Jharkhand High Court
The State Of Jharkhand Through The ... vs Jagat Narayan Mishra on 29 August, 2023
1 L.P.A. No. 214 of 2020
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 214 of 2020
With
I.A. No. 3718 of 2020
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1. The State of Jharkhand through the Secretary, Department of Industry,
Governmetn of Jharkhand, Nepal House, Doranda, P.O. & P.S. Doranda,
District-Ranchi.
2. The Principal Secretary, Department of Health, Medical Education and
Family Welfare, Government of Jharkhand, Nepal House, Doranda, P.O. &
P.S. Doranda, District-Ranchi.
3. The Director, Directorate of Industry Government of Jharkhand, Nepal
House, Doranda, P.O. & P.S. Doranda, District-Ranchi.
4. The Deputy Director cum Regional Director, North Chotanagpur Division,
P.O., P.S. & District-Hazaribagh.
5. The General Manager, District Industries Center, Hazaribagh, P.O. & P.S.
Hazaribagh, District Hazaribagh.
... ... Appellants/Respondents
Versus
Jagat Narayan Mishra, son of Late Ram Ashish Mishra, resident of Prem
Nagar Colony, Sindur, P.S. Sadar, P.O. & District Hazaribagh, PIN-825301.
... ... Respondent/Petitioner
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE NAVNEET KUMAR
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For the Appellants : Mr. J.F. Toppo, GA-V
Mr. Ajit Kumar, AC to GA-V
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ORAL JUDGMENT
07/Dated: 29th August, 2023
Per Sujit Narayan Prasad, J.
I.A. No. 3718 of 2020:
1. The instant interlocutory application has been filed for condoning the delay
of 254 days which has occurred in filing the instant appeal.
2. The ground has been taken, apart from the movement of file from one place
to another, of Pandemic COVID-19 as would appear from paragraph-8
thereof.
3. The impugned order has been passed by the learned Single Judge on
16.12.2019 and the appeal was filed on 25.06.2020. The lockdown was
inflicted due to COVID-19 from 25.03.2020. The Hon'ble Apex Court has
passed order in sue motu writ petitions being Suo Motu Writ (Cvl) No. 03 of
2020 and Misc. Application No. 21 of 2022, whereby and whereunder, the
period of lockdown has been directed to be kept in arrest.
4. This Court, considering the aforesaid reason, is of the view that the delay in
filing the instant appeal deserves to be condoned.
5. Accordingly, the delay of 254 days in filing the appeal stands condoned and
the instant interlocutory application being I.A. No. 3718 of 2020 stands
disposed of.
L.P.A. No. 214 of 2020:
6. The instant appeal under Clause 10 of the Letters Patent is directed against
the order/judgment dated 16.12.2019 passed by the learned Single Judge of
this Court in W.P.(S) No. 554 of 2016, whereby and whereunder, the claim
of the writ petitioner for reimbursement of the expenditure incurred in the
treatment of the son of the writ petitioner which got rejected vide letter no.
2144 dated 03.08.2015, has been interfered with by quashing and setting
aside the letter dated 03.08.2015 with a direction upon the respondents to
reimburse the medical bills to the writ petitioner within a period of two
months from the date of receipt of copy of the order.
7. The brief facts of the case as per the pleading made in the writ petition
which require to be enumerated herein, read as under:
The writ-petitioner was working as peon in the Office of General
Manager, District Industries Centre, Hazaribagh under the respondent's
department.
It is the case of the writ petitioner that the Government, for
disbursement of medical bills of its employees and their dependents, which
includes son, has laid down a detail procedure vide letter no. 9 dated
29.01.2004 which was notified by the Department of Health regarding
identification of hospitals for the purpose of reimbursement. On 28.05.2005,
the son of the writ-petitioner, namely, Santosh Kumar who is unemployed
and fully dependent upon the writ-petitioner was diagnosed with cardiac
problem and was referred to C.M.C., Vellore for treatment.
