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2019 DIGILAW 255 (GUJ)

Harshadkumar A Pandya v. State Of Gujarat

2019-03-25

A.S.SUPEHIA

body2019
JUDGMENT : A.S. SUPEHIA, J. 1. By way of the present petition under Article 226 of the Constitution of India, the petitioner has sought a direction to the respondent authorities to sanction the medical bills of the petitioner to the tune of Rs.1,53,462/- and reimburse the amount accordingly. 2. The brief facts of the case as enumerated in the petition are that the petitioner is/was serving as an Assistant Teacher in the school of respondent No.3 i.e. Shree Navdurga High School at Rajpipla, District Narmada on a permanent post. In the year 2002, the petitioner found that her daughter aged about 4-1/2 years was not developing physically as well as mentally in comparison to the other children of her age and, therefore, the petitioner consulted the Civil Hospital at Rajpipla and undertook treatment of his daughter for some time but as the petitioner did not find any positive response, he consulted Sir Sayagirao General Hospital at Vadodara (SSG Hospital). (2.1) The doctors of the Civil Hospital, Rajpipla as well as the child specialist - doctor of the SSG Hospital opined that the daughter of the petitioner is suffering from the disease of Russel Silver Syndrome, which requires long term growth hormone treatment for normalization of height in girls and, therefore, the petitioner was advised to take treatment as per the expert doctor on the subject. (2.2) According to the aforesaid suggestion and the advice given by the Civil Surgeons of the Rajpipla Hospital as well as the SSG Hospital, the petitioner consulted an expert doctor -Dr.Mona Shah, who is an expert on the subject who also gave the same advice that the daughter of the petitioner is required long term treatment for the disease i.e. Russel Silver Syndrome and for that the hormones treatment for human growth is required to be taken as early as possible. (2.3) As the treatment of his daughter was very costly and required for a long term, an application was made by the petitioner dated 23.07.2002, through his Head of the Department to respondent No.1 -Commissioner of Health and Medical Services, Gandhinagar, inter alia, requesting that as his daughter requires the treatment of growth hormones for the aforesaid disease, for which a monthly expenditure of Rs.13,444/- is likely to be incurred and the treatment shall be continued at least for a year and in such circumstances, the petitioner made a request to the respondent authority to sanction his application for the treatment of the growth hormones (disease Russel Silver Syndrome). (2.4) As no response was received by the petitioner pursuant to his application, the Joint Education Director, Gujarat State also addressed a letter dated 21.11.2002 to respondent No.1 stating that the SSG Hospital has opined that the petitioner to take the treatment of growth hormones at least for a period of one year and the said treatment is not available in the SSG Hospital, the petitioner may be sanctioned to get the treatment in the private hospital as the expenditure of Rs.13,444/- p.m. likely to be incurred and he also forwarded the application of the petitioner. (2.5) It is the case of the petitioner that since the aforesaid application dated 23.07.2002 made by the petitioner to the respondent authority and the subsequent correspondence letters written by the Head of the Department and the Joint Director of Education, were not replied and no sanction pursuant to the request of the petitioner was received, once again an application dated 27.01.2003 was moved by the petitioner but the respondent authority did not respond to the same and sat tight over the right of the petitioner for reimbursement of the medical bills. On the other hand, the petitioner has incurred huge amount for the treatment of his daughter for the disease of growth hormones. (2.6) The Regional Deputy Director of Health, Medical Services, Vadodara again wrote a letter dated 07.04.2003 to the respondent No.1 pursuant to the aforesaid application of the petitioner dated 27.01.2003, that the daughter of the petitioner requires treatment of growth hormones therapy and the same is required to be continued for a period of one year in that circumstances, the case of the petitioner should be considered sympathetically for disbursement as a special case. (2.7) The petitioner had incurred the expenditure to the tune of Rs.1,53,462/- during the period between June, 2002 and March, 2003 as per the advice of the expert -Dr. Mona Shah and purchased the required injunction from R.S. Enterprise (Bangalore) Private Limited Company as and when it requires for the treatment of his daughter, however, the question of sanctioning or reimbursement of the said bills has not been decided by the respondent authority, though the petitioner made an application in July, 2002 immediately after the treatment started of the petitioner's daughter, which is very crucial and important for the improvement of her health. Against non-sanctioning of the medical bills of the petitioner of Rs.1,53,462/-, the petitioner has preferred the present petition. 