K.K. Kharbanda vs The Union Of India & Ors
2009 Latest Caselaw 945 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P. ( C) 6049/2005

                                   Judgment reserved on: 15.01.2009
                                   Judgment delivered on: 23.03.2009


K.K. Kharbanda                                          ...... Petitioner
                                    Through: Mr.G.D. Bhandari, Advocate


                          versus


The Union of India & Ors.                 ..... Respondent
                     Through: Mr. Dalip Mehra with Mr. Rajiv
                     Ranjan Mishra for Respondent No.1/UOI.
                     Mr. R.L. Khatana, Advocate for R-2 and
                     R-3.

CORAM:
HON'BLE MR. JUSTICE KAILASH GAMBHIR

1.     Whether the Reporters of local papers may
       be allowed to see the judgment?                                Yes

2.     To be referred to Reporter or not?                             Yes

3.     Whether the judgment should be reported
       in the Digest?                                                 Yes




KAILASH GAMBHIR, J.

*

1. By way of this writ petition filed under Articles 226

and 227 the petitioner seeks setting aside and quashing of the

orders dated 19.07.2004, 17.09.2004 and 29.07.2004 whereby

various medical claims raised by the petitioner were rejected.

The petitioner further seeks writ of mandamus to direct the

respondents to reimburse total medical claims as submitted by

him during follow up treatment of his wife as an outdoor patient.

2. Brief facts relevant for deciding the present petition

are as under:-

3. The petitioner retired from service in July, 2004 and

during the course of employment his wife Smt. Kiran

Kharabanda was suffering from the fatal disease "Brain Cancer"

