Madhya Pradesh High Court
Jyotsna Rajguru vs M. P. Trade And Investment Facilitation ... on 7 June, 2021
Equivalent citations: AIRONLINE 2021 MP 1554
Author: Nandita Dubey
Bench: Nandita Dubey
1 W.P. No.9118/2019
HIGH COURT OF JUDICATUTE AT JABALPUR (M.P.)
SINGLE BENCH : HON'BLE JUSTICE NANDITA DUBEY
Writ Petition No. 9118/2019
Jyotsna Rajguru
Vs.
MPTRIFAC and another
____________________________________________________
Shri K.C. Ghildiyal, learned counsel for the petitioner.
Shri Piyush Bhatnagar, learned counsel for the
respondents No.1 and 2
Shri Darshan Soni, learned Govt. Advocate for the
respondent/State.
Arguments heard on : 05.04.2021
Order delivered on : 07.06.2021
ORDER
This petition under Article 226 of the Constitution of India is filed, being aggrieved by the partial reimbursement of medical expenses incurred by the petitioner for the treatment of her late husband Narendra Rajguru at Nanawati Hospital, Mumbai and for further direction to the respondents to make good the difference of amount of medical expenses.
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2. The petitioner is the widow of deceased employee Narendra Rajguru, who worked as Senior Assistant with respondent No.2/Audhyogik Kendra Vikas Nigam Limited (AKVN), which is a subsidiary of M.P. Trade and Investment Facilitation Corporation Limited (MPTRIFAC). It is not in dispute that the government employee incurred breathing trouble and heaviness in the chest on 13.06.2017 and got himself checked by Dr. B.S. Yadav, Professor and Head of Gandhi Medical College and Hamidia Hospital, Bhopal who advised further test. He submitted a medical leave application on 14.06.2017 to respondent No.2/AKVN. He was thereafter admitted on 14.06.2017 in the government approved Bansal Hospital, Bhopal, wherein he was diagnosed with unstable angina and underwent coronary angiography on 15.06.2017. He was diagnosed with Ischemic Heart Disease (IHD) and Critical Triple Vessel Disease with Acute Coronary Syndrome on 15.06.2017 and advised early CABG. Due to the urgency and risk involved in the operation, he was immediately admitted to the Nanawati Hospital, Mumbai on 16.06.2017, where on 17.06.2017, he underwent CABG surgery and Recab surgery. Unfortunately, he developed complications, multiple infections and was put on ventilator and VA ECMO. Due to the complications, he was put on 3 W.P. No.9118/2019 dialysis and also had to undergo Trechostomy, Colostomy, Laparotomy operations. Unfortunately, he could not recover from his serious conditions and died on 02.09.2017. The entire expenses incurred for the treatment, surgery, investigations, drugs etc. came to Rs. 84,36,784/-.
3. After the demise of her husband, petitioner applied for reimbursement of Rs.84,36,784/- incurred during the treatment of her late husband. The medical bills alongwith the relevant documents were forwarded to the Dean, Gandhi Medical College, Bhopal for necessary action, who referred the same to the Professor and Head of the Department of Cardiology. The Dean of Gandhi Medical College vide letter dated 07.02.2018 informed the respondent No.2/Corporation to reimburse the amount as per rules at its own level. The claim of petitioner was thereafter put up before the respondent/Corporation. The M.D., AKVN after consulting the Corporation Doctor and as per the Rules applicable, proposed reimbursement to the tune of Rs. 60,06,486/- as against the bills of Rs. 84,36,784/- and placed the matter before the Board of Directors, MPAKVN in its meeting No.111 dated 20.03.2018 for approval. The Board, though relaxed the condition of prior approval for treatment outside the State, however, 4 W.P. No.9118/2019 granted approval for reimbursement of Rs.8,37,550/- only on the anvil that it was the maximum amount reimbursable as per circular issued by the Medical Education Department No. F-18-68/2000/1/55 dated 14.08.2015 for open heart surgery and in view of Rule 7(2) and (3) of M.P. Civil Services (Medical Attendance) Rules, 1958 (hereinafter referred to as 'the Rules of 1958').
