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2025 DIGILAW 2407 (KER)

State of Kerala v. Shaju T. T. S/o Thomas

2025-09-10

ANIL K.NARENDRAN, MURALEE KRISHNA S.

body2025
JUDGMENT : MURALEE KRISHNA S., J. 1. The respondents in O.A.(EKM) No.484 of 2019 have filed this original petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India , challenging the order dated 09.11.2023 passed by the Kerala Administrative Tribunal (for short the ’Tribunal) Thiruvananthapuram, in that original application. 2. Going by the averments in the original application, the respondent was working as HSA in the Government Higher Secondary School, Neeleswaram. He was diagnosed with Liver Cirrhosis and had to undergo Liver Transplantation. On the basis of the reference made by the Medical College Hospital, Kozhikode, as well as on the basis of the assessment of the Medical Board constituted in the Government Medical College, Kozhikode, the respondent was found to have advanced Cirrhosis of Liver. The Medical Board opined that he required Liver Transplantation. Accordingly, he underwent Liver Transplantation at Aster Malabar Institute of Medical Science, Kozhikode, on 14.06.2016. In the meanwhile, the respondent submitted an application for interest free medical advance and on the basis of the recommendations made by the 2 nd petitioner Director of Public Instructions, a sum of Rs.18 lakhs was sanctioned to him towards medical advance. Subsequently, the respondent submitted utilisation certificate stating the actual expenditure incurred by him as Rs.16,98,171/-. Thereafter, the respondent received Annexure A5 communication dated 28.01.2019 from the 3 rd petitioner Deputy Director of Education, inter alia stating that the 2 nd petitioner Director of Public Instructions, has admitted only a sum of Rs.11,47,725/- towards treatment expenses and the respondent has to repay the balance amount. He was directed to remit the amount in excess of 80% of the admitted amount before the Government and to produce the challan. Challenging Annexure A5 communication, the respondent filed the original application before the Tribunal under Section 19 of the Administrative Tribunals Act , 1985, seeking setting aside of Annexure A5; a direction against petitioners 2 and 5 to reimburse the entire amount of claim without any reduction in respect of the treatment undergone by the respondent; and a declaration that the respondent is entitled to be reimbursed with full amount of IFMA and no amount is liable to be reduced. 3. The 3 rd petitioner herein filed a reply statement dated 16.08.2019 before the Tribunal opposing the reliefs sought in the original application, producing therewith Annexures R3(a) and R3(b) documents. 3. The 3 rd petitioner herein filed a reply statement dated 16.08.2019 before the Tribunal opposing the reliefs sought in the original application, producing therewith Annexures R3(a) and R3(b) documents. The 5 th petitioner herein filed a reply statement dated 02.11.2021 in the original application, denying the averments in the original application. The learned Government Pleader filed an additional statement dated 30.11.2021 in the original application, producing therewith Annexures R5(a) to R5(g) documents. 4. After hearing both sides and on appreciation of the materials on record, the Tribunal allowed the original application relying on various judgments of the Apex Court as well as the provisions governing the field. Paragraphs 25 to 30 and the last paragraph of that order read thus; "25. Despite all these provisions and judgments declaring that the right to health and right to medical aid, in turn, is the right to life under Article 21 and the State is duty bound under Article 47 and in the light of the international covenant and Universal Declaration of Human rights, the respondents are denying the claim for medical attendance on the basis of rates fixed about two decades ago. That would show that Government do not look into the factual circumstances in total ignorance of its constitutional obligation to provide medical attendance benefits. There was no hospital available at the relevant time under the Government where liver transplantation could be done. In that event, there is no justification for denying the amount incurred towards actual expenditure to the applicant towards medical attendant benefit. 26. On the basis of the list of medicines or rates prescribed for the tests about 20 years back, the claim made by the applicant, on the basis of the bills issued by the hospital towards actual expenses he incurred, cannot be denied to the applicant. 27. Now it is well settled that right to health is a fundamental right and it is incumbent on the State to see that appropriate steps are taken to protect the said right and in this process, the denial of actual medical expenditure incurred by a Government Employee would amount to violation of the Constitutional rights under the provisions contained in Article 21 as well as Article 47 of the Constitution of India . Therefore, Annexure A5 order, to the extent it denied the claim towards the expenditure of Rs.16,98,171/- is set aside. 28. Therefore, Annexure A5 order, to the extent it denied the claim towards the expenditure of Rs.16,98,171/- is set aside. 