Central Administrative Tribunal - Delhi
Suresh Kumar Rajput vs Gnctd on 19 December, 2024
(OA No.1309/2024)
(1)
Central Administrative Tribunal
Principal Bench, New Delhi
O.A. No.1309/2024
Reserved on: 04.12.2024
Pronounced on: 19.12.2024
Hon'ble Mr. Sanjeeva Kumar, Member (A)
Hon'ble Mr. Ajay Pratap Singh, Member (J)
Suresh Kumar Rajput
(disabled since 17-11-2018)
Assistant Section Officer
Aruna Asaf Ali Govt. Hospital
5, Rajpur Road, Delhi-110054 ...Applicant
Through
Ms.Himani Rajput
D/o Suresh Kumar Rajput
R/o Flat No.B-265, Delhi Admn. Flats
Timarpur, Delhi-110054.
(N) 9312922093/9873991124
[email protected]/[email protected]
(By Advocate: Shri Harish Kumar Karwal)
-Versus-
1. The GNCT of Delhi through
The Chief Secretary
5th Floor, Delhi Secretariat
IP Extension, New Delhi-110002.
[email protected]
2. The Director General
Director General of Health Services
Govt. of NCT of Delhi
F-17 Karkardooma, Delhi-110032.
[email protected]
3. The Additional Director (DGEHS)
Director General of Health Services
Govt. of NCT of Delhi
F-17 Karkardooma, Delhi-110032.
[email protected]
(OA No.1309/2024)
(2)
4. The Medical Superintendent,
Aruna Asaf Ali Govt. Hospital (GNCT of Delhi)
5, Rajpur Road, Delhi-110054.
[email protected]@gmail.com
5. The Principal Secretary/Secretary
Health & Family Welfare Department,
Govt. of NCT of Delhi
9th Level, A-Wing Delhi Sectt.
IP Extension, New Delhi-110002.
[email protected] ...Respondents
(By Advocates: Shri Amit Anand with
Shri Tanmay Vashistha)
ORDER
Hon'ble Mr. Sanjeeva Kumar, Member (A):
By way of this OA filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant has sought the following relief(s) :-
"(a) to set aside the impugned orders dated 30.06.2021, 15.11.2021 and 04.05.2023 of Respondent Nos.2 and 3 which are in absolute violation of Office Memorandum dated 28.07.2010, Cabinet Approval dated 13.09.2011 and Office Memorandums dated 02-02-2010 and 17.07.2014, Rule 6&7 of CS(MA) Rules, recommendations and justification on medication and treatment of Treating subject Specialists and mandatory provisions of Section 2(h, t,y and za), 3 25 (C), 27 and 38 of RPWD Act 2016. The Impugned Orders, deprive the Applicant both from his legitimate Right to Health and Right to Live.
i) to reimburse, with retrospective effect, long pending medical expenses including Nursing Care and Neuro-
rehabilitation Charges as per actual (less the already paid @ Rs.3,000/- p.m. against the actual) and further grant approval for neuro-rehabilitation till recovery of the High Support Need Disabled Applicant.
ii) To direct the respondents to reimburse the amount restricted towards purchase of medicines, "essential for therapeutic use", from April 2021 till date.
iii) to grant permission for Major Urethroplasty Surgery to be carried at "Kulkarni Endo Surgery Institute and Reconstructive Urology Centre" at Pune to Airlift the Petitioner along with two attendants.
(OA No.1309/2024) (3)
iv) to direct the Respondents to pay a reasonable compensation towards the mental harassment and damages due to bad conduct of the concerned authorities for purposely and willfully harming and harassing a DGEHS beneficiary who is already severely incapacitated (while in service serving) as inactions of the concerned Authorities have caused deterioration in the health conditions of the High Support Need Disabled Applicant and bringing the family of the High Support Need Disabled Applicant in debt which is inflicting upon the mental and financial equilibrium in career development of distressed daughters and son.
v) to direct the respondents to pay 24% interest for the delayed period of six years on the reimbursement of medical expenses.
vi) to direct Respondent No. 1 to take strict administrative and legal action against the Respondent Nos. 2, 3, 4 and 5 for their willful, notorious, deliberate, kilted and inhuman acts by suppressing, distorting, manipulating and procrastinating the issues/facts, to harm and harass an incapacitated (Applicant) which are inflicting upon the mental and financial equilibrium in career growth and development of distressed daughters and son.
vii) Pass any other order or relief in favour of the Applicant and against the Respondents in the facts and circumstances in the case if this Hon'ble Court deems fit in the interest of justice."
2. The facts of the case, in brief, as indicated in the OA are that the applicant joined Delhi Government on 23.07.1993 as a Lower Division Clerk in sound and normal health condition and on promotion as Asstt. Section Officer is posted with Respondent No. 4, Aruna Asaf Ali Govt. Hospital (AAAGH) w.e.f. 01.06.2018. The applicant, who is a DGEHS beneficiary and holding DGEHS Card No. 206741 (Respondent No. 2 & 3), is contributing towards his monthly subscription on regular basis. It is therefore, intended that healthcare and welfare of the applicant and his family is the social responsibility and liability of all the respondents, in particular, Respondent Nos. 2 to 4. It is further stated that the applicant, since 17.11.2018 (date of illness), is a High Support Need severely Permanent Disabled serving Delhi (OA No.1309/2024) (4) Government Employee. Hence, the safeguard and protection of the applicant is the statutory duty, responsibility and accountability of the State Commissioner for Persons with Disabilities, GNCTD under the RPwD Act 2016. The applicant's wife and parents are no more and presently is blessed with two daughters of marriageable age and one college going son. The applicant became incapacitated (83% impairment in August 2019 and 81% in August 2022), while in service, due to illness.