3. Learned advocate for the petitioner, Mr.V.K.Joshi submitted that as per the Gujarat State Services (Medical Treatment) Rules, 1988 (the Rules), the petitioner is entitled to medical reimbursement since the same do not provide that the medical reimbursement is barred for taking such treatment. Learned advocate submitted that the daughter of the petitioner, who was four and half years old was suffering from Russel Silver Syndrome which is a disease. It was further submitted that if no treatment was taken then his daughter would have suffered from further complications. Accordingly, the learned advocate submitted that considering the facts and circumstances of the case, the present petition deserves to be allowed as prayed for in the petition. It was submitted that the drug Norditropin does not fall in the list of inadmissible medicines as required by Rule 10(a) of the Rules. Reliance was placed on the list issued by the Central Government corrected upto June 2016. (The same is taken on record). Reliance was also placed upon the decision of this court reported in the case of D.A.Kathia vs. State of Gujarat & Ors., 2019 1 GLR 268 wherein the prayer made for medical reimbursement of Cochlear Implant Surgery is granted by this Court. 4. Learned Assistant Government Pleader Mr. Vishrut Jani by placing reliance on the affidavit-in-reply submitted that the daughter of the petitioner had problem of growth in her height, which was in medical terms attributed to disease of Pituitary Glands known as Russel Silver Syndrome. It was further stated that the injunction Norditropin was prescribed for treatment. 4. Learned Assistant Government Pleader Mr. Vishrut Jani by placing reliance on the affidavit-in-reply submitted that the daughter of the petitioner had problem of growth in her height, which was in medical terms attributed to disease of Pituitary Glands known as Russel Silver Syndrome. It was further stated that the injunction Norditropin was prescribed for treatment. It was also stated that the claim of the petitioner for reimbursement of the medical expenses incurred on purchase of the said injection to the tune of Rs.1,53,462/- during the said treatment. (3.1) It was further stated that as per the Gujarat State Medical Services Rules dated 20.12.1988, the Government has framed certain rules. According to Rule 2(5)(d), he is not entitled to get the medical reimbursement (Incorrectly stated as Rule 2(5)(g) in the affidavit-in-reply). Learned Assistant Government Pleader submitted that as the physical growth of the daughter of the petitioner was poor and not normal and for normalization of her height injection Norditropin/Genotropin was prescribed. According to the policy is reimbursement of imported drug shall be permitted only where the imported drug is a "life saving drug", and is considered as absolutely essential to "save the life of the patient". This growth hormone injection does not contain any medicine but it contains human hormones; and if there is any deficiency in the body and if the person does not have enough hormones for his normal growth because of this deficiency there is poor growth and not normal growth, then the human hormones are injected which regularize the physical growth of a person. Learned Assistant Government Pleader submitted that the Russel Silver Syndrome is not a Chronic Disease. This disease is not a life threatening. The drug Norditropin is not a life saving drug and, therefore, according to the Gujarat State Medical Services Rule 2(5)(d), the respondent authority has rightly declined to reimburse the medical expenses incurred on the purchase of the imported drug Norditropin. By placing reliance on the decision rendered by the Apex Court in the case of Punjab State Electricity Board and Anr. vs. Jasbir Singh, (1999) AIR SC 979, the learned Assistant Government Pleader submitted that the medical reimbursement cost of the imported drug is not a life threatening and not life saving drug -and the expenses are not reimbursable. Accordingly, the learned Assistant Government Pleader urged that the present petition deserves to be dismissed 5. vs. Jasbir Singh, (1999) AIR SC 979, the learned Assistant Government Pleader submitted that the medical reimbursement cost of the