and was under medical treatment for a long time and ultimately

she expired on 12.09.2002. She was also operated upon for brain

tumour on 05.09.2001 at G.B. Pant Hospital, New Delhi. After

the operation, she was discharged on 12.09.2001 and on the

same day, she was further referred to LNJP Hospital for Radio

Therapy treatment and on completion of the same, she was

referred back to G.B. Pant Hospital for further treatment in

OPD, which continued for a long time till her death. The

Petitioner submitted his claim for Rs.8,709/- on 13.03.2002 for

reimbursement of the medical expenses for the aforesaid

operation of the brain tumour of his wife along with all the

relevant documents and bills duly countersigned and certified

by the authorized Medical Authorities. He also submitted a

representation dated 19.03.2002, and requested that in view of

the fact that Cancer disease is classified as Special Disease, the

reimbursement of the claim should be excluded from the ceiling

limit of Rs.3,600/- p.a. The Respondents paid an amount of

Rs.3,600/- vide Cheque No. 387604 dated 01.10.2002,

withholding the balance amount without any reason. The

Petitioner submitted a representation dated 14.10.2002, to the

Accounts Officer, Export Inspection Agency, Delhi, and while

drawing the Respondents' attention to the claim so submitted by

him, for the cancer treatment of his wife, he also submitted that

the same may not be considered and apportioned under the

ceiling limit of Rs.3600/- p.a. The Petitioner's wife, suffering

from brain cancer, ultimately expired on 12.09.2002. Prior to

this, as there was no positive response from the Respondents,

the petitioner sought personal hearing with the director on

07.08.2002 and was assured that the medical claims would be

placed in Agenda for consideration in the Council's next

meeting. However, there has been no decision by the

Respondents. A representation reiterating the Petitioner's

request for medical reimbursement was also submitted to the

Director on 14.10.2002. Another set of six and four medical

claims for self and wife's treatment was also submitted on

1.11.2002 to the Respondents with the request that the same

may also be considered, which could not be submitted in time

due to the circumstances beyond Petitioner's control and

requested that the delay in submission of the same be kindly

condoned. Finding no response, the Petitioner submitted

another representation dated 16.12.2002, giving the details of

his medical reimbursement claim, amounting to Rs.770/- +

Rs.395.65 + Rs. 449.35 + Rs.470.75 total Rs.2,085.75,

requesting for an early payment. The Respondents vide their

letter dated 18.03.2003, sent a DD for a total amount of

Rs.8,620/- which included Rs.5020/- as salary for the month of

January - February 2003 and Rs.3600/- towards the medical

reimbursement. Nothing has been said as to why the total

amount has not been reimbursed, despite the Govt.'s decision on

the subject and Respondents' own policy. The Dy. Director

addressed a letter dated 19.02.2003, to the Joint Director

(Incharge), Export Inspection Agency, Chennai, Delhi, Mumbai

and Kolkatta, as also to the Dy. Director (Incharge), Kochi,

whereby he communicated the decision of the Export Inspection

Council, so taken in 93rd Meeting that existing facility for

medical reimbursement stands modified to the effect that the

reimbursement of the expenditure on cancer, diabetes, mental

diseases, Tubercular diseases etc., is allowed without any ceiling

to the full extent as per C.S. ( M.A.) Rules, as long as treatment

is taken in terms of the Rules. The petitioner submitted a

representation dated 29.04.2003, and while acknowledging the

aforesaid D.D. which was sent by the respondents vide letter

dated 18.3.2003, stating that the deductions have been made

from his salary without any intimation to him. With regard to

the medical reimbursement, he submitted that he has already

preferred 14 medical bills by way of reimbursement for an

amount of Rs.23,000/- and in the absence of the details, it is not

possible to make out as to which item the amount of Rs.3600/-

paid relates. The Petitioner again submitted a representation

dated 18.06.2003, stating that he has not received any reply to

his representation dated 29.04.2003 and requested for making

full payment of the medical claim already submitted. He also

addressed a representation dated 16.12.2003, to the Adviser

and Chairman, Grievances Cell, Export Inspection Council of

India and referred to his medical claims bills, amounting approx.

Rs.20,000/-, lying unattended in E.I.C, which were submitted

with regard to the treatment of his wife suffering from cancer,

who was operated upon in G.B. Pant Hospital, New Delhi and

later was receiving medical attention in LNJP Hospital and also

Rajiv Gandhi Cancer Institute and Research Centre, New Delhi.

While reimbursement claim relating to the sickness of

Petitioner's wife was pending, he also fell sick and had to be

admitted in Sunder Lal Jain Hospital, Ashok Vihar, Delhi where

he remained from 26.02.2004 to 29.02.2004. An amount of

Rs.13,366/- was incurred and paid to the Hospital by the

Petitioner. Vide his representation dated 10.04.2004, he

requested for payment of the same. Upon finding no response,

the Petitioner submitted another representation dated

24.05.2004 addressed to the Chairman, grievances Cell, and

complained that numerous representations, so submitted to the

Respondents, have not elicited any positive response from the

Respondents and medical bills submitted by him, approximately

for an amount of Rs.20,000/- were lying unattended with the

Respondents. He lamented that even his representation has not

been acknowledged by the Respondents. That with reference to

the Petitioner's representation dated 24.05.2004, the

Respondents issued a letter dated 04.06.2004, the Respondents

issued a letter dated 04.06.2004, informing the petitioner that

the matter is under consideration and is being looked into and

he would be informed about the action taken in due course

towards the settlement of his claim and at the same time, the

delay and inconvenience caused was regretted. The Petitioner

submitted a representation dated 22.06.2004, and invited

Respondents' attention to long chain of correspondence so

pending. He stated that vide letter dated 18.06.2004, again

details were asked of the pending reimbursement bills, which

the Petitioner gave, but even then the matter was not finalized

and substantial amount of the medical bills were not paid to him

in violation of the C.S. ( M.A.) Rules and E.I.C. Policy. The

respondents issued a letter dated 25.06.2004, and in response to

letter dated 26.06.2004, it was said that the matter was referred

to E.I.A, Delhi, for necessary report and it was observed that

there is no pending bill with the Agency in respect of petitioner's

wife treatment from March 2002 to 12.09.2002 and the

petitioner was asked to provide either a copy of the claim or

certain details so that the case could be taken up with the

Agency for necessary action. That the petitioner vide his letter

dated 6.7.2004 in response to their aforesaid letter gave full

details of his claim with regard to the treatment taken by him in

Sunder Lal Jain Hospital, Ashok Vihar, Delhi. He stated that the

said Hospital is run by a Trust and has been recognized by the

Central Government under C.G.H.S. for reimbursement of the

medical claims. He requested that since the treatment was

taken in Delhi, the payment may please be paid as per Govt.

