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2004 DIGILAW 246 (JK)

State Of J. &K. v. Sakhi Willayat (Dr. )

2004-08-23

R.C.GANDHI, Y.P.NARGOTRA

body2004
Per R.C. Gandhi, J. (Oral) This Letters Patent Appeal is directed against the Judgment and order dated 23. 7. 2003, whereby the learned Single Judge in OWP No. 431/ 1995 has issued a direction to the respondents 1 and 2, appellants herein, to arrange and make the payment of medical claim of Rs. 2, 28, 081/- to the petitioner who has been treated out side the Country. 2. The facts of the case are that Master Adil son of respondent/ writ petitioner, Assistant Surgeon in the Health Department, developed complex Cardiac ailment in the year 1988. On medical advise, the petitioner took his son Master Adil to United Kingdom for his treatment. He was treated and on his return a medical reimbursement claim was submitted to the Government which was permitted vide order dated 11.3.1992 in relaxation of rules. Unfortunately, the problem again developed. This time it was a case of acute Pulmonary edema. He was taken to Sheri Kashmir Institute of Medical Sciences Soura, Srinagar wherein on medical examination, the Doctor Specialist in the subject, found to have mitral value abnormality and advised mitral value surgery in England as an emergency measure. On the advise of the doctor, the petitioner took his son to England for treatment, Master Adil was operated upon at Duncon Waske on 2.7.1991 on the advise of John B. Hospital Leads U.K. The child was fitted with a pacemaker system and was treated for mitral value replacement for severe mitral regurgitation. 2. The respondent submitted the bills/ medical claim to the Government for reimbursement. The appellants neither accepted nor rejected the claim of the respondent. Under such circumstances respondent/ writ petitioner approached the Court by means of OWP No. 431/95 seeking direction to the appellant for reimbursement of the claim. Upon consideration of the pleadings and hearing learned counsel for the parties, the learned Single Judge directed the respondents for reimbursement of the medical claim. 3. Under such circumstances respondent/ writ petitioner approached the Court by means of OWP No. 431/95 seeking direction to the appellant for reimbursement of the claim. Upon consideration of the pleadings and hearing learned counsel for the parties, the learned Single Judge directed the respondents for reimbursement of the medical claim. 3. Aggrieved of the order of learned Single Judge, the appellant has challenged the legality and correctness of the order under appeal mainly on the ground that an employee of the State Government is entitled to medical reimbursement claim in terms of the Jammu and Kashmir Civil Services (Medical Attendance and Allowance) Rules, 1990 (hereinafter called "the rules") and that the treatment outside the country can be availed only after the sanction is accorded by the Government and in the case of the respondent no such sanction was accorded. 4. Another aspect of the case is that during the pendency of the writ petition, the learned Single Judge directed the appellants to settle the claim of the respondent. The appellants neither settled the claim of the respondent nor filed the counter affidavit before the learned Single Judge. However, it was argued by the appellant before the learned Single Judge that the medical claim of the respondent could not be finalized because of the reason that the same was not traceable in the office of the Director, Health Services before whom the respondent has filed it alongwith necessary medical certificates and prescriptions. It is also recorded in the course of the order that the respondent submitted the duplicate copies of the documents/ claim which he had retain with him to the appellants for considering it for reimbursement. The documents submitted by the respondent were forwarded by the Director, Health Services to the Administrative Department but despite that no action was taken. 5. The plea of the learned counsel for the appellants that Government employee is under an obligation to take the ailing dependent outside the State for treatment only after prior sanction has been accorded by the State. In support of his plea he has relied upon rule 6 of the aforesaid rules. 6. Perusal of the Rule 6 shows that it nowhere indicates that prior sanction is required. However, we are of the view that the Government employee who has to get himself or his dependent treated outside the country should meet the requirement of the rules. In support of his plea he has relied upon rule 6 of the aforesaid rules. 6. Perusal of the Rule 6 shows that it nowhere indicates that prior sanction is required. However, we are of the view that the Government employee who has to get himself or his dependent treated outside the country should meet the requirement of the rules. But in emergent cases it may not be possible because of the nature of the ailment, first to obtain sanction and then proceed for treatment. The appellants while framing rules, keeping in view these contingencies of ailment, has not specifically provided in the Rules for obtaining prior sanction. Another situation is also contemplated that while the dependent/ beneficiary is residing outside the State and develops some ailment he can get himself treated without prior sanction. Rule 6(5) relevant for the purpose is extracted below:- 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. 7. It is evident from this provision of law that if an employee or his dependant falls ill outside the State and requires treatment in the hospital, rule suggests that vouchers/claim for reimbursement can be permitted though after fulfilling the requirements as contained in the rules. This rule has been enacted with a purpose that in such a situation it may not be convenient for the employee to obtain first sanction and then to proceed for treatment. To cover up all these situations, Rules 8 has been enact reads as: Right of changing or interpretation etc-(1) The Government reserves to itself the right of changing or canceling the rules in these regulations from time to time at its discretion and of interpreting their meaning in case of dispute. To cover up all these situations, Rules 8 has been enact reads as: Right of changing or interpretation etc-(1) The Government reserves to itself the right of changing or canceling the rules in these regulations from time 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." 8. Upon consideration of the merits of the case apart from the legal provisions, we are of the view that such type of cases are required to be dealt with by the appellants with element of human approach. To meet such situations, rule 8 can be the pressed into service. 9. In the present case, we have seen that doctor of the premier Institute of the State has advised the respondent to take his son immediately for his treatment to England. Had he waited for prior permission/ sanction of the Government, the consequences may have been disastrous and the purpose would have been defeated. There would have left nothing at the end if not cured immediately as advised. The rules cannot be interpreted to operate harshly in such emergent cases. Mr. Magray, learned counsel for the appellants has submitted that the claim of the respondent has not yet been considered and the reimbursement whatever claimed by the respondent has been directed to be paid by the learned Single Judge. His specific submission is that the appellants on consideration may find out that the amount claimed may vary. Accepting his plea, we direct the appellants to consider the medical claim of the respondent vis-a-vis Rule 8 of the Rules for its reimbursement. The appellants will consider the claim of the respondent within a period of four months as prayed for by the learned counsel for the appellants. 10. In view of the above, appeal is disposed of accordingly.