IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Writ Petition No. 10286-CAT of 2004 Date of decision: March,2009 Union of India and others .............................................. Petitioners Versus Anil Soni and another .................................................... Respondents Coram: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA HON'BLE MS. JUSTICE NIRMALJIT KAUR Present: Mr. Namit Kumar, Advocate for the Petitioners Mr. Ashwani Talwar, Advocate for Respondent No. 1 ASHUTOSH MOHUNTA, J. This petition has been filed under Article 226/227 of the Constitution of India, by Union of India, for quashing order dated 09.12.2003 (Annexure P-4) passed by the Central Administrative Tribunal, Chandigarh Bench, Chandigarh (for short `the Tribunal'), whereby the Original Application filed by respondent No. 1 – Anil Soni has been allowed and the petitioners have been directed to make full reimbursement of the expenditure incurred by respondent No. 1 on medical treatment taken by him as per package deal of the Escorts Heart Institute and Research Centre, Delhi (for short ‘Escorts Institute’). The petitioners have also challenged the order dated 19.05.2004 (Annexure P-8) whereby the review application filed by the petitioners against the said order dated 09.12.2003 has also been dismissed. Brief facts of the case are that respondent No. 1 joined as Lower Division Clerk (L.D.C.) with petitioner No. 5- department on 24.04.1997. He got himself examined at the Escorts Institute on 08.06.2000 and was informed that cardiac catheterization and renal angiography was required to be performed and arotic valve replacement shall have to be undertaken. The respondent No. 1 made an application to the petitioners for sanction of advance for undertaking the treatment. As the same was not sanctioned, respondent No. 1 arranged money from his own resources and got himself admitted in the Escorts Institute on 23.06.2000. The arotic valve replacement was done on 30.06.2000 and thereafter respondent No. 1 was discharged on 05.07.2000. C.W.P. No. 10286-CAT of 2004 [ Page numbers ] Respondent No. 1 submitted claim for medical reimbursement vide letter dated 06.09.2000, however he was not paid anything on account of his said medical reimbursement claim. Feeling aggrieved, respondent No. 1 filed an Original Application under Section 19 of the Administrative Tribunals Act, 1985, before the Tribunal, being O.A. No 511-PB of 2001 which was allowed by the Tribunal vide order dated 10.12.2001 (Annexure A-5), relying on the judgment of the Hon'ble Supreme Court in State of Punjab v. Ram Lubhaya Bagga, [1998 A.I.R. (SC) 1703]. For the present controversy, it would be relevant to reproduce the operative portion contained in para 12 as also the observations made in para 10 of the order dated 10.12.2001, which reads as under:- “10. As regards reimbursement of medical claim, letter No. S- 14025/45/94-MS, dated 22.04.1998 of the Ministry of Defence (Annexure A/4) clearly states that revisional charges for By pass surgery in respect of private hospitals recognized at par with CGHS beneficiary provided that the rates of CABS, Coronary, Angiography and other wards will be regulated on package deal basis for the treatment got conducted from recognized private hospitals. The name of the Escorts Heart Institute and Research Centre finds mention in the recognized hospitals for its employees. Thus, the respondent will have to reimburse the medical expenses as per package deal with the above mentioned Institute. 12. In view of the facts mentioned above, the O.A. is allowed to the extent respondent are directed to pay the reimbursement amount as per package deal of the Escorts Heart Institute and Research Centre. These directions be complied with within a period of three months from the date of receipt of the copy of this order” The petitioners in pursuance to the order dated 10.12.2001, passed by the Tribunal, paid an amount of Rs.1,31,700/- to respondent No.1 C.W.P. No. 10286-CAT of 2004 [ Page numbers ] on account of the medical reimbursement claim. However, according to the claim of Respondent No. 1, as per package for surgery of Arotic Valve Replacement, the Escort Institute has charged Rs.2,40,000/- and hence respondent No. 1 was entitled to Rs.2,40,000/-. Feeling dissatisfied with the part payment of his medical reimbursement claim, respondent No.1 filed a Contempt petition, being C.P. No. 149/2002, which was dismissed by the Tribunal vide order dated 05.03.2002, the operative part of which reads as under:- “Sh