Hospital's rates in Delhi in terms of the C.G.H.S. Rules, so

applicable. That despite all this, the medical claim for the

treatment of his wife, who suffered from cancer and ultimately

expired on 12.09.2002, has not yet been finalized. In his

representation dated 12.7.2004 he also referred to different

bills submitted by him and requested for early payment. He

also submitted that in May 2002, he was transferred from Delhi

to Chennai on papers when he was already on long leave due to

his wife's suffering from cancer. He stated that all medical

claims were directly submitted to E.I.C. as per the directions of

the Director (Q/C) when the petitioner sought an interview with

her on 7.8.2002. The respondents issued a letter dated

19.7.2004 informing the petitioner that he has been reimbursed

the medical expenses incurred by him while under treatment in

Sunder Lal Jain Hospital, Ashok Vihar, Delhi at the rates

applicable to CGHS beneficiaries at Delhi, and medicines

purchased after the indoor treatment i.e. 29.02.2004 cannot be

reimbursed and hence disallowed. It was further stated therein

that the charges for Endoscopy, Room Rent and Doctor's fee

have not been reflected specifically in the final bill and as such

the same were also disallowed. That Export Inspection Council

Authorities vide their letter dated 29.07.2004, informed the

petitioner that two bills have not been settled due to the reason

that the treatment was taken at OPD for which there is a

maximum ceiling of Rs.3600/- p.a. which he has already

exhausted. The four bills sent to E.I.A., Chennai, could also not

be allowed for the same reason. That the petitioner addressed a

representation dated 30.07.2004 whereby the petitioner

objected to the rejection of his claims on the grounds so

mentioned by the respondents. He stated that the medicines

purchased by him after his discharge from the hospital on

29.2.2004 were prescribed by the Doctor (Incharge) of the

hospital and were very much for the restoration of his health.

He invited their attention to the Govt. of India decision under

Rule 3 of the C.S. ( M.A.) Rules and requested for total

reimbursement of his bills. That the petitioner again submitted

a self-contained representation on 26.08.2004 whereby he stated

that the claims for the reimbursement of the medical expenses

incurred towards his cancer suffering wife were submitted as

per the Director's directions and assurance so given when the

petitioner met her on 7.8.2002. He also invited his attention to

the fact that for a considerable period, the claims preferred by

the petitioner were not readily traceable with the respondents

and he was asked to submit details, which he complied with,

with a hope that the same will be reimbursed. With regard to

the rejection of the claim of the expenses incurred in OPD

treatment, the petitioner submitted that the disease from which

the petitioner's wife was suffering falls under Special Category

for which as per Govt. of India's decision , full reimbursement

has to be done. The Respondents issued a letter dated

17.9.2004 whereby the petitioner was intimated that the

decision taken by the E.I.C. to consider prolonged treatment

beyond the ceiling was granted by the Council on a particular

given date and that petitioner's claim are prior to that date and

as such the same cannot be extended to cover his case. The

grievances Cell of Ministry vide O.M. dated 24.09.2004, while

referring to the petitioner's representation dated 26.08.2004,

requested the concerned Section to look into the matter and

intimate the same to the Grievances Cell. The Grievances Cell

also vide letter dated 26.10.2004 informed the petitioner that

E.I.C., New Delhi vide their letter dated 17.09.2004 have already

communicated their decision regarding reimbursement of his

medical claim. Aggrieved with the acts of the respondent the

petitioner preferred the present appeal.

4. Mr. G.D. Bhandari counsel for the petitioner

submitted that the claim of the petitioner to the ceiling limit of

Rs.3600/- could not have been restricted by the respondent as

the wife of the petitioner was suffering from a deadly disease of

brain cancer which has been classified as a special disease.

