Gujarat High Court
Union Of India vs Kapilraj J Upadhyay on 13 April, 2023
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/17502/2022 ORDER DATED: 13/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 17502 of 2022
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UNION OF INDIA
Versus
KAPILRAJ J UPADHYAY
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Appearance:
MRS KRISHNA G RAWAL for the Petitioner(s) No. 1,2,3
MS VILAS A PURANI for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 13/04/2023
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. This petition is filed under Articles 226 and 227 of the Constitution of India, in which, the petitioners have challenged the order dated 11.04.2022 rendered by the Central Administrative Tribunal, Ahmedabad Bench (hereinafter referred to as "the Tribunal") passed in OA No.341/2020, whereby the Tribunal has quashed and set aside the order passed by the present petitioners and direction has been issued to the petitioners to reexamine and reconsider the medical bills of the present respondent - original applicant for reimbursement.
2. Heard learned advocate, Mrs. K.G. Raval for the petitioners and learned advocate, Ms. Vilas Purani for the respondent.
3. Learned advocate, Ms. Raval appearing for the Page 1 of 19 Downloaded on : Mon Apr 17 20:40:57 IST 2023 C/SCA/17502/2022 ORDER DATED: 13/04/2023 petitioners submitted that the respondent is a Postal Pensioner retired on superannuation w.e.f. 31.05.2015 from Rajkot Junction Plot P.O. and after the retirement, the respondent preferred claim for medical expenses incurred for his wife's medical treatment, however, the concerned petitioner rejected his claim on 16.01.2020 on the ground that as per Rule 1(2) Note-2(iv) of the Central Services (Medical Attendance) Rules, 1944 (hereinafter referred to as "the Rules of 1944), the petitioner, who is retired government official, is not entitled for the reimbursement of the medical claim. It is submitted that the respondent challenged the said decision by filing OA No.341/2020 before the Tribunal and the Tribunal, vide impugned order dated 11.04.2022, allowed the application submitted by the respondent herein and, thereby the aforesaid direction has been issued to the petitioners and, hence, the petitioners have preferred the present petition.
4. Learned advocate for the petitioners would submit that as per Rule 1(2) Note-2(iv) of the Rules of 1944, the respondent, who is retired employee of the petitioner, is not entitled to claim medical reimbursement. It is further submitted that in fact, the respondent has claimed medical reimbursement for his wife and as per the aforesaid Rules, same is not covered and, therefore, the petitioners have rightly rejected Page 2 of 19 Downloaded on : Mon Apr 17 20:40:57 IST 2023 C/SCA/17502/2022 ORDER DATED: 13/04/2023 the claim of the respondent herein, inspite of that, the Tribunal has allowed the application submitted by the respondent, thereby the impugned direction has been issued. The petitioners, therefore, challenged the said decision. Learned advocate, therefore, urged that the impugned order is contrary to the Rules of 1944 and, therefore, same be quashed and set aside.
5. On the other hand, learned advocate, Ms. Purani for the respondent has opposed this petition. Learned advocate submitted that the issue involved in the present petition is squarely covered by various decisions of this Court as well as the Hon'ble Supreme Court. Learned advocate has referred to the decision upon which reliance has been placed by the Tribunal while passing impugned order. Learned advocate has submitted that while passing an order dated 06.07.2004 by the Division Bench of this Court in Special Civil Application No.7895/2004, the Division Bench has considered similar issue where the medical reimbursement was claimed for the wife of the pensioner and it was rejected by the department. The Division Bench of this Court has rejected the similar contention of Union of India and held that the pensioner can claim medical reimbursement of his wife, copy of said decision is placed on record at Page No.46 of the compilation. Learned advocate, thereafter, has placed reliance upon the order dated 15.11.2016 passed in Special Civil Application No.14763/2015 Page 3 of 19 Downloaded on : Mon Apr 17 20:40:57 IST 2023 C/SCA/17502/2022 ORDER DATED: 13/04/2023 and allied matters, copy of which is placed on record at Page No.70 of the compilation. It is submitted that in the said case also, the Division Bench of this Court has considered similar contention and, thereafter, rejected the contention raised by the Union of India. Learned advocate has, more particularly, placed reliance upon Paragraph Nos.6, 7, 8 and 9 of the said decisions.
