Mannu Lal Jangde vs State Of Chhattisgarh
2022 Latest Caselaw 874 Chatt

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                                                                   AFR
          HIGH COURT OF CHHATTISGARH AT BILASPUR
              Writ Petition (S) No. 373 of 2022


     Mannu Lal Jangde S/o Bhuruwa Jangde, Aged about
     53    years,    Pump    Assistant,     Zone    4,    Municipal
     Corporation Bhilai R/o 250/K, Yadavpara, Post
     Limtara,        P.S.       Kumhari,         Distt.       Durg,
     Chhattisgarh.

                                                    ­­­Petitioner

                               Versus

   1. State   of    Chhattisgarh       through   the     Secretary,
     Department       of      Urban       Administration          and
     Development, Mantralaya, Mahanadi Bhawan, Atal
     Nagar, Raipur, Distt. Raipur, Chhattisgarh.

   2. Commissioner,        Municipal     Corporation,       Bhilai,
     Distt. Durg, Chhattisgarh.

                                                 ­­­ Respondents

For Petitioner :­ Mr. Sushobhit Singh, Advocate For Res. 1/State :­ Mr. Suyash Dhar, P.L. For Respondent 2 :­ Mr. R.K. Kesharwani, Advocate

Hon'ble Shri Justice Sanjay K. Agrawal Order on Board 21/02/2022

1. This writ petition is directed against the order

dated 03/12/2021 (Annexure P/1) passed by

respondent No. 2 by which petitioner's claim for

medical reimbursement against the treatment

undertaken by him for COVID­19 disease has been

declined on the ground that the hospital where

the petitioner had undertaken the said treatment

is not included within the list of hospitals

approved by the Government for the financial year

2021­22.

2. It is the case of the petitioner that while

working as a Pump Assistant in Municipal

Corporation, Bhilai, he developed certain

symptoms like breathlessness, cough and cold,

chest pain, etc. and when he tested positive for

COVID­19 disease, he was referred from Community

Health Centre, Kumhari to All India Institute of

Medical sciences, Raipur (hereinafter 'AIIMS')

wherein he was denied admission on account of

non­availability of bed and ultimately,

petitioner was forced to take treatment in a duly

approved COVID­19 private hospital namely Agrawal

Institute of Medical Science wherein he was

admitted on 28/03/2021 and discharged on

04/04/2021 and incurred an expense of Rs.

1,83,940/­, which he claimed for reimbursement

from respondent No. 2 by moving an application,

but his application has been rejected stating

that Municipal Corporation is not covered with

Rule 2(a) of Chhattisgarh Civil Services (Medical

Attendance) Rules, 2013 (hereinafter 'the Rules

of 2013') and since the petitioner got treated

from a private hospital namely Agrawal Institute

of Medical Science which is not a hospital ear­

marked by the Government for the financial year

2021­22, therefore, he is not entitled for

medical reimbursement.

3. Return has been filed by respondent No. 2 stating

inter alia that petitioner underwent treatment

for COVID­19 disease from a private hospital

namely Agrawal Institute of Medical Science which

is not among the list of hospitals approved by

the Government for the year 2021­22, therefore,

his claim for medical reimbursement has rightly

been rejected. Moreover, since Municipal

Corporation is not covered by Rule 2(a) of the

Rules of 2013, the petitioner, being an employee

of Municipal Corporation, is not further not

entitled for medical reimbursement.

4. When the matter was taken up for final hearing,

on a further query made by this Court, respondent

passed on 28/05/2016 and a copy of order dated

31/08/2016 whereby Rule 8 of the Rules of 2013

has been adopted and in lieu of that, the

employees of Municipal Corporation, Bhilai have

been granted the benefit of medical reimbursement

as per the notification dated 14/03/2013 issued

by the State Government.

5. Mr. Sushobhit Singh, learned counsel for the

petitioner, would submit that petitioner tested

positive for COVID­19 disease and he was referred

from Community Health Centre, Kumhari to AIIMS,

Raipur wherein he could not be admitted due to

non­availability of bed and ultimately, he was

admitted to Agrawal Institute of Medical Science

on 28/03/2021 and was discharged on 04/04/2021

and thereby, incurred an expense of Rs.