28. The learned counsel for the applicant submitted that the applicant is suffering from Cardiac problems and is undergoing treatment and because of the withholding of the DCRG, he and his family is in a pathetic conditions. Therefore any further delay in sanctioning and allowing payment towards the actual expenditure to be adjusted towards the advance amount and in effecting payment of DCRG to the applicant would amount to further deprivation of the fundamental right to life of the applicant which would extend to the members of his family also. 29. The action of the respondents in denying the applicant the expenditure incurred towards the surgery is totally illegal. There shall be a direction to the 2 nd respondent to re-consider the entire issue and to issue orders sanctioning the entire expenditure incurred and claimed by the applicant for undergoing liver transplantation and to disburse the amount in excess of the amount found admissible i.e., in excess of Rs.11,47,725/- (20% though deducted is already directed to be paid). This shall be done irrespective of the orders Annexure R5(b), (d), (e) and (f). 30. There shall be a further direction to the 3 rd respondent to release the DCRG due to the applicant for which NLC shall be issued irrespective of the advance availed by the applicant, as the applicant has undertaken to remit as sum of Rs.1,018,29/- which is the difference between the advance amount availed and actual expenditure incurred and claimed. This shall be done within a period of two months from the date of receipt of a copy of this order. The Original Application is disposed of accordingly." 5. Heard the learned Senior Government Pleader for the petitioners and the learned counsel for the respondent. 6. The learned Senior Government Pleader would submit that it was based on Annexure R5(b) to R5(e) Government Orders, the admissible reimbursement amount was limited by the petitioners as Rs.11,47,725/-. Hence, the interference of the Tribunal on Annexure A5 communication is unwarranted. On the other hand, the learned counsel for the respondent would submit that the respondent took treatment from an empanelled hospital, being referred to that hospital from the Medical College, since the facility for Liver Transplantation was not available in the Government hospitals during that period. Hence, the interference of the Tribunal on Annexure A5 communication is unwarranted. On the other hand, the learned counsel for the respondent would submit that the respondent took treatment from an empanelled hospital, being referred to that hospital from the Medical College, since the facility for Liver Transplantation was not available in the Government hospitals during that period. Restricting the reimbursable amount based on the Government Orders issued decades ago is not justifiable. Hence, no interference is warranted on the impugned order of the Tribunal. 7. We have carefully gone through the impugned order of the Tribunal and the materials on record. The reimbursement of expenditure incurred by the Government servants for medical attendance is governed by the Kerala Government Servants Medical Attendance Rules , 1960. Rule 3(e) of that Rules, defines Medical Attendance as under; “"Medical Attendance" means the professional advice and care during sickness or injury whether at a Government Medical Institution, or in the consulting rooms of the Authorised Medical Attendant or at the residence of a Government servant entitled under these rules to medical attendance at his residence. It includes such surgical treatment as is available at Government Medical Institutions or can suitably be given at a Government servant’s residence or at the consulting rooms of the Authorised Medical Attendant as also Bacteriological, Pathological, X-Ray and other clinical examinations available at Government Medical Institutions.” 8. Rule 4 of Kerala Government Servants Medical Attendance Rules , 1960 reads thus; “Persons entitled to free medical attendance - (1) All Government servants are entitled to free of all charges except as expressly specified in these rules, to medical attendance by their Authorised Medical Attendant. (2) Government servants are entitled to free medical attendance irrespective of whether they are on duty or on leave anywhere within the State. (3) Families of a Government servant are entitled to medical attendance free of charge to the same extent as the Government servant himself except that they shall not be entitled to free medical attendance at their residence unless the Authorised Medical Attendant is of the opinion that the patient cannot be removed without grave risk to his/her health.” 9. (3) Families of a Government servant are entitled to medical attendance free of charge to the same extent as the Government servant himself except that they shall not be entitled to free medical attendance at their residence unless the Authorised Medical Attendant is of the opinion that the patient cannot be removed without grave risk to his/her health.” 9. Rule 8 of that Rules reads thus; “Rule 8: Special concessions in regard to medical treatment: (1) Government shall not be responsible for any expenditure incurred by a Government servant on medical treatment by admitting himself into a non-Government Institution or by consulting a Private Doctor, except as specifically provided in these rules. (see Note 1 below) (2) The Director of Health Services may specify the Private Medical Institutions within the State to which a Government servant may resort for purposes of medical relief, provided that no Private Medical Institution shall be so notified where a Government Medical Institution capable of giving similar treatment exists within a radius of 5 miles. (3) Government servants who have no Government Medical Institutions within a radius of 5 miles of their station, may resort to such Private Institutions and the charges incurred by them would be reimbursed by Government to the extent they would have received such treatment free in a Government Institution or at the hands of an Authorised Medical Attendant. (see Note 2 below) Note:- Private Institutions recognised for treatment in Rule 8(3) should be resorted to only in cases of emergency and not as a routine course. Bills for reimbursement submitted as per the above rules should be certified by the nearest District Medical Officer of Health as to the emergency of each case." (4) The claims in this respect should be preferred within one month from the last date of treatment and submitted to the Authorised Medical Attendant. He will scrutinise the bills and return them to the party with his certificate. Note:- In deserving cases in which the delays are not due to avoidable circumstances the Heads of Departments and District Collectors may condone delays up to one month. (5) The expenditure on this account will be debitabale to the same head to which the Salary and Allowances of the Government Servant concerned is debitable.” 