4. The facts, the documents and the bills submitted by the petitioner are not controverted. It is also not in dispute that Nanavati Hospital, Mumbai is a government recognized hospital for the purpose of treatment of government servant outside the State and reimbursement of medical charges as required under Rule 2(f) of M.P. Civil Services (Medical Attendance) Rules, 1958 nor is in dispute that MPTRIFAC Service Rules, 2017 were adopted in all the MPAKVN on 01.07.2017. The only issue which arises for consideration is the extent of reimbursement permissible to the petitioner.
5. Shri K.C. Ghildiyal, learned counsel appearing for the petitioner has referred to Rule 33 of the MPTRIFAC Service Rules, 2017, which provides that the Board of Directors will issue rules and directions with regard to 5 W.P. No.9118/2019 medical reimbursement, taking in view the practical requirement of the employee of the Corporation. However, none of the parties has placed on record any Rules/directions, issued by the Board of Directions as per Rule 33 of the 2017 Rules. It is argued that Article 21 and 47 casts an obligation on the state to provide medical and health facilities as it is a fundamental and human right. It is urged that because of the urgency and critical conditions and risk involved, late employee was admitted in Nanawati Hospital, Mumbai, which is a recognized hospital, hence the refusal to reimburse the expenses incurred at Nanawati Hospital, Mumbai is not justified.
6. Per contra, the stand of Shri Piyush Bhatnagar, learned counsel appearing for the Corporation is that the provision relating to medical reimbursement in the respondent No.2/Corporation is governed by the M.P. Civil Services (Medical Attendance) Rules, 1958 and the circulars issued thereunder. It is contended that the said Rules have been adopted by MPAKVN by a resolution dated 06.06.2011 (Annexure R-1) by the Board of Directors in the meeting No.85 and even after the Rules 2017 were made applicable, no change was proposed in the same. It is contended that the Medical Education Department vide its circular dated 6 W.P. No.9118/2019 14.08.2015 has fixed the maximum capping limit of Rs.2.50 lacs for open heart surgery and any amount exceeding that has to be borne by the government servant. It is argued that late employee took treatment outside the State without prior permission of the department.
7. Heard the learned counsel for the parties and perused the record.
8. The nature of right to medical facility is statutory. It being a condition of service and cannot be altered or changed to the disadvantage of the employee. The M.P. Civil Services (Medical Attendance) Rules, 1958 are framed under the proviso to Article 309 of the Constitution of India and are statutory in nature.
9. At this stage it would be apposite to set out the relevant rules. It is noted that Rules 3 to 10 of M.P. Civil Services (Medical Attendance) Rules, 1958, provide for the medical treatment to government servant and also for reimbursement of expenditure incurred by him towards that.
10. Rule 3 provides that subject to provision of sub- rule (3), a government servant shall be entitled free of 7 W.P. No.9118/2019 charge to medical attendance by authorized medical attendant.
11. Rule 4 of the Rules of 1958 provides for reimbursement of medical expenses incurred by an employee/government servant.
Rule 4 of the Rules of 1958 stipulates that :-
4. (1) A Government servant shall be entitled to treatment in a hospital free of charge. If any amount is paid by a Government servant on account of such treatment, accommodation in hospital, diet or on any other account it shall be reimbursed to him in the manner and to the extent provided in these rules.
(2) The Medical Officer-in-charge of the hospital may place the patients in any ward he considers appropriate.
