Jammu & Kashmir High Court - Srinagar Bench
Jameel Ahmad Nawab vs Union Territory Of Jammu And ... on 26 May, 2023
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT SRINAGAR
WP (C) No. 1003/2022
CM No. 2507/2022
Reserved On:19th of March, 2023
Pronounced On: 26th of May, 2023
Jameel Ahmad Nawab
... Petitioner(s)
Through: -
Mr Mufti Javeed Ahmad, Advocate.
V/s
Union Territory of Jammu and Kashmir & Ors.
... Respondent(s)
Through: -
Mr Jehangir Ahmad Dar, Government Advocate.
CORAM:
Hon'ble Mr Justice Rajnesh Oswal, Judge.
(JUDGMENT)
01. The wife of the petitioner fell sick and was admitted in
SKIMS, Soura, Srinagar for specialized treatment and during the course of
her treatment, the doctor declared the wife of the petitioner to be suffering
from 'Rt/CA Aneurysm 8x7 mm involving cavernolds segmented'. As the
disease was detected during the COVID period, a referral letter dated 25th of
November, 2020 was issued by the Department of Neurosurgery, SKIMS,
Soura, Srinagar for getting treatment outside the Union Territory of Jammu
and Kashmir in AIIMS, New Delhi/ PGI, Chandigarh/ GB Pant, Delhi or
any other JK Government listed hospital. As the wife of the petitioner was
suffering from a chronic disease requiring immediate attention, the
petitioner was constrained to admit her in Narayana Super Speciality
hospital, Phase-II, Sector 25, Gurugram, Haryana so as to ensure safety of
the patient. She was operated upon in the said hospital and remained
admitted there w.e.f. 2nd of December, 2020 till 9th of December, 2020 and
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CM No. 2507/2022
during that period, she was operated upon 3rd of December, 2020. The
petitioner spent Rs. 9,62,154/- on the treatment of his wife. After the
petitioner came back and joined his duties, he approached his department
for reimbursement of the claim after fulfilling all the necessary pre-
requisites. The petitioner approached his immediate officer for the
reimbursement of the medical claim, supported by the relevant and
necessary documents/ vouchers/ certificates etc., which was duly forwarded
by the office of the Assistant Executive Engineer concerned to respondent
No.4 vide communication dated 29th of March, 2021. The respondent No.4,
thereafter, vide communication dated 29th of September, 2021, forwarded
the medical reimbursement claim of the petitioner, along with the necessary
vouchers, to the respondent No.3, with the request that funds to the tune of
Rs.9,62,154/- may be allotted and placed at the disposal of the respondent-
division to meet out the claim of the petitioner. The petitioner was also
directed to share information about the 'Golden Card' and as per the
certificate issued by the Block Medical Officer concerned, it was
established that the petitioner had not applied for 'Golden Card' and had
not utilized any service under the Prime Minister's JAY Scheme. Vide
communication dated 1st of February, 2022, the Technical Officer with
District Superintending Engineer, Hydraulic, Srinagar/ Ganderbal,
Headquarter Srinagar, returned the medical claim of the petitioner in
original to respondent No.4 with the remarks that as conveyed by the Chief
Engineer, Kashmir, the claim is not covered under the Jammu and Kashmir
Medical Attendance-cum-Allowance Rules, 1990 (for short 'the Rules of
1990'), but no reason was assigned in respect of the rejection of the claim.
The petitioner submitted a representation to the respondent No.4, thereby
mentioning in detail the reasons which prompted the petitioner to avail
medical treatment in a private hospital and simultaneously, the petitioner
also brought the judgments passed by this Court to the notice of respondent
No.4, however, as the respondents did not take any decision with regard to
the representation so made by the petitioner, the petitioner filed the present
writ petition before this Court for directing the respondents to allow the
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CM No. 2507/2022
medical reimbursement claim of the petitioner and release the payment in
his favour.
02. The writ petition has been filed on the ground that the
provisions of the Rules of 1990 are not so rigid, hard and harsh so as to
reject the claim of reimbursement inasmuch as Rule 8 provides for the
relaxation of the Rules in case the Rules cause undue hardship in a
particular case. It is also contended that the petitioner is a low paid
employee and has spent the amount after disposing off his valuable articles
and that the rules are required to be relaxed in the instant case because of
the peculiar facts and circumstances of the case.
