Binod Kumar Lal vs The State Of Jharkhand Through The ...
2021 Latest Caselaw 297 Jhar

                                               1                     W.P. (S) No. 3331 of 2019


                   IN THE HIGH COURT OF JHARKHAND AT RANCHI
                              W.P. (S) No. 3331 of 2019
                  Binod Kumar Lal, aged about 63 years, Son of Late Lakshmi Narayan
                  Lal, Resident of Flat No. 1 C, Sri Chandra Apartment, Aryapuri, Near
                  TV Tower, Ratu Road, P.O. Ranchi, P.S. Sukhdev Nagar, District- Ranchi
                                                                    ... Petitioner
                                            -Versus-
             1.   The State of Jharkhand through the Chief Secretary, Govt. of
                  Jharkhand, Ranchi, Project Building, H.E.C. Township, P.O. & P.S.
                  Dhurwa, District- Ranchi
             2.   The Secretary, Personnel, Administrative Reforms & Rajbhasha
                  Department, Govt. of Jharkhand, Project Building, H.E.C. Township,
                  P.O. & P.S. Dhurwa, District- Ranchi
             3.   The Secretary, Finance Department, Govt. of Jharkhand, Project
                  Building, H.E.C. Township, P.O. & P.S. Dhurwa, District- Ranchi
             4.   The Secretary, Water Resources Department, Nepal House, P.O. & P.S.
                  Doranda, District- Ranchi
             5.   The Secretary, Health, Medical Education & Family Welfare
                  Department, Govt. of Jharkhand, Nepal House, P.O. & P.S. Doranda,
                  District- Ranchi
             6.   The Deputy Secretary, Water Resources Department, Nepal House,
                  P.O. & P.S. Doranda, District- Ranchi
             7.   The Under Secretary, Water Resources Department, Nepal House, P.O.
                  & P.S. Doranda, District- Ranchi                   ... Respondents
                                           -----

             CORAM:      HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI
                                           -----

             For the Petitioner            : Mr. Vikash Kumar, Advocate
             For the Respondent-State      : Mrs. Vandana Singh, Sr. S.C.-III
                                           -----

10/20.01.2021. Heard Mr. Vikash Kumar, learned counsel for the petitioner and

Mrs. Vandana Singh, learned Sr. S.C.-III appearing for the respondent-State.

2. This writ petition has been heard through Video Conferencing in view

of the guidelines of the High Court taking into account the situation arising

due to COVID-19 pandemic. None of the parties have complained about any

technical snag of audio-video and with their consent this matter has been

heard on merit.

3. The petitioner has preferred this writ petition for quashing the letter

dated 07.02.2017 and letter dated 09.04.2019, contained in Annexures 9

and 12 respectively, whereby, the claim of the petitioner for medical and

travelling allowances has been turned down on the ground that medical

allowance is not admissible in case of being outdoor patient. The further

prayer is made for direction to the respondents to pay the medical and

travelling allowances to the petitioner for the period since 10.08.2010 to

21.08.2010, 17.10.2010 to 03.11.2010, 06.04.2011 to 08.04.2011,

15.09.2012 to 19.09.2012 and 04.09.2013 to 06.09.2013.