Thakur, Ld. Counsel for the respondents states that the order dated 10.12.2001 passed in O.A. 511/PB/2001 has been complied with. In C.P., merit of the case cannot be gone into. In any case, the respondents have complied with the order of this Tribunal, therefore, it cannot be said that they have deliberately disobeyed the order of this Tribunal. However, if the applicant still aggrieved for the deficiency of the payment made to him, he may file fresh O.A.. This C.P. does not survive. It is accordingly dismissed. Notice is discharged.” The respondent No.1, thereafter filed a fresh Original Application before the Tribunal, being OA. No 545-PB of 2003, claiming the balance medical reimbursement claim amounting to Rs.1,08,300/- along with interest @ 10% p.a. The said O.A. has been allowed by the Tribunal vide order dated 09.12.2003, the relevant portion of which is reproduced hereunder:- “6. This Bench of the Tribunal in order dated 10.12.2001 in O.A. No. 511/PB/2001 has categorically directed the respondents “to pay the reimbursement amount as per package deal of the Escorts Heart Institute and Research Centre”. As admitted by respondents in their written statement this order has become final as the same has not been challenged by either of the parties. This order nowhere states that the reimbursement is to be limited to the rates as per package deal in accordance with the GOI instructions vide letter dated 22.04.1998 and 09.01.1995, referred to by the respondents in C.W.P. No. 10286-CAT of 2004 [ Page numbers ] their written reply. It has to be paid as per the package deal rates of the Escorts Heart Institute where the applicant was treated, which was Rs 2, 40,000/- (Annx. A-2/1). Against this, the applicant has been reimbursed Rs 1,31,000/-. It thus falls short by Rs 1,08,300/-. The respondents, in compliance of the order the Tribunal should have reimbursed the full amount. 7. During the course of the arguments, the learned counsel for the respondents stated that the reimbursement has been limited to the package rates notified in letter dated 22.04.1998. If that is so, it is against the order of this Tribunal which specifically ordered that the reimbursement has to be as per package of the Escorts Heart Institute. 8. Besides, the above, the Chandigarh Bench of the Tribunal in a very comprehensive judgement dated 25.01.2002 in O.A. No. 248/PB/2001 has held that the applicant was entitled to full reimbursement of the medical treatment obtained by him in Escorts Heart Institute. In this judgment the provisions made in the OM. Dated 22.4.1998 in so far as they restrict the reimbursement of expenditure incurred on medical treatment/ attendance, were declared to be in violation of the provisions of Rules 3 and 6 of the Central Services (Medical Attendance) Rules, 1944. 10. In view of the above decisions and particularly the decision taken in the present case vide order dated 10.12.2001 (O.A. No. 511/PB/ 2001), the OA is allowed and the respondents are directed to make full reimbursement of the expenditure incurred by the applicant on medical treatment taken by him, as per package deal of the Escorts Heart Institute and Research Centre. The balance amount due to him be paid within two months from the date of receipt of copy of this order.” C.W.P. No. 10286-CAT of 2004 [ Page numbers ] The petitioners herein also filed a Review Application before the Tribunal, being R.A. No. 2 of 2004, for review of the aforementioned order dated 09.12.2003. However, the said review application was dismissed by the Tribunal vide order dated 19.05.2004 (Annexure P-8), which is also subject matter of challenge before us in the present writ petition. We have heard the learned counsel for the parties at length. The learned Counsel for the petitioners - Union of India vehemently argued that the Government of India has prescribed approved rates for the package deals for treatment at the approved private hospitals for various ailment vide instructions dated 19.08.1993 / 31.10.1994 (Annexure P-9), which have been further revised by the Government vide instructions dated 22.04.1998 (Annexure P-10). He has contended that the instructions dated 19.08.1993 and 31.10.1994 have been considered and upheld by a Division of Bench of this Court in RCP Karn vs. Union of India and others [ 2003 (3) SCT 520 ], wherein it has been held that the petitioner therein is not entitled to reimbursement of the full medical claim and is entitled to reimbursement as per the policy framed by Government of India and in vogue at the