6. Learned advocate, thereafter, has produced on record a copy of recent order dated 11.01.2023 rendered by the Division Bench of this Court in Special Civil Application No.24191/2022, wherein this Court has considered the decision rendered by this Court in case of Union of India Vs. Prabhakar Sridhar Bapat in Special Civil Application No.3843/2004 by an order dated 02.04.2004, wherein similar issue was dealt with and the order passed by this Court came to be confirmed by the Hon'ble Supreme Court in SLP Nos.10660-10661 of 2005. It is, therefore, urged that the issue involved in the present petition is squarely covered by various decisions and, hence, the present petition may not be entertained.
7. We have considered the submissions canvassed by learned advocates for the parties. We have also perused the material produced on record as also relevant rules and the decisions, upon which reliance has been placed by learned advocates for the parties.
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8. It would emerge from the record that the respondent is a pensioner, who retired from the services on attaining the age of superannuation on 31.05.2015. After the retirement, the respondent submitted his claim for medical expenses incurred for his wife and the concerned petitioner rejected the said claim on 16.01.2020 on the ground that the reimbursement of the medical claim in the department of post is governed by the Rules of 1944, which clearly stipulates that the said rules do not apply to retired government official. Rule 1(2) Note-2(iv) is referred to in the said order. It would further reveal from the record that the respondent, therefore, filed OA before the Tribunal and the Tribunal has passed the impugned order. Now it is mainly contended by learned advocate for the petitioners that the respondent submitted claim for medical expenses of his wife and, therefore, he is not entitled to claim said benefit. However, it is pertinent to note that the said contention is taken for the first time before this Court. If the order dated 16.01.2020, copy of which is placed on record at Page No.25 of the compilation, is carefully seen, it is revealed that the claim of respondent was not rejected on this ground. Thus we are of the view that the contention, which is taken for the first time in the present petition, cannot be entertained. It is not in dispute that the petitioners have not taken such contention even before the Tribunal.
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9. At this stage, we would like to refer to relevant Rules of 1944, upon which reliance is placed by learned advocate for the petitioners. Rule 1(2) Note-2(iv) reads as under, "Rule.1 These Rules may be called the Central Services (Medical Attendance) Rules, 1944. (2) they shall apply to all Government servants other than (i) those in Railway service, and
(ii) those of non-Gazetted rank stationed in or passing through Calcutta, whose conditions of service are prescribed by rules made or deemed to be made by the Central Government, when they are on duty, leave or Foreign Service in India or when under suspension. Note-1 : Persons in Railway service are excluded from the purview of these rules. Railway employees on deputation to various other offices under the Central Government are, however, governed by these rules. Note-2 : These Rules do not apply to-
(i) xxx xxx xxx.
(ii) xxx xxx xxx.
(iii) xxx xxx.
(iv) Retired Government officials."
10. At this stage, we would also like to refer to the decision rendered by this Court in similar type of cases. In the order dated 06.07.2004 passed by this Court in Special Civil Application No.7895/2004, the Division Bench has held as under.
Page 6 of 19 Downloaded on : Mon Apr 17 20:40:57 IST 2023C/SCA/17502/2022 ORDER DATED: 13/04/2023 "Ms. Davawala submits that this is a case of wife of a pensioner and not of the pensioner himself and, therefore, the principles laid down in other cases are not applicable. We do not accept such plea for the reason that the medical reimbursement is available to both, husband and wife, therefore, incurring expenses on the wife would not make any difference. Further, such submission was not raised by the petitioner before the Tribunal, therefore, petitioner cannot be permitted to raise such plea for the first time before us. Therefore, the plea raised by Ms. Davawala is rejected."