3. It is submitted by the applicant that Respondent No. 1, in the capacity of Chief Secretary, is the Highest Law abiding and Law Enforcing Authority of GNCT of Delhi. Respondent No. 5 being Administrator with direct reporting to Respondent No. 1, administer, monitor, manage and control healthcare and welfare services of GNCT of Delhi as well as Administrative Head of Respondent No. 2, 3 and 4. Respondent Nos. 2 and 3 are the Regulator and Custodian (adopter/creator) of Medical Norms so far as Health and welfare services of Delhi Govt. Employees are concerned. Respondent No.4 is an independent public institution, under the direct control of the Respondent No. 5 and provides health and welfare facilities to Delhi Govt. Employees and public in general.
4. The applicant states that the Delhi Govt. Employees Health Scheme (DGEHS-Respondent No. 3) was propounded as a health facility scheme for the health and welfare of Delhi Government employees and their families so that they are not left without medical care while in service and after retirement. The Respondent No. 2 and 3, though unilaterally yet automatically adopt both Central Services (Medical (OA No.1309/2024) (5) Attendant) Rules i.e. CS(MA) Rules 1944 and Central Government Health Scheme (CGHS) provisions vide its own Office Memorandum dated 28.07.2010 and implement the same vide Delhi Govt. Cabinet Approval dated 13.09.2011. Respondent No.2 and 3 for full reimbursement of medical expenses adopt and implement provisions and guidelines of OMs dated 02.02.2010 and 15.07.2014. The GNCT of Delhi, for safeguard, protection of rights and welfare of its Disabled Employees, adopt and implement the mandatory provisions of RPwD Act 2016.
5. With regard to medical history of the applicant, it is submitted that the applicant suffered from a major brain stroke "SAH/Aneurysm" on 17.11.2018 (early morning around 06:30 AM) and he was admitted at Vimhans PrimaMed Super Specialty Hospital, Lajpat Nagar, New Delhi. After medical examinations and MRI Report, he underwent First "Craniotomy and Coiling (SAH/Aneurysm)"
Supra Major Brain Surgery at Vimhans PrimaMed Super Specialty Hospital, Lajpat Nagar, New Delhi. Due to financial constraints, on request of the family of applicant, under unconscious and critical condition, applicant was discharged on 26.11.2018 and shifted to Sri Action Balaji Medical Institute, Paschim Vihar, New Delhi, for conservative management (in unstable condition). Applicant was under
Neuro Surgery ICU Unit II uptil 24.12.2018 and on being stable, was shifted to general ward with advice to hire a professional Nurse (round the clock). Accordingly with the help of hospital staff, nurse was hired for round the clock nursing services. The applicant was discharged on 25.01.2019. The applicant second time was operated for "Cranioplasty/Bone Grafting" on 13.03.2019 and third time (OA No.1309/2024) (6) for major Urological Surgery on 13.01.2020 at Sri Balaji Action Medical Institute, Paschim Vihar, New Delhi, whereby he was brought on SPC due to complex Urethra Stricture. On 25.01.2019, the Treating subject Specialists, reviewed/re-
examined health condition of the applicant and due to severity of illness and remoteness of Neuro-rehabilitation/ rehabilitation centers, and considering prolong treatment of the applicant, to prevent him from further deterioration of illness/health conditions, under stable but semi-conscious conditions, discharged with recommendations and advice to manage/continue the same treatment at residence with the help of hiring professional nursing care (round the clock) followed with different therapies (twice a day) till recovery of the applicant.
6. It is further submitted that the applicant underwent two Urological Procedures on 14™ December 2020 and on 02 April 2024 underwent major Urological procedure for removal of stones in the Urine Bladder, at Shri Aggrasain International Hospital, Rohini, Delhi. The applicant to the utmost satisfaction of the Respondents, has passed through three official medical examinations, first on 25-08-2020 at the facilities of Respondent No. 4 and second and third at GB Pant Hospital on 15.10.2020 and 09.07.2021 and the fourth also at GB Pant Hospital on 25.11.2022 at the request of the applicant to assess health conditions, treatment and high support need, considering the extent of acquired disability and health conditions of the applicant due to severity of illness. After thorough medical examinations, two Permanent Disability Certificates have been issued in favour of the applicant by Hindu Rao Hospital on 21.08.2019 (83%) and on 18.08.2022 by GB Pant Hospital (81%) respectively. At (OA No.1309/2024) (7) the request of the applicant, FORM 3A (a temporary medical-cum-disability certificate, valid for 12 months only), has also been issued in favour of the applicant by GB Pant Hospital on 24.01.2022 which was re-issued on 30.03.2022 at the request of the applicant. Despite submission of Disability Certificate on 01.05.2020 and thereafter in August 2022, the applicant has not been treated and declared a Disabled Delhi Govt. Employee, hence, is deprived of Disability benefits (administrative and medical) till filing of this Original Application.
7. The health conditions of the applicant is described as follows in the instant OA:-
Post hospitalization discharge Health Conditions:
"Spastic hemiparetic with deformities, aphasic ((lost voice hence cannot speak, read, write and understand only when attentive), on tracheotomy, semiconscious, wheelchair bound with SPC in situ (due to complex urethra stricture). Both Upper and Lower Limbs are affected severely (right side in total and left side only leg is functional) and lost 60% denture.
Facing frequent respiratory problems.
Present Health Conditions:
pastic hemiparetic with deformities, aphasic (lost voice hence cannot speak, read, write and understand only when attentive), conscious, wheelchair bound with SPC in situ (due to complex urethra stricture), walk few steps only using orthotics with support only. Both Upper and Lower Limbs are affected severely (right side in total and left side only leg is functional) and has lost 98% denture. Facing frequent respiratory problems.
8. It is stated that the applicant, post hospital discharge, due to severity of illness and remoteness of neuro- rehabilitation/rehabilitation centers, is availing treatment at his residence with the help of professional nursing care (round the clock) and different therapies (twice a day) as has been recommended and justified by the Treating subject (OA No.1309/2024) (8) Clinicians of both Empanelled and GB Pant Hospital, till recovery of the applicant. However -
a. The Respondents have denied full reimbursement of medical expenses incurred by the applicant;
b. The Respondents have denied approval for neuro- rehabilitation till recovery of the applicant (incurred/to be incurred as per actual);
c. The Respondents have restricted the amount incurred by the applicant towards purchase of medicines; and d. The Respondents have denied approval for Urethroplasty Surgery at Kulkarni Urology Centre at Pune, which is a specialized and dedicated Medical Centre for Treatment of Urology problems, the success rate of which is 95% comparatively to other medical centers.
