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2017 DIGILAW 242 (JK)

Bader Hussain v. State

2017-05-17

DHIRAJ SINGH THAKUR

body2017
JUDGMENT : 1. The petitioner challenges the Govt. Order No. Home-153 of 2013 dated 08.04.2013 to the extent the same sanctioned reimbursement of medical expenses in respect of the treatment of the petitioner’s son by restricting the cost of items/procedures admissible under rules to the extent of rates applicable to such items/procedures at PGI Chandigarh. 2. With a view to understand the background in the light of which the present controversy has arisen, it is deemed appropriate to narrate some of the material facts in brief: 3. The petitioner is serving as Deputy Superintendent of Police (Ministerial) in the Jammu and Kashmir Police. In the year 2012, the petitioner’s son, who was studying in Class 12th, received serious head injuries because of a fall on account of which he was shifted to the Govt. Medical College, Jammu. Looking to the serious nature of complications and the injuries, the Associate Professor of the Government Medical College, referred the patient to a centre where a Neuro Surgeon and ventilator support was available, as is reflected in the reference report, which is on record. One of the reasons for making such a reference was that there was no bed available in the ICU for making available the necessary patient care to the patient. The referral is also stated to be with the approval of the Principal of Govt. Medical College, Jammu as well. 4. It appears that the petitioner took his son initially to the nearest Neuro Surgical Centre of CMC, Hospital, Ludhiana, who refused to admit the patient on account of his critical condition and suggested the patient to be taken to DMC, Hospital, Ludhiana where too the patient was refused on account of his critical condition. It was, in those circumstances, that the petitioner was forced to take his son to Apollo Hospital, Ludhiana where the doctors conducted two neuro surgeries on the son of the petitioner, who remained under treatment at Apollo Hospital, Ludhiana w.e.f., 9th of March, 2012 to 24th of March, 2012. Upon completion of the surgical operations, the petitioner brought his son back to Jammu and admitted him yet again in the Govt. Medical College, Jammu w.e.f., 24th of March, 2012 to 3rd of May, 2012. 5. Since the petitioner is a Govt. employee, he applied for reimbursement of the medical expenses, which came to the tune of Rs. 4,47,647/- at Apollo Hospital, Ludhiana. Medical College, Jammu w.e.f., 24th of March, 2012 to 3rd of May, 2012. 5. Since the petitioner is a Govt. employee, he applied for reimbursement of the medical expenses, which came to the tune of Rs. 4,47,647/- at Apollo Hospital, Ludhiana. The case of the petitioner was considered and finally by virtue of order impugned dated 08.04.13, the reimbursement was permitted for the period of hospitalization inter alia from 10th to 24th of March, 2012 at Apollo Hospital, Ludhiana for items/procedures admissible under rules with cost restricted to the extent of rates applicable to such items/procedures at PGI Chandigarh. 6. Admittedly, the rates at PGI Chandigarh are lower than the rates at Apollo Hospital, Ludhiana, which is a private hospital. It is in these circumstances that the petitioner has challenged the impugned order inter alia on the ground that there was no basis for the official respondents to restrict reimbursement to the rates applicable for such procedures at PGI Chandigarh and also that there was no basis for them to reject the reimbursement to the extent of actual expenses incurred. 7. In response, learned counsel for the respondents have taken a plea that the Apollo Hospital, Ludhiana was not in the approved list of hospitals from which the petitioner could have undertaken treatment for his son and that in the peculiar facts and circumstances of the case, the Govt. had taken a lenient view and exercised the power to relax the rules inasmuch as according to them, there was no proper referral made by the Govt. in the present case as per Rule 6 of the Jammu and Kashmir Civil Services (Medical Attendance-cum-Allowance) Rules, 1990. 8. Heard learned counsel for the parties. 9. There are in force rules, namely, the Jammu and Kashmir Civil Services (Medical Attendance-cum-Allowance) Rules, 1990 (for short, Rules of 1990) framed in exercise of the powers conferred by proviso to Section 124 of the Constitution of Jammu and Kashmir. 10. According to Clause 3 (e) of the Rules of 1990, which defines Family, the children of a Govt. servant are included in the said definition. 11. Rule 5(1) of the Rules of 1990 envisages reimbursement of the amount charged by the hospital authorities including cost of drugs purchased from the market during the period of hospitalization in Govt. Hospital within the State for purposes of treatment of the employee himself or any member of his family. servant are included in the said definition. 11. Rule 5(1) of the Rules of 1990 envisages reimbursement of the amount charged by the hospital authorities including cost of drugs purchased from the market during the period of hospitalization in Govt. Hospital within the State for purposes of treatment of the employee himself or any member of his family. 12. Clause 5 of Rule 5 of the Rules of 1990 envisages reimbursement of expenses on account of treatment received by the Govt. servant or his family members even outside the hospital provided the disease is Cancer, Tuberculosis, Leprosy, Mental Illness or any other disease, which is certified by the Director Health Services or Principal Medical College as ‘life consuming’. 