12. Rule 4 thus entitles the government employee/servant for reimbursement of any amount paid by him on account of such treatment subject to the extent provided in the Rules of 1958. "Treatment" as defined under Rule 2(i), means the use of all medical and/or surgical facilities available at the hospital in which the Government servant is treated and includes :-
(i) the employment of such pathological, bacteriological, radiological or other methods as are considered and certified in writing as necessary by the authorised medical attendant;8 W.P. No.9118/2019
(ii) the supply of such medicines, vaccines, sera or other therapeutic substances as are ordinarily available in the hospital;
(iii) such nursing as is ordinarily provided to in-patients by the hospital;
(iv) blood transfusion;
(v) ultra-violet light; and
(vi) in the case of females,-
(a) treatment during confinement (pre-natal and post-
natal treatment) including treatment for abortion; and
(b) douching.
13. Rule 6 prescribes that a government servant shall pay in the first instance bills, if any preferred by the hospital authorities on account of medical attendance, treatment, room rent or diet or on any other account and thereafter may prefer claim for reimbursement in accordance with Rules of 1958.
14. Rule 7 of the Rules of 1958 makes a provision for expenditure incurred on purchase of drugs in full, which reads as under :-
7. [(1) Expenditure incurred on purchase of drugs prescribed by the authorised attendant in full :
Provided that-9 W.P. No.9118/2019
(1) If a Government servant submits medical reimbursement bills in respect of treatment of himself or any member of his family as an out-door patient exceeding Rs. 250/- (Rupees two hundred fifty) per month for four times in a year or continuously for three months, the Controlling Authority shall seek second opinion of the Chief Medical and Health Officer and only on receipt of a favorable recommendation, shall pass the medical reimbursement bill. In case of treatment by any Indian system of Medicines or Homoeopathy second opinion of the Divisional Officer Ayurveda or District Ayurveda Officer in-charge, as the case may be, shall be obtained instead of the Chief Medical and Health Officer.
(2) If, in a year, bills for medical reimbursement exceeding Rs.
3,000/-(Rupees three thousand) are received from a Government servant the Controlling Authority shall get, all such bills exceeding the said limit examined by the Medical Board consisting of the Divisional Joint Director of Health Services, Chief Medical and Health Officer, Specialist of the disease concerned, Divisional Officer, Ayurveda or District Ayurveda Officer in-charge of the district, as the case may be and such bills shall be passed by the Controlling Authority only on the recommendations of the Board.
(3) If the bills for medical reimbursement presented by a Government servant in a year exceed Rs. 5,000/- (Rupees five thousand) then all such bills exceeding the above said limit shall be got scrutinized by a Board consisting of the Director Medical Services, Director of Medical Education, Director of Indian Systems of Medicine and Homoeopathy and the Controlling Authority shall pass such bills in accordance with the recommendations of the said Board only. The above proviso shall not be applicable in respect of reimbursement bills relating to :-
(a) In-door patients; and 10 W.P. No.9118/2019
(b) Patients suffering from such disease in respect of which the Chief Medical and Health Officer concerned has issued a certificate in the prescribed proforma to the effect that the treatment for the disease is required or likely to continue for a prolonged period.
Note. - Such certificate shall not be issued for a period exceeding one year at a time but may be renewed from time to time for such period as may be necessary not exceeding one year at a time and the Chief Medical and Health Officer shall maintain a register containing particulars of such certificates issued by him in such manner as may be prescribed by the Government.] Rule 8 provides that application for reimbursement shall be submitted within six months from the date on which expenses incurred.
Rule 9 directs the authorised Medical Attendant to maintain a diary or memorandum of details for the purpose of grant of certificate in Form II.
Rule 10 provides for verification of the claim that the claim is genuine and covered by rules and supported by cash memo, receipt, certificate etc.
15. Rule 8 of the 1958 Rules prescribes that application for reimbursement is to be made in prescribed form. It does not mention that any permission in advance is required to be taken. Present being a case where the government employee was rushed to the Nanawati 11 W.P. No.9118/2019 Hospital, Mumbai, in emergency. Looking to his critical condition and risk involved in the procedure, it was not possible for him to take any permission in advance nor could he have waited for the permission. Moreover, the respondents had already relaxed the said condition, hence, the contention of respondent in this regard has no substance.