11. The Division Bench of this Court while passing an order dated 15.11.2016 in Special Civil Application No.14763/2015, has observed in Paragraph Nos.6, 7, 8 and 9 as under, "6. Both these writ petitions thus arise out of above impugned orders and submissions are made by Shri Niral Mehta, learned Standing Counsel appearing for the petitioner-Union of India that in both these writ petitions undisputedly fact remains that respondent employees on the retirement opted for fixed medical allowance and not for Central Government Health Scheme (CGHS). It is submitted that learned Tribunal erred in interpreting the Rules 1944, wherein in Page 7 of 19 Downloaded on : Mon Apr 17 20:40:57 IST 2023 C/SCA/17502/2022 ORDER DATED: 13/04/2023 Note-2 of Rule 2 it is made clear that retired government official shall not be covered under the Rules and in absence of any other Rule, medical reimbursement to retired Central Government employee is not permissible. It is submitted that directions issued by the Tribunal is, therefore, contrary to Rules and the orders impugned deserves to be quashed and set aside. However, learned counsel appearing for Union of India is unable to dispute the orders passed earlier by Central Administrative Tribunal in Original Application No.205 of 2003 dated 10.11.2003, upon a challenge to this Court in a writ petition being Special Civil Application No.3845 of 2004 contention raised by Union of India about applicability of the Rules in question came to be negatived and the order dated 2.4.2004 passed in Special Civil Application was subject matter of Special Leave Application No.10654 of 2005 before the Apex Court, which also came to be dismissed on 3.4.2012. However, it is submitted that rejection of the above Special Leave Application by the Apex Court will have no binding effect in view of the fact that decision rendered therein was in the facts and circumstances of the case and Page 8 of 19 Downloaded on : Mon Apr 17 20:40:57 IST 2023 C/SCA/17502/2022 ORDER DATED: 13/04/2023 it is open for this Court to consider the question afresh in accordance with the submissions made with regard to applicability of the Rules in question.
7. Ms.Rina Kamani and Mr.Gaurav Chudasama, learned counsel appearing for the respondent in each of these writ petitions, however, would contend that the issue is no more res integra in view of the decision rendered by this Court in Union of India v. Prabhakar Bapat in Special Civil Application No.3843 of 2004 on 2.4.2004, which came to be confirmed by the Supreme Court, while deciding Special Civil Application No.15702 of 2014 on 18.6.2015 in the case of Union of India v. Pratapbhai Oza also reliance was placed on earlier decision. The third decision is in Special Civil Application No.20315 of 2015 dated 19.7.206 in the case of Superintendent of Post Offices v. Mohammad Sindhi. In a decision dated 29.9.2008 in Writ Petition No.32770 of 2004 and allied matters by a Division Bench of the High Court of Judicature at Madras, wherein similar facts were considered viz. reimbursement of medical expenses of a retired Central Government employee in the context of the Rules 1944 and CGHS scheme along with recommendations of 5th Pay Commission and Page 9 of 19 Downloaded on : Mon Apr 17 20:40:57 IST 2023 C/SCA/17502/2022 ORDER DATED: 13/04/2023 relying on decision of the Apex Court in various cases including that Right to Health is integral part to Right to Life and Government has a constitutional obligation to provide health service and also decision rendered with regard to CGHS by other High Courts and finally directions were issued to which reference will be made hereafter. The above judgment also fell into consideration before a Division Bench of this Court to which brief mention is made in the order dated 19.7.2016. Office Memorandum dated 26th May 2010 issued by Director, Ministry of Personnel, Public Grievance and Pensions (Department of Pension and Pensioners Welfare, Government of India), whereby fixed medical allowance was enhanced from Rs.100/- to Rs.300/- and to continue with a clarification that the retired employees are entitled for such fixed medical allowance for meeting with their day-to-day medical expenses which do not require hospitalization.
7.1 Accordingly, it is submitted that the writ petitions deserve to be rejected in absence of any error either on law or on facts by the Tribunal while passing the orders impugned in both these writ petitions.
8. Having heard learned counsel appearing for the parties, perusal of the record Page 10 of 19 Downloaded on : Mon Apr 17 20:40:57 IST 2023 C/SCA/17502/2022 ORDER DATED: 13/04/2023 including relevant Rules applicable and decisions relied on by the learned counsel appearing for the respondent employees, we find and are also persuaded and convinced about applicability of such decisions upholding and interpreting the Rules in question i.e. Central Service (Medical Attendance) Rules, 1944 and in a decision dated 29.9.2008 in Writ Petition No.32770 of 2004 and allied matters by a Division Bench of the High Court of Judicature at Madras, wherein similar facts were considered viz. reimbursement of medical expenses of a retired Central Government employee in the context of the Rules 1944 and CGHS scheme along with recommendations of 5th Pay Commission and it is held as under in paragraphs 29 and 30 of the judgment.
