Both constitutional and statutory obligation of state to bear medical expense of government servant and his family:Kerala High Court

IN THE HIGH COURT OF KERALA AT ERNAKULAM THE HONOURABLE MR.JUSTICE MURALI PURUSHOTHAMAN MONDAY THE 31ST DAY OF JANUARY 2022 11TH MAGHA 1943 WP(C) NO. 3295 OF 2021 DR.GEORGE THOMAS AGED 37 YEARS S O THOMAS GEORGE SANKARATHIL VADAKKUPURAM P.O PATHANAMTHITTA PIN 689 653 PATHANAMTHITTA OFFICE OF DMO CIVIL STATION PATHANAMTHITTA PIN 689 645 DEPARTMENT OF HEALTH AND FAMILY WELFARE GOVERNMENT OF KERALA REPRESENTED BY ITS SECRETARY GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM PIN 695001 W.P.(C) 3295 2021 ADDL.R6 IMPLEADED AS PER ORDER DATED 5 3 2021 IN IA 1 2021 IN WPC BY GOVERNMENT PLEADER SRI.JIMMY GEORGE THIS WRIT PETITIONHAVING COME UP FOR ADMISSION ON 31.01.2022 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) 3295 2021 The 1st petitioner is working as an Assistant Professor in Catholicate College Pathanamthitta On 14.05.2018 the 2nd petitioner the father of 1st petitioner who is wholly dependent on 1st petitioner sought treatment in General Hospital Pathanamthitta and was diagnosed with Carcinoma Rectum and was referred to higher center Accordingly he was taken to Medical and Surgical Oncology Department of the St. Gregorious Medical Mission Hospital Pathanamthitta which is a private specialty hospital for Cancer treatment The Consultant Medical Oncologist opined that the 2nd petitioner has to undergo surgery and accordingly he was operated in the Laparoscopic W.P.(C) 3295 2021 Department of St. Gregorious Medical Mission 2.The Government have issued Ext. P2 G.O.(P No.10 2016 H&FWD empanelling certain private hospitals for treatment to facilitate medical reimbursement benefits under the Kerala Government Servants Medical Attendance Rules 1960 appears at serial No. 20 of the Annexure to Ext. P2 order which provides for the list of private hospitals recognised by the Government for treatment under Rule 8of the Rules and the Departments recommended include W.P.(C) 3295 2021 Medical and Surgical Oncology. The relevant portion of the Annexure to Ext. P2 order which provides for the list of private hospitals for empanelment is reproduced hereunder Name of Hospital Mission Trauma Care Neuro Surgery Medical and Surgical Neonatology Urology 3. According to the petitioners the 2nd petitioner was initially admitted in the Hospital between 30.05.2018 and 09.06.2018 and during this period 1st petitioner had incurred an amount W.P.(C) 3295 2021 of Rs.1 98 311 towards treatment of the 2nd petitioner. The 1st petitioner submitted Ext. P3 application seeking reimbursement of Rs 1 98 311 with the required proforma issued by the Authorized Medical Attendant and Essentiality Certificate certifying that the medicines prescribed were essential for the recovery of the patient. Out of Rs. 1 98 311 claimed in Ext. P3 the office of the Director of Health Service found that reimbursement claim for an amount of Rs 1 26 368 is admissible 4. The 2nd petitioner had undergone further treatment in the Hospital between 12 06 2018 and 23 06 2018. During this period the 1st petitioner incurred a further amount of Rs.65 756 and W.P.(C) 3295 2021 submitted Ext.P4 application dated 23 11 2018 seeking reimbursement of Rs. 62 756 . The District Medical Officer by Ext.P4 found that out of the aforesaid amount claimed an amount of Rs. 23 580 is admissible and forwarded necessary documents to the Deputy Director of Collegiate Education for approval. 5. The 2nd petitioner was again admitted in the Hospital from 22 08 2018 to 01 09 2018. During this spell the 1st petitioner incurred an amount Rs 86 744 and he submitted Ext. P5 application seeking reimbursement of an amount of Rs 86 744 . The 2nd petitioner was further admitted in the Hospital from 04 09 2018 to 19 09 2018 and the 1st petitioner submitted Ext. P6 application W.P.