1,53,040/­, but his claim for medical

reimbursement has been rejected by respondent No.

2 on the ground that the said hospital was not a

designated hospital by the Government for

treatment of COVID­19 in the financial year of

2021­22. He would further submit that though the

Agrawal Institute of Medical Science was not a

designated hospital as per the order dated

29/04/2021 (Annexure R­2/1) issued by the State

Government, yet it was a duly approved hospital

by the State Government for treatment of COVID­19

vide letter dated 01/12/2020 (Annexure P/4),

therefore, petitioner is entitled for medical

reimbursement for the expense incurred by him

undergoing treatment for COVID­19 disease and the

claim so made by the petitioner could not have

been denied by respondent No. 2 on the ground

that the said hospital was not a designated

hospital for treatment of a Government servant

for the year 2021­22, as such, the impugned order

is liable to be set aside.

6. Mr. R.K. Kesharwani, learned counsel for

respondent No. 2, would submit that only Rule 8

of Rules of 2013 has been adopted by the

Municipal Corporation vide order dated 31/08/2016

but the entire rules have not been adopted, as

such, since Agrawal Institute of Medical Science

has not been ear­marked by the State Government

for treatment of Government servant, therefore,

petitioner's claim for medical reimbursement has

rightly been rejected and the instant writ

petition deserves to be dismissed.

7. I have heard learned counsel for the parties,

considered their rival submissions made herein­

above and went through the records with utmost

circumspection.

8. The Governor of the State in exercise of the

powers conferred under Article 309 of the

Constitution of India has framed the Rules of

2013 for regulating the medical attendance and

treatment of employees employed under the State

Government.

9. Rule 2 of the Rules of 2013 provides for its

scope and application, which states as under :­

"2. Scope and application - (1) These rules shall be applicable to the following ­

(a) all Government Servants under the control of State Government when they are on Government duty or on deputation or under training or on leave or under suspension or posted outside the State of Chhattisgarh;

(b) employees employed on contract basis;

(c) home guards under training or on duty;

(d) full­time employee getting salary from contingency establishment;

(e) member of work­charge establishment employed on monthly salary in all departments or in the projects initiated by the State Government;

(f) Judicial Officers, subject to rules/orders/modifications issued by the Law Department, from time to time, keeping in view the directions issued Hon'ble the Supreme Court of India in the matter of All India Judges Association v. Union of India, AIR 2002 SC 1752.

(2) These rules shall not be applicable to the following ­

(a) retired employees;

(b) part­time employees;

(c) honorary employees working under the State Government;

(d) daily wages employees;

(e) members of All India Services."

10. A careful perusal of the aforesaid rule would

show that the Rules of 2013 are not applicable to

the employees working in Municipal Corporations,

i.e. respondent No. 2 herein and that is the

reason why the Municipal Corporation, Bhilai has

sought instruction from the State Government on

24/07/2021 (Annexure R­2/2) to which the

Director, Medical Education has replied on

02/11/2021 (Annexure R­2/3) informing that the

case of Municipal Corporation is not covered by

Rule 2(a) of the Rules of 2013, as such, the

Municipal Corporation, Bhilai can proceed in

accordance with the rules framed therein. In that

view of the matter, the Rules of 2013 would not

be applicable for medical reimbursement of

petitioner's claim for treatment of COVID­19

disease, but it is also not in dispute that

Agrawal Institute of Medical Science, the

hospital from where petitioner has undergone

treatment, was authorized by the Chief Medical

Officer, Raipur for treatment of COVID­19 vide

order dated 01/12/2020 (Annexure P/4), therefore,

it cannot be held that Agrawal Institute of

Medical Science is not an ear­marked hospital for

the purpose of notification dated 29/04/2021

(Annexure R­2/1) when it was particularly

authorized for treatment of COVID­19 by the Chief

Medical Officer, Raipur.