10. Note:- In deserving cases in which the delays are not due to avoidable circumstances the Heads of Departments and District Collectors may condone delays up to one month. (5) The expenditure on this account will be debitabale to the same head to which the Salary and Allowances of the Government Servant concerned is debitable.” 10. In Shiva Kant Jha v. Union of India, 2018 (16) SCC 187 , while considering the issue of reimbursement of medical claims under the Central Government Health Scheme, the Apex Court held thus: “17. It is a settled legal position that the Government employee during his life time or after his retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. It is acceptable to common sense, that ultimate decision as to how a patient should be treated vests only with the Doctor, who is well versed and expert both on academic qualification and experience gained. Very little scope is left to the patient or his relative to decide as to the manner in which the ailment should be treated. Speciality Hospitals are established for treatment of specified ailments and services of Doctors specialized in a discipline are availed by patients only to ensure proper, required and safe treatment. Can it be said that taking treatment in Speciality Hospital by itself would deprive a person to claim reimbursement solely on the ground that the said Hospital is not included in the Government Order. The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors / Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds. Clearly, in the present case, by taking a very inhuman approach, the officials of the CGHS have denied the grant of medical reimbursement in full to the petitioner forcing him to approach this Court. xxxx xxxx xxxx xxxx "19. Once, it is established, the claim cannot be denied on technical grounds. Clearly, in the present case, by taking a very inhuman approach, the officials of the CGHS have denied the grant of medical reimbursement in full to the petitioner forcing him to approach this Court. xxxx xxxx xxxx xxxx "19. In the present view of the matter, we are of the considered opinion that the CGHS is responsible for taking care of health care needs and well being of the central government employees and pensioners. In the facts and circumstances of the case, we are of opinion that the treatment of the petitioner in non-empanelled hospital was genuine because there was no opinion left with him at the relevant time. We, therefore, direct the respondent-State to pay the balance amount of Rs.4,99,555/- to the writ petitioner. We also make it clear that the said decision is confined to this case only." 11. In the impugned order, the Tribunal analysed the contentions of the petitioners and the respondent in detail, based on various judgments of the Apex Court as well as this Court, such as State of Punjab v. Ram Lubhaya Bagga, (1998) 4 SCC 117 , Confederation of Ex-Servicemen Association v. Union of India, (2006) 8 SCC 399 , Central Provident Fund Commissioner v. N. Satheesan, 2018 (1) KHC 921 , Dr. George Thomas v. State of Kerala, 2022 (3) KLT 133 and Prasad K.G. v. State of Kerala, 2023 KHC 664 and held that the denial of claim for medical attendance on the basis of rates fixed about two decades ago by the petitioners-respondents is unjustifiable. The Tribunal noted that on the basis of the list of medicines or rates prescribed for the test, about 20 years back, the claim made by the respondent, on the basis of the bills issued by the hospital towards actual expenses he incurred, cannot be denied. 12. The petitioners have no case that there were Government hospitals during the relevant period that provided the treatment of the nature undergone by the respondent in the empanelled hospital. It is pertinent to note that Annexure R5(g), one of the Executive Orders that limits the amount admissible, was issued in the year 2020, when the surgery undergone by the respondent was in the year 2016. 13. It is pertinent to note that Annexure R5(g), one of the Executive Orders that limits the amount admissible, was issued in the year 2020, when the surgery undergone by the respondent was in the year 2016. 13. In M/s Estralla Rubber v. Dass Estate Pvt. Ltd. (2001) 8 SCC 97 the scope of interference by exercising the supervisory jurisdiction under Article 227 of the Constitution of India was considered by the Apex Court and held that the order under challenge can be set aside by the High Court under Article 227 of the Constitution of India if the findings are based on no evidence at all or are also perverse that no reasonable person could come to such conclusion. 14. While appreciating the arguments addressed by the learned counsel on both sides and on perusal of the materials on record, we find no reason to say that the order passed by the Tribunal is perverse or illegal, which warrants the interference of this Court by exercising the supervisory jurisdiction under Article 227 of the Constitution of India . In the result, this original petition stands dismissed.