relevant time. The learned counsel has further argued that the Tribunal has misconstrued and misread the earlier order of the Tribunal dated 10.12.2001 as the said order nowhere states that the respondent No. 1 is entitled to full medical reimbursement. The Tribunal has infact relied upon the instructions of the Government of India dated 22.04.1998 in the said order. On the other hand the learned counsel for the respondent has sought to support the order of the Tribunal, by contending that the Tribunal has in its earlier order dated 10.12.2001 already directed the petitioners to pay the expenditure incurred by the respondent No. 1 on medical treatment taken by him, as per package deal of the Escorts Heart Institute and Research Centre. The said order was never challenged by the petitioners and has attained finality and hence the Tribunal has rightly held that the respondent No. 1 is entitled for the balance amount due to him. The law relating to the medical reimbursement came up for the consideration of the Hon'ble Supreme Court, recently in the case of State of C.W.P. No. 10286-CAT of 2004 [ Page numbers ] Karnataka v. Sri R. Vivekananda Swamy, [ 2008 (2) S.C.T. 756 = 2008 A.I.R. (SC) 2080], where in after noticing the law propounded by Supreme Court on the subject from time to time, the Hon'ble Supreme Court concluded as under in para 18 of the judgment:- “18. 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 a rule furthermore having been framed under the proviso to Article 309 of the Constitution of India constitutes 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 recognized government hospitals and on the other he, at his option, may get himself treated from other recognized hospitals/institutions subject of course to the conditions that the reimbursement by the State therefor would be limited.” The Hon'ble Supreme Court in the aforementioned decision, also noticed with approval its earlier decision in Ram Lubhaya Bagga case supra, which has also been relied upon by the Tribunal in its earlier order dated 10.12.2001 while granting medical reimbursement to the respondent No. 1. The relevant para reads as under:- “15. This Court, however, considered the validity of a rule in regard to reimbursement of the medical expenses viz-a-viz the fundamental right of a citizen in terms of new policy evolved by the State of Punjab limiting claim for reimbursement in State of Punjab and others v. Ram Lubhaya Bagga and others, 1998(1) SCT 716 : (1998)4 SCC 117, opining :- "23. When we speak about a right, it corelates 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 C.W.P. No. 10286-CAT of 2004 [ Page numbers ] 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 Government is rendering this obligation by opening Government hospitals and health centers, 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 up-keep; maintenance and cleanliness has 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." However, having regard to the fact that the medical facilities continued to be given and an employee was given free choice to get treatment from any private hospital in India but the amount of payment for reimbursement was regulated, it was opined :- "29. No State or any country can have unlimited resources to spend on any of its project. That is why it only approves its projects to the extent it is feasible. The same holds good for C.W.P. No. 10286-CAT of 2004 [ Page numbers ] providing medical facilities to its citizen including its employees. Provision of facilities cannot be unlimited. It has to be to the extent finance permit. If no scale or rate is fixed then in case private clinics or hospitals increase their rate to exorbitant scales, the State would be bound to reimburse the same. Hence we come to the conclusion that principle of fixation of rate and scale under this new policy is justified and cannot be held to be violative of Article 21 or Article 47 of the Constitution of India." A Division Bench of this court in RCP Karn’s case supra, relying on Ram Lubhaya Bagga case supra and an earlier decision of this court in Union of India and others vs. S.L.Rampal [Vol. CXXII 1999(2) PLR 373], while interpreting the instructions dated 19.08.1993 and 31.10.1994 (Annexure P-9), has held that the petitioner therein is entitled to medical reimbursement only at the approved rates. The relevant portion of the judgment is reproduced hereunder for ready reference:- “9. In view of the aforesaid enunciation of law, we find that the petitioner's claim for reimbursement had to be adjudicated in accordance with the approved rates given in the notifications dated 19.8.1993 and 31.10.1994. 