WPSS/1831/2016
2023 Latest Caselaw 2385 UK

 IN THE HIGH COURT OF UTTARAKHAND
             AT NAINITAL
                    SRI JUSTICE RAKESH THAPLIYAL, J.

AUGUST 22, 2023

Writ Petition (S/S) No. 1831 OF 2016

Between:

Shailesh Bisht. ............Petitioner. And State of Uttarakhand and Others. .......Respondents.

Counsel for the petitioner: Mr. Sanjay Raturi, learned counsel for the petitioner.

Counsel for the respondents: Mr. J.P. Joshi, learned senior counsel (Additional Advocate General) assisted by Mr. Sushil Vashistha, learned Standing Counsel for the State.

Ms. Menkaa Tripathi, learned counsel for respondent nos. 2 and 3.

Upon hearing the learned Counsel, the Court made the following judgement: (per Sri Rakesh Thapliyal, J.)

1. By the present petition, the petitioner is seeking the following reliefs:

"(i) Issue a writ, order or direction in the nature of certiorari to Struck down the only part of Rule 2(2), which pertains to the exclusion of earning wife from the definition of family, of "U.P. Government Servant (Medical Attendance) Rules 1946.

(ii) Issue a writ, order or direction in the nature of mandamus directing the respondents to make the payments and or reimburse the medical bills supplied by the petitioner of Her wife of amounting 49314/- Rupees only.

(iii) Issue a writ, order or direction in the nature of mandamus directing the respondents to read the Rule 2(2) of "U.P. Government Servant (Medical Attendance) Rules 1946" be read as Section 2(11) of Employees, State Insurance Act 1948."

2. Now, the facts of the case are that the petitioner is an employee of the High Court. The petitioner's wife Smt. Meenakshi Bisht is also a Government employee serving in Education Department, who got her medical treatment during

pregnancy in a hospital from 12.03.2016 to May, 2016, and she was under continuous care of Doctors. Consequently, for the purpose of medical reimbursement, the petitioner submitted the medical bills by moving an application on 01.06.2016 to the Registrar General of the High Court. He claimed medical reimbursement for an amount of Rs. 49,314/- (Rupees Forty Nine Thousand Three Hundred Fourteen) for the expenses incurred on the treatment of his wife. On the said application, a declaration was sought from the petitioner to this extent that whether the wife of the petitioner is dependent on him or not and further, whether she is not employed anywhere and is not getting salary and in response to this, the petitioner disclosed in his application that his wife is serving in Education Department as Assistant Teacher and she has not submitted her medical bills for reimbursement to her department.

3. In reference to the reliefs as sought by the present writ petition wherein the vires of the rules are challenged Mr. J.P. Joshi, learned Additional Advocate General has placed reliance on the judgment rendered by the Hon'ble Supreme Court in the case of "State of Tamil Nadu and Another vs. V.P. Krishnamurthy and Others" AIR 2006 Supreme Court 1622 and, he, particularly makes reliance on paragraph-12 of the said judgment, which reads as under:

"There is a presumption in favour of constitutionality or validity of a sub-ordinate Legislation and the burden is upon him who attacks it to show that it is invalid. It is also well recognized that a sub-ordinate legislation can be challenged under any of the following grounds :-

a) Lack of legislative competence to make the sub-ordinate legislation.

b) Violation of Fundamental Rights guaranteed under the Constitution of India.

c) Violation of any provision of the Constitution of India.

d) Failure to conform to the Statute under which it is made or exceeding the limits of authority conferred by the enabling Act.

e) Repugnancy to the laws of the land, that is, any enactment .

f) Manifest arbitrariness/unreasonableness (to an extent where court might well say that Legislature never intended to give authority to make such Rules).