"29. What then is the upshot of the above discussion ? Keeping in view the relevant Rules and Orders issued from time to time and also the overwhelming sentiments expressed in various pronouncements of the Supreme Court and different High Courts, our conclusions are as follows :
(1) Though the recommendation of the 5th Pay Commission for extending the benefits available to the employees Page 11 of 19 Downloaded on : Mon Apr 17 20:40:57 IST 2023 C/SCA/17502/2022 ORDER DATED: 13/04/2023 under CS (MA) Rules, 1944, appears to have been accepted on principle, the modalities have not been worked out and CS (MA) Rules have not been formally made applicable to the retired employees.
(2) Technically speaking, the benefit of CGHS for reimbursement of expenses incurred as indoor patient can be availed by a retired employee only if he becomes or continue as a member by making contribution.
(3) Denial of CGHS Card to a retired employee on the ground that he has retired from a place not covered under CGHS is improper.
(4) Though theoretically a retired
employee can opt for treatment as
indoor patient in a distant place
covered by CGHS, for all practical
purposes such a possibility is
extremely remote. In other words, for all practical purposes, retired employees residing in remote areas are deprived of the opportunity of availing benefits of CGHS as indoor patient.
(5) The payment of monthly allowance of Rs.100/- to retired employees is only to provide for day-to-day treatment, Page 12 of 19 Downloaded on : Mon Apr 17 20:40:57 IST 2023 C/SCA/17502/2022 ORDER DATED: 13/04/2023 where outdoor facilities are not available. However, payment of such allowance cannot be a ground to deny the benefit of reimbursement for medical expenses incurred as indoor patient.
(6) Though right to live or lead the life, particularly after retirement, can be considered as a Part of Article 21 of the Constitution, the content and extent of such right would depend upon various factors.
(7) Denial of benefits contemplated under
CS (MA) Rules or CGHS to retired
employees on the ground that such
Rules are not applicable or on the
ground that the retired employees are residents of areas not covered by CGHS, is prima facie contrary to the spirit of Articles 14 and 21 of the Constitution.
(8) The recommendations of the 5th Pay Commission and the subsequent policy decision of the Ministry of Health as in the Office Memorandum dated 5.6.1998 are reasonable, deserving acceptance and implementation unless there are any insurmountable hurdle.
(9) The various retired employees had undergone the expensive treatment as Page 13 of 19 Downloaded on : Mon Apr 17 20:40:57 IST 2023 C/SCA/17502/2022 ORDER DATED: 13/04/2023 indoor patients at a time when the normal understanding was the applicability of CS (MA) Rules to retired employees as per Office Memorandum dated 5.6.1998 and thus all such persons had at least a legitimate expectation of being reimbursed. All efforts should be made to fulfill such legitimate expectation, if not as a matter of absolute legal right, at least as a matter of grace.
30. In view of the above conclusion, it has to be decided as to the extent and content of medical facilities to be extended to the retired Central Government officials who do not reside within the areas covered under the CGHS and the nature of directions to be issued."
9. In addition to above, after the decision rendered by a Division Bench of Madras High Court, as per the Office Memorandum dated 26th May 2010 issued by Director, Ministry of Personnel, Public Grievance and Pensions (Department of Pension and Pensioners Welfare, Government of India), now it is clear that fixed monthly medical allowance is only for meeting with day-to- day expenses and not for hospitalization and keeping in mind the law declared by the Page 14 of 19 Downloaded on : Mon Apr 17 20:40:57 IST 2023 C/SCA/17502/2022 ORDER DATED: 13/04/2023 Apex Court to which a clear reference is made by Division Bench of High Court of Madras that Right to Health is an integral part of Right to Life under Article 21 of the Constitution of India and it is constitutional obligation of the government to uphold the same. As per three decisions of this Court, (1) Union of India v. Prabhakar Bapat in Special Civil Application No.3843 of 2004 dated 2.4.2004, (2) Special Civil Application No.15702 of 2014 in the case of Union of India v. Pratapbhai Oza dated 18.6.2015 and (3) Special Civil Application No.20315 of 2015 in the case of Superintendent of Post Offices v. Mohammad Sindhi dated 19.7.206, which are confirmed upto the Supreme Court, we find that the direction issued by the Tribunal in the impugned orders respectively cannot be said to be in any manner contrary to law or warranting interference at the end of this Court. In absence of merit, both these petitions are rejected. Notice is discharged with no order as to costs."