9. It is also stated that the eligibility and entitlements, in favour of the applicant are that from day one of illness, he is a High Support Need Person with multiple Permanent Disabilities, hence, apart from provisions and guidelines given under OMs dated 02.02.2010 and 15.07.2014 (for full reimbursement) as well as Office Order dated 25.07.2016 (for medicine and vitamin etc.), is protected and covered under the mandatory and protective ambit of Sections 2 (h,l, t, y and za), 3, 20, 25(C), 27 and 38 of RPwD Act 2016. The recommendations dated 15.12.2020 of Leave Committee of Respondent No. 4, Orders dated 04.04.2022 of Respondent No. 5 (Principal Secretary (H&FW), the recommendations 13.07.2022 of Finance Department, (OA No.1309/2024) (9) GNCTD, Minutes of Technical Standing Committee dated 23.08.2022 (except proposal and non-consideration of full reimbursement for which matters are placed before it), Orders dated 08.08.2022, 25.08.2022 and 02.11.2022, medical recommendations, justification on medication and treatments of Treating Subject Clinicians of both Empanelled and GB Pant Hospital, comments/recommendations dated 27.09.2022 of Social Welfare Department, medical examination report dated 25.11.2022 of GB Pant Hospital and finally directions dated 24.12.2022 of Respondent No. 1, being supportive, justify the eligibility and entitlements, in favour of the applicant.
10. It is averred that on 05.06.2019, the eldest daughter of the applicant applied for approval/reimbursement of Nursing Care (round the clock) and physiotherapist Charges (twice a day), as recommended and justified by Treating subject Clinicians, towards the treatment being managed and availed by the him at his residence and to be availed till recovery (due to severity of illness and remoteness of neuro-rehabilitation/rehabilitation centers). But Respondent Nos. 2 and 3 on 13.08.2019, despite in-vogue provisions for full reimbursement of medical expenses given in OMs dated 02.02.2010 and 15.07.2014, allowed Care Giver Charges @ Rs. 3,000/- p.m. against the actual nursing care charges of Rs. 60,000/- p.m., as per provisions of OM dated 01.06.2011. The said OM does not have provisions for nursing care and different therapies are restricted for a maximum period of 42 days only. No information towards approval of care giver charges was provided to the applicant. The attendants on behalf of the applicant, represented the case from pillar to post, including the Union (OA No.1309/2024) (10) Ministry of Health & Family Welfare, GOI, but the outcome remain in vain.
11. It is also averred that Respondent No. 2 & 3, being vindictive and retaliating, with veiled eyes, rejected medical claims of the applicant vide Impugned Order dated 30.06.2021, referring to guidelines given in OM dated 14.06.1995. Further vide Impugned Order dated 30.06.2021, Respondent No. 2 and 3, rejected all provisions under OMs 18.01.2011, 01.06.2011, Rules 7 & 6 of CS (MA) Rules and brushed aside the mandatory provisions under RPwD Act 2016. Last lines of this Impugned Order state that revision of ceiling rates is not within the purview of DGEHS. As and when CGHS revise rates, the same will automatically become applicable in DGEHS Cell. Accordingly, the care giver charges were stopped by Respondent No.4. It is stated that pending decision on nursing care charges, clarifications were sought by the applicant from ParensPatriae (original creator & custodian) of medical rules/norms (M/o H&F, GOI) and the same were brought on official records of Respondent Nos.2, 3 and 4, but the same remain in vain.
12. The applicant further states that Respondent Nos.2 and 3, vide letter dated 06.09.2011, sought clarifications from Director, CGHS, M/o Health and Family Welfare, GOI, (ignoring/neglecting the CS(MA) Rules and relevant provisions under RPwD Act), regarding his claims. The Director, CGHS, in reply to letter dated 06.09.2021 of Respondent No. 2 and 3, vide its letter dated 20.10.2021, informed that "Delhi Govt. is not covered under CGHS and (OA No.1309/2024) (11) they may consider all similar cases as per their own rules and regulations".
13. The applicant contends that Respondent No. 2 & 3, manipulating the contents of letter dated 20.10.2021 of Director, CGHS and brushing aside provisions of OMs dated 02.02.2010 and 15.07.2014 (for full reimbursement of medical claims and also mandatory provisions of RPwD Act, again rejected all reimbursement of medical claims and approval of the applicant, by re-imposing the provisions of Office Memorandum dated 01.06.2011, vide Impugned Order dated 15.11.2021, which do not provide for the recommended and justified requirement of nursing care and it restrict the different therapies for a maximum period of 42 days only. Despite submission of Permanent Disability Certificate No. 298 dated 21.08.2019 of Hindu Rao Hospital, Medical Examination Report dated 15.10.2020 of GB Pant Hospital and past medical papers of applicant, and leave committee recommendations dated 15.12.2020 of Respondent No. 4 that the applicant be placed as disabled employee of the hospital as per existing rules but Respondent No. 4, vide letter No. A-13011/3/2018/Group- C/P.F./5492 dated 06.01.2021, sanctioned Extra Ordinary Leave till the time applicant join his duties and applicant was without pay and allowances w.e.f. 01.01.2021 till 31.03.2022 (total 15 months).
