Central Administrative Tribunal - Ahmedabad
Islamkhan H. Pathan vs Union Of India (Uoi) And Ors. on 11 September, 2002
Equivalent citations: 2004(2)SLJ155(CAT)
JUDGMENT A.S. Sanghvi, Member (J)
1. The applicant is a retired P & T employee. His claim for medical reimbursement has been rejected by the C.P.M.G. Ahmedabad on the ground that though reimbursement is admissible under C.G.H.S. Rules, the same are not applicable to the Postal Pensioners and that Central Service (Medical Attendance) Rules are not extended to the pensioners. The applicant retired as an Internal Financial Adviser and after retirement had settled down in Ahmedabad. On dated 3.10.2002 he had intimated the Chief Postmaster General that he had suffered heart attack on 17.5.94 and again on 6.5.99. His Cardiologist had advised him for Angiography and if necessary to undergo bypass surgery. He also informed the authorities that he intended to undergo Angiography in Government recognised hospital and asked for medical advance of Rs. 10,000. He was however informed that CS (MA) Rules are not applicable to him and as such advance would not be payable to him. The applicant has there-alter got the Angiography done on him at Rajasthan Hospital, Ahmedabad which is a Government recognised hospital on 22.11.2000. He was advised bypass surgery and accordingly he underwent the bypass surgery on 25.11.2000 in Rajasthan Hospital. The applicant thereafter submitted two medical claims with original essential certificates, (1) for Rs. 12,316.50 for Angiography and (2) Rs. 96,138.00 for bypass surgery and prayed for early reimbursement. The Assistant Director of Postal Services vide his letter dated 11.4.2001 informed him that he was not entitled for medical reimbursement as the pensioners are excluded from the benefit under CS (MA) Rules, 1944 and that reimbursement under CGHS Rules was admissible but the same was not applicable to the Postal pensioners. The applicant has therefore moved this O.A. seeking directions against the respondents for the reimbursement of the medical bills.
2. The respondents in their reply have conceded that the applicant is a retired P & T employee and that he had submitted the medical bills for reimbursement. They have however contended that the CS (MA) Rules are not extended to the pensioners and as such under those rules no reimbursement can be granted to the applicant. It is also contended that the Postal Department runs P & T dispensaries and the Government circular provides that wherever the P & T dispensaries are situated the benefit of the C.G.H.S. will not be available. The circular dated 30.11.98 has clarified that those Government pensioners residing in area not covered under P & T dispensaries can be considered for grant of fixed medical allowance. The applicant was not entitled to the benefit of the C.G.H.S. as he was covered by P & T dispensary and as per circular dated 16.3.2000 it has been clarified that the P & T pensioners are entitled for medical facilities from P & T dispensaries and they would not be eligible for C.G.H.S. facilities. Under the circumstances, the reimbursement claim of the applicant was not admissible and as such the same was rejected.
3. I have heard the learned Advocates of both the parties at length and have carefully considered the rival contentions. It appears from the contentions of the respondents that the folly of the applicant is that he was residing in an area covered by P & T dispensary. The main ground on which his medical reimbursement bills are rejected by the respondents is that he being a pensioner is not covered under the Central Service (Medical Attendants) Rules, 1944 as these rules are not extended to the pensioners and that though under CGHS such claim would have been admissible he cannot be given the reimbursement as he was entitled at the most for availing medical facilities in P & T dispensary and nothing beyond that. Mr. Pathak, learned Advocate appearing for the applicant relying on the decision of the Supreme Court in the case of Surjeet Singh v. State of Punjab, 1996(2) SCC 336, strongly argued that such a stand taken by the respondents was not only discriminatory but also infringing the fundamental rights of the applicant. According to Mr. Pathak another pensioner of the same department not residing within the "area covered by P & T dispensary is entitled to be reimbursed under the CGHS scheme for the medical expenses incurred by him while the pensioner residing within the area covered by P & T dispensary is not entitled to be reimbursed for the medical claim in spite of the fact that P & T dispensary is not in a position to treat such persons or extend necessary medical facility to them. According to him, there cannot be any discrimination between the facilities available to one pensioner and another pensioner. He has also pointed out that pursuant to the recommendation of the Fifth Pay Commission, Govt., has agreed to extend the benefit of CS (MA) Rules to the pensioners and though vide O.M. dated 5.6.98 the Ministry of Health and Family Welfare pursuant to the O.M. dated 15.4.97 of the Department of Pension and Pensioners Welfare stated in an unequivocal terms that it was decided by the Ministry that the pensioners should not be deprived of medical facilities from the Govt. under their old age when they require them most and that the Ministry had no objection of the extension of the CS (MA) Rules to the Central Government pensioners residing in non CGHS areas. The benefits were not extended to the pensioners only because of some procedural tangle or lethargic attitude on the part of the relevant Ministry or Department. According to Mr. Pathak, since the Government's intention is very clear, the reimbursement claim of the applicant should not be rejected merely on technical grounds.