The writ-petitioner's son was admitted to C.M.C., Vellore for open
heart surgery and as per the hospital management an estimate of
Rs.2,00,000/- was made for the purpose of cardiac surgery. As the writ-
petitioner was unable to meet the expenses, he made a request for advance
amount for meeting the medical expenses. The writ-petitioner had made
representation before the respondent no. 4 and the said application was duly
forwarded by him along with the estimated amount of the C.M.C., Vellore
for sanction. Though sanction was not done by the Government at
appropriate time, in the emergent situation the petitioner's son undergone for
open heart surgery on 25.01.2011 at C.M.C., Vellore.
Thereafter, immediately after recovery of his son, the writ-petitioner
vide letter dated 09.04.2012 made a representation before the Director of
Industry, Jharkhand for reimbursement of the medical bills, expenses
incurred for cardiac surgery as the son of the writ-petitioner is fully
dependent on him and also unemployed and has no source of income.
In view of a resolution/notification of the State Government, the writ-
petitioner made several requests by way of representation, but, the same was
never adhered to and finally rejected by letter dated 03.08.2015 issued by
the Director Industry, Directorate of Industry, Government of Jharkhand.
Being aggrieved with the same, the writ petitioner preferred writ
petition before this Court being W.P.(S) No. 554 of 2016, wherein, the
learned Single Judge has quashed and set aside the letter dated 03.08.2015
against which the instant appeal has been filed by the respondent-State.
8. It appears from the factual aspect as pleaded in the writ petition as referred
hereinabove that the writ-petitioner was working in the Grade-IV post under
the Industries Department posted in the district of Hazaribagh.
The writ petitioner's son, namely, Santosh Kumar, who during the
relevant time was unemployed and fully dependent upon the writ-petitioner
was diagnosed with cardiac problem and was referred to C.M.C., Vellore for
treatment. The writ-petitioner's son was admitted to C.M.C., Vellore for
open heart surgery and as per the hospital management an estimate of
Rs.2,00,000/- was made for the purpose of cardiac surgery. The writ-
petitioner was unable to meet the expenses, therefore, he made a request for
advance amount for meeting the medical expenses but the State has not
taken any positive steps.
The writ petitioner taking into consideration the emergent situation,
had managed the amount and the son of the writ-petitioner undergone for
open heart surgery on 25.01.2011 at C.M.C., Vellore.
Thereafter, the writ-petitioner made representation before the Director
of Industry, Jharkhand for reimbursement of the medical bills, expenses
incurred for cardiac surgery but the said request was turned down by order
dated 03.08.2015.
The writ-petitioner, being aggrieved with the same, challenged the
same by filing writ petition before this Court being W.P.(S) No. 554 of
2015, wherein, the learned Single Judge after taking into consideration the
fact that there is no barrier, so far as the definition of dependent is
concerned, in the rule applicable on the day when the son of the writ-
petitioner undergone surgery, has quashed and set aside the letter dated
03.08.2016 against which the instant appeal has been filed by the
respondent-State.
9. Mr. Ajit Kumar, learned counsel for the appellant-State has submitted that
the learned Single Judge without appreciating the fact in right perspective
even though as per the policy decision of the State Government as
formulated on 25.10.2014 wherein the dependent has been defined by
making reference therein that the son, up to the age of 25 years, if not
employed and fully dependent upon the parents, then the expenditure
incurred upon the treatment of the son will be reimbursable.
The learned State counsel has submitted that since there is specific
barrier with respect to the definition of the son holding such son entitled for
reimbursement up to the age of 25 years, if not employed and fully
dependent upon the parents, as such, the policy decision was fully applicable
in the facts and circumstances of the case basis upon which the decision was
taken by the authority but the learned Single Judge has not considered the
aforesaid aspect of the matter while interfering with the impugned order.
It has further been contended that there is a rule known as the Secretary
of State Services (Medical Attendance) Rules, 1938, hereinafter referred to
as the Rules, 1938. Learned counsel for the appellant, on the aforesaid
submission, has submitted that the order passed by the learned Single Judge
suffers from error and hence, the same is fit to be quashed and set aside.
10. We have heard the learned counsel for the appellants, perused the
finding/conclusion recorded by the learned Single Judge in the impugned
order as also the pleading of the parties available in the instant memo of
appeal and the writ petition.