14. The applicant avers that despite clear guidelines given in Office Order dated 25.07.2016 towards reimbursement of vitamins, supplements etc., amount of medical bills for reimbursement towards purchase of medicines, was restricted and the Care Giver charges were also stopped by (OA No.1309/2024) (12) Respondent No. 4 and statutory provisions, follow ups and representations, due to callousness and retaliation of Respondent No. 4, the victimised applicant had to pass through a quite deliberately supplanted, strangulated and traumatic period of 15 months (from 01.01.2021 to 31.03.2022), whereby the pay, allowances and medical facilities including reimbursement of medical expenses, were stopped by Respondent No.4. During this period of adversities, the treatment of the applicant, family affairs and career growth and development of daughters and son, were managed with the help of nears, dears and relatives. On 16.08.2021, Respondent No. 4, addressed a letter to eldest daughter of applicant and fended to refrain from making representations towards grievances for restricting amount towards purchase of medicine. On 02.02.2022 a legal notice served to all respondents. Respondent Nos. 2 and 3 replied to the legal notice vide their letters dated 24.02.2022 and 08.03.2022 respectively which are authoritative, vague and illusionary. After lot of follow-up with representations, on 04.04.2022 Respondent No. 5, heard the attendants of the applicant in person and after examining the case, as per mandatory provisions of Right of Persons with Disabilities Act 2016, clubbed with provisions given under the medical norms, directed Respondent No. 4, to restore pay and allowances and remit back leave into the leave account of the applicant within a period of 10 days and further to resolve remaining medical issues within a period of 30 days, followed with a compliance/non-compliance report. Accordingly, pay and allowances were restored by Respondent No. 4, on 06 April 2022 and period of absence (OA No.1309/2024) (13) was regularized by remitting back leave into the leave account of applicant, vide order dated 27.04.2022.
15. The applicant states that despite umpteen representations, the remaining issues regarding medical facilities and reimbursement of medical expenses are yet to be resolved, till filing of this Original Application. In compliance of orders dated 04.04.2022 of Respondent No. 5, an Action Taken Report dated 27.04.2022 was sent by Respondent No. 4 to Respondent No. 5, contents of which, so far as welfare/medical issues of applicant are concerned, are fake, concocted and frivolous. Respondent No. 2 & 3, vide their letter dated 06.06.2022 informed the applicant that "in view of principles of natural justice, applicant's request for reimbursement of Nursing Care Charges incurred on beneficiary at residence is being sent to Higher Authority for consideration" still await directions from the competent authority even after 29 months. The same is a white color lie. Till the date of filing of this Original Application, no heed is paid in the matter. The attendants of the applicant on 27.06.2022, being a High Support Need Permanent Disabled Delhi Govt. Employee, filed a complaint before the Hon'ble Court of State Commissioner for Persons with Disabilities, regarding directions/order to respective respondents for reimbursement of medical claims. The attendants of the applicant during first week of July 2022, met in person with the Chief Secretary, GNCT of Delhi (Respondent No. 1) along with representations. Matter was heard and accordingly directions were given to relevant respondents to expedite the matter.
(OA No.1309/2024) (14)
16. The applicant emphasis that Respondent No.5 referred the matter to Finance Department and accordingly the Finance Department vide its comments dated 13.07.2022, recommended to consider the case for full reimbursement, as per provisions of OM dated 02.02.2010 by constituting a Technical Standing Committee. The Technical Standing Committee in its meeting on 23.08.2022, without discussing and considering the case from the aspect of full reimbursement, endorsed all documents in the case but with a pre-conceived notion bias, without a concrete proposal, re- imposed the provisions which were rejected earlier, and further shirked its responsibility and accountability by referring the case to Social Welfare Department. The Social Welfare Department, in its comments/recommendations dated 27.09.2022, upheld the orders dated 08.08.2022 and 25.08.2022 of the Hon'ble State Commissioner for Persons with Disabilities by stating that they do not have any running project as per Section 38 of RPwD Act and finally recommended that "keeping in mind the sensitivity, the matter may be pursued by Department of H&FW in reference to the requirement of the applicant, who is in Government service."
17. The applicant alleges that the respondents, as usual, suppressed and concealed the material facts i.e. Minutes of Technical Standing Committee and recommendations of Social Welfare Department and the recommendations and justification on medication and treatment of the Applicant, before the Court of State Commissioner for Persons with Disabilities and before the Respondent No. 1, by placing an evading, illusionary and frivolous ATR dated 15.11.2022 stating that "the matter regarding full reimbursement of (OA No.1309/2024) (15) Nursing Care Charges at the rate of Rs. 60,000/- per month is being considered and final decision will be informed after approval of the Competent Authority." During the second last week of December 2022, Respondent No. 2 & 3, suppressing and concealing the facts, again placed the matter before the Respondent No.1 whereby it was clearly directed by Respondent No.1, vide his remarks/directions dated 24.12.2022 that "in case, the department is in view that in the instant case, request needs sympathetically consideration, we may move a proposal - for consideration of the Govt. as a special case." In turn, Respondent Nos. 2 and 4, shirked responsibility and accountability on Respondent No. 4, vide letter dated 29.12.2022. The proposal is neither placed on the file by Respondent Nos. 2, 3 and 5 nor by Respondent No. 4. The Hon'ble Court of State Commissioner, for Persons with Disabilities, GNCTD, vide his Orders/Recommendations dated 08.08.2022, 25.08.2022, 02.11.2022, 28.11.2022 and 29.12.2022, had recommended to all the above respondents to extend medical facilities to the applicant and reimburse the full amount of Nursing Care Charges with retrospective effect as per actual but the same are yet to be executed by the respondents. Finally, the Hon'ble Court of State Commissioner for Persons with Disabilities, being hopeless and helpless, without granting a single opportunity to the applicant to be heard in person, finally on an evading Action Taken Report dated 12.01.2023 of Respondent No. 4 ( a response not execution), closed the case on 23.02.2023, taking the plea that "any service matter, does not fall under the jurisdiction of SCPD as per the Rights of Persons with Disabilities Act 2016 and the same needs to be addressed (OA No.1309/2024) (16) elsewhere at the level of appropriate authorities." The maxim goes "JUSTICE DELAYED IS JUSTICE DENIED".
