IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 27TH MAY 2010 / 6TH JYAISHTA 1932 WP(C).No. 34469 of 2008(C) PETITIONER: --------------- SUSHAMA, W/O. PRAKASAN, AGED 48, COMPOSITOR, DEVASWOM BOARD PRESS, THIRUVANANTHAPURAM. BY ADV. SRI.J.S.AJITHKUMAR RESPONDENTS: --------------- 1. ASSISTANT MANAGER, DEVASWOM BOARD PRESS, THIRUVANANTHAPURAM. 2. THE DIRECTOR, DEPARTMENT OF CULTURAL AFFAIRS, THIRUVANANTHAPURAM. 3. TRAVANCORE DEVASWOM BOARD, REPRESENTED BY THE SECRETARY, NANTHANCODE, THIRUVANANTHAPURAM. R1 & R3 BY SENIOR ADV. SRI.P.G.PARAMESWARA PANICKER SRI.P.GOPAL GOVERNMENT PLEADER SRI.T.T.MUHAMOOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF O.P.TICKET NO.379479 DATED 27.11.2006 ISSUED BY THE GENERAL HOSPITAL, TRIVANDRUM. EXT.P2 TRUE COPY OF BILL ISSUED BY THE KIMS HOSPITAL, TRIVANDRUM DATED 7.12.2006. EXT.P3 TRUE COPY OF REPRESENTATION DATED 28.11.2006 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT. EXT.P4 TRUE COPY OF REPRESENTATION OF THE PETITIONER DATED 22.1.2007. EXT.P5 TRUE COPY OF FORWARDING LETTER/REPORT DATED 23.1.2007 OF THE FIRST RESPONDENT. EXT.P6 TRUE COPY OF REPRESENTATION OF THE PETITIONER TO THE PRESIDENT OF TRAVANCORE DEVASWOM BOARD DATED 13.5.2008. EXT.P7 TRUE COPY OF ORDER DATED 18.9.2008 SERVED TO THE PETITIONER ON 28.10.2008. EXT.P8 TRUE COPY OF SANCTIONING ORDER DATED 9.7.2008 OF THE THIRD RESPONDENT. EXT.P9 TRUE COPY OF ORDER DATED 3.3.2008 OF THE THIRD RESPONDENT. EXT.P10 TRUE COPY OF ORDER DATED 11.4.2008 OF THE DY.DEVASWOM COMMISSIONER. EXT.P11 TRUE COPY OF ORDER DATED 12.4.2008 OF DY.DEVASWOM COMMISSIONER. EXT.P12 TRUE COPY OF ORDER DATED 15.5.2008 OF THE THIRD RESPONDENT. EXT.P13 TRUE COPY OF ORDER DATED 25.6.2008 OF THE THIRD RESPONDENT. EXT.P14 TRUE COPY OF PROCEEDINGS OF TRAVANCORE DEVASWOM BOARD DATED 15.2.2006. EXT.P15 TRUE COPY OF APPLICATION DATED 22.1.2007 SUBMITTED BY THE PETITIONER. EXT.P15(A) TRUE COPY OF ESSENTIALITY CERTIFICATE APPROVED BY THE SURGEON DR.RAMESH NATARAJAN OF KIMS HOSPITAL, TRIVANDRUM. EXT.P16 TRUE COPY OF APPLICATION OF PETITIONER DATED 23.12.2009 TO THE PUBLIC RELATION OFFICER, T.D.B., TRIVANDRUM. EXT.P17 TRUE COPY OF PROCEEDINGS DATED 22.6.2008 OF THE TRAVANCORE DEVASWOM BOARD. E3XT.P18 TRUE COPY OF PROCEEDINGS DATED 27.7.2009 OF THE TRAVANCORE DEVASWOM BOARD. RESPONDENTS' EXHIBITS: EXT.R3(a) TRUE COPY OF THE PROCEEDINGS OF THE BOARD, ROC NO.3638/97/ESTT. III DATED 23.7.1997. EXT.R3(b) TRUE COPY OF THE CIRCULAR ISSUED BY THE BOARD DATED 4.8.1998. EXT.R3(c) TRUE COPY OF THE ORDER OF THE GOVERNMENT G.O.(P) NO.45/97/H& PWD DATED 18.2.1997. EXT.R3(d) TRUE COPY OF THE PROCEEDINGS OF THE BOARD, ROC NO.3957/04/ESTT. III DATED 15.2.2006. //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 34469 OF 2008 ------------------------------------------------------ Dated this the 27th day of May, 2010 JUDGMENT Aggrieved by Ext.P7 order dated 18.9.2008 passed by the Secretary of the Travancore Devaswom Board, rejecting the application for medical reimbursement submitted by the petitioner, she has filed this Writ Petition. 2. The petitioner is working as Compositor in the press run by the Travancore Devaswom Board. On 27.11.2006, the husband of the petitioner was admitted in the General Hospital, Thiruvananthapuram. The Civil Surgeon of the General Hospital, Thiruvananthapuram, after examining the patient, issued Ext.P1 which reads as follows: “This is to certify that Mr.Prakasan.K., (52 years, male) was brought to me e c/o. Chest pain & dyspnoea. His Electro cardiogram shows changes suggestive of coronary artery disease. Patient is advised referance to “higher centres” for immediate investigative procedures (Angiogram) and Intensive Care treatment.” W.P.(C) NO.34469 OF 2008 :: 2 :: 3. The case of the petitioner is that her husband was immediately taken to the Medical College Hospital, Thiruvananthapuram. He was told that a date could be given for surgery only after February, 2007. Thereafter, the husband of the petitioner was taken to Sree Chithira Institute of Medical Sciences and Technology and also to Sree Uthradam Thirunal Hospital, Thiruvananthapuram. In those hospitals also, the husband of the petitioner could not be admitted for surgery as the quota for emergency surgery was over in those hospitals. It is stated that taking into account the urgency of the situation, the husband of the petitioner was taken to Kerala Institute of Medical Sciences (KIMS), Thiruvananthapuram, a private hospital. The husband of the petitioner underwent a coronary surgery. The learned counsel for the petitioner submitted that the primary angioplasties was done on 28.11.2006 and PTCA and stenting was done on 4.12.2006, after perusing the discharge summary. The petitioner incurred an expenditure of Rs.3,70,000/- in KIMS Hospital for the treatment of her husband. 