Counsel for the petitioner also strongly placed reliance on a

letter dated 19.2.2003 addressed by the Deputy Director,

Incharge of the Export Inspection Council conveying the

decision of the Council in its Board Meeting wherein the

decision was taken to relax the medical reimbursement without

a ceiling in the case of medical expenses incurred on the

diseases such like as Cancer, Diabetes, Mental Diseases, etc.

Counsel further submitted that many representations were

submitted by the petitioner claiming reimbursement of the

various medical claims concerning the expenditure made by the

petitioner on the follow up treatment of his wife as an outdoor

patient but wrongfully and illegally the respondent rejected

the said claims of the petitioner. The important question as per

the petitioner arising in the present petition is as to whether the

respondent can deny reimbursement of medical expenses by

restricting the payment of medical claims only to the extent of

indoor expenses while rejecting the expenses incurred as an

outdoor patient. In support of his argument counsel for the

petitioner placed reliance on the following judgments of the

Apex Court and various other High Courts:-

1. (1998) 8 SCC 469 K. Kuppusamy and Another Vs. State of T.N. And others

2. 1999 (5) SLR 2 (P&H) Krishna Kumari (deceased) and his LRs. Vs. State of Haryana and others

3. 1998 (5) SLR Ravi Kant Vs. The State of Haryana and others

4. 1994 (4) SLR 523 (P&H) Santosh Phagat vs State of Haryana.

5. 1999 (5) SLR 67 (P&H) Ajit Singh Kakkar vs Secy. Govt of Punjab.

6. Milap Singh vs. CGHS, Delhi High Court decided on 24.1.2004.

7. (1997) 2 SCC 83 State of Punjab & Ors. Vs. Mohinder Singh Chawla & Ors.

8. Dr. G.P. Srivastava vs UOI - Mumbai Bench of CAT in OA No. 1015/1996 decided on 24.4.97.

9. CWP No. 1228/1994 G.S. Bhangoo Vs. Export Inspection Council and another decided by Delhi High Court on 5.8.1994.

10. (2001) 7 SCC 708 State of A.P. vs. Nallamilli Rami Reddi.

5. Opposing the present petition counsel for the

respondent No.2 submitted that the respondent being a

statutory body has its own rules and regulations governing the

reimbursement of medical claims and Central Government Rules

and Regulations are not ipso-facto applicable on the employees

of the Export Promotion Council and Export Inspection

Council/Export Inspection Agencies unless adopted by theEPC

and EIC. Counsel for the respondent No.2 further submitted that

as far as expenses incurred by the patients towards OPD

treatment is concerned, the council has prescribed an annual

ceiling limit of reimbursement which was revised from time to

time and the last revision had taken place in the year 1989

when an annual ceiling of reimbursement of Rs.3600/- per

annum was prescribed for OPD treatment, irrespective of any

disease. Counsel further submitted that the said ceiling limit

was unanimously applied to all employees without any exception

or relaxation thereto till 19.2.2003 when again the same was

modified pursuant to a decision taken by the Council in its 93 rd

meeting, whereafter, the reimbursement of expenditure on some

special disease like cancer, diabetes, mental disease, etc was

allowed to the full extent as per CS (MA) Rules without there

being any ceiling limit. Counsel thus contended that prior to

19.2.2003 the reimbursement of medical claims for OPD patients

was under the said ceiling limit of Rs.3600/- whereafter for the

specified diseases the ceiling limit was lifted and medical

reimbursement could be claimed as per the CS (MA) Rules to the

full extent for the said specified diseases.

6. In support of his contentions counsel relied on judgment

reported in (1998) 4 SCC 117 State of Punjab and others vs.

RamLubhaya Bagga and others

7. I have heard counsel for the parties and perused the record.

8. The following issues arise in the present petition:

1. Whether the ceiling limit of Rs. 3,600/- is applicable in the

facts of the instant case.