4. Ms. Sheth on the other hand has conceded the position that the Ministry of Pension and Pensioners Welfare as well as Ministry of Health have issued the O.M. stating that they have no objection to the extension of CS (MA) Rules to the Central Government pensioners. She has however submitted that till the necessary orders extending the rules are issued, the Competent Authority under the rules cannot allow the reimbursement claim. According to her the respondents have acted as per the rules and since the rules do not permit the reimbursement of medical claim to the pensioners residing within the area of P & T dispensaries nothing can be done in the matter.
5. It cannot be denied that CS (MA) Rules are not extended to the pensioners. No doubt after the recommendations of the Fifth Pay Commission the Government has issued some circulars showing inclination to extent the benefits of the CS (MA) Rules to the pensioners but till date no concrete orders are issued by the Government or the Departments concerned extending the CS (MA) Rules to the pensioners. Under the circumstances, the reimbursement of the medical expenses by a pensioner cannot be allowed under CS (MA) Rules, 1944. However the position is quite different when we consider the CGHS scheme. The Central Govt., vide O.M. dated 17.12.90 has framed certain rules for availing the CGHS facilities by Civilian Central Government Pensioners. Under Clause I, Sub Clauses 1.1, 1.2 and 1.4 eligibility criteria is prescribed and it has been inter alia provided that:
"(1) The families of Central Government employees in respect of family pension are eligible to avail CGHS facilities if the deceased Government servant was eligible for this facility while in service.
(2) Not only those Central Govt. employees who were actually availing the CGHS facilities during service are eligible to enjoy them after retirement but all retired personals of Ministries/department/offices which are eligible to enjoy CGHS facility while in service are eligible to enjoy them after retirement even if immediately prior to their retirement they were not actually availing or never availed those facilities on account of their posting to a station where CGHS facilities are not available.
(3) That even though CGHS facilities are at present available only at specified places and it may not be possible for Central Govt., pensioners living away from these places to avail of the CGHS facilities on day to day basis as in the case of persons living at these places, it may be in the interest of the pensioners to enroll themselves as beneficiaries of the CGHS scheme so that at least in the case of major ailment/major surgery they will be able to come to the CGHS station to avail of these facilities if and when such a need should arise."
6. It is quite apparent that there is no prohibition in the eligibility criteria for availing of the CGHS facilities by the pensioners residing in the areas covered by P & T dispensaries. On the contrary, the rules permit pensiones to be enrolled within CGHS scheme even if they had not availed the benefit of the CGHS during the service. The applicant had preferred application for registration under CGHS scheme vide his letter dated 3.10.2000 Annexure-A/4 but the Additional Director, CGHS, Ahmedabad had vide his letter dated 31.10.2000 referring to the Ministry of Health and Family Welfare letter dated 1.8.96 stated that 'pensioners of P & T who were availing CGHS facilities while in service are only eligible for availing this CGHS facility. In Gujarat CGHS facilities are available only in Ahmedabad and retired P & T employees are not allowed the benefits of the said scheme as the P & T is having its own dispensary and on the Ministry's order mentioned above this organisation cannot entertain the retired beneficiaries of P & T for extending CGHS facilities. The letter dated 1.8.96 of Ministry of Health and Family Welfare referred to by Additional Director CGHS in his reply dated 31.10.2000 was subject matter of the O.A. No. 704 of 2001 before the Bangalore Bench of the Tribunal and holding that this letter with respect of retired employees of P & T department is discriminatory, arbitrary, unjust and against the settled principles of law, the Bangalore Bench by their order dated 20th November, 2001 has held the same to be unconstitutional and not sustainable in the eye of law. The Bench has quashed both these letters as well as the orders passed by the authorities on the strength of these letters. Since the CGHS facility Were not made available to the applicant by the Assistant Director of CGHS on the strength of an unconstitutional and unsustainable letter, the refusal on the part of the Director of the CGHS to extend the facilities of the CGHS to the applicant also deserves to be quashed. In my opinion, the directions of the department that wherever the P & T dispensaries are situated the pensioners of the P & T residing in those areas are not covered under CGHS is also liable to be quashed and set aside as unconstitutional and discriminatory. The dispensary cannot be compared with a hospital and wherever the major ailment is there or major surgery is required, to refuse a pensioner the benefits available in the CGHS is equal to the denial of right to life. It is matter of common knowledge that P & T dispensaries are not equipped to deal with the cases of major ailments as well as major surgeries etc. In such cases, merely on the technical grounds that some circulars of the Government prohibit the pensioners from availing the CGHS facilities, the pensioners cannot be denied their fundamental right. Such circular not only discriminates between one pensioner and another with respect of their right to live but also against the principle enshrined have been denied the reimbursement of his medical claim. I therefore allow this O.A. and direct the respondents to entertain the medical reimbursement claim of the applicant and reimburse the admissible amount spent by the applicant for the treatment taken by him at Rajas than Hospital between dates 22.11.2000 to 7.12.2000. This exercise be carried out within 3 months of the receipt of the copy of this order and if the amount is not reimbursed to the applicant within these 3 months period, the same would be payable with interest at the rate of 12% per annum. With the above direction, the O.A stands disposed of. No order as to costs.