4. The petitioner was appointed as Secretariat Assistant in the office of

the Divisional Commissioner, South Chotanagpur Division, Ranchi. He

submitted his joining on 18.08.1984. The petitioner was confirmed in

service on 18.08.1986. The petitioner passed the departmental examination

in the year 1988 and 1990 respectively. The petitioner was promoted to the

post of Section Officer in the office of the Chief Engineer, Water Resources

Department, Ranchi on 01.07.2008. He was further promoted to the post of

Under Secretary on 15.05.2012 and to the post of Deputy Secretary on

21.03.2015 in the Water Resources Department, Government of Jharkhand,

Ranchi and to the post of Joint Secretary on 21.04.2016 in the Industry,

Mines and Geology Department, Government of Jharkhand, Ranchi. He

retired from the said post on 30.04.2016. While the petitioner was posted as

Section Officer in the office of the Chief Engineer, Water Resources

Department, Ranchi, her daughter namely Ms. Vandana Lal faced eye vision

problem and she was examined in the Eye Department of Rajendra Institute

of Medical Sciences (RIMS), Ranchi on 28.07.2010. She was referred for

proper treatment either at All India Institute of Medical Sciences (AIIMS),

New Delhi or at Shankar Netralaya, Chennai by the RIMS and by the Medical

Board of the State Government at RIMS, Ranchi. The said recommendation

of the RIMS and the Medical Board of the State Government are annexed as

Annexure-1 Series to the writ petition. The petitioner took her daughter to

Shankar Netralaya, Chennai for her higher treatment from 10.08.2010 to

21.08.2010. The said treatment was followed by a second round of

treatment from 17.10.2010 to 03.11.2010. The second round of treatment

was done after prior information to the Department, for which, approval

was issued post facto vide letter dated 30.03.2011, wherein, it was

indicated that travelling and medical allowances are payable for to and fro

along with one attendant. The further treatment was done from 06.04.2011

to 08.04.2011, since 15.09.2012 to 19.09.2012 and since 04.09.2013 to

06.09.2013 in the Shankar Netralaya, Chennai. The document annexed as

Annexure-3 Series suggests that the daughter of the petitioner was

suffering from acute vision problem. The third round of trip of such

treatment was from 06.04.2011 to 08.04.2011. The petitioner informed the

department by way of filing representation dated 01.04.2011. The fourth

round of trip of such treatment was from 15.09.2012 to 19.09.2012, which

was also informed to the department by the petitioner vide representation

dated 05.09.2012. The fifth round of trip of such treatment was from

04.09.2013 to 06.09.2013, which was also informed to the department by

the petitioner vide representation dated 22.08.2013. At the end of each trip,

the petitioner submitted the medical bill duly counter signed by the

Department head of Eye, Shankar Netralaya, Chennai and claimed for

travelling and medical allowances for the same. The Water Resources

Department, Government of Jharkhand, Ranchi vide letter dated 30.01.2014

approved the allowances of Rs.8,646/- only for travelling and medical

allowances as post facto sanctioned. The rest of the amount claimed by the

petitioner has not been settled and it was rejected vide letters dated

07.02.2017 and 09.04.2019. Aggrieved with this, the petitioner has

approached this Court for quashing those rejection orders and for direction

to the respondents for payment of medical bill and rest of the travelling

allowances.

5. Mr. Vikash Kumar, learned counsel for the petitioner submits that the

petitioner's daughter was suffering from acute vision problem and that is

why the medical team of the RIMS has recommended for higher treatment

either in AIIMS, New Delhi or in Shankar Netralaya, Chennai. He further

submits that as per the Scheme for medical reimbursement, the said

hospital i.e. Shankar Netralaya, Chennai is in the list. He also submits that

the Medical Board has already recommended for higher treatment and,

therefore, the petitioner represented before the respondents for release of

the medical reimbursement and travelling allowance, made during the

treatment of the petitioner's daughter. He further submits that only on the

ground of outdoor patient, the said bill has been refused by the

respondents, which is not the spirit of the Scheme. He also submits that it

was not the fault of the daughter of the petitioner that she has not been

admitted in the hospital and being treated as outdoor patient. He further

submits that the case of the petitioner is covered in view of the order

passed by a coordinate Bench of this Court in W.P. (S) No. 4163 of 2017,

which was disposed of vide order dated 07.12.2018, whereby, the claim of

the petitioner of that case was allowed.

6. Per contra, Mrs. Vandana Singh, learned Sr. S.C.-III appearing for the

respondent-State submits that in view of the Scheme, the outdoor patients

are not entitled for the medical reimbursement. However, they are entitled

for travelling allowance only and the travelling allowance in favour of the

petitioner has already been settled. She further submits that as per

Clause 2, wherein, the name of the institutions are disclosed i.e. with regard

to the indoor patient and it is not for outdoor patient. She also submits that

in view of these facts, the case of the petitioner has been rightly considered

by the respondent-State. She relied upon the judgment rendered by the

Hon'ble Supreme Court in the case of State of Karnataka v. R.

Vivekananda Swamy, reported in (2008) 5 SCC 328 and submits that

the Hon'ble Supreme Court has held that in view of the rules, the payments

are required to be made.

7. Paragraphs 24 and 25 of the said judgment are quoted herein below:

"24. In view of the aforementioned settled principles of law there cannot be any doubt that the Rules regarding reimbursement of medical claim of an employee when he obtains treatment from a hospital of his choice can be made limited. Such Rules furthermore having been framed under the proviso to Article 309 of the Constitution of India constitute conditions of service in terms whereof on the one hand the employee would be granted the facility of medical aid free of cost from the recognised government hospitals and on the other he, at his option, may get himself treated from other recognised hospitals/institutions subject of course to the condition that the reimbursement by the State therefor would be limited.