2. Whether the decision of the Board meeting of Export

Inspection Council taken in the 93rd meeting removing the

ceiling limit in the cases pertaining to medical

reimbursement for treatment of diseases like cancer,

tuberculosis, mental diseases etc. can be made applicable

retrospectively.

3. Whether the medical claims concerning the expenditure

incurred by the petitioner on the follow up treatment of his

wife as an outdoor patient is reimbursable.

4. Whether for the CT scan of the whole of the abdomen

Chennai rates will apply instead of the Delhi rates.

9. The blanket ceiling limit of Rs. 3,600/- per annum for OPD

treatment irrespective of any disease was approved as per the

Board decision in 1989 and since then no revision took place. In

2003 in the 93rd meeting, the Export Inspection Council removed

the ceiling to the full extent for certain diseases, viz. Cancer,

Diabetes, Mental Diseases, Poliomyclitis, Cerebral Palsy and

Spastics, Tubercular Diseases, Leprosy and Thalassaemia as per

Central Services (Medical Attendance) Rules, 1944, as long as

treatment is taken as per provision of CS (MA) Rules including

AMA's fees.

10. Time and again the Apex Court has emphasized to the

Government and other authorities for focusing and giving

priority to the health of its citizens, which not only makes one's

life meaningful, improves one's efficiency, but in turn gives

optimum output. It is now settled law that right to health is an

integral part of the right to life and that it is the duty of the State

to bear the expenditure incurred by a Government servant

suffering from ailments which require treatment at approved

specialty hospitals.

11. The expression 'life' ingrained in Article 21 does not

connote mere animal existence or continued drudgery

throughout life. It has a much wider meaning which includes

right to livelihood, better standard of living, hygienic conditions

in the workplace and leisure facilities and opportunities to

eliminate sickness and physical disability of the workmen.

Health of the workman enables him to enjoy the fruits of his

labour and, therefore, it is necessary to keep him physically fit

and protect his health. In that case health insurance, while in

service or after retirement was held to be a fundamental right

and even private industries are enjoined to provide health

insurance to the workmen. When we speak about a right, it

correlates to a duty upon an individual employer, Government or

any other authority. In other words, the right of one is an

obligation of another. Hence the right of a citizen to live under

Article 21 casts obligation on the State. The obligation includes

improvement of public health as its primary duty. Further to

secure protection of one's life is one of the foremost obligation of

the State. It is not merely a right enshrined under Article 21 but

an obligation cast on the State to provide this both under Article

21 and under Article 47 of the Constitution. In this regard the

Hon'ble Apex court, in State of Punjab & Ors. Vs. Ram

Lubhaya Bagga Etc. Etc. - (1998) 4 SCC 117, while referring

to its earlier decision in Paschim Banga Khet Mazdoor

Samity v. State of West Bengal, [1996] 4 SCC 36; observed

as under:

"Para 16 - It is no doubt true that financial resources are needed for providing these facilities. But at the same time it cannot be ignored that it is the constitutional obligation of the State to provide adequate medical services to the people. Whatever is necessary for this purpose has to be done. In the context of the constitutional obligation to provide free legal aid to a poor accused this Court has held that the State cannot avoid its constitutional obligation in that regard on account of financial constraints. The said observations would apply with equal, if not greater, force in the matter of discharge of constitutional obligation of the State has to be kept in view."

12. At this juncture, it would be worthwhile to reproduce Rules

3 and 6 of CS (MA) Rules, 1944, which are as under:

"3. (1) A Government servant shall be entitled, free of charge, to medical attendance by the authorized medical attendant.

(2) Where a Government servant is entitled under sub-rule (1), free of charge, to receive medical attendance, any amount paid by him on account of such medical attendance shall, on production of a certificate in writing by the authorized medical attendant in this behalf, be reimbursed to him by the Central Government:

Provided that the Controlling Officer shall reject any claim if he is not satisfied with its genuineness on facts and circumstances of each case, after giving an opportunity to the claimant of being heard in the matter. While doing so, the Controlling Officer shall communicate to the claimant the reasons. In brief, for rejecting the claim and the claimant may submit an appeal to the Central Government within a period of forty- five days of the date of receipt of the order rejecting the claim.