03. The respondents have filed their reply, wherein it is stated that
the only reason for rejection of the claim of the petitioner is that the
reimbursement claim of the petitioner is not covered under the Rules of
1990 as Narayana Super Specialty Hospital, Gurugram, Haryana is not a
listed private hospital.
04. Learned Counsel for the petitioner submitted that the
respondents have not denied the factum of the treatment obtained by the
wife of the petitioner in Narayana Super Specialty Hospital, Gurugram,
Haryana and that, though, it is a fact that Narayana Super Specialty
Hospital, Gurugram, Haryana is not an enlisted hospital in terms of Rule 6
(a) of the Rules of 1990, but, at the same time, the power is vested with the
Government to relax the requirement of Rules, if the Rules are causing
undue hardship to the beneficiary concerned.
05. Per Contra, Mr Jehangir Ahmad Dar, the learned Government
Advocate, appearing on behalf of the respondents, vehemently argued that
despite the fact that the petitioner was asked to get the treatment of his wife
from a hospital mentioned in the referral order, still the petitioner obtained
the treatment of his wife from a private hospital, therefore, under the rules
of 1990, the claim of the petitioner is not maintainable.
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CM No. 2507/2022
06. Heard and perused the record.
07. The status of the petitioner is not denied and it is also not
denied that the wife of the petitioner obtained treatment for a disease which
she was suffering from. The only ground on which the claim of the
petitioner has been rejected is that the hospital from which the treatment
was obtained by the wife of the petitioner was not an enlisted hospital in
terms of Rule 6(a) of the Rules of 1990. It is also an admitted fact that when
the treatment was obtained by the wife of the petitioner, there was COVID-
19 Pandemic. The petitioner is a low paid employee and is at the verge of
retirement. This is a fit case where the respondents can relax the operation
of the Rules as the operation of the same is causing unwarranted and undue
hardship to the petitioner.
08. The case projected by the petitioner is also covered by a
judgment passed by this Court in the case titled 'Monica Pathania v.
Jammu and Kashmir Economic Reconstruction & Ors.', bearing SWP
No. 1062/2016, decided on 26th of April, 2023, wherein it has been
observed as under:
"11. In order to appreciate the controversy, the rule 6(5)
of the J&K Civil Services (Medical Attendance-cum-
Allowance) Rules 1990 is reproduced as under:
'Treatment outside the State:- Where a beneficiary
resides temporarily outside the State and falls ill there suddenly
and is advised admission in a hospital, he will, on production of
necessary vouchers and certificates, be allowed reimbursement
of hospital charges including cost of drugs and charges for
investigation, provided it is recommended by the director Health
Services of the State after being satisfied that the beneficiary
had suddenly fallen ill outside the State where he resides
temporarily and was not already suffering from it before his
departure from his home town. The Director Health Services
will certify that drugs and services charged for are reasonable
and the beneficiary could not wait for treatment in his home
town.'
12. A perusal of this rule would provide that if a
beneficiary resides temporarily outside a State and falls ill there
suddenly and is advised admission in a hospital, he will, on the
production of necessary vouchers and certificates, be allowed
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CM No. 2507/2022
reimbursement of hospital charges including cost of drugs and
charges for investigation provided that it is recommended by the
Director Health Services of the State. These rules envisage a
situation where the employee or his dependent falls ill outside
the State suddenly and requires treatment in the hospital. So far
as the present case is concerned, the case of the petitioner is that
she went outside the State for a private visit along with her
husband and suddenly her husband who was dependent upon
her, fell seriously ill that necessitated his treatment in the
Hospitals at Nagpur and Hyderabad. The respondents in their
response have nowhere denied the stand of the petitioner that
the petitioner along with her husband had not gone outside the
State for the purpose of getting treatment of her husband
deliberately. The Rule 6(5) envisages an emergent situation
when it may not be possible for an employee-beneficiary to get
a sanction for treatment outside the State. In view of this, this
Court is of the considered view that the respondents could not
have rejected the claim of the petitioner just because the
petitioner had got her husband treated outside the State without
prior permission of the respondents.