(C) 3295 2021 seeking reimbursement of an amount of Rs 1 20 227 6. While so on 12 06 2020 the Government issued Ext. P7 circular stating that medical reimbursement will not be made unless the treatment was availed in Government recognized private hospital. Based on Ext. P7 the Government issued Ext. P8 communication informing that the claim made by the 1st petitioner cannot be allowed since the department of Laparoscopic surgery at St. Gregorious Medical Mission Hospital was not empanelled under the Rules. Accordingly by Ext. P9 letter addressed to the Principal of the College the Deputy Director of Collegiate Education returned the applications and W.P.(C) 3295 2021 bills of the 1st petitioner for reimbursement Challenging Exts. P7 and P8 the petitioners have filed this writ petition. They have also sought for a declaration that the 1st petitioner is entitled for reimbursement of an amount of Rs. 4 68 038 as claimed in Exts. P3 and P4 series Ext. P5 and Ext P6 and for disbursement of the same 7. As stated earlier considering Ext. P4 application the DMO vide Ext. P4 informed the Deputy Director of Collegiate Education that out of the amount of Rs.62 756 claimed by the 1st petitioner an amount of Rs. 23 580 is admissible. During the pendency of the writ petition the Government have issued Ext. P10 order sanctioning Rs.18 864 being 80% of the W.P.(C) 3295 2021 amount found admissible in Ext. P4 3295 2021 Medical Mission Hospital from where the 2nd petitioner has received the treatment was not recognized by the Government it was decided to reject the applications of the 1st petitioner 9. Heard Sri. Jacob P. Alex the learned counsel for the petitioners and Sri. Jimmy George the learned Government Pleader for the respondents 10.According to Sri.Jacob P. Alex the reimbursement of medical claims incurred in private hospital is admissible under the Rules and from Ext. P2 G.O it can be seen that St Gregorious Medical Mission Hospital is empanelled under the Rules. The learned counsel submits that the doctors in Oncology department of the Hospital after considering the nature of Cancer W.P.(C) 3295 2021 advanced age and general health condition of the 2nd petitioner the advantages of shorter length of stay at hospital faster recovery and lesser operative complications recommended for Laparoscopic surgery and the respondents cannot deny claim for medical reimbursement only for the reason that surgery is performed in Laparoscopic surgery department of the Hospital. Sri. Jacob refers to Ext. P2 and submits that the Medical and Surgical Oncology department of the Hospital is recognised and recommended by the Government 11.Sri. Jacob contends that the claim for reimbursement is admissible even if the hospital from which the treatment is availed is a private hospital. Relying on the decision of the Hon ble W.P.(C) 3295 2021 Supreme Court in Shiva Kant Jha v. Union of India 16 SCC 187: AIR 2018 SC 1975 2018 KHC 6285] the learned counsel contends that the right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order and the real test must be the factum of treatment. Ext. P7 circular cannot circumvent the Rules and if reimbursement of medical claims incurred in private hospital is admissible under the Rules the same cannot be denied by issuing a circular in the nature of Ext. P7. Sri. Jacob also relied on the decision of the Hon ble Supreme Court in State of Punjab and others v. Mohinder Singh Chawla and others 2 SCC 83 AIR 1997 SC W.P.(C) 3295 2021 1225: 1997 KHC 692] wherein the Court held that the right to health is integral to right to life and if the government servant has suffered an ailment which requires treatment at a specialised approved hospital and on reference whereat the government servant had undergone such treatment therein it is but the duty of the State to bear the expenditure incurred by the government servant and to reimburse the expenditure. The learned counsel then refers to Ext. P10 and contends that Ext. P4 bill has been approved and therefore there is no justification in denying the claims in Ext. P3 series Ext. P5 and Ext. P6. Sri. Jacob refers to the Division Bench decision of this Court in Central Provident Fund Commissioner New W.P.