was hospitalised in
Kelavkar Hospital at Kolhapur, during the period from 04/05/2015 to
19/05/2015. The doctors attending on her detected Col. Cancer (cancer of
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large intestine). Under medical advise, she was shifted to Kolhapure Cancer
Center where she underwent major surgery for which she was hospitalised
during the period from 19/05/2015 to 31/05/2015. She had to undergo 12
sessions of Chemo therapy after intervals of 15 days each. During this period,
petitioner's mother was unable to perform day to day activities. Due to
illness, she became totally dependent on the petitioner. She had became bed
ridden. The petitioner had spent considerable amount on her medical
treatment and for taking care of her mother.
4 The petitioner filed an application on 31/03/2016 addressed to
respondent no. 2 i.e. Principal District Judge and District and Sessions Judge,
Sangli, along with necessary documents including medical bills to the tune of
Rs. 4,97,104/- as indoor patient. At the time of death of the petitioner's
mother, she was getting pension of Rs. 19618/-.
5 In accordance with the rules, petitioner's claim was sanctioned and a
proposal was forwarded by the Principal District Judge to the Law and
Judiciary Department of the State, on 12/07/2016.
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6 By communication dated 03/10/2016, the State rejected medical
reimbursement claim of the petitioner. The said communication is impugned
herein.
7 The learned counsel for the petitioner submits that the State
Government placed reliance on Government Resolution dated 11/11/2011 in
deciding the application for claiming medical reimbursement. The counsel
appearing for the petitioner placed reliance on the Judgment of this Court in
the case of Anil Dattatray Kulkarni Vs. State of Maharashtra and
another1. In the facts and in view of the opinion expressed by the Division
Bench of this Court in the case cited supra, the learned counsel submits that
physical dependency of the petitioner's mother ought to have been taken into
consideration by the State while deciding the proposal forwarded by the
learned Principal District Judge. In other words, the counsel submits that
under the prescribed rules and the Government Resolution dated 11/11/2011,
prescribed criterion of earnings as pension to the tune of Rs. 3,500/- ought
not to be the only basis for ascertaining and deciding the claim proposal. The
1 [2014 (1) Mh.L.J.]
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respondent State has to consider that, if applicant makes out a case that
dependent was physically dependent on the applicant then such case ought to
have been considered even if the dependent was getting an amount of more
than Rs. 3,500/- as pension or from any other source. In the submission of the
counsel, there is total non application of mind on the part of the State in
rejecting the application of the petitioner.
8 The learned AGP placed reliance on the affidavit in reply filed in this
case. Affidavit-in-reply is filed by Rajendra Dattaram Sawant, Legal Advisor-
cum-Joint Secretary, Law and Judiciary Department, State of Maharashtra. In
para 6, the deponent states that petitioner is put to strict proof to establish that
the petitioner's mother was totally physically dependent upon the petitioner.
The learned AGP submits that it is the responsibility of the petitioner to place
on record necessary material for the consideration of the Law and Judiciary
Department to ascertain as to whether the petitioner's application deserves
consideration. In absence of the same, there was no other alternative for the
State to reject the application of the petitioner. The learned AGP submitted
that in accordance with the record placed before the Secretary of Law and
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Judiciary, appropriate decision was taken in accordance with rules and
material placed before the concerned authority.
9 We have perused the record placed before us. In a similar situation, this
Court had an occasion to deal with the issue in the case of Anil Kulkarni
(Cited supra).
10 We find that the purposive interpretation has to be made in respect of
the concerned rules and in accordance with the view adopted by this Court in
the case of Anil Kulkarni (Cited supra).
11 The petitioner is put to strict proof by the State to establish as to
whether petitioner's mother was physically dependent on petitioner during
ailment. We find that petitioner's mother was suffering from serious ailment
and cancer, she was undergoing treatment as indoor patient and had
undergone Chemo therapy sessions according to the contention raised by the
petitioner. In case, the State authority wanted some more inputs or
information on this issue, they were free to call for information from the
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office of Principal District Judge of the concerned district and we would
expect that such information was provided to the State authorities. Rejecting
the application by referring to the criteria incorporated in Government
Resolution dated 11/11/2011 was uncalled for by the State in view of the
Judgment delivered by this Court in the case of Anil Kulkarni (Cited supra)
and sanctioning of proposal by the Principal District Judge. We would refer
to Rule 3, 11 and Rule 17 of the Reimbursement Rules. The State would
consider the definition of 'family' in the right perspective and as per the view
adopted by this Court in the case of Anil Kulkarni (Cited supra).
12 During the course of hearing, it was brought to our notice that there is a
list of around 47 hospitals in the State of Maharashtra which are recognised
by the State under Government Resolution dated 16/11/2011. We are of the
view that State shall review / upgrade the list if not done so far which may
include listing of other hospitals well equipped with necessary infrastructure
and the latest equipments. At the same time, State may undertake exercise of
conducting fresh verification of the infrastructure facility provided in the
already enlisted hospitals as per norms laid down by the State Government
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from time to time. We direct the State to complete this exercise within 3
months. The Principal Secretary of Law and Judiciary and the Public Health
Department shall undertake this exercise through their respective ministries.
13 In view of the aforesaid observations, we are of the view that the
impugned order needs to be quashed and set aside. The proposal forwarded
by the Principal District Judge, Sangli shall be considered afresh by the Law
and Judiciary Department on merits.
ORDER
(i) The Writ petition is allowed.
(ii) The impugned order dated 03.10.2016 passed by the respondent
No. 1 authority rejecting the application of the petitioner for medical
reimbursement is hereby quashed and set aside.
(iii) Matter is remanded back to Principal Secretary, Law and
Judiciary.
(iv) We direct the concerned designated officer of Law and Judiciary
Department to verify the claim proposal of the petitioner and pass a
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brief reasoned order on such proposal.
(v) This exercise shall be completed by Law and Judiciary
Department within 6 weeks and decision shall be communicated to the
petitioner by fastest mode of service.
(vi) The State would also consider reviewing prescribed ceiling of
earning of Rs. 3,500/- by the dependent of a Judicial Officer.
(vii) The State to submit compliance report.
14 Copy of this order be forwarded to Registrar, Legal and Research
Department, High Court, Mumbai.
15 List the matter in 6th week Monday at 3.00 p.m. for compliance.
[Z. A. HAQ, J.] [NARESH H. PATIL, J.]
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