16. In the instant case, the claim of the petitioner has been curtailed relying on the (i) Rule 7(1) of the Rules of 1958 and (ii) circular dated 14.08.2015, which provides for capping of medical reimbursement of Rs.2.50 lakhs in case of open heart surgery. Rule 7 provides for reimbursement of expenditure incurred on purchase of drugs as an outdoor patient. As stated above, in view of proviso to Rule 7(1) and (2), the same shall not be applicable in respect of reimbursement of bills for purchase of drugs relating to indoor patients, hence the same is not applicable in the present case and the petitioner will be entitled to reimbursement of expenses incurred on the drugs/medicine.
17. Medical history of the late government employee reveals that he not only underwent CABG and Re Cab surgery but due to complications had been put on 12 W.P. No.9118/2019 dialysis, ventilator and VA ECMO and also had to undergo various procedure like tracheotomy, colostomy and laprotomy etc. The respondents vide resolution No.111 dated 20.03.2018 had restricted petitioner's claim for reimbursement on the basis of circular issued by the Medical Education Department No. F-18-68/2000/1/55 dated 14.08.2015, which provides capping of medical reimbursement, Rs. 2.50 lakhs in case of open heart surgery and denied the expenses incurred on other surgery and procedures undergone by late government employee at Nanawati Hospital, Mumbai. The Board approved reimbursement of Rs.8,37,550/- only (Rs. 2.50 lakhs for open heart surgery and Rs.5,87,550/- for X-Ray, investigation etc.), which is contrary to Rule 2(i) and Rule 4(1) and (2) of the Rules of 1958.
18. A similar circular issued by Medical Education Department No. F-18-58/2000/55/vishi/1, dated 15/20.03.2001, which provided for capping of medical reimbursement in case of open heart surgery to Rs.1,15,000/-, came to be examined by a co-ordinate Bench of this Court in the case of Mukesh Tiwari Vs. State of M.P., reported in 2012 (3) MPLJ 447. While allowing the petition, it was held that the executive instructions dated 13 W.P. No.9118/2019 15/20.03.2001, which put a capping on a maximum amount is contrary to Rule 4(1) and (2) of the Rules of 1958 and will not be applicable and further directed to disburse the entire amount towards medical reimbursement as claimed by the petitioner. The relevant paras 8 to 12 are extracted herein below:-
"8. Be that as it may. Except what is provided under Rule 7, no capping in respect of the reimbursement of expenses for treatment availed by a Government servant in the hospital has been shown to be in the Rules. Expect that by way of instructions circulated vide F18-58/2000/55/vishi/1, dated 15/20.03.2001 by the Medical Education Depart, providing the capping of medical reimbursement in case of Angiography of Rs.10,500/-, for Open Heat Surgery Rs.1,15,000/- and for Kidney Transplant Rs.1,92,000/-. Clause 2 of the said instruction stipulates that expenses exceeding the aforesaid amount shall be borne by the government servant.
9. The question is whether when Rules framed under Article 309 of the Constitution of India does not provide for a capping whether the operation of Rule 4 can be circumvented by way of executive instructions.