(C) 3295 2021 Delhi and others v. N. Satheesan and another 2018KHC 921] to contend that effecting part payment of the claim itself is a ground to presume that the genuineness of the claim is not in dispute 12. Per contra Sri. Jimmy George would contend that based on the present financial constraints the Government by Ext. P7 circular have decided not to give the reimbursement to patients who had taken treatment from private hospitals other than the empaneled one and since the General and Laparoscopic surgery department of St. Gregorious Medical Mission Hospital from where the 2nd petitioner has received the treatment was not recognized by the Government it was decided to reject the applications of the 1st W.P.(C) 3295 2021 13. I have considered the rival submissions The entitlement of the 1st petitioner an Assistant Professor in an affiliated College to get reimbursement of medical bills under the Rules in respect of his father who is stated to be wholly dependent on him is not disputed. The genuineness of the claim made in the bills is also not disputed. The fact that the 2nd petitioner initially sought treatment in General Hospital Pathanamthitta 3295 2021 Mission Hospital which is a hospital empanelled under the Rules. According to the petitioners it is after considering the nature of Cancer advanced age and general health condition of the 2nd petitioner the Medical Oncologist recommended for Laparoscopic surgery. The objection now taken in Ext. P8 is that the General and Laparoscopic surgery department of St. Gregorious Medical Mission Hospital from where the 2nd petitioner has received the treatment is not recognized by the Government. Going by Ext. P2 Medical Oncology and Surgical Oncology departments of the Hospital are recognized by the Government. Surgical Oncology is a field of medicine that uses surgery to treat cancer. Surgery for Carcinoma Rectum W.P.(C) 3295 2021 cancer in the rectum) can be Laparoscopic or open is one of the types of surgical procedure. Under the Rules medical attendance includes surgical treatment. The Laparoscopic surgery for Carcinoma Rectum is part of surgical treatment of the 2nd petitioner. It is for the Doctor to decide how a patient should be treated and which surgical procedure is safer and suitable to the patient When Medical and Surgical Oncology department of the Hospital has been recognised by the Government in Ext. P2 the respondents cannot reject the claim of the 1st petitioner saying that the W.P.(C) 3295 2021 General and Laparoscopic surgery department from where the 2nd petitioner has received the treatment is not recognized by the Government Undergoing Laparoscopic surgery for Carcinoma Rectum will not make the treatment as one done in a department other than the Medical and Surgical Oncology department in the Hospital. The procedure done and the treatments received at the Hospital is part of the medical and surgical oncology treatments of the 2nd petitioner. The Hon ble Supreme Court in Shiva Kant Jha3295 2021 “17. It is a settled legal position that the Government employee during his life time or after his retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. It is acceptable to common sense that ultimate decision as to how a patient should be treated vests only with the Doctor who is well versed and expert both on academic qualification and experience gained. Very little scope is left to the patient or his relative to decide as to the manner in which the ailment should be treated. Speciality Hospitals are established for treatment of specified ailments and services of Doctors specialized in a discipline are availed by patients only to ensure proper required and safe treatment. Can it be said that taking treatment in Speciality Hospital by itself would deprive a person to claim reimbursement solely on the ground that the said Hospital is not included in the Government Order. The right to medical claim cannot be denied merely because the name of the hospital is not included in the W.P.(C) 3295 2021 Government Order. The real test must be the factum of treatment. Before any medical claim is honoured the authorities are bound to ensure as to whether the claimant had actually taken treatment and the factum of treatment is supported by records duly certified by Doctors Hospitals concerned. Once it is established the claim cannot be denied on technical grounds...” 