11. The core issues herein are:
(i) Whether the son of the writ petitioner, who had crossed the age of 25
years, will be held entitled for the reimbursement of the medical
expenditure;
(ii) Whether the policy decision of the State Government dated
25.10.2014 is applicable in the facts and circumstances of the case
since the expenditure incurred based upon the referral of the medical
board is prior to the policy decision dated 25.10.2014;
(iii) Whether the Rules, 1938 is having any aid to the State in denial of the
said claim of the writ petitioner.
All the three issues are interlinked, therefore, the same are being
decided together. But, before consideration of the aforesaid issues, this
Court deems it fit and proper to refer herein the admitted facts.
12. The writ petitioner was working in the Class-IV post in the Industries
Department posted in the District of Hazaribagh. His son fell ill due to some
cardiac issue. He was treated locally and thereafter, was referred by the
Medical Board for specialized treatment since open heart surgery was
advised. The writ petitioner had carried his son to Chirstian Medical College
and Hospital, Vellore wherein an estimate of Rs. 2 lakhs was given.
Thereafter, the writ petitioner made application for advance but the advance
was not released. The writ petitioner, however, had managed the required
amount and got his son treated and accordingly, open heart surgery was
done.
The writ petitioner, thereafter, had made representation for
reimbursement of the expenditure incurred in the treatment of his son but the
claim was rejected vide order dated 03.08.2015 on the ground that the son of
the writ petitioner had crossed the age of 25 years.
The said decision was challenged by filing writ petition. The learned
Single Judge has quashed and set aside the said order by taking reference of
the Rules, 1938 holding the writ-petitioner entitled for such reimbursement
of medical bills.
The learned Single Judge has discarded the ground taken on behalf of
the State who has relied upon the Central Services (Medical Attendance)
Rules, 1944. The said order is under challenge in this appeal.
13. The main plank of argument of the appellant is that in view of the policy
decision dated 25.10.2014, the writ petitioner is not entitled for medical
reimbursement of the expenditure incurred in the treatment of his son. The
said policy decision stipulates a condition as under para-2 wherein specific
age has been provided for admissibility of the reimbursement of the
expenditure incurred in the treatment, i.e., 25 years, for the son.
14. The question herein is that the policy decision dated 25.10.2014 has been
held to be applicable for the cause of action arose prior to the said policy
decision.
15. The law is well settled that any legislation cannot be implemented with
retrospective effect, however, subject to the condition if legislature itself
intends to do that.
But the said principle is not applicable so far as it relates to the
executive instructions are concerned since the applicability of the
retrospective effect is exclusive domain of the legislature along with the
saving clause therein so as to protect the right of the party concerned in
whose favour the right has been accrued.
So far as the executive instruction is concerned, since the same is being
passed by the State Government in exercise of power conferred under
Article 166(3) of the Constitution of India wherein there is no conferment of
power to come out with the policy decision applying it with retrospective
effect.
Reference regarding the non-applicability of the executive instruction
with retrospective effect needs to be made herein as has been decided by the
Hon'ble Apex Court in P. Mahendran & Ors v. State of Karnataka & Ors,
[(1990) 1 SCC 411], in particular paragraph 5, wherein the Hon'ble
Supreme Court has held as under:
"5. It is well settled rule of construction that every statute or statutory rule is
prospective unless it is expressly or by necessary implication made to have
retrospective effect. Unless there are words in the statute or in the Rules
showing the intention to affect existing rights the rule must be held to be
prospective. If a rule is expressed in language which is fairly capable of either
interpretation it ought to be construed as prospective only. In the absence of
any express provision or necessary intendment the rule cannot be given
retrospective effect except in matter of procedure. The amending Rules of 1987
do not contain any express provision giving the amendment retrospective effect
nor there is anything therein showing the necessary intendment for enforcing
the rule with retrospective effect. Since the amending Rules were not
retrospective, it could not adversely affect the right of those candidates who
were qualified for selection and appointment on the date they applied for the
post, moreover as the process of selection had already commenced when the
amending Rules came into force, the amended Rules could not affect the
existing rights of those candidates who were being considered for selection as
they possessed the requisite qualifications prescribed by the Rules before its
amendment moreover construction of amending Rules should be made in a
reasonable manner to avoid unnecessary hardship to those who have no
control over the subject matter."