Provided that the Government shall reject any claim if it is not satisfied with its genuineness on facts and circumstances of each case, after giving an opportunity to the claimant of being heard in the matter, while doing so, the Government shall communicate to him the reasons, in brief, rejecting the claim; and the claimant may submit an appeal to the Central Government within a period of forty-five days of the date of communication of the order rejecting this claim.

6(1)A Government servant shall be entitled, free of charge, to treatment-

(a) in such government hospital at or near the place where he falls ill as can in the opinion of the authorized medical attendant provide the necessary and suitable treatment; or

(b) if there is no such hospital as is referred to in Sub-clause (a) in such hospital other than a government hospital at or near the place as can in the opinion of the authorized medical attendant, provide the necessary and suitable treatment.

6(2) where a Government servant is entitled under Sub-rule (1), free of charge, to treatment in hospital, any amount paid by him on

account of such treatment shall, on production of a certificate in writing by the authorized medical attendant in this behalf, be reimbursed to him by the Central Government....."

13. On perusal of the CS (MA) Rules, 1944, it is manifest that

no ceiling limit has been imposed by the Government under the

said Rules. It has been admitted by the Standing Counsel for

NCT of Delhi, Mr. Dilip Mehra that the Export Inspection

Council follow the said rules to provide medical facility to their

employees in regard to hospitalization only and for the OPD

treatment the Council has prescribed annual ceiling/limit for

reimbursement, which is revised from time to time. The counsel

for the petitioner drew attention of the Court to the office

circular of Export Inspection Council bearing No.

EIC/D(Q)/C/22/90 dated 13th July, 1990, letter dated 8th March,

1978 to the Deputy Medical Superintendent, wilington Hospital

and letter dated 28th January, 1978 to the Medical

Superintendent, St. Stephens Hospital, wherein the Joint

Director & Deputy Director of EIC have clearly written that the

EIC and EIA follow Central Government Rules and are governed

by Central Civil Services (Medical Attendance) Rules, 1944 as

amended from time to time. However, it is not in dispute that

medical facilities to the employees of EIC and EIA are under the

broad policy and frame work of CS(MA) Rules for hospitalization

etc. but the same are not applicable in entirety as far as the OPD

treatment is concerned. The Council has prescribed an annual

ceiling/limit of reimbursement, which was revised from time to

time and as per the last revision taken place in the year 1999,

an annual ceiling of reimbursement of Rs. 3,600/- per annum

was prescribed for OPD treatment irrespective of any disease.

Counsel for the respondent further stated that the said ceiling

limit was unanimously being applied to all the employees

without any expenditure or realization thereto till 19th February,

2003 when the same was modified pursuant to the decision

taken by the Council in their 93rd Board meeting. The said

ceiling limit was lifted and the reimbursement of expenditure

even for OPD treatment for per patient suffering from serious

disease such as cancer, diabetes, mental disease, poliomyclitis,

cerebral palsy and spastics, tubercular disease, leprosy,

Thalasaemia was allowed as per the provision of CS(MA) Rules

to the full extent without any ceiling.

14. Be that as it may, health service forms a very important

part of existence of an individual. Government servants are

provided the benefit of medical aid as within the limited financial

emoluments available to them they would be unable to meet

large medical expenses which may arise in certain exigencies.

The chances of seeking such medical aid increases as the years

go by and a person gets older. In fact the better medical facility

back-up is required at that age.

15. The cost of medical treatment has been rising over a period

of time and respondents cannot deny the actual reimbursement

from a Hospital recognised by them for treatment on the basis of

the rates as per the previous decision of 1989 herein, which

cannot remain static and should be revised regularly. When the

policy was adopted in 1989, the rates fixed had nexus with the

actual treatment cost charged by the hospitals. When the

treatment was taken by the petitioner and his wife in 2001-2002,

the hospitals had revised/ raised their rates but still the

respondents reimbursed the petitioner as per its 1989 policy.

