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2007 DIGILAW 950 (PAT)

Kamal Kishore Jha v. State Of Bihar

2007-05-15

BARIN GHOSH

body2007
Judgment 1. Heard both the parties. 2. Article 21, being in Part-Ill of the Constitution of India, provisions contained therein are fundamental right of citizens. Right to life has been ensured thereby as a fundamental right. Article 37 makes it abundantly clear that Directive Principles of State Policy, as contained in Part-IV, though, shall be fundamental in the governance of the Country and it shall be the duty of the State to apply those principles in making laws, but the provisions contained therein shall not be enforceable by any court. Articles 41 and 47 are in Part-IV of the Constitution of India, which amongst others, direct public assistance in case of sickness and improvement of public health. That makes it abundantly clear that it is the duty of the Government, while framing laws, to ensure that a citizen lives a healthy life. 3. In the instant case, the State has made a law by framing the rules with which we are concerned. These rules apply only to the State Government employees and not to anyone else. In terms of these rules, health care of the employees of the Government have been protected to the extent, as mentioned in the said rules. The rules have provided, amongst others, that in the event a Government servant is required to obtain medical assistants outside the State, in order to obtain reimbursement of the cost of such medical assistants, he would be required to obtain prior permission of the Controlling Officer, grant of which permission shall depend upon the opinion of the Medical Board to be constituted for the purpose of ascertain the requirement of the proposed medical assistance. It is true that an ailment may come suddenly. It is true that when a serious ailment comes suddenly, it may not be possible to follow the reimbursement rules. In such event, appropriate authority as well as the Writ Court upon exercising its power of judicial review. In case of refusal to reimburse, may direct reconsideration, but however, it must be brought on record that the serious ailment came so suddenly that it was not possible to inform the Controlling Authority as regards the proposed medical assistance. Normally, if a Government employee is affected by such a sudden ailment, on recovery it is expected of him that he would inform his Controlling Officer as regards the suddenness of that ailment. Normally, if a Government employee is affected by such a sudden ailment, on recovery it is expected of him that he would inform his Controlling Officer as regards the suddenness of that ailment. That should be deemed to be the normal and natural human behavior. In the instant case, the petitioner, a Government employee, went to a Government Hospital when a Government doctor referred him to A.I.I.M.S., New Delhi. This fact was not brought to the notice of the Controlling Officer of the petitioner. The petitioner also did not go to A.I.I.M.S., New Delhi for obtaining medical assistance as was suggested while referring the petitioner to A.I.I.M.S., New Delhi. One year later, the petitioner went to G.B. Pant Hospital, New Delhi and obtained medical assistance from the said Hospital. Later on, he came back and applied for reimbursement of the cost of such medical assistance. That having been refused, the present writ petition has been filed. 4. While the petitioner approached the Controlling Officer, he did not try to indicate that the illness was so sudden that it was impossible on his part to inform his Controlling Officer in relation thereto. In the present writ petition too, no such attempt has been made. 5. When rules have been framed and the rules direct that advantages thereunder can be had by complying with the provisions contained in the rules, in order to take advantages provided under the rules, one must discharge his obligations as provided in the rules. If the contingency is such that the same has not been provided in the rules, it may be asserted that as regards this contingency, since the rules are silent, the matter should not be considered on the basis of the rules, but should be considered on the basis of the primary obligation undertaken by the Government in terms of its obligations under Articles 21, 41 and 47 i.e. to support a Government employee in the matter of medical assistance in order to ensure his healthy life. Inasmuch as the rules provide that prior permission of the Controlling Officer is needed for obtaining reimbursement of costs of outstation treatment, when an outstation treatment is required such permission is a must for obtaining reimbursement. Without such permission, under the rules reimbursement cannot be claimed. Inasmuch as the rules provide that prior permission of the Controlling Officer is needed for obtaining reimbursement of costs of outstation treatment, when an outstation treatment is required such permission is a must for obtaining reimbursement. Without such permission, under the rules reimbursement cannot be claimed. However, inasmuch as prior permission is coupled with the opinion of the Medical Board, that suggests that it is obligatory on the part of the Controlling Officer to constitute a Medical Board. The ailment, therefore, must be of such nature that the treatment thereof may wait for at least some reasonable time in order to enable the employee to approach his Controlling Officer and then to enable the Controlling Officer to constitute a Medical Board and lastly to enable the Medical Board to give opinion upon checking the patient. Therefore, the rules deal with only those ailments, treatment whereof may commence after expiry of some reasonable time. If the ailment is sudden and requires immediate treatment, the same is not covered by the rules and accordingly the same may not be rejected on the ground that permission as required under the rules had not been obtained. 6. In the instant case, the petitioner intends to come in the second category of cases i.e. sudden serious illness, but unfortunately, no case thereof had been made out either in the representations made to the Controlling Officer or in the writ petition. 7. The learned counsel for the petitioner has cited a judgment of the Hon ble Supreme Court rendered in the case of State of Punjab V/s. Ram Lubhaya Bagga & Ors. reported in 1998(4) SCC 117 . This judgment does not help the petitioner at all. In that case, as a fact the Supreme Court found that in the matter of grant of permission to obtain medical assistance outside the State, discrimination was being made and such discrimination was being made inasmuch as discretionary power had been granted. 8. In those circumstances, the writ petition fails and the same is dismissed.