18. The applicant in support of his claims for reimbursement of restricted amount towards purchase of medicines and treatment at residence with the help of nursing care and physiotherapies, sought justification on medication and treatment dated 10.03.2022 and 21.07.2022 from GB Pant Hospital and placed the same on record of all the Respondents. The medical examination dated 25.11.2022 was conducted on the request of the Applicant dated 21.10.2022, to seek answer to three questions for high support from the Government of NCT of Delhi since the Applicant has acquired 81% disability. A Medical Board was constituted to examine the applicant. The Nodal Officer, Medical Board, G.B. Pant Hospital in response to Applicant's letter dated 21.10.2022, vide its letter dated 22.11.2022 (sent via email on 23.11.2022) informed the applicant to attend the Medical Board on 25.11.2022. The applicant attended the Medical Board on 25.11.2022 at GB Pant Hospital. The medical examination report dated 25.11.2022, under influence, nepotism, pressure and abuse of powers, on 30.11.2022, was sent to Respondent No. 2 by MS, GB Pant Hospital, and the applicant was deprived of his legitimate right to have a copy of the Medical Examination Report which was supplied after four and a half months on 03.04.2023. To deprive the applicant of his Right to Health, the Respondent No. 2, 4 and 5, crossed all limits by holding a Video Conference meeting in the afternoon on 28.11.2022 with Medical Director, Medical Superintendent, Nodal Officer and Members of Medical Board and influenced and pressurised them not to use the word nursing care (OA No.1309/2024) (17) (tempered note sheet of GB Pant Hospital). Accordingly under decorous Nepotism, purposely, a vague term was used and written in the Medical Examination Report i.e. "At present patient require assistance". It is alleged that the members of Medical Board were so scared of Respondent No.2, 3 and 5 as well as Special Secretary (DGEHS - H&FW Deptt.) and Medical Director and Medical Supdt., GB Pant Hospital that despite 4 representations and emails, they have yet to define and describe the word "assistance" although it has been justified by the same Treating Subject Specialists of GB Pant Hospital in their justification on medication and treatment dated 10.03.2022 and 21.07.2022.
19. It is the contention of the applicant that the Respondent No. 2, 3 and 5, soon on receipt of Medical Examination Report dated 25.11.2022, misused the same with distorted and manipulated facts, again recommended provisions of OMs dated 18.01.2011 and 01.06.2011, which were rejected by them vide Impugned Order dated 30.06.2021, despite knowing the fact that the said OMs do not provide for the recommended and justified Nursing Care, restrict the different therapies for 42 days and further provide nursing care only during IPD treatment. Respondent No. 2, despite the directions of Respondent No. 1 that "In case, the department is of view that the instant case, needs sympathetic consideration, we may move a proposal - for consideration of the Govt. as a special case," disregarding directions of Respondent No. 1, adopted a recalcitrant and lackadaisical attitude and as directed, without placing a proposal for approval of Respondent No. 1, under the guise of Respondent No. 5, kept shuffling the file and finally (OA No.1309/2024) (18) rejected the claims of the Applicant vide Impugned Orders dated 04.05.2023. Respondent No. 4 vide her letter 02.01.2023, intimated the Applicant about restricted amount towards purchase of medicines only after disbursing the amount and further threatened to avail treatment only from one hospital despite knowing that GB Pant Hospital do not have Urology Faculty and the Empanelled hospital do not have Neuro-rehabilitation facilities.
20. To conclude, the applicant pleads that it is in furtherance of the object of a welfare State, which must provide for such medical care that the scheme was brought in force (DGEHS), but the repeated acts of Respondent Nos. 2 & 3 in the capacity of Regulator and Respondent No. 4 in the capacity of parent department of Applicant and Respondent No. 5 and 1 in the capacity of administrators and Highest Law abiding and Law Enforcing Authority of GNCT of Delhi, compelled the Applicant to approach the Hon'ble Court of the State Commissioner for Persons with Disabilities. The acts and impugned orders of Respondent Nos. 2,3 and 4, show every effort to dilute the effect of the said Scheme and RPWD Act 2016, as no concerted efforts/proposals, in particular Respondent No. 4, have been made to extend the legitimate fruits to intended hands.
21. In response to the OA, the respondents have submitted that -
(i) medical reimbursement claim of the applicant was restricted as per DGEHS order dated 25.07.2016 which says that preparations containing vitamins, multi vitamins, minerals, anti-oxidants, nutrients and food supplements etc are allowed only for patients suffering from CLD, CKD, mal (OA No.1309/2024) (19) absorption syndrome, transplant patients cancer patients, if the same has been prescribed by the concerned specialists as essential for therapeutic use with proper diagnosis and justification.
(ii) So far as the issue of nursing charges is concerned, the contention as denied, as DGEHS obtained opinion of Dr. Shaam Bodewala, Associate Professor, Department of Neurosurgery, GIPMER, Delhi that what type of medical management are required in "aggressive neuro- rehabilitation". The expert opined that "Aggressive Neuro- rehabilitation" including speech therapy, physiotherapy and occupational therapy & nursing care is advised. In the meantime, a medical committee was formed by DGEHS who examined Sh. Suresh Kumar Rajput, ASO and observed that "Mr. Suresh Kumar Rajput is diagnosed as a case of operated Left ICA Aneurysm with right temporal hematoma with right hemiparesis with aphasia. At present, patient has MRS (Modified Ranking Scale) grade 4 that accounts for moderately severe disability. Patient does not need hospitalization and active neurological Intervention at present(Annexure-R/6). Neuro-Rehab services needs to be provided regularly as per advice in departments of occupational therapy, physiotherapy & speech therapy. Presently, patient requires assistance to do daily living activities including maintaining hygiene& SPC (Supra Pubic Catheter) care. The members of the Committee were: Mrs. Anjali Singh (Physiotherapist), Dr. Shaam Bodewala (Associate Professor, Neurosurgeon), Dr. Swapan Gupta (Associate Professor, Neurologist), Dr. Chetan Ray (Incharge, Medical Board). DGEHS further informed that charges for speech therapy, physiotherapy and occupational (OA No.1309/2024) (20) therapy is reimbursable as per CGHS OM dated 01.06.2011 and as far as nursing care charges is concerned, it is informed that the charges for Special Nurse and Ayah/Attendant are reimbursable as per CGHS OM dated 18.01.2011. Considering the medical report of Sh. Suresh Kumar Rajput, ASO, charges for Special Nurse and Ayah/Attendant is being reimbursed as per CGHS OM dated 18.01.2011.
