Gujarat High Court
The State Of Gujarat Thru The ... vs Gulamkadar Kasambhai Shaikh on 9 October, 2023
Bench: N.V.Anjaria
NEUTRAL CITATION
C/LPA/1284/2023 ORDER DATED: 09/10/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1284 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 6345 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2023
In R/LETTERS PATENT APPEAL NO. 1284 of 2023
==========================================================
THE STATE OF GUJARAT THRU THE PRINCIPAL SECRETARY
Versus
GULAMKADAR KASAMBHAI SHAIKH
==========================================================
Appearance:
MS SHRUTI DHRUVE, AGP for the Appellant(s) No. 1,2,3
for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
and
HONOURABLE MS. JUSTICE NISHA M. THAKORE
Date : 09/10/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE N.V.ANJARIA)
Heard learned Assistant Government Pleader Ms.
Shruti Dhruve for the appellant State and its
authorities.
2. This Letters Patent Appeal under clause 15 of
the Letter Patent is directed against the judgment
and order dated 18.07.2022 of learned Single Judge.
The State is aggrieved since learned Single Judge
allowed the Special Civil Application of the
respondent-original petitioner directing the
respondents to reimburse the amount of Rs.
1,14,656/- with 9% interest, which was towards
NEUTRAL CITATION
C/LPA/1284/2023 ORDER DATED: 09/10/2023
undefined
reimbursement of medical expenses claimed by the
petitioner.
3. In the main petition filed under Article 226
of the Constitution, following prayer was made,
(i) To direct the respondents to reimburse the
balance differential amount towards the
medical expenditure for Heart Surgery
(Angioplasty Double Vessel with Stand (PTCA))
to the tune of Rs.1,14,656/- along with
interest.
3.1 The petitioner retired from Government service
as driver on 01.08.2018. It is the case of the
petitioner that during his tenure of service, he
suffered heart ailment in May 2018 and underwent
necessary treatment at Rajasthan Hospital at
Ahmedabad, which is an approved hospital by the
Government of Gujarat. The petitioner underwent
surgery of angioplasty double vessel with stent
(PTCA). The petitioner was admitted on 19.05.2018
and discharged on 23.05.2018, during which period
the total medical expenses incurred by the
petitioner was Rs.1,76,757.86.
3.2 Spending of the amount towards medical
treatment stands verified as the petitioner has
produced on record the medical bill, discharge
summary and other relevant papers including receipt
NEUTRAL CITATION
C/LPA/1284/2023 ORDER DATED: 09/10/2023
undefined
of the amount paid.
3.3 By order dated 07.07.2018, respondent no.2-
Director of Information-employer of the petitioner,
reimbursed only Rs. 61,100/- disapproving rest of
the amount for reimbursement.
4. Learned Single Judge also relied on the
decision of the Supreme Court in K.P. Singh vs.
Union of India [(2001) 10 SCC 167] as also in Shiv
Kant Jha vs. Union of India[(2018) 16 SCC 187]. In
the said decision, the Supreme Court directed the
respondents to reimburse the amount even though the
treatment was taken at the hospital, which was not
approved by the State Government.
4.1 Learned Single Judge inter alia relied on the
decision of this Court in Chandrakant Kantilal Dave
vs. State of Gujarat, through Chief Secretary,
which was Special Civil Application No. 2736 of
2013, decided on 18.09.2018.
4.2 The stand of the respondents before learned
Single Judge was that a person is entitled to
reimbursement of medical bills, subject to the
condition that the treatment is taken at empanelled
hospital. It was also the contention of the
respondent that the reimbursement could be done
only as per package as per the Gujarat Civil
NEUTRAL CITATION
C/LPA/1284/2023 ORDER DATED: 09/10/2023
undefined
Service (Medical Treatment) Rules and as per the
Schedule and in case of Intervention Cardiology
(PTCA Stent), Rs. 62,100/- was liable towards
reimbursement, which was granted.
5. In Surjit Singh vs. State of Punjab and Others
(AIR 1996 SC 1388), it was in terms observed and
held that the government cannot insist an employee
to get himself treated at a recognised government
institution and also cannot require him to claim
the rates prevailing there only. The Supreme Court
endorsed the views expressed by this Court which
stated that in an emergent situation, the employee
cannot be expected to think coolly of a hospital
which may be a recognised hospital.
5.1 The Supreme Court stated that self
preservation is part of Article 21 of the
Constitution,
"It is otherwise important to bear in mind
that self preservation 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 self-preservation has a
species in the right of self defence in
criminal law. Centuries ago thinkers of this
Great Land conceived of such right and
recognised it. Attention can usefully be drawn
to versus 17 18, 20, and 22 in Chapter 16 of
the Garuda Purana (A Dialogue suggested
NEUTRAL CITATION
C/LPA/1284/2023 ORDER DATED: 09/10/2023
undefined
between the Divine and Garuda, the bird) in
the words of the Divine:"
5.2 In Shiv Kant Jha (supra), it was observed,
"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
Specialty 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
NEUTRAL CITATION
C/LPA/1284/2023 ORDER DATED: 09/10/2023
undefined
petitioner forcing him to approach this
Court."
(para 13)
5.3 Learned Single Judge noticed that in
Chandrakant Kantilal Dave (supra), the petitioner
had undergone bypass surgery at SAL Hospital and
was reimbursed only Rs. 66,000/-. The Court
granted relief by directing reimbursement of the
remaining expenses.
6. In the present case, the factum of ailment and
factum of taking treatment by the petitioner is not
in dispute. The petitioner was required to undergo
angioplasty. The right to be reimbursed for the
medical treatment is a right akin to fundamental
right of the Government servant. It is concomitant
to right under Article 21 of the Constitution.
Learned Single Judge has rightly granted the
relief.
6.1 No interference is called. The impugned
judgment and order of learned Single Judge granting
relief to the petitioner directing the respondent
authorities to reimburse the balance amount of
medical expenses incurred by the petitioner book no
error whatsoever.
7. This Letters Patent Appeal is dismissed.
Civil Application would not survive and shall
NEUTRAL CITATION
C/LPA/1284/2023 ORDER DATED: 09/10/2023
undefined
stand disposed of in view of dismissal of the
Letters Patent Appeal.
(N.V.ANJARIA, J)
(NISHA M. THAKORE,J)
BIJOY B. PILLAI