12. Recently on 11.01.2023, the Division Bench of this Court has considered similar issue while deciding Special Civil Application No.24191/2022, wherein this Court has observed in Paragraph Nos.3, 3.1, 4, 4.1, 5, 5.1 and 6 as under, Page 15 of 19 Downloaded on : Mon Apr 17 20:40:57 IST 2023 C/SCA/17502/2022 ORDER DATED: 13/04/2023 "3. In the Original Application before the Tribunal, the prayer of the applicant who was retired employee of the Postal Department at Morbi, was to set aside order dated 20.07.2021 whereby the claim of the applicant for medical reimbursement was rejected. The communication dated 20.7.2021 mentioned that the rejection for the claim of reimbursement towards medical expenses was in view Rule 1(2) Note 2(iv) of the Central Services (Medical Attendance) Rules, 1994, which provided that reimbursement of medical claim was not permissible for the retired employees. 3.1 The case of the applicant-respondent herein before the Tribunal was that in third week of September, 2020, he suffered from Covid 19 virus and was taken to Sadbhavana Hospital and Medical Research Center, where he was admitted on 25.09.2000 and was later discharged after treatment. Again he developed symptoms of virus on 22.11.2020 when he was at Rajkot. He was taken to a nearby hospital called Star Synergy Hospital and expenditure incurred towards treatment was Rs. 9,01,618/-. It was stated that lungs were diagnosed to be virus infected. He was treated at Star Synergy Hospital from 16.12.2020 to 31.12.2020. There total expenses to the tune of Rs.
Page 16 of 19 Downloaded on : Mon Apr 17 20:40:57 IST 2023C/SCA/17502/2022 ORDER DATED: 13/04/2023 5,28,118/- were incurred. Further expenses of Rs. 25,515/- and Rs. 2,85,000/- were required to be incurred for the same treatment during February, 2021 to April, 2021, which was in connection with the post-corona disabilities.
4. The only ground on which the department rejected the claim for reimbursement of medical bills was that the applicant was a retired employee.
4.1 While setting aside the order of competent authority to refuse the reimbursement, the Central Administrative Tribunal observed that the issue was no longer res integra. It was recorded that this court in Union of India vs. Prabhakar Sridhar Bapat being Special Civil Application No. 3843 of 2004 decided on 02.04.2004 dealt with the same issue, which decision came to be confirmed by the supreme court in Special Leave Petition (C)No. 10660-10661 of 2005 decided on 3.4.2012 holding against the department entitling the retired employee to have the benefits of medical reimbursement.
5. Several decisions on the point were referred to by the Tribunal as mentioned in paragraph No.2 of the impugned order. Special Civil Application No. 14763 of 2015 was also a case relied on, on the subject of reimbursement of the medical bills to Page 17 of 19 Downloaded on : Mon Apr 17 20:40:57 IST 2023 C/SCA/17502/2022 ORDER DATED: 13/04/2023 the retired employee. Another decision of the Supreme Court was referred to in Special Leave Petition No. 10695 of 2005, wherein Smt. Noorjahan H. Chhipa was also a retired employee of the Postal Department. It was thus shown that the issue about the reimbursement of the medical bills in case of the retired postal employees was no longer res integra.
5.1 Learned advocate for the petitioner Union of India was not able to dislodge the position of law emanating from all the above decision.
6. Discriminating the employee for the purpose of reimbursement medical expenses on the ground that the employee has retired from service, does not stand to reason. The class of existing employees and the retired employees does not book a valid classification for the purpose of Articles 14 and 16 of the Constitution, and such discrimination is arbitrary and irrational."
13. Thus from the aforesaid decisions rendered by this Court, it is clear that even retired employee of the petitioner - department (pensioner) can claim medical reimbursement as per Rules of 1944 and even the wife of the pensioner is also entitled for the medical reimbursement.
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14. We have gone through the reasoning recorded by the Tribunal while passing impugned order and we are of the view that the Tribunal has not committed any error and, therefore, no interference is required in the impugned order passed by the Tribunal. Accordingly, this petition is dismissed. Notice is discharged.
Sd/-
(VIPUL M. PANCHOLI, J.) Sd/-
(HASMUKH D. SUTHAR, J.) Gautam Page 19 of 19 Downloaded on : Mon Apr 17 20:40:57 IST 2023