25. In the Karnataka case, however, it is necessary to take into consideration the provisions of Rule 31 of the 1963 Rules which confers an unequivocal power of relaxation on the authorised authorities specified therein. A public authority may exercise its power of relaxation only where there exists a provision therefor. (See Kendriya Vidyalaya Sangathan v. Sajal Kumar Roy and Pitta Naveen Kumar v. Raja Narasaiah Zangiti.) It, however, goes without saying that while exercising such a power, the authority must act judiciously keeping in mind the purport and object thereof. Considerations therefor, although may not partake a mathematical exactable but should always be fair and reasonable. Although it may not be possible for an employee to enforce a purported right on the premise that another person had obtained reimbursement for a similar kind of treatment, ordinarily fair procedure envisages a broad similarity. If any person has been shown any undue favour, we may add, this by itself may not be a ground to favour another but when such a contention is raised, the State should be able

to demonstrate a fair treatment. It is possible to draw a distinction on the basis of several factors, emergent situation being one of them. So viewed, we do not find that the State of Karnataka had acted arbitrarily."

8. In view of the above submissions of the learned counsel for the

parties, the Court has gone through the material on record. It is an

admitted fact that the petitioner was an employee of the Government of

Jharkhand and during the service period, her daughter was having eye

vision problem and that is why she was being treated in the RIMS, Ranchi.

The Medical Board constituted for the ailment of the petitioner's daughter

came to the conclusion that she requires treatment in higher centers and

the Medical Board recommended the case of the petitioner's daughter for

treatment either in AIIMS, New Delhi or in Shankar Netralaya, Chennai.

Thereafter, the Department has also approved medical allowances of

Rs.8,646/- of the petitioner for treatment as post facto sanctioned. The

information was provided to the State, whenever the treatment was

required to be made at Shankar Netralaya, Chennai. The department of

Shankar Netralaya at its own wisdom decided to treat the petitioner's

daughter as outdoor patient. The hospital decided not to admit the

daughter of the petitioner for such treatment. It is an admitted position that

for five times, the petitioner has travelled to Chennai for treatment of her

daughter. On perusal of the Scheme, it transpires that in view of Clause-2,

Shankar Netralaya, Chennai is in the list for treatment of the employees or

their relatives. After carefully perusing Clause-2 of the Scheme, it transpires

that there is no embargo of treatment to outside the State's hospital either

for indoor or outdoor patient. Clause 6 of the said Circular said that outdoor

patient will not be allowed to medical reimbursement, however they will be

provided travelling allowance. The document requires to be read in terms of

its intention and required to be read in its entirety. On perusal of Clause-2

of the Scheme, it transpires that there is no embargo of treatment for

outdoor patient, but it should be done outside the State's hospital. In the

case in hand, the said hospital is in the list of treatment to outside the

State's hospital. Thus after reading Clause-2, it cannot be said that in view

of Clause-6 the said amount cannot be released in favour of the petitioner.

9. It is a common knowledge that with rapid advancement in medical

science, a number of specialised medical institutions are coming up. This is

happening more in private sector and Government institutions, somehow,

are not able to compete for various reasons. If the best possible treatment

is available only in Private Sector and if the petitioner had no other option

but to avail such facilities for his daughter, medical reimbursement cannot

be denied only on the ground that the medical allowance is not admisible in

the case of being outdoor patient. After going through the Scheme, it

transpires that the intention of the Scheme is to reimburse medical

expenses as well as travelling allowance to its employees.

10. Mrs. Vandana Singh, learned Sr. S.C.-III appearing for the respondent-

State tried to distinguish the order relied by the learned counsel for the

petitioner passed by a coordinate Bench of this Court in W.P. (S) No. 4163

of 2017, dated 07.12.2018 on the ground that the petitioner of that writ

petition was being treated for Kidney ailment and by considering Clause-6 of

the circular, the coordinate Bench of this Court has issued direction for

payment that too there was opinion of the Medical Board that Pre-

Transplant dialysis treatment and investigation are part of the treatment of

Chronic Kidney Diseases.