(iii) It is submitted that request of the applicant for permission of Urethroplasty Surgery from non-empanelled, Kulkarni Endo Surgery Institute & Reconstructive Urology Centre, Pune was referred to DGEHS who vide their letter dated 09.11.2022 (Annexure-R/8) sent an estimate regarding Urethroplasty Surgery from BLK, Super Specialty Hospital. This information was communicated to the petitioner vide letter dated 12/01/2023.
22. Clarifying their stand it is further submitted that the Ministry of Health & Family Welfare, GOl OMs dated 02.02.2010& 15.07.2014 states that all case for relaxation of rules for reimbursement of full expenditure will henceforth be referred to the Technical Standing Committee to be chaired by the DGHS/Spl. DGHS and Specialists of concerned subject as members. Accordingly, his case was being referred to DGEHS and no authorities have ever informed that the applicant is entitled/eligible for full re- imbursement of treatment/medication and Nursing Care charges. The petitioner has been released care giver charges w.e.f. December 2018 to March 2021 @ 3000/-per month, as per CGHS OM dated 01.06.2011 and charges for Special Nurse and Aya/Attendant has been released w.e.f.
(OA No.1309/2024) (21) April' 2021 @ Rs. 300/- per day, as per CGHS OM dated 18.01.2011, on the basis of the medical examination report which observed that Patient does not need hospitalization and active neurological Intervention at present. Neuro- Rehab services needs to be provided regularly as per advice in departments of occupational therapy, physiotherapy & speech therapy, presently, patient requires assistance to do daily living activities including maintaining hygiene & SPC (Supra Pubic Catheter).
23. It is further submitted that the contention of the applicant with regard to stoppage of care giver charges is incorrect as the care giver charges as per CGHS OM dated 01.06.2011 were being released to the petitioner on the advice of DGEHS up to March 2021 but the petitioner had requested to reimburse as per OM dated 18.01.2011. The case was again referred to DGEHS for directions. Subsequently, this hospital had taken an action as per the advice of DGEHS vide letter dated 30.06.2021 in which it is stated that "It has been decided that all the beneficiaries covered under CGHS will not be eligible for reimbursement of expensed incurred on the engagement of Special Nurses/Attendant/Ayah at the residence of the patients even though it might have been recommended by a specialist physician". Thereafter, charges for Special Nurse and Ayah/Attendant is being reimbursed from April 2021, as per CGHS OM dated 18.01.2011. Therefore, decision has been taken fully considering the OMs dated 02.02.2010 and 15.07.2014 of the Ministry of Health and Family Welfare, Govt. of India (OA No.1309/2024) (22)
24. The respondents submit that the applicant vide her application dated 10.06.2020 to grant E.O.L up to 07.09.2020. Further, another application dated 30.06.2020, the applicant informed that her father Sh. Suresh Kumar Rajput is improving but it will take another 3-6 months enabling him to movable or walk able and assured that he will definitely join his duties on 01/01/2021 without fail with medical fitness. Further, another representation dated 21.12.2020 the applicant requested to extend his leave on medical grounds for few more months. As Sh. Suresh Kumar Rajput, ASO had exhausted all his earned leave and commuted leave with effect from 17.11.2018 to 15.06.2020 and no leave was at the credit of Sh. Suresh Kumar, ASO therefore, he had been granted E.O.L. on medical grounds vide office order dated 06.01.2021. During that period, the petitioner had never requested to be considered her father as disabled employee.
25. The respondents state that the applicant was informed that his request to reimburse the restricted amount of medicine cannot be considered as the purchase of medicine is restricted as per DGEHS order dated 25.07.2016 which says that preparations containing vitamins, multi vitamins, minerals, anti-oxidants, nutrients and food supplements etc are allowed only for patients suffering from CLD, CKD, mal absorption syndrome, transplant patients cancer patients, if the same has been prescribed by the concerned specialists as essential for therapeutic use with proper diagnosis and justification. As per CGHS OM dated 01.06.2011, the care giver charges were being released to the petitioner on the advice of DGEHS up to March 2021 but the petitioner had requested to reimburse as per OM dated 18.01.2011.
(OA No.1309/2024) (23) Therefore, the case was referred to DGEHS for directions. Subsequently, this hospital had taken an action as per the advice of DGEHS vide letter dated 30.06.2021 in which it is stated that "It has been decided that all the beneficiaries covered under CGHS will not be eligible for reimbursement of expenses incurred on the engagement of Special Nurses/Attendant/Ayah at the residence of the patients even though it might have been recommended by a specialist physician". Thereafter, again after obtaining the advice of DGEHS, charges for Special Nurse and Ayah/Attendant is being reimbursed from April 2021, as per CGHS OM dated 18.01.2011. The applicant was informed the reasons for restricting her claim for medical re-imbursement as per rule/guidelines of DHS as the petitioner was continuously making representation for reimburse the restricted medical expenses.
26. The respondents aver that action on the letter dated 29.12.2022 issued by DGEHS is already being taken by this hospital as in that letter, it was stated that "we may move a proposal for consideration of the Govt. as a special case." Therefore, respondent no. 5 referred the representations of the petitioner to DGEHS as M/o Health & Family Welfare, GOl OM dated 15.07.2014 states that all cases for relaxation of rules for reimbursement of full expenditure will henceforth be referred to the Technical Standing Committee to be chaired by the DGHS/Spl. DGHS and Specialists of concerned subject as members. It is submitted that the Hon'ble Court of State Commissioner for persons with disabilities vide their orders dated 28.11.2022 and 29/12/2022 directed Medical superintendent, AAAGH being (OA No.1309/2024) (24) HOD to take a decision in the instant case, whatever is justified under the extent rules and acts.
