IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.8400 of 2008 10 20.1.2009 1. The Union of India through its Secretary, Ministry of Health and Family Welfare, Nirman Bhawan, New Delhi. 2. The Union of India through its Secretary, Department of Mines, Government of India, Shastri Bhawan, New Delhi 3. The Director General, Geological Survey of India, 27, J.L.Nehru Road, Kolkatta 4. The Deputy Director General, Eastern Region, Geological Survey of India, Salt Lake Karunmoyee Building, 3rd Floor, Kolkatta 5. The Deputy Director General, Geologist Survey of India, Bhu-vigyan Bhawan, Lohia Nagar, Kankarbagh, Patna. ...... Petitioners VERSUS Priya Nath Sinha, son of Shri Tribhuwan Nath (Retired on 31.1.2005, from the post of Senior Geologist, Geological Survey of India, Patna), Resident of 13 Mangaldeep Apartment, Patliputra Colony, Patna. ...... Respondent -------- Heard learned counsel for the petitioners. Nobody appears on behalf of the sole respondent in spite of valid service of notice. By the judgment under challenge dated 31.8.2007, the Central Administrative Tribunal, Patna Bench, Patna has allowed OA No.773/2005 by accepting claim of the applicant that the Government by taking 2 recourse to Central Government Health Scheme (CGHS) cannot take the plea that it will not reimburse the full expenditure of treatment. Accordingly, the applicant’s claim for full reimbursement of the actual cost of treatment in Escorts Heart Institute, New Delhi amounting to Rs.2,51,700/- has been allowed with benefit of 8% interest on the balance amount yet not paid to the applicant. On behalf of the petitioner- the Union of India it was highlighted that the applicant was treated for a serious heart problem in the year 1999 at Escorts Heart Institute, New Delhi after proper reference and he was allowed 80% of likely expenditure estimated at Rs.2,09,700/- by way of advance. However, the total cost of treatment at the Institute came to Rs.2,51,700. The balance amount of Rs.42,000/- was paid by the applicant in cash. The concerned authorities finally settled the claim of the applicant as per terms of the CGH scheme and only Rs.2,04,728/- was sanctioned for the treatment undertaken. In compliance to a request for refund of Rs.4972/- out of the advance of Rs.2,09,700/-, the applicant refunded the 3 demanded sum of Rs.4972 and the matter came to a rest. According to learned counsel for the petitioners, initially the claim of the applicant was examined as per circular dated 11.7.1997 which covered the period of treatment between April and May, 1999 and as per then approved rate of treatment the applicant was requested to refund a balance amount of Rs.76,650/- but later the respondent authorities revised their stand in view of demand of liberal approach required by the judgment of the Supreme Court and other courts. They applied the latest circular of the Ministry of Health and Family Welfare dated 22.4.1998 which permitted an additional amount of Rs.71,680/- towards the cost of treatment of the applicant. Hence, a demand was made for refund of only Rs.4970/- and the refund was made by the applicant on 16.8.2002. It appears from the records that later the applicant reopened the matter and through a letter dated 18.11.2003 made a demand for total reimbursement of the medical expense of Rs.2,51,750/- in view of a judgment of Delhi High Court dated 5.4.2002 in respect of VK Gupta v. 4 Union of India. This demand was forwarded by the Patna office to the Regional office at Kolkata which reexamined the matter and intimated the Patna office that applicant was entitled only for Rs.1,92,588/- and hence, he should be requested to refund a further amount of Rs.12,140/-. Thereafter, the applicant approached the Central Administrative Tribunal, Patna Bench which has allowed the claim of the applicant as noticed above with interest. Learned counsel for the petitioners has placed reliance upon a judgment of the Apex Court in the case of State of Punjab v. Ram Lubhaya Bagga, reported in (1998)4 SCC 117. In that judgment, the earlier judgment of the Apex Court in the case of State of Punjab v. M.S.Chawla, (1997)2 SCC 83 has been considered and distinguished. Thereafter it has been held in paragraph 29 that the principle of fixation of rate and scale by way of policy is justified and cannot be held to be violative of Articles 21 or 47 of the Constitution of India. The learned Central Administrative Tribunal did not have proper assistance and the aforesaid judgment of the Apex Court was not brought to its notice. However, 5 the law as declared by the Apex Court has to be considered even at the appellate stage. Hence, fixing of a rate and scale as per policy of CGHS cannot be faulted in view of aforesaid Supreme Court judgment. It is not the finding of the Tribunal or the case of the applicant that the calculation of the authorities when they demanded Rs.4970 was not in accordance with the rate and scale fixed under the policy. Moreover, the applicant accepted the said determination of the authorities and paid back the amount by way of refund against the advance received by him. Thereafter, the authorities were also not justified in demanding refund of further Rs.12,140/- on account of recalculation and in deducting the said amount from retiral benefits of the applicant. In our considered view, further deduction of Rs.12,140/- from retrial benefits of the applicant was not proper and appears to be in retaliation to applicant’s demand for full amount of actual expenses incurred by him. Hence, the impugned order of the Tribunal is modified to the extent that applicant shall be entitled to get back Rs.12,140/- from the respondents 6 within a period of three months from today. The judgment under challenge shall stand modified to that extent. The writ petition is allowed to the aforesaid extent. (Shiva Kirti Singh, J.) (J.N.Singh, J.) sk