4. The petitioner submitted Ext.P15 application dated 22.1.2007 for medical reimbursement. It is stated that the necessary W.P.(C) NO.34469 OF 2008 :: 3 :: documents like essentiality certificate and other documents were also produced along with the application. Ext.P15 application was forwarded through the Assistant Manager of Devaswom Board Press. The Assistant Manager forwarded the same as per Ext.P5 dated 22.1.2007, to the Board for sanction of Rs.3,63,471/-. The Travancore Devaswom Board rejected the application for medical reimbursement and it was communicated to the petitioner by the Secretary of the Board as per Ext.P7 dated 18.9.2008. The reason for rejection of the claim was that the hospital in which the treatment was given to the husband of the petitioner was not a hospital recognised for the purpose of medical reimbursement. Ext.P7 is under challenge in this Writ Petition. 5. It is submitted by the petitioner that the Travancore Devaswom Board had granted medical reimbursement in several other cases, where treatment to the patients was given in hospitals not recognised as per the scheme for reimbursement. The petitioner relies on Ext.P8 order dated 9.7.2008, which was passed about two months before the rejection of the petitioner's claim. As per Ext.P8, a sum of Rs.4,24,062/- was granted to the former Secretary of the Travancore Devaswom Board for the treatment of his wife at MIOT W.P.(C) NO.34469 OF 2008 :: 4 :: Hospital, Chennai. Ext.P8 order was passed “as a special case”. Ext.P8 order does not indicate what the special case was or what was the reason for treating it as a special case. 6. The petitioner also relies on Exts.P9 to P13 orders passed by the Board during various periods in 2008 granting all the claims for medical reimbursement made by Sri.V.G.Eswaran Namboothiri. It is averred in the Writ Petition that the medical reimbursement to Sri.V.S.Rajagopalan Nair, the former Secretary of the Travancore Devaswom Board, was granted as per Ext.P8 and the medical reimbursement claims made by Sri.V.G.Eswaran Namboothiri were granted as per Exts.P9 to P13, though the treatment in respect of those claims were made in hospitals which were not recognised as per the scheme formulated by the Travancore Devaswom Board. It is stated by the petitioner that she got Exts.P8 to P13 on an application submitted under the Right to Information Act. 7. The petitioner also relies on certain additional documents which were produced as Exts.P17 and P18 in respect of the grant of medical reimbursement to certain other persons who, according to the petitioner, were treated in the KIMS Hospital. Exts.P17 and P18 W.P.(C) NO.34469 OF 2008 :: 5 :: do not mention the name of the hospital, but in Ext.P16 application submitted for the purpose of getting Exts.P17 and P18, it was made clear that the petitioner wanted the documents granting reimbursement for the treatment of the respective applicants at the Kerala Institute of Medical Sciences. 8. That some of the claims made by Sri.V.G.Eswaran Namboothiri were irregular is clear from the averments made in the counter affidavit filed by the Secretary of the Travancore Devaswom Board. In paragraph 11 of the said counter affidavit, it is stated as follows: “11. The averments in paragraph 4 of the Writ Petition are not fully correct and are denied. Exhibit P8 proceedings of the Board sanctioning the medical reimbursement to Sri.V.S.Rajagopalan Nair, for the treatment of his wife for undergoing double valve replacement at MIOT Hospital, Chennai has been sanctioned as a special case. Hence Exhibit P8 cannot be relied on as contended by the petitioner. The application submitted by Sri.V.G.Eswaran Namboothiri relates to the treatment of his father and daughter. His father was treated at St.Gregorious Mission Hospital, Parumala and his daughter was treated at Medical W.P.(C) NO.34469 OF 2008 :: 6 :: College Hospital, Thiruvananthapuram. Exhibit P9 relates to the treatment of his father and daughter. Exhibit P10, Exhibit P11, Exhibit P12 relates to the claim for medical reimbursement of his father. Exhibit P13 relates to the treatment of his daughter. The sanctioning of medical reimbursement for the treatment of the father of Sri.Eswaran Namboothiri is and against the rules in force. The treatment of the father of Sri.Eswaran Namboothiri is in a private hospital not approved by the Board or the Government. Hence the reliance placed by the petitioner Exhibit P9 to the extent it granting reimbursement to his father, Exhibits P10, P11 and P12 has no application to the case.” 9. The petitioner was not claiming reimbursement on the basis of any illegality committed by the Board earlier, but on the ground that 'in the special circumstances', the petitioner had no other go but to admit her husband in the Kerala Institute of Medical Sciences. It is submitted that in Exts.P3 and P4 representations, the petitioner had stated the circumstances under which her husband sought treatment in KIMS Hospital. The counsel pointed out that the Board did not consider those circumstances in order to arrive at a conclusion as to whether at least as a special case the claim could be granted. The counsel submitted that it is well known that Sree W.P.