27. The respondents further state that as informed the applicant was taking consultation of two neuro surgeons simultaneously i.e. form G.B. Pant Hospital and Shree Agarsen International Hospital and medicines were being purchased from both of the prescriptions in pick and choose manner and few medicines have been purchased even without prescription, therefore, reimbursement of non- prescribed medicines from two different prescriptions simultaneously was restricted, unless it is clear from the prescription that both doctors are aware of each other's treatment.
28. Regarding his leave claim, it is stated that Ms. Himani Rajput D/o Sh. Suresh Kumar Rajput, ASO vide her representation dated 08.04.2021 had requested for Extra Ordinary Leave on medical grounds for further period of six months. The petitioner was continuously on Leaves (EL/HPL/EOL) since 17.11.2018 due to his medical conditions. He was on Extra Ordinary Leave on Medical Grounds w.e.f. 16.06.2020. As per CCS (Leave) Rules 20 (b)
(i) "If the Medical Authority is unable to say with certainty that the Government servant will again be fit for service, leave not exceeding twelve months in all may be granted and such leave shall not be extended without further reference to a Medical Authority". Therefore, the petitioner was sent for re-examination before the Medical Board of G.B. Pant Hospital to ascertain the prospects of his joining the duty.
(OA No.1309/2024) (25)
29. Request for the consideration of the applicant as disabled Govt. Employee had been sent to the Cadre Controlling Authority i.e. Services department, GNCTD, who in response to the request advised that the case for addition of P.H. category may be resubmitted after issuance of tentative seniority list of Grade-II, DASS (ASO). As the seniority list of Gr-ll DASS/ASO has been finalized therefore, the case has now been sent to Services Department to declare the petitioner as disabled government employee vide letter dated 19.11.2024.
30. The respondents contend that the hospital had released all the medical reimbursement to the petitioner in accordance with the OMs/guidelines issued by CGHS/DGHS and as per advice/opinion of DGEHS. It is submitted applicant vide her application dated 10.06.2020 to grant E.O.L up to 07.09.2020. Further, another application dated 30.06.2020, the petitioner informed that his father Sh.Suresh Kumar Rajput is improving but it will take another 3-6 months enabling him to movable or walk able and assured that he will definitely join his duties on 01.01.2021 without fail with medical fitness. Further, another representation dated 21.12.2020 the petitioner requested to extend his leave on medical grounds for few more months. As Sh. Suresh Kumar Rajput, ASO had exhausted all his earned leave and commuted leave with effect from 17.11.2018 to 15.06.2020. As no leave was at the credit of Sh. Suresh Kumar, ASO therefore, he had been granted E.O.L. on medical grounds vide office order dated 06.01.2021. During that period, the petitioner had never requested to be considered her father as disabled employee. Ms. Himani Rajput, D/o Sh. Suresh Kumar Rajput in her (OA No.1309/2024) (26) representation requested to release of Pay and allowance and other benefit due to her father's case is well covered under second proviso of Section 47 of PWD Act 1995 and also referred DoPT OM dated 25.02.2015 and 17.07.2018 and requested to grant leave on medical grounds as per provisions of under reference OMs (ii) remit back the debit leave into his leave account and also iii) release his pay and allowance w.e.f 15/06/2020 to till date (iv) Patient care allowance and nursing care charges with retrospective effect.
31. The matter was then referred to H&FW Department, for directions regarding release of "Pay and Allowances" and it was directed by H&FW Department, GNCTD that "It is imperative that the intent of the legislative has been to provide succor to any Government Servant who is physically incapacitated due to acquiring of Physical disability during course of his/her service. Accordingly, there is no justification of withholding of his salary and allowances and the hospital be advised to release the same forthwith." Accordingly, the hospital released the pay and allowances and all leaves remitted back in his account as per advice of Family and Health & Family Welfare Department. After that this hospital issued order dated 06.04.2022 and 27.04.2022 to release pay and allowances and remittance to his leaves respectively. It is submitted that a medical committee was formed by DGEHS who examined Sh. Suresh Kumar Rajput, ASO and observed that "Mr. Suresh Kumar Rajput is diagnosed as a case of operated Left ICA Aneurysm with right temporal hematoma with right hemiparesis with aphasia. At present, patient has MRS (Modified Ranking Scale) grade 4 that accounts for moderately severe (OA No.1309/2024) (27) disability. Patient does not need hospitalization and active neurological Intervention at present. Neuro-Rehab services needs to be provided regularly as per advice in departments of occupational therapy, physiotherapy & speech therapy. Presently, patient requires assistance to do daily living activities including maintaining hygiene & SPC (Supra Pubic Catheter) care. DGEHS further informed that charges for speech therapy, physiotherapy and occupational therapy is reimbursable as per CGHS OM dated 01.06.2011 and as far as nursing care charges is concerned, it is informed that the charges for Special Nurse and Ayah/Attendant are reimbursable as per CGHS OM dated 18.01.2011. Considering the medical report of Sh. Suresh Kumar Rajput, ASO, charges for Special Nurse and Ayah/Attendant is being reimbursed as per CGHS OM dated 18.01.2011.
32. We have heard both the counsels and perused the pleadings on record.
33. Learned counsel for the applicant has reiterated the claim made in the OA and has emphasized that the applicant is a High Support Need Disabled Patient and its mandatory to make every concerted effort so that the fruits of medical norms clubbed with provisions under the RPwD Act are made available to him to enable the applicant to get medical attention/rehabilitation, he requires.
