IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.3007 of 2002 1. RAJ KUMAR BHARTI, S/O LATE SHEO BALAK BHARATI, R/O VILLAGE-JHANDA BHARTI KE MATHIA, P.O.-RANIGANJ BAZAR, DISTRICT-BALIA (U.P.) AT PRESENT POSTED AS ASSISTANT TEACHER, LAXMI NARAYAN BRAHMAN HIGH SCHOOL, CHAPRA, DISTRICT-SARAN. 2. SMT. NIRMALA BHARTI, W/O SRI RAJ KUMAR BHARTI, R/O VILLAGE-JHANDA BHARTI KE MATHIA, P.O.-RANIGANJ BAZAR, DISTRICT-BALIA (U.P.) AT PRESENT RESIDING AT PRABHU NATH NAGAR, P.S.- CHAPRA TOWN, P.O.-CHAPRA, DISTRICT-SARAN AT CHAPRA. ………………PETITIONERS. Versus 1. THE STATE OF BIHAR. 2. THE DIRECTOR-IN-CHIEF, HEALTH AND MEDICAL ATTENDANCE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 3. THE JOINT SECRETARY, HEALTH AND MEDICAL ATTENDANCE DEPARTMENT, GOVERNMENT OF BIHAR, PATNA. 4. THE DEPUTY DIRECTOR, PRIMARY HEALTH SERVICES, BIHAR, PATNA. ………………RESPONDENTS. ----------- 4 03.02.2010 Heard learned counsel for the petitioner and learned counsel for the State. Petitioners, who are husband and wife, have filed this writ application for quashing of letter dated 19.11.2001 issued from the Department of Health, Government of Bihar (Annexure-10) by which the claim of the petitioners for medical reimbursement has been rejected. The case of petitioners is that some time prior to 2000, petitioner no. 2, the wife, developed some ailment in her kidney. She was placed under the treatment of Dr. U.S. Roy in 2 the Department of Nephrology of I.G.I.M.S., Bihar, Patna. After clinical examinations it was detected that she was suffering from Chronic Renal Failure. In course of treatment the condition of petitioner no. 2 deteriorated and, therefore, she was recommended, vide Annexure-1 dated 4.9.2000, for kidney transplant and treatment to the Post Graduate of Medical Education and Research, Kolkata. Petitioner no.1 accordingly applied for sanction of advance before the respondents for the said kidney transplant of petitioner no. 2 as per the rules. The said application was considered and the sanction was accorded by the Government vide sanction order dated 31.1.2001 (Annexure-2). Petitioners, thereafter, proceeded to Kolkata and contacted the Doctor in the Hospital there. It is submitted by learned counsel for the petitioners that due to heavy rush, petitioners could not get date for operation for quite some time and the condition of petitioner no. 2 deteriorated. Due to her deteriorating condition some minor operations and dialysis were done upon her in the Kolkata Hospital but that did not improve her condition. When the Doctors at Kolkata found that her condition was 3 not improving and she needed immediate transplant, they gave a certificate to that effect recommending for her kidney transplant at an early date at any other centre. A copy of the said certificate is annexed as Annexure-4. Due to imminent danger to the life of petitioner no. 2, petitioners thereafter left for Appolo Hospital, Hyderabad and informed the authorities of the State Government accordingly. The information furnished to the respondents in this regard has been annexed by the petitioners as annexure-5. Petitioner No.2 was taken to Appolo Hospital at Hyderabad which was also informed to the respondents by Annexure-6. However, at Appolo Hospital, Hyderabad also, petitioners found that due to heavy rush it was not possible to get the kidney transplant/operation done at an early date. Hence petitioners thereafter proceeded to Rubi Hospital, Jalandhar, Punjab where petitioner no.2 was admitted on 3.8.2001 and information in this regard was also furnished to the respondents by the petitioners vide Annexure-7 dated 9.8.2001. Petitioner no. 2 was finally operated upon there on 24.8.2001 and her kidney transplant was successful. The respondents were informed about the same also by 4 the petitioners along with the certificate of the Doctor vide annexure-8 dated 27.8.2001. However, petitioner no. 2 developed some complications and she was again admitted in the hospital at Jalandhar where she was again operated upon which information was also furnished to the respondents through registered post, a copy whereof is annexed as Annexture-9 to the writ application. Petitioners were in dire need of money. But no further advance was released by the respondents. Therefore, petitioners returned and submitted their application for medical reimbursement along with all certificates. However, the same was rejected by the respondents, vide Annexure-10, merely on the ground that the petitioners had availed the medical treatment at a private institution. Learned counsel for the petitioners submits that petitioners had no choice and they had to travel from Patna to Kolkata, then Hyderabad and then Jalandhar under compulsion and to save the life of petitioner no.2. Since there was question of her life