The hospitals cannot be blamed for raising the cost of treatment

due to the components of treatment becoming costlier. But the

Government has to bear the expenses incurred by the

Government Servant as the Government servant cannot within

his limited earning bear the expenses for the treatment of his

ailments. In this regard, the Supreme Court had duly noted in

State of Punjab and Ors. v. Mohinder Singh Chawla etc. JT

1997(1) SC 416 as under:

"The right to health is integral to right to life. Government has constitutional obligation to provide the health facilities. If the Government servant has suffered an ailment which requires treatment at a specialized approved hospital and on reference where at the Government servant had undergone such treatment therein, it is but the duty of the State to bear the expenditure incurred by the Government servant. Expenditure, thus, incurred requires to be reimbursed by the State to the employee."

16. But, the entire blame shifts on the Council, for the sole

reason that it did not revise the rates, for the year 1989 till 2003

which it was under an obligation to do. The present case is

based on peculiar facts and circumstances and the petitioner has

approached this Court feeling aggrieved with the withholding of

the medical reimbursement claim to the full extent as regards

the treatment of the wife of the petitioner for the cancer disease

for which ceiling limit was removed later on. Thus, as discussed

above, definitely, it was arbitrary on the part of the council not

to revise the rates from time to time to keep the balance

between the rates charged by the hospitals and the

reimbursement offered to the beneficiaries. Although, in the

decision of the Apex Court in Ram Lubhaya Bagga (supra),

the Apex Court has in unequivocal terms held that the policy

decision of the State regarding medical reimbursement cannot

be questioned but it does not mean that a policy decision of 1989

would continue to be applicable even in a case where the

treatment was taken in 2001-2002. With the changing scenario,

political, social and financial, the policy of reimbursement

cannot remain static. Respondents were required to be more

responsive and could not in a mechanical manner deprived an

employee of his legitimate reimbursement, especially on account

of their own failure in not revising the rates. The respondent

cannot be permitted to wash its hands and leave the petitioner

employee to face the vagaries of the demands made from him

over and above the ceiling rates. The stand of the respondent is

that the medical reimbursement for OPD patients was to be

governed as per the ceiling limit laid down by the Council, which

was periodically being revised, does not appear to have any

rational or logic as once the patient suffering from any of the

aforesaid serious disease was allowed medical reimbursement

under the CS (MA) Rules as an indoor patient then how the same

patient could be deprived or restricted to some limit for the

medical expenses incurred by him/her as an outdoor patient.

There cannot be any two opinions that for such serious disease

the medical expenses to be incurred by the patients are

comparatively very high as cost of medicines that too from

reputed pharmaceutical companies for such disease is

comparatively very high and therefore, if the patients are

deprived of the medical reimbursement as an outdoor patient

then in such a situation either patients would be deprived to get

further proper medical treatment as an outdoor patient or they

would be left in lurch to meet their ultimate fate. I, therefore, do

not find that denial of actual medical reimbursement as an

outdoor patient or restricting them to any limit could have any

sound reasoning or rational. However, considering the fact that

the petitioner has not challenged any such decision of the

Council restricting the ceiling limit to Rs. 3,600/- for the outdoor

patients, therefore, the same cannot be set aside in the present

writ petition. Nevertheless since the respondent Council has

already lifted the said ceiling limit in their 93 rd board meeting

and has made applicable CS(MA) Rules to the outdoor patients

suffering from the said diseases and the amount having been

claimed by the petitioner towards the medical reimbursement as

an outdoor patient being very small, I am of the view that in the

interest of justice I must allow said medical reimbursement in

favour of the petitioner keeping in view the peculiar facts of the

present case.