10. Mr. Sharma has also relied on a Division Bench judgment of this Court in S.K. Rampal's case (supra). This petition relates to the claim for reimbursement of medical expenses incurred by a Central government employee. He also did not take permission for treatment from the Escorts hospital at Delhi. In paragraph 11 of the judgment, the Division Bench held as follows:- "11. The policy relating to reimbursement of expenditure, framed by the Government of India provides that medical claim for specialised treatment for heart diseases and kidney transplantation be settled as per the schedule of rates approved for the treatment of C.G.H.S. beneficiaries from time C.W.P. No. 10286-CAT of 2004 [ Page numbers ] to time at private recognised hospitals under the that scheme or the actual charges, which ever is less and all other cases be settled as per the item wise ceilings prescribed in the Annexures attached to the policy. It is indeed true that the Escort Hospital where the respondent-applicant got treatment is one of the recognised hospitals by the Government of India for getting specialised treatment. It is also the conceded case that the applicant did not seek prior approval of the concerned authority for getting treatment in the recognised private hospital. In any case, the applicant is entitled to reimbursement of medical claim as per the policy of the Government of India. The applicant submitted a tentative bill of the Escorts Hospital for getting treatment. An amount of Rs. 1,39,000/- was sanctioned being 80% of the amount demanded. However, before the applicant actually underwent treatment, he was informed that he was entitled to reimbursement of Rs. 72,480/- under the policy decision and not to Rs. 1,74,000/- or Rs.1,39,000/- for which sanction had been conveyed. The applicant was thus paid the amount as admissible under the policy of 1994. According to the applicant, he was entitled to full reimbursement. He thus filed an application before the Central Administrative Tribunal claiming reimbursement of the entire amount spent on the treatment in a private recognised hospital. As already noticed, the Tribunal granted the relief as prayed. It is in this situation to be seen, whether the applicant was entitled to full reimbursement as claimed by him and granted by the Tribunal. After going through the policy, we find that the applicant certainly got treatment from a recognised private hospital but he is not entitled to reimbursement of full medical claim. He is entitled to reimbursement as per the policy framed by the Government of India and in vogue at the relevant time. Learned Tribunal has granted relief only by placing reliance on the judgments referred to above and had not given any other reason in support of the relief granted to the applicant. In that view of C.W.P. No. 10286-CAT of 2004 [ Page numbers ] the matter, the order of the Tribunal, Annexure P-5 cannot be allowed to stand and the same deserves to be quashed. 12. Mr. Bawa has submitted that the judgment in Ram Lubhaya Bagga's case (supra) would not be applicable as it related to the employees of Punjab Government. We are not impressed by the submission made by the learned counsel. The Supreme Court has categorically held that the policies restricting the reimbursement cannot be held to be violative of Article 21 or Article 47 of the Constitution of India. These are policies framed by the experts after taking into consideration all relevant data, on facts and law, including constraints based on the resources of the State. It has been held by the Supreme Court that it would be dangerous if Court is asked to test the utility, beneficial effect of the policy or its appraisal based on facts set out on affidavits. The Court would dissuade itself from entering into this realm which belongs to the executive. It is within this matrix that it has to be seen whether the new policy violates Article 21 of the Constitution when it restricts reimbursement on account of its financial constraints. The Supreme Court has held that no State of any country can have unlimited resources to spend on any of its projects. It cannot be said that the aforesaid observations of the Supreme Court are limited only to the policies relating to the employees of the State of Punjab. It is the law declared under Article 141 of the Constitution of India. It is binding on all. In any event, the judgment of the Division Bench of this Court in