The court considering the validity of a sub-ordinate Legislation, will have to consider the nature, object and scheme of the enabling Act, and also the area over which power has been delegated under the Act and then decide whether the subordinate Legislation conforms to the parent Statute. Where a Rule is directly inconsistent with a mandatory provision of the Statute, then, of course, the task of the court is simple and easy. But where the contention is that the inconsistency or non- conformity of the Rule is not with reference to any specific provision of the enabling Act, but with the object and scheme of the Parent Act, the court should proceed with caution before declaring invalidity."

4. Mr. J.P. Joshi, learned Additional Advocate General submits that no such ground has been taken by the petitioner in the entire writ petition challenging the vires of Rules and, therefore, the writ petition is liable to be dismissed in respect of the relief so far it relates to the vires of the Rules.

5. On behalf of the respondents counter affidavit has been filed, which was followed by a supplementary counter affidavit. The stand, as taken by respondent no. 1 in the counter affidavit, is that the matters relating to the medical reimbursement are disposed of according to the provisions of U.P. Government Servant (Medical Attendance) Rules 1946, which are also adopted by the State of Uttarakhand. According to clause-3 of the said Rules, members of the family are entitled for the benefit of medical reimbursement, who are fully dependent upon the person employed including spouse, son and daughter etc. etc.

6. In paragraph-8 of the counter affidavit, it is submitted by the respondent that the wife of the petitioner is in Government service, therefore she does not fall within the definition of the dependent as provided under the provisions of the U.P. Government Servant (Medical Attendance) Rules 1946 and, therefore, if the petitioner's wife is claiming any medical reimbursement, she can claim from her own department.

7. In supplementary counter affidavit, respondent no. 1 gives reference of Rule 2(2), which defines family. Rule 2(2) with Note (1) are being extracted hereinbelow:

"2(2)- "Family" means the wholly dependent wife/husband, legitimate children, step-children and parents of the government servants.

Note (1) states that-Claims in respect to such members of family as are not wholly dependent upon the Government servants are not reimbursable, e.g. married daughters, earning sons, or wife or such other members as are not included in the term "family"."

8. Undisputedly, the petitioner's wife is a government servant and she can claim medical reimbursement from her department and under the Rules she cannot fall under the category of dependent.

9. In reply to the supplementary counter affidavit, the petitioner has also filed his rejoinder affidavit and in rejoinder affidavit in paragraph-12, the following statement has been made, which reads as under:

"12. That one more fact is humbly submitted here that this Hon'ble Court dealing with the identical case of beneficial legislation has passed the order dated 15.12.2021 (later to enforcement of Government Order dated 25.11.2021) and this Hon'ble may pass the same order so that present petition may be decided on the same terms. A copy of Order dated 15.12.2021 is being filed herewith and marked as Annexure No. CA 3 to this affidavit."

10. On the previous occasion when the matter was heard, Mr. J.P. Joshi, learned senior counsel (Additional Advocate General) as well as Ms. Menka Tripathi, learned counsel for respondent nos. 2 and 3 placed before this Court the judgment rendered by the Coordinate Bench of this Court in Writ Petition (S/S) No. 24 of 2016 'Smt. Sangeeta Bisht vs. State of Uttarakhand through Secretary, and Another", decided on 15.12.2021 and submitted that the issue, as raised, is squarely covered by the judgment; however, on that day counsel for the petitioner denied this fact,

but it is very strange that today petitioner himself submits that the issue is squarely covered by this judgment.

11. Since the petitioner submits that an identical issue has already been decided by this Court and therefore the same order be passed in this petition. There is no purpose to go with examining the relief as sought by way of relief no.1 and 3 in view of the submission as contended in para 12 of rejoinder affidavit.

12. In view of this, the present writ petition is disposed of in terms of the judgment rendered by this Court by the judgment and order dated 15.12.2021 passed in Writ Petition (S/S) No. 24 of 2016 'Smt. Sangeeta Bisht vs. State of Uttarakhand through Secretary, and Another".

No order as to costs.

__________________ RAKESH THAPLIYAL, J.

PR/Kaushal