11. It is one aspect of the matter. However, in the present case the case

of the petitioner was examined by the expert of the Medical Board of the

RIMS, Ranchi. The Medical Board has recommended the case of the

petitioner's daughter for treatment to higher center. Thus, the distinguishing

factor is not coming in the way of the case, as submitted by the learned

counsel for the respondent-State. In the judgment relied by the learned

counsel for the respondent-State in the case of State of Karnataka (supra),

the Hon'ble Supreme Court was examining the issue of power of relaxation

of the authority concerned and in that case some undue favour was made

by the State to a particular employee and that was interpreted in paragraph

25 of the said judgment by the Hon'ble Supreme Court. One of the

distinguishing facts in State of Karnataka (supra) is also there. In view of

the fact that in the case of State of Karnataka (supra), the Hon'ble Supreme

Court held that rules framed under the proviso to Article 309 of the

Constitution of India constitute conditions of service in terms whereof on

the one hand the employee would be granted the facility of medical aid free

of cost from the recognised government hospitals and on the other, he at

his opinion may get himself treated from other recognised hospitals.

However, Article 309 is not involved in the case in hand.

12. Article 21 of the Constitution of India imposes an obligation on the

State to safeguard the right to life of every person. Preservation of human

life is thus of paramount importance. The government hospitals run by the

State and the Medical Officers employed therein are duty bound to extend

medical assistance for preserving human life. Failure on the part of a

government hospital to provide timely medical treatment to a person in

need of such treatment results in violation of his right guaranteed under

Article 21 of the Constitution of India. In a welfare State, it is the obligation

of the State to ensure the creation and the sustaining of conditions

congenial to good health. Every organ of human life is important for leading

a normal life. It is an admitted position that in the case in hand, the

petitioner's daughter was suffering from acute vision problem. The Hon'ble

Supreme Court has interpreted Article 21 of the Constitution of India in the

case of Assn. of Medical Superspeciality Aspirants & Residents v.

Union of India, reported in (2019) 8 SCC 607. Paragraphs 22, 25 and 26

of the said judgment are quoted herein below:

"22. Article 21 of the Constitution of India imposes an obligation on the State to safeguard the right to life of every person. Preservation of human life is thus of paramount importance. The government hospitals run by the State and the Medical Officers employed therein are duty-bound to extend medical assistance for preserving human life. Failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right guaranteed under Article 21 of the Constitution. Therefore, in a welfare State it is the obligation of the State to ensure the creation and the sustaining of conditions congenial to good health.

xxx xxx xxx

25. It is for the State to secure health to its citizens as its primary duty. No doubt the Government is rendering this obligation by opening government hospitals and health centres, but in order to make it meaningful, it has to be within the reach of its people, as far as possible, to reduce the queue of waiting lists, and it has to provide all facilities to employ best of talents and tone up its administration to give effective contribution, which is also the duty of the Government.

26. Right to health is integral to the right to life. Government has a constitutional obligation to provide health facilities. The fundamental right to life which is the most precious human right and which forms the ark of all other rights must therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may endure for years to come and enhance the dignity of the individual and the worth of the human person. The right to life enshrined in Article 21 cannot be restricted to mere animal existence. It means something much more than just physical survival. The right to life includes the right to live with human dignity and all that goes along with it, namely, the bare necessaries of life such as adequate nutrition, clothing and shelter, and facilities for reading, writing and expressing

oneself in diverse forms, freely moving about and mixing and commingling with fellow human beings. Every act which offends against or impairs human dignity would constitute deprivation pro tanto of this right to live and the restriction would have to be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights."

13. It has been held in paragraph 11 of the judgment rendered by the

Hon'ble Supreme Court in the case of Surjit Singh v. State of Punjab

and Others, reported in (1996) 2 SCC 336, which is quoted herein

below:

"11. It is otherwise important to bear in mind that self- presentation 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 recognized 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 saadheyet 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 On 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. In view of these discussions, the Court comes to a conclusion that

there is no embargo in releasing the medical allowance and travelling

allowance to the petitioner in view of the Scheme, contained in Annexure-A

of the counter affidavit, filed by the respondent-State. Clause 2 of the said

Scheme is very clear that for treatment outside the State in the empanelled

hospitals, the employees are entitled for medical reimbursement as well as

travelling allowance.

15. As a cumulative effect of the aforesaid facts, the impugned orders

dated 07.02.2017 and 09.04.2019, contained in Annexures-9 and 12

respectively are quashed. The respondent-State is directed to release

remaining amount of medical reimbursement and travelling allowance in

favour of the petitioner, within a period of twelve weeks from the date of

receipt/production of a copy of this order.

16. With the above observations and directions, this writ petition stands

allowed and disposed of.

(Sanjay Kumar Dwivedi, J.) Ajay/