13. Rule 6 of the Rules of 1990 deals with treatment outside the State and prescribes the procedure for authorizing the same in respect of a beneficiary by the Administrative Department concerned on production of a certificate on the prescribed proforma by the Head of Specialty not below the rank of Associate Professor. Where a Professor is not available, it should be countersigned by the concerned Principal of Medical College in the State. In the said rule, a list of seventeen private hospitals have been indicated, which are situate outside the State which include: (i) Tata Memorial Hospital, Bombay (ii) Christian Medical College and Hospital, Vallore/Ludhiana (iii) Batra Hospital, Delhi (iv) Mool Chand Charitable Hospital, Delhi (v) Sri Ganga Ram Hospital, Delhi (vi) N.M. Wadia Institute of Cardiology, Pune (vii) Southern Railway Hospital, Parembur, Madras. (viii) K.E.M. Hospital, Bombay. (ix) Bombay Hospital, Bombay. (x) Sree Chitra Tribunal Institute of Medical Sciences and Technology, Trivandrum. (xi) S.S.K.M Hospital, Calcutta. (xii) Kasturba Hospital, Bhopal. (xiii) Samaritan Hospital, Kerala. (xiv) *****. (xv) The Heart Centre, New Delhi. (xvi) Rajiv Gandhi Cancer Institute, New Delhi. (xvii) Ranbaxy Heard Institute, Chandigarh. 14. Proviso appended to Rule 6 of the Rules of 1990, however, is important and is reproduced hereunder: “Provided that the reimbursement in case of the Institution listed at S. No. (xvi) to (xvii) shall be restricted at the rates applicable in All India Institute of Medical Sciences, New Delhi and P.G.I Chandigarh respectively.” 15. (xvii) Ranbaxy Heard Institute, Chandigarh. 14. Proviso appended to Rule 6 of the Rules of 1990, however, is important and is reproduced hereunder: “Provided that the reimbursement in case of the Institution listed at S. No. (xvi) to (xvii) shall be restricted at the rates applicable in All India Institute of Medical Sciences, New Delhi and P.G.I Chandigarh respectively.” 15. Note-I attached to the proviso to Rule-6 of the Rules of 1990 reads as under: “In case treatment is taken in Appolo Group of Hospitals (Delhi, Madras, Hyderabad), Escorts Heart Institute, Delhi and Jaslok Hospital, Mumbai, the reimbursement for treatment in these institutions shall be restricted to the amount which would be payable for Research procedure either at AIIMS, New Delhi or any of the private hospitals indicated above.” 16. From a reading of the aforementioned rule, it becomes clear that the list of hospitals as provided in Rule 6-A of the Rules of 1990 is certainly not an exhaustive list. Had it been so, then there would have been no occasion for the rule framing authority to prescribe the Note, restricting the reimbursement of expenses incurred at Apollo Group of Hospitals at Delhi, Madras and Hyderabad to the expenses, which were comparable to the All India Institute of Medical Sciences, New Delhi or any of the private hospitals included in the list from Serial Nos. (i) to (xvii). 17. It appears that some of the institutes were identified in the proviso as also note-1 (supra) only for purposes of restricting the expenses, which might be incurred in these hospitals. The name of Apollo Hospital, Ludhiana certainly does not figure in the aforementioned list of private hospitals and therefore, it does not appeal to logic as to in what circumstances then could the official respondents restrict the expenses incurred by the petitioner at Apollo Hospital, Ludhiana to the same level of expenses as otherwise were payable at PGI Chandigarh. 18. The argument that since the official respondents had exercised the power under rule (8) of the Rules of 1990 and relaxed the provisions of the rules in view of the undue hardship caused, therefore, whatever was held payable by the Govt. should be accepted, is an argument, which is untenable. 19. It is not denied that the Govt. 18. The argument that since the official respondents had exercised the power under rule (8) of the Rules of 1990 and relaxed the provisions of the rules in view of the undue hardship caused, therefore, whatever was held payable by the Govt. should be accepted, is an argument, which is untenable. 19. It is not denied that the Govt. had, in fact, accepted the right of the petitioner to get his son treated at a hospital outside the State of Jammu and Kashmir and even permitted the reimbursement of the expenses in his favour. 20. The issue as to whether there was a proper referral or not therefore, does not arise for consideration at this stage at all. All that what has to be considered is whether the action of the respondents in restricting the reimbursement was justified or not. 21. Having considered the entire issue, I am of the opinion that the order impugned insofar as it restricted the expenses incurred by the petitioner to the extent of rates applicable to items/procedure admissible at PGI Chandigarh cannot be justified on the touchstone of the rules framed on the subject. 22. It needs to be emphasized that had the petitioner’s son received the treatment outside the State of Jammu and Kashmir at any of the private hospitals enumerated in Clause-A of Rule 6 of Rules of 1990, they would certainly have not been subjected to any such restriction of reimbursement, which was to apply in certain enumerated cases discussed hereinabove and having held that the list of private respondents was not exhaustive and that the list was inclusive, the action of the official respondents in restricting the reimbursement, in those circumstances, is not justified. 23. For the reasons mentioned above, this petition is allowed. Order impugned dated 8th of April, 2013 to the extent it restricts the reimbursement of medical expenses in respect of the treatment of the petitioner’s son is quashed. The official respondents shall pass fresh orders in the light of the observations made hereinabove, granting reimbursement of the expenses incurred by the petitioner on the treatment of his son at Apollo Hospital, Ludhiana. Let necessary orders be passed and payment made within a period of two months from today. 24. Disposed of accordingly along with connected applications.