11. In the matter of State of M.P. and Others v. M.P.

Ojha and Another1, Their Lordships of the Supreme

Court were dealing with M.P. Civil Services

(Medical Attendance) Rules, 1958 and they have held

that a flexible approach has to be adopted in

interpreting and applying these Rules and they have

further held that these rules have to be construed

liberally.

12. The Supreme Court in the matter of Consumer

Education & Research Centre and others v. Union of

India and others2 has held that right to health and

medical care to protect his health and vigour while

in service or post­retirement is a fundamental

right of a worker under Article 21 of the

Constitution of India, and observed as under :­

1 (1998) 2 SCC 554 2 (1995) 3 SCC 42

"22. The expression 'life' assured in Article 21 of the Constitution does not connote mere animal existence or continued drudgery through life. It has a much wider meaning which includes right to livelihood, better standard of life, hygienic conditions in the workplace and leisure. In Olga Tellis v. Bombay Municipal Corpn. 3 this Court held that no person can live without the means of living i.e. means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content of meaningfulness but it would make life impossible to live, leave aside what makes life liveable. The right to life with human dignity encompasses within its fold, some of the finer facets of human civilisation which makes life worth living. The expanded connotation of life would mean the tradition and cultural heritage of the persons concerned. In State of H.P. v. Umed Ram Sharma4 this Court held that the right to life includes the quality of life as understood in its richness and fullness by the ambit of the Constitution. Access to road was held to be an access to life itself in that State.

25. Therefore, we hold that right to health, medical aid to protect the health and vigour of a worker while in service or post­retirement is a fundamental right under Article 21, read with Articles 39(e), 41, 43, 48­A and all related articles and fundamental human rights to make the life of the workman meaningful and purposeful with dignity of person."

13. Likewise, in the matter of Surjit Singh v. State of

Punjab and others5, the Supreme Court has held that

self­preservation of one's life is the necessary

concomitant of the right to life enshrined in

3(1985) 3 SCC 545 4(1986) 2 SCC 68 5 (1996) 2 SCC 336

Article 21 of the Constitution of India, and

observed as under :­

""11. It is otherwise important to bear in mind that self­preservation of one's life is the necessary concomitant of the right to life enshrined in Article 21 of the Constitution of India, fundamental in nature, sacred, precious and inviolable. The importance and validity of the duty and right to self­preservation has a species in the right of self­defence in criminal law. Centuries ago thinkers of this great land conceived of such right and recognised it. Attention can usefully be drawn to Verses 17 18, 20 and 22 in Chapter 16 of the Garuda Purana (A dialogue suggested between the Divine and Garuda, the bird) in the words of the Divine:

   17    Vinaa dehena kasyaapi canpurushaartho
   na vidyate Tasmaaddeham      dhanam
   rakshetpunyakarmaani    saadhayet

Without the body how can one obtain the objects of human life? Therefore protecting the body which is the wealth, one should perform the deeds of merit.

18 Rakshayetsarvadaatmaanamaatmaa sarvasya bhaajanam Rakshane yatnamaatishthejje vanbhaadraani pashyati

One should protect his body which is responsible for everything. He who protects himself by all efforts, will see many auspicious occasions in life.

   20   Sharirarakshanopaayaah                kriyante
   sarvadaa budhaih

   Necchanti         cha            punastyaagamapi
   kushthaadiroginah

The wise always undertake the protective measures for the body. Even the persons suffering from leprosy and other diseases do not wish to get rid of the body.

                     *         *         *


             22    Aatmaiva             yadi         naatmaanamahitebhyo
             nivaarayet
              Konsyo                       hitakarastasmaadaatmaanam
             taarayishyati

If one does not prevent what is unpleasant to himself, who else will do it? Therefore one should do what is good to himself." "

14. Recently, the Supreme Court in the matter of In

Re : The Proper Treatment of Covid 19 Patients and

Dignified Handling f Dead Bodies in the Hospitals

etc.6 has held that right to health is a

fundamental right guaranteed under Article 21 of

the Constitution of India. Right to health includes

affordable treatment.