13. It would also be appropriate to take note of the
judgment of the Division Bench of this Court in "State of J&K
Vs. Dr. Sakhi Willayat" (Supra) wherein it has been held that if
an employee or his dependent falls ill outside the state and
requires treatment in the hospital, rules suggest that the
vouchers/claim for reimbursement can be permitted though after
fulfilling the requirement as contained in the Rules and it has
been further held that this rule has been enacted with a purpose
that in such situation, it may not be convenient for the employee
to first obtain sanction and then to proceed for treatment. It is
also further observed by the Division Bench that such type of
cases are required to be dealt with the element of human
approach. In the instant case, the genuineness of the claim of the
petitioner has been certified and verified by the Director Health
Services.
14. The other ground for rejection of the claim of the
petitioner for reimbursement of the medical expenses is that the
hospitals from where the treatment was obtained were not
covered under the J&K Civil Services (Medical Attendance-
cum-Allowance) Rules 1990. This is an admitted case that the
hospitals where the husband of the petitioner was treated were
not the approved hospitals under the Rules (supra). It would be
relevant to take note of the Rule 8 of the J&K Civil Services
(Medical Attendance-cum-Allowance) Rules 1990 which is
reproduced here under:
'Right of changing or interpretation etc-
(1) The Government reserves to itself the right of
changing or cancelling the rules in these regulations from time
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CM No. 2507/2022
to time at its discretion and of interpreting their meaning in case
of dispute.
(2) Power to relax: Where the Government is satisfied
that the operation, if any, of these rules has caused undue
hardship in particular case, it may, by order for reasons to be
recorded in writing dispense with or relax the requirements of
that rule to such extent and subject to such exception and
conditions as it may consider necessary for dealing with the case
in a just and equitable manner; Provided that no such order shall
be made except the concurrence of the Finance Department.'
15. Thus rule 8(2) of the Rules (Supra) vests the power
with the Government to relax the rules in case the operation of
the Rules cause undue hardship in a particular case. The power
of relaxation of the Rules has been vested with the Government
not for the purpose of adorning the "Rule Book" only but for its
exercise in genuine cases, where the strict adherence to the
Rules would operate harshly against the beneficiary. In the
instant case, the petitioner who was admittedly a contractual
employee at the relevant point of time and her husband was
dependent upon her and further because of emergent medical
situation, when she was out for private tour along with her
husband, she spent huge expenditure on the treatment of her
husband, itself demonstrate the pathetic case of the petitioner.
The respondents were well within their power to relax these
rules under Rule (Supra) to reimburse the medical claim of the
petitioner for treatment obtained outside the State from hospitals
which were not in the list of the approved hospitals. In such type
of situation, humane view was required to be taken while
considering the claim of the petitioner. It appears that the
respondents have passed the order impugned, rejecting the claim
of the petitioner for reimbursement of medical expenses
incurred by her on the treatment of her husband being oblivious
to the rules.
16. In 'Badar Hussain vs. State of J& K' bearing SWP
No. 2097/2013 decided by the co-ordinate Bench of this court
on 17.05.2017, the Government relaxed the rules and allowed
the reimbursement of the claim of the petitioner for expenses
incurred on the medical treatment of his son to the extent of
rates applicable in PGI Chandigarh. In that case, the son of the
petitioner was treated in a hospital, which was not in the
approved list of Hospitals. The learned writ court allowed the
writ and quashed the order to the limited extent of restriction
placed upon the amount of reimbursement. The said order was
challenged in appeal titled "Union territory of J&K and others
versus Bader Hussain‟ bearing No. CDLSW No. 8/2018, which
though was dismissed on 24.02.2020 on account of delay but it
was observed by the Division Bench that even in absence of
name of Appolo Hospital Ludhiana in 10 SWP No. 1062/2016
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CM No. 2507/2022
the Rules, the claim for reimbursement cannot be denied on the
ground that it is not one of the approved Hospitals."
09. Having regard to the peculiar facts and circumstances of the
case, coupled with the mandate of law, as discussed hereinabove, this
petition is allowed and the respondents are directed to consider the claim of
the petitioner for reimbursement of medical expenditure in accordance with
the spirit of the rules and pass fresh orders in light of the judicial precedents
mentioned hereinabove within a period of two months from the date a copy
of this order is served upon the respondents.
10. Disposed of as above, along with the connected CM(s).
(Rajnesh Oswal)
Judge
SRINAGAR
May 26th, 2023
"TAHIR"
Whether the Judgment is reportable? Yes.