14.It is an admitted fact that the 2nd petitioner had surgery for Carcinoma Rectum and was treated in the Hospital during different spells. The reason stated in Ext. P8 to reject the claim of the 1st petitioner for reimbursement of the medical bills is not factually and legally sustainable. The 1st petitioner is entitled for reimbursement of the amounts incurred for the treatment of the 2nd petitioner at the Hospital as per the Rules. W.P.(C) 3295 2021 15. Here it is also pertinent to note that in Ext. P10 order the Government while considering Ext. P4 claim of the 1st petitioner and approving the admissible amounts therein have stated that the 2nd petitioner was referred to General and Laparoscopic Department by the Medical Oncologist and considering the treatment taken on reference from recognized department sanction is accorded for reimbursement of 80% of the amount found admissible by the DMO. In view of the said stand taken by the Government in Ext. P10 in respect of one of the claims for reimbursement submitted by the 1st petitioner the other claims have to be considered on the same basis and W.P.(C) 3295 2021 16. As held by the Hon ble Supreme Court in Mohinder Singh Chawla the right to health is an integral part of right to life guaranteed under the Constitution of India and the Government have Constitutional obligation to provide health facilities and bear the expenses incurred by the government servant for the treatment as per the policy of the Government The Court held “4.... It is an admitted position that when specialised treatment was not available in the Hospitals maintained by the State of Punjab permission and approval having been given by the Medical Board to the respondent to have the treatment in the approved hospitals and having referred him to the AIIMS for specialised treatment where he was admitted necessarily W.P.(C) 3295 2021 the expenses incurred towards room rent for stay in the hospital as an inpatient are an integral part of the expenses incurred for the said treatment. Take for instance a case where an inpatient facility is not available in a specialised hospital and the patient has to stay in a hotel while undergoing the treatment during the required period as certified by the doctor necessarily the expenses incurred would be integral part of the expenditure incurred towards treatment. It is now settled law that right to health is an integral to right to life Government has constitutional obligation to provide the health facilities. If the Government servant has suffered an ailment which requires treatment at a specialised approved hospital and on reference whereat the Government servant had undergone such treatment therein it is but the duty of the State to bear the expenditure incurred by the Government servant. Expenditure thus incurred requires to be reimbursed by the State to the employee.” W.P.(C) 3295 2021 17. The Kerala Government Servants Medical Attendance Rules 1960 have been framed in exercise of the powers under the proviso to Article 309 of the Constitution of India. It provides for reimbursement of the medical expenses incurred by the government servants and their family as defined therein and subject to the conditions provided therein. Under the Rules and the orders issued thereunder claim for reimbursement is admissible even if the hospital from which the treatment availed is a private hospital provided it is empanelled under the Rules on satisfying the criteria for recognition. The hospital where the 2nd petitioner was treated is listed in Ext. P2 Government Order dealing with empanelment of W.P.(C) 3295 2021 private hospitals for medical reimbursement There is a Constitutional as well a Statutory obligation on the part of the State to bear the expenses for treatment of the government servant and his family. In the backdrop of Article 21 of the Constitution of India and the Rules issued under the proviso to Article 309 it is impermissible for the respondents to reject the claim of the petitioner for reimbursement of the bills for the reasons stated in Ext. P8. Accordingly Ext. P8 is set aside. The 1st petitioner shall resubmit the applications and bills returned by the 3rd respondent through the Principal of the College and the 3rd respondent shall forward Ext. P3 and Ext. P4 series Ext. P5 and Ext. P6 to the 1 st W.P.