10. Trite it is that Rule made under the proviso of Article 309 of the Constitution of India are legislative in character [please see: Rajkumar Vs. Union of India and others, AIR 1975 SC 1116 and B.S. Yadav Vs. State of Haryana, 1980 (supp) SCC 524]
11. Equally settled it is that the Statutory Rules cannot be supplanted by the executive instruction. In this context, reference can be had of the decision in T.N. Housing Board 14 W.P. No.9118/2019 Vs. N. Balasubramanium (2004) 6 SCC 85; wherein it was observed by Their Lordships in :-
"6. It is one thing to say that there exists no provision in the Regulations which would attract the rules specified in Regulation 28(a) or the instructions and rulings thereunder, but it is another thing to say that the instructions if implemented cannot be given effect to having regard to the consequences provided for in the extant Regulations, still the same would be applicable. We have noticed hereinbefore that for Junior Engineers and Draftsmen eligibility criteria have been laid down. It is not in dispute that the said eligibility criteria are mandatory in nature and the validity thereof had not been questioned. If a Draftsman is to be promoted to the post of Assistant Executive Engineer, he must complete 15 years of service in the said capacity, whereas the Junior Engineer may have to complete only 10 years in the said post. Once the eligibility criteria are considered to be a pre- requisite for giving effect to the statutory Regulations, the purported executive instructions would not be applicable. Once it is held that relying on the basis of the executive instructions in terms of Regulation 28(a), the Draftsmen who have been getting higher salary are given preference over the diploma-holder Junior Engineers, the eligibility criteria contained in the statutory Regulations would become otiose; the logical corollary thereof would be that the executive instructions would prevail over the statutory Regulations. Such a consequence would lead to an absurdity and in that view of the matter it must be held that the executive instructions cannot be given effect to (emphasis supplied)."
12. Therefore, in the considered opinion of this Court executive instruction dated 15/20.03.2001, which put a capping on a maximum amount which has to be disbursed towards medical reimbursement was contrary to Rule 4(1) and (2) of the Rules of 1958 will not be applicable as the same leads to supplanting of Rule 4 of Rules, 1958, if followed the operation of rules is restricted."
15 W.P. No.9118/2019
It is pertinent to note that this order has admittedly not been challenged any further by the State.
19. Normally, statutory rules are framed under the authority of law governing employment. No government order, notification or circular can be substituted for the statutory rules framed under the authority of law. A circular letter (administrative instructions) is not a statutory instrument and cannot replace the statutory rules framed under Article 309 and any policy decision of State adopted in contravention of statutory Rules would be illegal and void. Any departmental letter or executive instructions cannot prevail over or override, statutory rules and constitutional provisions. [Please see: Subhash Vs. State of Maharashtra and another 1995 Supp. (3) SCC 332, State of Karnataka Vs. Umadevi (2006) 4 SCC 1, Punjab Water Supply and Sewage Board Vs. Ranjodh Singh and others (2007) 2 SCC 491, Punjab State Warehousing Corporation Vs. Manmohan Singh and another (2007) 9 SCC 337 and State of Orissa Vs. Prasan Kumar Sahoo (2007) 15 SCC 129.]
20. The subject of resolution No.85 dated 06.06.2011 (Annexure R-1) relates to grant of relaxation in 16 W.P. No.9118/2019 rules regarding reimbursement of bills. By this resolution the M.D. was authorised for relaxation of rules in case of reimbursement and in place of CMHO, the in house Doctor was authorised to verify the bills. Admittedly the bills are not disputed. The MD had proposed a payment of Rs. 60,06,486/- as against the claim of Rs.84,36,784/-. The board vide resolution No.111 dated 20.03.2018, however, further reduced the same to Rs.8,37,550/-. The respondent No.2/Board has not only committed an error in relying on the Rule 7(1) and (2) of the 1958 Rules but also on the circular issued by the Medical Education Department No. F- 18-68/2000/1/55 dated 14.08.2015, when the previous circular No. F-18-58/2000/55/1, dated 15/20.03.2001, by the same department was held to be contrary to the Rules 4(1) and (2) of the Rules of 1958.
21. In view of the standard laid down by the aforementioned decisions, the expenditure incurred by the petitioner for the treatment of her late husband cannot be denied. Respondents are, therefore, directed to pay the entire amount towards medical reimbursement as claimed after adjusting the amount already paid.
17 W.P. No.9118/2019
22. Let the same be paid within a period of four months from the date of communication of this order.
23. Petition is allowed to the extent indicated above.
(Nandita Dubey)
Judge
07/06/2021
gn Digitally signed by GEETHA NAIR
Date: 2021.06.07 17:13:50 +05'30'