CIVIL WRIT JURISDICTION CASE No.11350 OF 2009 In the matter of an application under Article 226 of the Constitution of India. -------- ARUN KUMAR MISHRA, S/O LATE UPENDRA MISHRA, R/O VILLAGE-ARER EAST (BAIJALPUR), P.S.-ARER, DISTRICT-MADHUBANI. ........PETITIOINER. Versus 1. THE STATE OF BIHAR 2. THE PRINCIPAL SECRETARY, DEPARTMENT OF HEALTH, BIHAR, PATNA. 3. THE DIRECTOR-IN-CHIEF, HEALTH SERVICES, DEPARTMENT OF HEALTH, BIHAR, PATNA. 4. THE JOINT SECRETARY, HEALTH SERVICES, DEPARTMENT OF HEALTH, BIHAR, PATNA. 5. THE DEPUTY DIRECTOR, HEALTH SERVICES, DEPARTMENT OF HEALTH, BIHAR, PATNA. 6. THE PRINCIPAL SECRETARY, HUMAN RESOURCES DEPARTMENT, BIHAR, PATNA. 7. THE DIRECTOR (PRIMARY EDUCATION), HUMAN RESOURCES DEPARTMENT, BIHAR, PATNA. 8. THE DEPUTY DIRECTOR, (PRIMARY EDUCATION), HUMAN RESOURCES DEPARTMENT, BIHAR, PATNA. 9. THE PRINCIPAL SECRETARY, DEPARTMENT OF FINANCE, BIHAR, PATNA. 10.THE DISTRICT EDUCATION OFFICER, MADHUBANI. 11.THE HEAD MASTER, RAJKIYA BUNIYADI VIDYALAY, ARER, BENIPATTI (GOVERNMENT BASIC SCHOOL), DISTRICT-MADHUBANI. ....RESPONDENTS. ----------- For The Petitioner : Mr. Murari Narain Chaudhary, Adv. and Mr.Vijay Kumar, Adv. For The Respondent : Mr. Ajit Kumar, AC to GP-20. P R E S E N T THE HON'BLE MR. JUSTICE JAYANANDAN SINGH Jayanandan Singh, J. This is yet another glaring example how the functionaries of the Government in higher echelon of the State have remained indifferent and insensitive towards the ply and misery of their subordinates working under them. Since a long time this Court has been noticing that in the matters of permission for medical treatment at specialized centers outside the State, persons close to the powers-that-be manage to 2 get permission very easily and quickly. It is the Government employees at the lower level, specially of class-III and class-IV, who do not get such permission at all or definitely do not get it in time to rush outside the State to avail the best medical treatment of the ailment diagnosed and when there is still time. Invariably, case after case, this Court has come across instances where the employees or their spouses were diagnosed some serious complicated ailment and have to rush to specialized centers outside the State without waiting for formal orders and permission on their application for the purpose. However, when they return after treatment and submit their medical reimbursement bills, the same are invariably rejected in each case, taking recourse to the technicalities of the Bihar Medical Attendance Rules, 1947 of obtaining prior permission for availing such specialized treatment outside the State at centers known amongst the best in the country. In case of class-III and class-IV employees this Court has not found that the discretion of the authorities under Rule 26 is exercised by the competent authority on its own in favour of the employees. As against this, this Court has not come across any case where such discretion has been refused to officers of higher grades and those being close to the nucleus of the power in the Government. This Court again and again has found that in exercise of discretion under Rule 26, in practice, a clear discrimination is made 3 in respect of Government officers of higher rank vis- a-vis their subordinates in the Government in lower rank. Learned counsel for the petitioner has referred to as many as 7 orders of this Court, in each of which, this Court had directed the authorities to exercise the discretion under Rule 26 in favour of the employee. For the purposes of record a list of said decisions relied upon by learned counsel for the petitioner is being reproduced hereinbelow :- 1. 2010 (1) PLJR 369 (Ran Vijay Kumar Singh Vs. State of Bihar & Ors.) 2. 2008 (2) PLJR 182 (Lal Bahadur Gupta Vs. State of Bihar & Ors.) 3. 2008 (2) PLJR 351 (Dr.Ramesh Chandra Singh Vs. State of Bihar & Ors.) 4. 2007 (4) PLJR 281 (Dr.Dhirendra Kumar Vs. State of Bihar & Ors.) 5. 2007 (4) PLJR 286 (Pawan Kumar Mishra Vs. State of Bihar & Ors.) 6. 2008 (1) PLJR 337 (Md.Ahad Raza Vs. State of Bihar and Ors.) 7. 2008 (1) PLJR 394. (Biresh Chandra Chatterjee Vs. State of Bihar & Ors.) This Court may point out that the 7 judgments relied upon by learned counsel for the petitioner as mentioned above, are not only judgments on the issue. In fact, if the aforesaid judgments are looked into, reference of several earlier judgments is found therein noticed by the Court, where same view has been taken by this Court consistently. One specific 4 reference is required to be made to the case of Ram Sagar Ram Vs. State of Bihar & Ors. [2003(3) PLJR 729] wherein, as far back as in 2003, this Court had suggested the Government to replace the archaic Bihar Medical Attendance Rules, 1947 by a more appropriate rules dealing with the present situation and taking into account the stark reality that this State is still devoid of specialized and well equipped hospitals and centers to deal with the serious and complicated ailments affecting the people of the State. This is also fit to be noticed with pain that inspite of such suggestion of this Court made more than 7 years back Government has not risen to the occasion by coming up with proper and adequate rules in this regard so far. In the present case, petitioner‟s wife was admittedly a Government servant working as teacher in a Government Basic School in the district of Madhubani. She was diagnosed Carcinoma of the Pancreas (Cancer) on 25.09.2001 by an Associate Professor of Darbhanga Medical College and Hospital, on the basis of C.T. Scan report. It is a well acknowledged fact that the moment one is detected of suffering from Cancer of any type, the patient and his/her near relations immediately go into shock and depression with fear of the imminent. They realize that no time has to be wasted and the patient has to be taken to one of the best possible specialized centers in the country for treatment immediately. So 5 petitioner‟s wife also submitted an application on 29.09.2001 for sanction of medical leave to her headmaster and rushed to Tata Memorial Hospital in Mumbai, one of the well known specialized centers in the field for treatment and operation. Annexure-2 shows that, the headmaster of the school, in anticipation of permission from the Government, allowed her to leave. However, due to rush, she could not get a free slot for operation in