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2017 DIGILAW 2045 (BOM)

PRATIBHA PRABHAKAR KHAPE v. STATE OF MAHARASHTRA

2017-09-28

NARESH H.PATIL, Z.A.HAQ

body2017
JUDGMENT : Naresh H. Patil, J. Rule. Rule made returnable forthwith. The petitioner is a Judicial Officer posted at Sangli as Jt. Civil Judge Junior Division and Judicial Magistrate First Class at the time of filing of the petition. 2. The learned counsel appearing for the petitioner submitted that he is not pressing for prayer clause (A). Prayer clause (B) and (C) reads as follows : "(B) That this Hon'ble Court under its Civil Appellate extra ordinary territorial Writ Jurisdiction under Article 226 and 227 of the Constitution of India, 1950 be pleased to call for record and proceedings of the entire matter and after going through the same be pleased to quash and set aside the order dated 03.10.2016 passed by the respondent No. 1 authority of rejecting the application of the petitioner for the medical reimbursement and thereafter, further communication dated 07.10.2016 issued by the respondent No. 2 be also pleased to quash and set aside. (C) That this Hon'ble Court under its Civil Appellate extra ordinary territorial Writ Jurisdiction under Article 226 and 227 of the Constitution of India, 1950 be pleased to allow the application of the petitioner dated 31.03.2016 for the claim of reimbursement to the tune of Rs. 4,97,104/-, that the said claim further may be allowed along with the interest at the rate of 12% p.a. from the date of Application." 3. It is contended by the petitioner that late mother of the Petitioner Smt. Pratibha Khape was residing with her. Petitioner's father died long back. The Petitioner's mother died on 11/08/2016 at the age of 63 years. It is the petitioner's case that her mother was suffering from serious illness and was under constant medical treatment and supervision. She was hospitalised in Kelavkar Hospital at Kolhapur, during the period from 04/05/2015 to 19/05/2015. The doctors attending on her detected Col. Cancer (cancer of large intestine). Under medical advise, she was shifted to Kolhapure Cancer Center where she underwent major surgery for which she was hospitalised during the period from 19/05/2015 to 31/05/2015. She had to undergo 12 sessions of Chemo therapy after intervals of 15 days each. During this period, petitioner's mother was unable to perform day to day activities. Due to illness, she became totally dependent on the petitioner. She had became bed ridden. The petitioner had spent considerable amount on her medical treatment and for taking care of her mother. She had to undergo 12 sessions of Chemo therapy after intervals of 15 days each. During this period, petitioner's mother was unable to perform day to day activities. Due to illness, she became totally dependent on the petitioner. She had became bed ridden. The petitioner had spent considerable amount on her medical treatment and for taking care of her mother. 4. The petitioner filed an application on 31/03/2016 addressed to respondent no. 2 i.e. Principal District Judge and District and Sessions Judge, Sangli, along with necessary documents including medical bills to the tune of Rs. 4,97,104/- as indoor patient. At the time of death of the petitioner's mother, she was getting pension of Rs. 19618/-. 5. In accordance with the rules, petitioner's claim was sanctioned and a proposal was forwarded by the Principal District Judge to the Law and Judiciary Department of the State, on 12/07/2016. 6. By communication dated 03/10/2016, the State rejected medical reimbursement claim of the petitioner. The said communication is impugned herein. 7. The learned counsel for the petitioner submits that the State Government placed reliance on Government Resolution dated 11/11/2011 in deciding the application for claiming medical reimbursement. The counsel appearing for the petitioner placed reliance on the Judgment of this Court in the case of Anil Dattatray Kulkarni v. State of Maharashtra and another, [2014 (1) Mh.L.J.] : 2013 (6) ALL MR 804. In the facts and in view of the opinion expressed by the Division Bench of this Court in the case cited supra, the learned counsel submits that physical dependency of the petitioner's mother ought to have been taken into consideration by the State while deciding the proposal forwarded by the learned Principal District Judge. In other words, the counsel submits that under the prescribed rules and the Government Resolution dated 11/11/2011, prescribed criterion of earnings as pension to the tune of Rs.3,500/- ought not to be the only basis for ascertaining and deciding the claim proposal. The respondent State has to consider that, if applicant makes out a case that dependent was physically dependent on the applicant then such case ought to have been considered even if the dependent was getting an amount of more than Rs.3,500/- as pension or from any other source. In the submission of the counsel, there is total non application of mind on the part of the State in rejecting the application of the petitioner. 8. In the submission of the counsel, there is total non application of mind on the part of the State in rejecting the application of the petitioner. 