Gujarat High Court
D.M. Kathia vs State Of Gujarat on 27 September, 2018
Author: Mohinder Pal
Bench: Mohinder Pal
C/SCA/2923/2010 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2923 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE MOHINDER PAL
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1 Whether Reporters of Local Papers may be allowed to
see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law
as to the interpretation of the Constitution of India or any
order made thereunder ?
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D.M. KATHIA
Versus
STATE OF GUJARAT
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Appearance:
MR NIRZAR S DESAI(2117) for the PETITIONER(s) No. 1
GOVERNMENT PLEADER(1) for the RESPONDENT(s) No. 1,2
MR NAGESH C SOOD(1928) for the RESPONDENT(s) No. 3
RULE SERVED(64) for the RESPONDENT(s) No. 1,2,3
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CORAM: HONOURABLE MR.JUSTICE MOHINDER PAL
Date : 27/09/2018
ORAL JUDGMENT
1. Petitioner has challenged the order of the Government dated 10.03.2010 whereby, his claim for medical reimbursement for the treatment of Page 1 of 7 C/SCA/2923/2010 JUDGMENT his daughter has been declined.
2. Petitioner being a Government employee of the Corporation submitted an application dated 4.3.2005 for the purposes of treatment of his daughter and advance of Rs.8 Lakhs. This request was declined vide letter dated 31.3.2005 in view of the Gujarat State Services (Medical Treatment) Rules, 1988. Thereafter, petitioner again made a request on 13.04.2005 for advance, on the basis of Government Resolution dated 14.09.2004 issued by the Health and Family Welfare Department. Aforesaid request of the petitioner was forwarded to the Deputy Secretary, Industries and Mines Department on 18.07.2005 for approval and necessary advice. Consequently, vide letter dated 13.10.2005, certain details were invited by the Department and accordingly, petitioner supplied the required information to the Board on 3rd March, 2006. Board decided in favour of the petitioner and decision of the Board was forwarded to the Additional Secretary, Small Industries and Tourism on 24.03.2006 for the purposes of approval by the Government. After some more exchange of letters, petitioner submitted bills to the tune of Rs.9,08,280.90 to the answering respondent for reimbursement, which included 'Cochlear Implant Surgery" costing Rs.8,90,000/- for approval of the Government.
Page 2 of 7C/SCA/2923/2010 JUDGMENT After submissions of aforementioned bills,
petitioner further sent a reminder on 01.03.2007 and 28.03.2007. However, the claim for reimbursement came to be declined by the respondents. In between, petitioner has approached this Court by preferring Special Civil Application No.3655 of 2008 in which this Court vide its order dated 26.02.2008 directed the respondent to decide the reimbursement of the petitioner's claim. It seems that petitioner has preferred another petition being Special Civil Application No.7424 of 2008 for reimbursement of the medical expenses. Government placed a communication dated 21.10.2008 before this Court and finally, case for the medical reimbursement has been rejected vide impugned order dated 10th March, 2010 which has given rise to filing the present petition.
3. Learned counsel for the petitioner has submitted that before treatment, daughter of the petitioner was suffering from total deafness. It was concluded that surgery was the only alternative. The treatment of Cochlear Implant Surgery was not available in the private hospital and further this treatment was available in developed countries like USA, Austria and Australia.
Page 3 of 7C/SCA/2923/2010 JUDGMENT
4. Daughter of the petitioner was admitted in civil hospital where surgery has been performed on 17.04.2006. It has been argued that because the petitioner's claim for medical reimbursement was totally covered under the Gujarat State Services (Medical Treatment) Rules, 1988 and under these circumstances, the claim for medical reimbursement for daughter of the petitioner was required to be granted.
5. On the other hand, Mr.Sood, learned counsel appearing on behalf of the respondents has relied upon the written statement placed on record and has submitted that after receipt of application for medical claim of the petitioner, the same has been forwarded to the Government and the Government has rejected the claim of the petitioner.
6. On the other hand, learned AGP while relying upon the written statement has submitted that there was no provision to reimburse such a hefty amount of medical reimbursement to the employees of the Corporation, especially under the circumstances when this type of treatment was not there in the Medical Attendant Rules.
7. Learned AGP has further referred to the resolution of the Government dated 7.7.2016, Page 4 of 7 C/SCA/2923/2010 JUDGMENT according to which, financial ceiling, depending upon the patient, has been fixed as far as medical reimbursement is concerned. He has argued that as per this resolution, the petitioner was not entitled for reimbursement as claimed by him.
8. This Court has considered the submissions made by both the sides. The fact that the petitioner is an employee of the Corporation is not in dispute. It is not in dispute that the daughter of the petitioner was suffering from hearing impairment and required treatment of Cochlear Implant Surgery. Once again, it is also not in dispute that the treatment was not available in the private hospitals in India and such treatment was available in developed countries like USA, Australia and Austria.
9. The reasoning given by the respondents that there was no provision for Cochlear Implant Surgery under the Gujarat State Services (Medical Treatment) Rules, 198 cannot be accepted in view of the fact that State Medical Rules are not final for all the times to come. New research and innovations in medical field was a continuing process. More effective treatments for ailments are available every day. Learned AGP has referred to the resolution of the State Government dated 7.7.2016. This Court is of the firm opinion that this Resolution cannot be made applicable retrospectively. The surgery in the Page 5 of 7 C/SCA/2923/2010 JUDGMENT present case is performed on 17.4.2006, while the resolution he has referred has seen the light of the day on 7.7.2016.
10. The petitioner has applied for medical reimbursement on account of treatment of his daughter. The claim seems to have been rejected as the other Government employees of the State Government may follow that precedent for their medical reimbursements. It will be further relevant to note that under similar circumstances, this Court vide its decision dated 11.7.2018 passed in SCA No. 11010/2010, where Government after granting medical reimbursement has issued notice for recovery, their notice has been quashed and set aside.
11. We are living in a welfare State. The authorities are not expected to stick to technicality while dealing with human beings. There was no reason for the respondents to have withheld total medical claim of the petitioner especially under the circumstances when the employee has taken treatment from Government hospital and the Government hospital doctors have implanted the device to overcome the hearing impairment of the patient.
12. In view of the foregoing discussion, this petition is allowed. The impugned order dated 10.3.2010 rejecting the claim for medical Page 6 of 7 C/SCA/2923/2010 JUDGMENT reimbursement is quashed and set aside. The amount claimed by the petitioner be disbursed within a period of six weeks from the date of receipt of the copy of this order. However, it is made clear that if the amount is not paid within six weeks, the petitioner will be further entitled to 9% interest from the date he has made the payment till the payment is received by the petitioner. Rule made absolute. Direct service is permitted.
(MOHINDER PAL, J) D.B. MANDORA Page 7 of 7