(C) NO.34469 OF 2008 :: 7 :: Chithira Institute of Medical Sciences and Technology and Sree Uthradam Thirunal Hospital are referral hospitals and it may not be possible for a patient to get himself admitted for urgent and immediate surgery except under exceptional circumstances. It is pointed out in the representations that even the emergency quota for surgery was over in those two hospitals, which compelled the petitioner to admit her husband in KIMS Hospital. 10. The learned counsel appearing for the Travancore Devaswom Board submitted that the claim put forward by the petitioner is not legally sustainable. He referred to Ext.R3(a) medical reimbursement scheme of the Travancore Devaswom Board. It is submitted that a medical reimbursement is possible only if the patient is attended by an Authorised Medical Attendant. The Authorised Medical Attendant is defined in clause 3(iii) of the Scheme. Clause 4 of the Scheme provides that the cost of medicine, including sales tax, purchased for the effective treatment of a patient employee, or his dependent shall be reimbursed to the employee, provided the treatment is taken under an Authorised Medical Attendant as inpatient or outpatient. For the sake of convenience, clauses 5 and 7 of the Scheme are extracted below: W.P.(C) NO.34469 OF 2008 :: 8 :: “5. Medical Institution:- Treatment shall be made in an Institution under the Government of Kerala. It includes such surgical treatment as is available at the Government Medical Institution as also Baterological, Pathological, X-ray and other Clinical examination available at Government Medical Institution. Only one system of treatments shall be allowed at a time. 6. ...... ...... 7. Special Concession:- 1. The Board shall not be responsible for any expenditure incurred by an employee for Medical treatment by admitting himself into a non-Government Institution or by consulting a Private Doctor except as specially provided in these rules. 2. “Employees who have no Government Medical Institution within a radius of 8 KMs of their station may resort to the Private Medical Institution recognised by the State Government as an Institution under Rule 8 (3) of the Kerala Government Servants Medical Attendance Rules 1960. Such W.P.(C) NO.34469 OF 2008 :: 9 :: Private Institutions should be resorted to only in cases of emergency and not as a routine course. Bills for re-imbursement should be certified by an Authorised Medical Attendant as to the emergency of each case. The re-imbursement of the expenses for the treatment will be made at the rates approved by the Government for such treatment.” 11. The learned counsel for the Board submitted that the Scheme makes provision for admitting a patient in a private medical institution under certain circumstances, but such private institutions should be resorted to only in the case of emergency. It is also mandatory that the private medical institution should be recognised by the State Government as an institution under Rule 8(3) of the Kerala Government Servants' Medical Attendance Rules, 1960. 12. The learned counsel for the Board also submitted that as per G.O.(P)45/97/H&FWD dated 19.2.1997 (Ext.R3(c)), the Kerala Government Servants' Medical Attendance Rules, 1960 were modified on the basis of the recommendations made by an expert committee appointed, as recommended by the Fifth Pay W.P.(C) NO.34469 OF 2008 :: 10 :: Commission. He submitted that going by Ext.R3(c), the three centres at Thiruvananthapuram which were recognised were Sri Chithira Thirunal Institute of Medical Sciences and Technology, Thiruvananthapuram, S.U.T.Hospital, Thiruvananthapuram and P.R.S.Hospital, Killippalam, Thiruvananthapuram. It is pointed out that KIMS Hospital is not recognised as per Ext.R3(c). The counsel also submitted that as per Ext.R3(d) dated 15.2.2006, the Board resolved to make applicable, the Government Orders relating to the medical reimbursement, to the employees of the Board as well. 13. Sri.Gopal, learned counsel appearing for the Travancore Devaswom board, relied on the decision of the Supreme Court in State of Karnataka and another v. R.Vivekananda Swamy ((2008) 5 SCC 328), where the Supreme Court referred to the various earlier decisions of the Supreme Court and held as follows: “24. In view of the aforementioned settled principles of law there cannot be any doubt that the Rules regarding reimbursement of medical claim of an employee when he obtains treatment from a hospital of his choice can be made limited. Such Rules furthermore having been framed under the proviso to W.P.