(C) 3295 2021 respondent within two weeks of receipt of the same and the 1st respondent shall consider the same afresh in the light of the findings in this judgment and in accordance with law within two months. The amounts due to the 1st petitioner pursuant to such order shall be disbursed by the competent authorities among the respondents within one month therefrom. The writ petition is ordered accordingly. There will be no order as to costs W.P.(C) 3295 2021 APPENDIX OF WP(C) 3295 2021 PETITIONER S EXHIBITS TRUE COPY OF THE F FDG PET CT REPORT DATED 18.5.2018 OF THE HOSPITAL EXHIBIT P1EXHIBIT P1( B EXHIBIT P1NO 10 2016 H&FWD TRUE COPY OF THE APPLICATION DATED 13.11.2018 SEEKING REIMBURSEMENT OF RS.1 98 311 EXHIBIT P3TRUE COPY OF THE NECESSARY DOCUMENT PRODUCED IN APPENDIX II ALONG WITH EXHIBIT EXHIBIT P3TRUE COPY OF THE ESSENTIALITY CERTIFICATE DATED 1.11.2018 WITH RESPECT TO EXHIBIT P3 TRUE COPY OF THE APPLICATION DATED 23.11.2018 SEEKING REIMBURSEMENT OF RS. EXHIBIT P4TRUE COPY OF THE ESSENTIALITY CERTIFICATE DATED 1.11.2018 WITH RESPECT TO EXHIBIT P4 W.P.(C) 3295 2021 EXHIBIT P4TRUE COPY OF THE LETTER BEARING NO C3 10603 2019 DATED 2.7.2019 TRUE COPY OF THE APPLICATION DATED 4.2.2019 SEEKING REIMBURSEMENT OF AN AMOUNT OF RS. TRUE COPY OF THE APPLICATION DATED 4.2.2019 SEEKING REIMBURSEMENT OF AN AMOUNT OF RS 1 20 227 TRUE COPY OF THE NOTIFICATION BEARING NO 34 2020 FINANCE DATED 12.6.2020 TRUE COPY OF THE COMMUNICATION BEARING NO F3 15 2020 H.EDU DEPT. DATED 19.8.2020 TRUE COPY OF THE LETTER BEARING NO A3 6379 2020 DCEDDKTM DATED 9.11.2020 ISSUED BY THE 3RD RESPONDENT TO THE 6TH TRUE COPY OF GO(RT)NO.1030 2021 H.E.D DATED 09.08.2021 ISSUED BY THE 1ST RESPONDENT

Summary: The statutory and constitutional obligation of state to bear the expenses and reimburse for medical treatment of government servant and his family even if treatment took place in private hospital instead of government hospital was upheld by High Court of Kerala at Ernakulam through a bench led by  HONOURABLE MR. JUSTICE MURALI PUROSHOTHAMAN  in the case of Dr. George Thomas &amp; Anr. vs. State of Kerala &amp; Ors. (W.P.(C) 3295/2021). Brief facts of the case are that a petition filed by an Assistant Professor at the Catholicate College and her father, who was completely dependent on her and was recently diagnosed with cancer.He was taken to a specialized private hospital for treatment recognized for the purpose of receiving reimbursement benefits under Kerala Civil Servants Medical Attendance Rules. He had surgery in the Laproscopic Department in 2018, after which the petitioner applied for reimbursement. In late 2020, the government issued a circular if treatment is not provided at a state-recognized private hospital and medical reimbursement was denied. This situation prompted the petitioner to approach to the Supreme Court. The counsel for the petitioners contended that the Hospital’s Department of Medical and Surgical Oncology was recognized and recommended by the government and therefore the refusal of reimbursement could not be sustained on the grounds that the procedure was performed laparoscopically. The counsel for the respondent contended that in light of the financial constraints posed by the pandemic in the recent past, State had decided to adhere to stricter conditions for reimbursement of medical treatments. The Kerala High Court held that the government, as per its policy, is constitutionally and statutorily obligated to cover and reimburse the costs incurred by government servants for medical treatment. Pursuant to the Rules framed in the exercise of the powers under Article 309, a request for reimbursement may be accepted even if the hospital where the treatment is performed is a private hospital, provided that it is arranged in accordance with the Rules. The hospital met the criteria and the procedure is part of the medical and oncological treatment. Hence, the court ordered the State to reconsider the petitioner’ application for reimbursement within two months.