17. The law is therefore, well-settled that right to health is an

integral part of life and the Government has constitutional

obligation to provide the health facilities to its employees or

retired employees and in case an employee requires a

specialised treatment in an approved hospital it is the duty of the

Government to bear or reimburse the expenses. It is in this

context that the Supreme Court in Mohinder Singh Chawla

etc. (Supra) observed as under:

"It is now settled law that right to health is integral to the right to life. Government has a constitutional obligation to provide health facilities. If the government servant has suffered an ailment, which required treatment at, a specialized approved hospital and on reference whereat the government servant has undergone such treatment therein, it is but the duty of the State to bear the

expenditure incurred by the government servant. Expenditure, thus, incurred requires to be reimbursed by the State to the employee."

18. In view of the foregoing discussion, the ceiling limit of

Rs. 3,600/- shall not be applicable in the facts of the present

case and the policy decision relaxing the said ceiling limit, which

was conveyed to the petitioner vide letter dated 19/2/2003,

would become applicable confining to the present case.

Therefore, the petitioner is entitled to the reimbursement of the

complete expenditure incurred on the treatment of his wife and

himself. Thus, the issue no. 1 is decided in the negative and

issue no. 2 is decided in the affirmative.

19. As regards the third issue of the reimbursement of the

expenses incurred upon the wife of the petitioner as an outdoor

patient, the law is well settled, that no distinction can be made

between the expenses incurred on outdoor treatment and indoor

treatment. If the outdoor treatment is an integral part and

connected with the indoor treatment, the expenses incurred in

the former are reimbursable. The reason behind providing

medical facilities to the Government employees is that the

employee puts his body and mind with his employer and,

therefore, the employer owes a duty to keep him in good health

so that he is able to perform his duties, consequently the

employer, reimburses him, for the medical expenses which he

incurs for keeping himself to keep him in a state of fit body &

mind. If only indoor treatment will be allowed to be reimbursed

then employee would get admitted to a hospital for even minor

problems which can be treated as outdoor patient, which would

ultimately burden the State. Therefore, making distinction on

the basis of indoor patient and outdoor patient for the purpose of

reimbursement is clearly unsustainable and has no rational

basis.

20. Cancer comes in the category of chronic disease. Even

after treatment at the hospital the follow up treatment continues

because of the possibility of relapse of the same. Thus, clearly

the expenses incurred upon the wife of the petitioner as an

outdoor patient, are reimbursable. Therefore, the issue no. 3 is

answered in the affirmative.

21. As regards the fourth issue regarding applicability of the

Madras rates and Delhi rates, I do not find any reason of dispute.

The fact that the treatment was taken at Delhi is sufficient to

conclude that the rates shall be applicable as per the place

where the hospital is situated, i.e. Delhi rates. Merely because

the petitioner was transferred to the Chennai office would not

mean that the rates of CT scan as applicable at Chennai should

be applied. Therefore, the answer to the fourth issue is that the

rates as per Delhi shall be applicable for reimbursement of

expenses incurred on the CT Scan.

22. When a Government employee puts forth a bona fide claim

for reimbursement of his medical bill, it should not be taken

lightly and the approach of the Government in such matters

should be justice oriented. Such claims should be treated in a

humanitarian manner keeping in mind the totality of

circumstances. In view of the foregoing, I feel that EIC by its

arbitrary approach made the petitioner to suffer not merely the

agony of withholding the medical expenses, which were

reimbursable, under the guise of ceiling limit but also made him

go through the tribulation of litigation.

23. As discussed above, the judgment relied upon by the

counsel for the respondents is of no assistance to respondents in

the facts of the present case.

24. At this stage, it is made clear that the decision in the

present case is based on the peculiar facts of the present case

and the same shall have no precedential value.

25. In view of the foregoing discussion, the impugned orders

dated 19/7/2004; 29/7/2004 and 30/7/2004 are hereby quashed

as being arbitrary. The petitioner is directed to approach the

respondent Council with his claims with proper documentation

and the respondent Council is directed to reimburse the entire

claim in the light of this order. The respondent Council shall give

effect to the above by making medical reimbursement within one

month from today.

26. Petition stands allowed in the above terms.

23rd March, 2009                          KAILASH GAMBHIR, J.

pkv