S.K. Rampal's case (supra) related to the claim made by the Central Government employee. The Division Bench has categorically held that although the applicant got treatment from a recognised private hospital, but he is not entitled to reimbursement of full medical claim. It was also held that he is entitled to reimbursement as per the policy framed by the Government of India and in vogue at the relevant time. " C.W.P. No. 10286-CAT of 2004 [ Page numbers ] In view of the aforementioned settled law enunciated by the Hon'ble Supreme Court and this Court, we are of the considered opinion that the Tribunal fell in error in allowing the claim of medical reimbursement of respondent No. 1 beyond the approved rates permitted by the instructions dated 19.08.1993/31.10.1994 (Annexure P-9) and instructions dated 22.04.1998 (Annexure P-10). The instructions are in consonance with the law laid down by the Hon'ble Supreme Court in the Sri R. Vivekananda Swamy’s case supra and Ram Lubhaya Bagga’s case supra and have been upheld by this Court in RCP Karn's case supra and S.L. Rampal's case supra. The said instructions specifically provides that the rates for various treatment would be regulated on ‘package deal basis’ and the beneficiary would be reimbursed only to the extent mentioned in the instructions and any amount charged over and above the prescribed rates will have to be borne by the beneficiaries. The Escorts Institute has also been mentioned in the list of recognized Private Hospitals. The relevant conditions are reproduced hereunder for facility of reference:- “2. The above mentioned revised rates are subject to the following conditions:- (i) The rates for CABG, Coronary Angiography and other investigations shall be regulated on package deal basis. The package for CABG and Coronary Angiography include room rent from the date of admission to the date of discharge, service charges, nursing/ medical care, surgeon’s and anesthetist’s fee, operation theatre charge etc, but does not include diet, cosmetics, toiletry, telephone charges, etc, which would be borne by the CS (MA)’s beneficiaries themselves. (ii) The CS MA)’s beneficiaries undergoing treatment for Angiography, CABG and other specified tests in the private recognized hospitals, will be C.W.P. No. 10286-CAT of 2004 [ Page numbers ] reimbursed to the extent mentioned in this OM. The amount charged over and above the prescribed rates will have to be borne by the beneficiaries. (iv) Reimbursement in respect of CS (MA) beneficiaries will be made at the abovementioned rates or the rates charged by the hospital which ever is less. 6. The admission in these hospitals will be regulated on the package deal basis. The package will include professional charges like surgeon’s fee, anesthetist’s fee etc, hospital stoppage charges for the total period of stay from admission till discharge, medication and food” The Tribunal has also failed to appreciate the fact that in the earlier order dated 10.12.2001, in para 10 thereof, the Tribunal has relied upon the said instructions dated 22.04.1998 to allow the claim of medical reimbursement of the respondent No. 1. Since the instructions dated 22.04.1998, time and again referred to the ‘package deal’, including in the aforementioned conditions, the Tribunal in operative portion mentioned ‘package deal’. In our considered opinion the Tribunal never intended to give the respondent No 1, any claim beyond the said instructions. It was for this reason that the Tribunal used the words “the O.A. is allowed to the extent” instead of allowing the O.A. in toto. It was also for this reason that the petitioners – Union of India never challenged the said order dated 10.12.2001. However, the Tribunal in the impugned order dated 09.12.2003 has wrongly misconstrued and misread the word ‘package deal’ to mean the package deals provided by the Escorts Institute to its patients. In view of the above, we hold that respondent No.1 is entitled to be paid medical reimbursement at the approved rates as permitted by the instructions dated 19.8.1993/31.10.1994 which have further been revised by the Government vide instructions dated 22.4.1998 as these instructions are C.W.P. No. 10286-CAT of 2004 [ Page numbers ] in consonance with the law laid down by the Supreme Court in Sri R. Vivekananda Swamy's case (supra) and Ram Lubhaya Bagga's case (supra). Consequently, the impugned orders passed by the Tribunal dated 09.12.2003 (Annexure P-4) by which the Original Application of the respondent No 1 has been allowed and dated 19.05.2004