imported drug is not a life threatening and not life saving drug -and the expenses are not reimbursable. Accordingly, the learned Assistant Government Pleader urged that the present petition deserves to be dismissed 5. I have given my thoughtful consideration to the submissions advanced by the learned advocates appearing for the respective parties and perused the documents relied upon by them. 6. The established fact in the instant case is that the petitioner had incurred medical expenses to the tune of Rs.1,53,462/- for the treatment of disease of Pituitary Glands known as Russel Silver Syndrome. Thus, the respondents are accepting that the daughter of the petitioner was suffering from the disease of pituitary glands which leads to abnormal growth. It is not in dispute that the daughter of the petitioner was four and half years of age when she was recommended the medical treatment. The doctor had prescribed the drug Norditropin for the treatment. 7. The medical reimbursement is denied on the ground that the drug Norditropin is not a life saving drug and is imported, therefore, according to the Gujarat State Medical Services Rule 2(5)(d), the petitioner will not be entitled to any medical reimbursement. This Court has perused the Rules. A close scrutiny of the rules reveals that the same do not provide that only the imported life saving drugs are qualified for medical reimbursement. Rule 10(a) provides medical reimbursement of the drugs which are purchased mode and manner prescribed therein. Note-1, to the Rule 10(a) provides the category of the drugs which are not qualified for the medical reimbursement such as food, tonics, toilets, etc. It was further stated that the Central Government is issuing the list of admissible and inadmissible medicines time and again. The respondents are unable to point out to this Court that the drug Norditropin falls within the list of inadmissible medicines as envisaged under Rule 10(a). The Swamy's List of Medicines, produced by the petitioner does not reveal that the "Norditropin" falls within the list of inadmissible medicines. Furthermore, Note-6, to the Rule stipulates that the imported drugs are admissible for reimbursement if the Director of Health and Medical Service certifies that the drug was necessary for treatment and the same is not available in India. The Swamy's List of Medicines, produced by the petitioner does not reveal that the "Norditropin" falls within the list of inadmissible medicines. Furthermore, Note-6, to the Rule stipulates that the imported drugs are admissible for reimbursement if the Director of Health and Medical Service certifies that the drug was necessary for treatment and the same is not available in India. Thus, the conspectus of the aforesaid discussion is that the petitioner cannot be denied the medical reimbursement of the expenses incurred by him for the administration of the imported drug Norditropin for the treatment of his daughter. 8. The contentions of the respondents that the petitioner is not eligible for medical reimbursement since the treatment undertaken was only meant for the physical enhancement does not merit acceptance. The learned Assistant Government Pleader placed reliance on Rule 2(5)(d) in this regard. However, the same is incorrectly stated as Rule 2(5)(g) in the affidavit-in-reply as the relevant rule will be Rule 2(5)(d) of the Rules, which provides three categories that bars medical reimbursement. The same are -a) Physical comfort/energy, (b) for cosmetic; and (c) physical shape. The treatment of four and half years old daughter who was suffering from the disease of pituitary gland known as Russel Silver Syndrome, a genetic disorder and if not treated leads to various complication cannot be equated with the aforesaid category. The respondents in the affidavit have admitted that she was suffering from "disease". Thus, the medical reimbursement cannot be denied by taking shelter under Rule 2(5)(d) as the treatment of the petitioner's daughter cannot be related to the categories mentioned therein. The judgment of the Supreme Court Jasbir Singh (supra) will not rescue the respondents since the Apex Court has passed the judgment in context of the Rules which provided medical reimbursement in case of imported life threatening drugs which is absent in the rules governing the present case. 9. The writ petition accordingly succeeds. The amount of medical reimbursement shall be paid to the petitioner within a period of six weeks from the date of receipt of the present order. However, it is clarified that if the amount is paid after 06 (six) weeks, the petitioner will be entitled to 9% interest for the delayed period. 10. Rule is made absolute to the aforesaid extent.