15. In the matter of Suman Rakheja (Supra), it has been

held by the Supreme Court that in emergent cases,

the concerned Government servant is entitled for

medical reimbursement for treatment in private

hospital even though non­recognized by the State

Government. Paragraphs 3, 4 and 5 of the judgment

states as under :­

"3. The appellant is the wife of a deceased government servant who had undergone treatment in the Apollo Hospital, New Delhi, which was a private hospital and which was not recognised/approved at that time. For the treatment in that hospital the appellant incurred expenses to the tune of Rs 6,01,166 and the appellant, by way of an application prayed for reimbursement of the medical expenses incurred, but the same was declined by the State, on the ground that the hospital wherein the appellant's husband had undergone the treatment was not an approved hospital.

6 Suo Moto Writ Petition (Civil) No. 7/2020, decided on 19-6-2020

4. Counsel for the appellant submitted that in similar case (Annexure P­4) i.e. by the order of the High Court of Punjab and Haryana in Sant Prakash v. State of Haryana7 wherein in an emergency case the patient had to be immediately admitted in hospital, the relief has been granted. In the present case also the appellant's husband had to be rushed to the private hospital because he had developed a paralytic stroke on the left side of the body, as there was blood clotting on the right side of the brain and therefore, was admitted in an emergency condition in the hospital. In the present case the discharge certificate also shows that the case was an emergency one. In Sant Prakash Case the Division Bench held that the petitioner would be entitled for 100% medical expenses at the AIIMS rates and 75% of the expenditure in excess thereto.

5. In the result, in this appeal also, the appellant herein would be entitled to get the refund of the amount of 100% medical expenses at the AIIMS rates and 75% of the expenditure in excess thereto. "

16. Reverting to the facts of the present case in light

of the principles of law laid down by the Supreme

Court in the aforesaid judgments, it is quite vivid

that Right to Health is a fundamental right under

Article 21 of the Constitution of India,

consequently, the provision relating to

reimbursement of expense incurred on medical

treatment has to be flexible. The Supreme Court in

the matter of Suman Rakheja (supra) has clearly

held that in case of emergency where a Government

servant has been rushed to the hospital though it

is not a Government recognized hospital, the

employee is entitled for reimbursement. In the

instant case, the petitioner, who tested positive

for COVID­19 disease, was also required to run from

pillar to post for admission and treatment. He was

referred from Community Health Centre, Kumhari to

AIIMS Raipur wherein he could not be admitted due

to non­availability of bed and ultimately, he was

admitted to Agrawal Institute of Medical Science,

which was a duly authorized hospital by the Chief

Medical and Health Officer, Raipur for treatment of

COVID­19 vide order dated 01/12/2020 (Annexure P/4)

and after undergoing treatment, he was discharged

from the said hospital, thereby, incurred an

expense to the tune of Rs. 1,83,940/­ for which he

filed an application claiming medical

reimbursement, but it has been rejected by

respondent No. 2 vide impugned order dated

03/12/2021 (Annexure P/1) only on the ground that

Agrawal Institute of Medical Science is not a

recognized hospital by the State Government for

treatment of Government servant for the financial

year 2021­22 vide notification dated 29/04/2021

(Annexure R­2/1) ignoring the fact that the said

hospital was duly authorized by the Chief Medical

Officer for treatment of COVID­19 vide order

dated 01/12/2020 (Annexure P/4), particularly

when the petitioner could not get admitted to

AIIMS, Raipur due to non­availability of bed. As

such, considering the Right to Health under

Article 21 of the Constitution of India and

following the principle of law laid down by the

Supreme Court in Suman Rakheja (supra), this

Court is of the considered opinion that rejection

of petitioner's claim for medical reimbursement

by respondent No. 2 herein is liable to be set

aside, being arbitrary and illegal.

17. Accordingly, the impugned order dated 03/12/2021

(Annexure P/1) is hereby quashed. Municipal

Corporation, Bhilai is directed to process and

make payment of the medical bills as filed by the

petitioner within 45 days from the date of

receipt of a copy of this order.

18. The writ petition is allowed to the extent

indicated herein­above. No cost(s).

Sd/­ (Sanjay K. Agrawal) Judge

Harneet