the Tata Memorial Hospital upto a month. Her condition was such that she could not wait and, therefore, she had to be shifted to Lilavati Hospital and Research Centre, in Mumbai itself. She was operated upon there and had to remain in hospital for some time in connection with the post operative recovery. After her return she submitted an application to the D.E.O., Madhubani on 20.03.2002, along with all medical bills and certificates, for being forwarded to the Department for reimbursement. Thereafter the application of the petitioner became a shuttle-cock between the officials of the Government at different levels. Finally, through a letter dated 23.09.2005 of the Deputy Director, Primary Education addressed to the D.E.O., Madhubani, it was communicated that the reimbursement of the medical expenses, applied for by the wife of the petitioner, was rejected by the Finance Department, on the ground that she had proceeded for medical treatment outside the State in a private hospital, without prior 6 recommendation of the authorized Medical Officer, without prior permission, without prior intimation and without compelling circumstances. Hence, it was not covered under the Bihar Medical Attendance Rules, 1947. Hence, petitioner, after his wife has ultimately died, has moved this Court for a direction to the respondents to reimburse the medical bills in respect of his deceased wife. In the counter affidavit only the said grounds for rejection of the bills have been reiterated and supplemented and nothing more. The phraseology, “without prior recommendation of the authorized Medical Officer, without prior permission, without prior intimation and without compelling circumstances, treatment obtained in the private hospital outside the State,” used in the impugned letter Annexure-12, is a phraseology, which this Court has found to have been used invariably in each case of rejection of the claim of medical reimbursement of Government employees of lower grades. It appears as if the Finance Department maintains a proforma of letter of rejection of medical reimbursement claims of lower grade employees with that phraseology ready and only the name of the employee is filled in and letter is issued. The authorities rejecting the claims have never applied their mind that if an ailment like Cancer is diagnosed to a patient by a responsible Medical Officer of the Government he is not expected 7 to start running in the administrative circles for complying with the formalities of formal recommendation, formal permission, formal information and formal satisfaction of the highest authorities in the Department, about „compelling circumstances,‟ which may take months, and then only to proceed for his treatment, by this time he may actually not need the treatment as he may be no more. The authorities in the Department have not shown insistence for compliance of all these formalities in respect of senior officers of the Government close to the power and in their case post facto sanction every time comes in a platter. This rejection is only in each and every case of class-III and class-IV employees. Nothing can be more a glaring case of hostile discrimination where the very life of a human being is involved. Had the senior Government officials been serious to resurrect their image in the matter in the eyes of the Court and in the eyes of their subordinate employees they would have applied their discretion under Rule 26 in the cases more liberally and would have come up with an exhaustive up-to-date rules in this regard, as suggested by this Court as far back as in 2003 itself in the case of Ram Sagar Ram (supra), and at least, would have definitely laid down a policy for processing such applications for medical leave and permission immediately, with sensitivity and without any loss of time at all taking into account genuineness, essentiality and 8 urgency of each case. It is really distressing that inspite of several judgments of this Court and concern shown in the matter, nothing has been done by the respondents so far. As rightly pointed out by a learned Single Judge of this Court (Navaniti Prasad Singh, J.) in Biresh Chandra Chatterjee (supra), relying upon a case of the Apex Court in the case of Hirday Narain Vs. Income Tax Officer [1971 AIR SC 33], if a provision of law providing for exercise of discretion requires some conditions for exercise of the same and the facts and circumstances satisfy those conditions, the Courts would infer a duty in the authority to exercise that discretion and then failure to perform that duty would become enforceable by an appropriate writ. In the result, this writ application is allowed. The impugned letter Annexure-12, communicating rejection of the medical bills in respect of the wife of petitioner, is quashed. The respondents are directed to apply their discretion, enjoined upon them under Rule 26 of the Rules, in favour of claim of the petitioner for reimbursement of medical expenses incurred in the treatment of his wife in the background of established fact that after being diagnosed of Cancer of Pancreas she had to be rushed for operation to a specialized centre and she had no time to wait for any recommendation, permission etc. from various authorities of the 9 Government. Since the medical reimbursement claim of the petitioner in this regard had remained pending with the respondents since 2002 and rejected in 2005 only and thereafter an application for reconsideration of the same by the petitioner remained ignored by the respondents, this Court directs that the due amount of the medical expenses bill in question pending with the respondents shall be paid to the petitioner within four weeks from the date of receipt/production of a copy of this order with an interest @ 12% per annum. Although this Court has already sent a copy of its earlier judgment in a similar matter in the case of Md.Ahad Raza Vs. The State of Bihar & Ors. (2008 (1) PLJR 337) to be placed before the Chief Minister, which till now appears to have remained unnoticed, with a renewed hope that the matter will catch the attention of the Government this time, office is directed to serve a copy of this judgment in the office of the learned Advocate General for onward transmission to the Chief Minister. Patna High Court The 20th of May, 2011 A.F.R./Arvind ( Jayanandan Singh, J.)