and death, they could not wait for permission/sanction by the respondents. They also could not search for the 5 approved institution by the respondents where the operation was possible. Petitioners acted on expert advice and the best institution where they had confidence that the operation would be successful. There was nothing malafide on the part of the petitioners and it was all done to save the life of petitioner no.2 with due intimation to the respondents at every stage. Therefore, rejection of their claim for medical reimbursement merely on the ground that the operation was done at a private institution is arbitrary and inhuman and the impugned order of rejection is fit to be quashed with suitable direction to allow their claim. A counter affidavit has been filed in the case by the respondents. In the counter affidavit, it is stated that since the institute at Jalandhar was not recognized under the Rules for availing medical treatment by the Government employees, petitioners were not entitled to the medical reimbursement. A supplementary counter affidavit has also been filed by the respondents sworn by the Joint Director, Health Services, Bihar, Patna in which it is said that now the concerned departments have been delegated with the power to consider the claims of medical 6 reimbursement of the government employees working in the respective departments. Therefore, now the claim of the petitioners for medical reimbursement has to be considered by the Human Resources Development Department, Government of Bihar, Patna as petitioner no. 1 is in service under the department as Assistant Teacher. Learned counsel for the State submits that since the matter has not been considered finally by the Human Resources Development Department, petitioners may file a representation before that Department which may be directed to consider it at an early date. This submission of learned counsel for the State could be accepted only if the claim of petitioners would have been pending with the Department. The fact of the matter is that the Health Department has already rejected the claim of the petitioners and therefore it can not be said that the same could be considered by the parent department of petitioner at this stage on its own. This Court, in a similar case, has held that the State has ample powers under Rule 26 to relax the provisions of the Rules and grant post 7 facto permission/sanction to such treatment, in exigency of the situation under which the government servant had to avail medical treatment in a private institution. The State Government can not shut its eyes from the urgency of the matter of imminent danger to the life of the concerned Government servant or his dependents and the compulsion under which he had to avail the medical treatment from any other institution. Therefore, following the ratio of the judgment of this Court dated 23.11.2009 passed in CWJC No. 2446 of 2006, this Court is inclined to allow the writ application of the petitioners. The same is, accordingly, allowed and Annexure-10 is quashed. The respondents are directed to consider the claim of medical reimbursement of petitioners on merits and pass appropriate orders in respect of their entitlement in accordance with law and pass orders for payment of the same to them within a period of three months from the date of receipt/production of a copy of this order. Obviously, no file of petitioners is pending before the Human Resources Department for consideration of their claim as the claim 8 already stands rejected by the Health Department. Therefore, the authorities of the Health Department are directed to transmit the records in respect of medical claim of the petitioners to the concerned authorities of the Human Resources Department within two weeks from the date of receipt/production of a copy of this order. Thereafter the same will be considered by the Human Resources Department and the orders shall be passed as directed above within the time stipulated. Before parting with this case, this Court may observe that the rejection of the claim of the petitioners by impugned Annexure-10 was a four line order. The impugned order itself shows that it was mechanical and without applying an objective mind to the fact situation of the case and without considering as to whether, in the facts and circumstances, State Government should have exercised power under Rule 26 of the Rules or not. Therefore, following the order passed by this Court in the case, as referred above, this Court awards interest on the due amount of the petitioners at the rate of 6% per annum from the date of submission of bills till its reimbursement, 9 which shall also be calculated and paid to the petitioners along with the principal amount within the same time. Arvind/ (J. N. Singh, J.)