8. The learned AGP placed reliance on the affidavit in reply filed in this case. Affidavit-in-reply is filed by Rajendra Dattaram Sawant, Legal Advisor-cum-Joint Secretary, Law and Judiciary Department, State of Maharashtra. In para 6, the deponent states that petitioner is put to strict proof to establish that the petitioner's mother was totally physically dependent upon the petitioner. The learned AGP submits that it is the responsibility of the petitioner to place on record necessary material for the consideration of the Law and Judiciary Department to ascertain as to whether the petitioner's application deserves consideration. In absence of the same, there was no other alternative for the State to reject the application of the petitioner. The learned AGP submitted that in accordance with the record placed before the Secretary of Law and Judiciary, appropriate decision was taken in accordance with rules and material placed before the concerned authority. 9. We have perused the record placed before us. In a similar situation, this Court had an occasion to deal with the issue in the case of Anil Kulkarni (Cited supra). 10. We find that the purposive interpretation has to be made in respect of the concerned rules and in accordance with the view adopted by this Court in the case of Anil Kulkarni (Cited supra). 11. The petitioner is put to strict proof by the State to establish as to whether petitioner's mother was physically dependent on petitioner during ailment. We find that petitioner's mother was suffering from serious ailment and cancer, she was undergoing treatment as indoor patient and had undergone Chemo therapy sessions according to the contention raised by the petitioner. In case, the State authority wanted some more inputs or information on this issue, they were free to call for information from the office of Principal District Judge of the concerned district and we would expect that such information was provided to the State authorities. Rejecting the application by referring to the criteria incorporated in Government Resolution dated 11/11/2011 was uncalled for by the State in view of the Judgment delivered by this Court in the case of Anil Kulkarni (Cited supra) and sanctioning of proposal by the Principal District Judge. Rejecting the application by referring to the criteria incorporated in Government Resolution dated 11/11/2011 was uncalled for by the State in view of the Judgment delivered by this Court in the case of Anil Kulkarni (Cited supra) and sanctioning of proposal by the Principal District Judge. We would refer to Rule 3, 11 and Rule 17 of the Reimbursement Rules. The State would consider the definition of 'family' in the right perspective and as per the view adopted by this Court in the case of Anil Kulkarni (Cited supra). 12. During the course of hearing, it was brought to our notice that there is a list of around 47 hospitals in the State of Maharashtra which are recognised by the State under Government Resolution dated 16/11/2011. We are of the view that State shall review/upgrade the list if not done so far which may include listing of other hospitals well equipped with necessary infrastructure and the latest equipments. At the same time, State may undertake exercise of conducting fresh verification of the infrastructure facility provided in the already enlisted hospitals as per norms laid down by the State Government from time to time. We direct the State to complete this exercise within 3 months. The Principal Secretary of Law and Judiciary and the Public Health Department shall undertake this exercise through their respective ministries. 13. In view of the aforesaid observations, we are of the view that the impugned order needs to be quashed and set aside. The proposal forwarded by the Principal District Judge, Sangli shall be considered afresh by the Law and Judiciary Department on merits. ORDER (i) The Writ petition is allowed. (ii) The impugned order dated 03.10.2016 passed by the respondent No.1 authority rejecting the application of the petitioner for medical reimbursement is hereby quashed and set aside. (iii) Matter is remanded back to Principal Secretary, Law and Judiciary. (iv) We direct the concerned designated officer of Law and Judiciary Department to verify the claim proposal of the petitioner and pass a brief reasoned order on such proposal. (v) This exercise shall be completed by Law and Judiciary Department within 6 weeks and decision shall be communicated to the petitioner by fastest mode of service. (vi) The State would also consider reviewing prescribed ceiling of earning of Rs.3,500/- by the dependent of a Judicial Officer. (vii) The State to submit compliance report. 14. (v) This exercise shall be completed by Law and Judiciary Department within 6 weeks and decision shall be communicated to the petitioner by fastest mode of service. (vi) The State would also consider reviewing prescribed ceiling of earning of Rs.3,500/- by the dependent of a Judicial Officer. (vii) The State to submit compliance report. 14. Copy of this order be forwarded to Registrar, Legal and Research Department, High Court, Mumbai. 15. List the matter in 6th week Monday at 3.00 p.m. for compliance.