(C) NO.34469 OF 2008 :: 11 :: Article 309 of the Constitution of India constitute conditions of service in terms whereof on the one hand the employee would be granted the facility of medical aid free of cost from the recognised government hospitals and on the other he, at this option, may get himself treated from other recognised hospitals/ institutions subject of course to the condition that the reimbursement by the State therefor would be limited. 25. In the Karnataka case, however, it is necessary to take into consideration the provisions of Rule 31 of the 1963 Rules which confers an unequivocal power of relaxation on the authorised authorities specified therein. A public authority may exercise its power of relaxation only where there exists a provision therefor. (See Kendriya Vidyalaya Sangathan v. Sajal Kumar Roy ((2006) 8 SCC 671) and Pitta Naveen Kumar v. Raja Narasaiah Zangiti ((2006) 10 SCC 261). It, however, goes without saying that while exercising such a power, the authority must act judiciously keeping in mind the purport and object thereof. Considerations therefor, although may not partake a mathematical exactable but should always be fair and reasonable. Although it may not be possible for an employee to enforce a purported right on the premise that another person had obtained reimbursement for a similar kind of treatment, ordinarily fair procedure envisages a broad W.P.(C) NO.34469 OF 2008 :: 12 :: similarity. If any person has been shown any undue favour, we may add, this by itself may not be a ground to favour another but when such a contention is raised, the State should be able to demonstrate a fair treatment. It is possible to draw a distinction on the basis of several factors, emergent situation being one of them. So viewed, we do not find that the State of Karnataka had acted arbitrarily.” 14. In State of Punjab v. Ram Lubhaya Bagga ((1998) 4 SCC 117), it was held thus: “When we speak about a right, it correlates to a duty upon another, individual, employer, government or authority. In other words, the right of one is an obligation of another. Hence the right of a citizen to live under Article 21 casts obligation on the State. This obligation is further reinforced under Article 47, it is for the State to secure health to its citizen as its primary duty. No doubt the Government is rendering this obligation by opening government hospitals and health centres, but in order to make it meaningful, it has to be within the reach of its people, as far as possible, to reduce the queue of waiting lists, and it has to provide all facilities for which an employee looks for at another hospital. Its upkeep, maintenance and cleanliness has W.P.(C) NO.34469 OF 2008 :: 13 :: to be beyond aspersion. To employ the best of talents and tone up its administration to give effective contribution. Also bring in awareness in welfare of hospital staff for their dedicated service, give them periodical, medico-ethical and service-oriented training, not only at the entry point but also during the whole tenure of their service. Since it is one of the most sacrosanct and valuable rights of a citizen and equally sacrosanct sacred obligation of the State, every citizen of this welfare State looks towards the State for it to perform its this obligation with top priority including by way of allocation of sufficient funds. This in turn will not only secure the right of its citizen to the best of their satisfaction but in turn will benefit the State in achieving its social, political and economical goal. For every return there has to be investment. Investment needs resources and finances. So even to protect this sacrosanct right finances are an inherent requirement. Harnessing such resources needs top priority.” 15. The learned counsel for the Board also relied on paragraph 13 of the decision in State of Kerala v. Prasad (2007 (3) KLT 531 (SC)), which reads as follows: “13. We may now deal with the plea of the respondents that they have been discriminated against. W.P.(C) NO.34469 OF 2008 :: 14 :: It is true that Art.14 of the Constitution embodies a guarantee against arbitrariness but it does not assume uniformity in erroneous actions or decisions. It is trite to say that guarantee of equality being a positive concept, cannot be enforced in a negative manner. To put it differently, if an illegality or irregularity has been committed in favour of an individual or even a group of individuals, others, though falling in the same category, cannot invoke the jurisdiction of the Writ Courts for enforcement of the same irregularity on the reasoning that the similar benefit has been denied to them. Any direction for enforcement of such claim shall tantamount to perpetuating an illegality, which cannot be permitted. A claim based on equality clause has to be just and legal.” The counsel submitted that only because certain claims were illegally granted as per Exts.P8 to P13, Ext.P17 and P18, the claim for medical reimbursement put forwarded by the petitioner cannot be allowed. 