Further, the Hon'ble Apex Court in Govind Prasad vs. R.G. Prasad
and Ors., [(1994) 1 SCC 437] has held as under para-11 which reads as
under:
"11. ... It is settled law that an executive order of the Government cannot be
made operative with retrospective effect. It is, thus, clear that the
memorandum contained various proposals which were to be incorporated in
the statutory rules."
16. Herein, the State has only tried to make out a case based upon the policy
decision dated 25.10.2014 which itself suggest that prior to 25.10.2014 there
was no policy available with the State for denial of the claim of the
expenditure incurred in the medical treatment of the son who has crossed the
age of 25 years.
It appears from the policy decision dated 25.10.2014 wherein there is
reference of a policy decision of the Finance Department as contained in
Letter No. 261 dated 29.01.2004.
17. We have also gone through the policy decision dated 29.01.2004 wherein
there is no such stipulation of putting rider for non-admissibility of the
reimbursement of the medical expenditure incurred in the treatment of the
dependent on the ground that the dependent has crossed the age of 25 years.
18. The aforesaid fact about non-availability of any condition in the policy
decision of the Finance Department dated 29.01.2004 is also accepted by the
State.
19. This Court, therefore, is of the view that after bifurcation of the State, the
policy decision has been taken out by the Finance Department under the
domain of the rules of executive business which has been carved out in view
of the provision of Article 166(3) of the Constitution of India under which
the Finance Department has been made a Nodal Department to take a policy
decision regarding the financial implication upon the State Exchequer.
20. The policy decision dated 25.10.2014 since is silent regarding the
inadmissibility of the reimbursement of the medical expenditure on the
ground of age barrier and that is the reason the State Government has come
out with the policy decision 25.10.2014 making age barrier for
reimbursement of the expenditure incurred in the medical treatment of the
dependent son who has crossed the age of 25 years.
21. We, therefore, are not hesitant in holding that prior to 25.10.2014 there was
no policy decision since the aforesaid policy decision dated 25.10.2014
cannot be held applicable with retrospective effect, therefore, negating the
claim of the writ petitioner by the State authority in absence of any policy
decision based upon the cause of action, according to our considered view,
is without any authority of law.
22. The State being the welfare State is supposed to take decision based upon
the policy decision. If any decision is being taken in absence of any policy
decision by the State or any functionary of the State, the same will be said to
suffer from jurisdictional error, meaning thereby, the said decision will be
held to be without any authority of law.
23. The State has also, however, relied upon the Rules, 1938 but, this Court fails
to understand that for what purpose the Rules, 1938 has been taken aid of
since there is no stipulation to the effect regarding the age barrier for
reimbursement of the medical expenditure. The said fact has been admitted
by the learned counsel for the State-appellant.
24. This Court, on the basis of the discussion made hereinabove, is of the view
that the issue which has been decided to be considered as above, is being
answered that in absence of any rule, there cannot be any decision by the
State by taking aid of any subsequent rule which has been formulated
subsequent to the cause of action.
25. It needs to refer herein that the State very surprisingly has tried to impress
upon the Court by taking aid of the Central Services (Medical Attendance)
Rules, 1944.
26. This Court is of the view that where is the question of applicability of the
Rules, 1944, as such, the stand according to our considered view is very
peculiar and has been taken by way of arbitrary exercise of power. Such
observation is being made on the basis of the fact that once the State has
taken the ground about applicability of the policy decision dated 25.10.2014,
then, where is the question to take aid of the Rules, 1944 applicable for the
Central Government employees.
27. This Court, after having discussed the fact in entirety as above and coming
to the order passed by the learned Single Judge, has found that the learned
Single Judge has interfered with the impugned order based upon the
provision as contained in Rules, 1938.
The learned Single Judge has further observed regarding the
applicability of the notification which is prospective in nature.
The learned Single Judge has also discarded the submission of
applicability of the Rules, 1944.
28. This Court, based upon the aforesaid discussion, is of the view that the
reasoning/finding recorded by the learned Single Judge in the impugned
order needs no interference.
29. Accordingly, the instant appeal fails and stands dismissed.
30. Pending interlocutory application(s), if any, also stands disposed of.
(Sujit Narayan Prasad, J.)
(Navneet Kumar, J.)
Saurabh/-
A.F.R.