16. As stated earlier, medical reimbursement for the treatment of the wife of the former Secretary of the Travancore Devaswom Board for a sum of Rs.4,24,062/- was granted as a special case. W.P.(C) NO.34469 OF 2008 :: 15 :: That order was passed on 9.7.2008. However, an almost identical case of the petitioner was rejected by the Board by the order dated 18.9.2008. In Ext.P8, the fortunate beneficiary was the former Secretary of the Travancore Devaswom Board, while in Ext.P7 the unfortunate person is a Compositor in the press run by the Travancore Devaswom Board. The Travancore Devaswom Board could not adopt different yardsticks in the case of its employees, violating the Scheme for medical reimbursement. The Travancore Devaswom Board could not favour somebody and show the rule to others. Uniform standard should be applied by the Board to all. Otherwise, there was no purpose for framing a scheme and making applicable the rules framed by the Government for dealing with the claims for medical reimbursement. Even after making a rule, if the person bound to enforce the rule is not prepared to obey the said rule, he cannot put forward as a defence that similar treatment could not be claimed by the unfortunate people who were not favoured, simply on the ground that undue favour was shown to someone. It is true that a writ of mandamus cannot be issued on the ground that the petitioner in the Writ Petition should be granted the same relief which was illegally granted to some other person. But, while dealing with a Writ Petition, certainly the Court should be conscious of the double W.P.(C) NO.34469 OF 2008 :: 16 :: standard adopted by a responsible body like the Travancore Devaswom Board. Now, the Board consisting of several members is not in existence. In the place of the Board, the Additional Chief Secretary is discharging the functions of the Board as the Chief Commissioner. It is only just and reasonable to direct the Additional Chief Secretary who is the Chief Commissioner to consider the case of the petitioner afresh in the light of all the relevant details and materials and to take a considered view in the matter. There cannot be two sets of rules for the employees in the same institution. There cannot be two types of treatment meted out to different sections of employees in the same institution. Such a treatment would affect the morale of the workers and employees and they would reiterate their feeling that only the top people in the institution would get favours by even violating the rules. It would not be to the best interest of the Travancore Devaswom Board to indulge in illegalities, arbitrariness and favouritism when the Board is dealing with the money of the worshiping public. Uniform standard should be adopted in the case of all the employees. 17. In the case on hand, before passing Ext.P8 order, the Board has not taken into account the specific averments made in W.P.(C) NO.34469 OF 2008 :: 17 :: Exts.P3 and P4 representations submitted by the petitioner. She was also not heard touching upon those matters in order to ascertain whether the averments made in Exts.P3 and P4 are true. Necessary enquiries were also not made in the hospitals concerned, whether treatment could be afforded to the husband of the petitioner on 28.11.2006 either at Sri Chithira Thirunal Institute of Medical Sciences and Technology, Thiruvananthapuram or at S.U.T.Hospital. 18. For the aforesaid reasons, I quash Ext.P7. The Additional Chief Secretary who is discharging the functions of the Board as Chief Commissioner shall dispose of the claim made by the petitioner for medical reimbursement (Ext.P15) afresh in accordance with law and in the light of the observations made hereinabove. 19. The learned counsel for the petitioner submitted that the entire records including Ext.P15 were returned to the petitioner and the original application and records are with her. The petitioner shall produce all the necessary documents before the Additional Chief Secretary who is the Chief Commissioner of the Board within a period of three weeks from today. The Chief Commissioner shall dispose of the claim within a period of three weeks from the date of W.P.(C) NO.34469 OF 2008 :: 18 :: receipt of a copy of this judgment and the original documents as aforesaid, after affording an opportunity of being heard to the petitioner. The Writ Petition is allowed as above. (K.T.SANKARAN) Judge ahz/