34. In support of the relief claimed in the OA, learned counsel for the applicant has also placed reliance on a catena of judgments, including Shiva Kant Jha vs. Union (OA No.1309/2024) (28) of India vide Writ Petition (Civil) No.694/2015 decided on 13.04.2018, Vikas Kumar vs. Union Public Service Commission &Ors in SLP(C) 1882 of 2021 decided on 02.11.2021 and the order passed by this Tribunal in Lalita Sharma vs. Union of India & Others decided on 18.04.2024. By placing reliance on such judgments, learned counsel for the applicant reiterates that the applicant is entitled for full reimbursement especially in view of the fact that he is 81% disabled, as evident from the disability certificate issued by the competent medical authority.He also submits that the factum of his disabilities as an affliction has not been considered by the competent authority and he is yet to be considered as disabled employee of Delhi Government. He draws attention to two Office Memorandums dated 02.02.2010 and 15.07.2014 stating that though the Technical Standing Committee to examine the claim of the applicant for medical reimbursement above the ceiling rates was considered but it has not been provided any relief to the applicant inasmuch as his various reimbursement claims, more specifically expenditure incurred in treatment/nursing care at residence has been overlooked citing the ceiling rates. Specially, Our attention is drawn to the order of the Hon'ble Supreme Court in Civil (OA No.1309/2024) (29) Appeal No.273 of 2021 in the matter of Vikash Kumar vs. UPSC &Ors. wherein the Supreme Court has stressed the need for formulation of a new policy concerning access to scribes for persons with disabilities wherein the Hon'ble Court taking note of emergence of movements of persons with disabilities and the philosophy of "nothing about us without us" had stressed for formation of the policy in consultation with persons with disabilities and their involvement in decision making about matters affecting their rights. In the said case, the Hon'ble Supreme Court had held that the applicant was disabled person and was entitled to the facility of a scribe for appearing at the Civil Services Examination and any other competitive selection conducted under the authority of the government. We are also taken to Rights of Persons with Disabilities Act 2016, more specifically to in Para (za) "rehabilitation" refers to a process aimed at enabling persons with disabilities to attain and maintain optimal, physical, sensory, intellectual, psychological environmental or social function levels and argued that the applicant being a disabled person is entitled for full. He also draws us to Section 3(1) of the Act captioned Rights and Entitlements which said that the appropriate Government shall ensure that the persons with (OA No.1309/2024) (30) disabilities enjoy the right to equality, life with dignity and respect for his or her integrity equally with others.
35. Learned counsel for the respondents, on the other hand, alluding to their counter reply submits that the applicant's case can only be considered within the relevant provisions and respondents cannot go beyond the existing rules to provide any relief claimed by the applicant. It is also emphasized that the applicant has been duly granted whatever he is entitled to as per CGHS OM of 2011. It is also submitted that the averments made by the learned counsel about any malafide on behalf of the respondents is totally baseless and vague. It is reiterated that no reimbursement claim of the applicant is pending. The learned counsel also submits that various procedures of PWD Act cited by the learned counsel for the applicant are recommendatory in nature which the Union of India/States have to implement depending on the capacity and a detailed framework for implementation in this regard is yet to be put in place..It is further stated that the judgments cited by the learned counsel for the applicant are distinguishable and do not cover the reliefs claimed by the applicant.
36. As evident from the pleadings on record, applicant has ventilated a large number of grievances, some beyond the (OA No.1309/2024) (31) scope of this OA. Therefore, we have confined our consideration to the reliefs claimed. After perusing the pleadings and hearing both the parties, the following issues are framed for consideration:
(i) Applicant's eligibility to be covered under the CS (MA) Rules and consideration of his case under RPWD Act ,specifically in the light of provisions of Section 2(h, t,y and za), 3 25 (C), 27 and 38 of RPWD Act 2016 ?
(ii) Applicant's entitlement for his pending medical expenses, as per the expenditure incurred including the nursing care and neuro-rehabilitation as per the actual and nursing assistance taken/being taken at residence
(iii) Reimbursement of the amount restricted towards purchase of medicines from time to time including expenses incurred towards purchase of medicines, "essential for therapeutic use".
(iv) Permission for Major Urethroplasty Surgery outside Delhi with facility to be airlifted along with two attendants.
(v) Pending medical reimbursement claim during hospitalization or subsequent to hospitalization
37. So far as his claim under CS (MA) Rules, 1944 is concerned, the learned counsel for the applicant has placed reliance on Paras 6 and 7 of the rules are as follows:
"Rule 6 MEDICAL TREATMENT Rule 6 (1)- A Government servant shall be entitled, free of charge, to treatment- (a) in such Government hospital at or near the place where he falls ill as can in the opinion of the authorised medical attendant provide the necessary and suitable treatment; or (b) if there is no such hospital as is referred to in sub-clause (a) in such hospital other (OA No.1309/2024) (32) than a Government hospital at or near the place as can in the opinion of the authorized medical attendant, provide the necessary and suitable treatment;
Rule 6(2)- Where a Government servant is entitled under sub-rule (1), free of charge, to treatment in a hospital, any amount paid by him on account of such treatment shall, on production of a certificate in writing by the authorized medical attendant in this behalf, be reimbursed to him by the Central Government. Rule 7 TREATMENT AT RESIDENCE Rule 7 (1)- If the authorized medical attendant is of opinion that owing to the absence or remoteness of a suitable hospital or to the severity of the illness, a Govt. servant cannot be given treatment as provided in clause (a) of sub-rule (1) of Rule 6, the Government servant may receive treatment at his residence.
Rule 7(2)- A Government servant receiving treatment at his residence under sub-rule (1) shall be entitled to receive towards the cost of such treatment incurred b him a sum equivalent of the cost of such treatment as he would have been entitled, free of charge, to receive under these rules if he had not been treated at his residence.
Rule 7(3)- Claims for sums admissible under sub-rule (2) shall be accompanied by a certificate in writing by he authorized medical attendant stating- (a) his reasons for the opinion referred to in sub-rule (1); an
38. There is no dispute that the applicant is a CGEHS beneficiary. Section (2) Note 2 of CS(MA) Rules mentions as follows:
"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) Defence Services personnel;
(ii) Government servants who are on leave or deputation abroad;
(iii) non-Gazetted Government servants, including Group 'D' and Gazetted Government servants (other than Central Services, Group 'A') drawing pay less than 2,500 stationed in or passing through Calcutta for (OA No.1309/2024) (33) whom special arrangements for medical attendance and/or treatment have been made, vide Section 6 of this Compilation;
(iv) retired Government officials;
(v) non-officials sent on deputation abroad;
(vi) Government servants who are governed by the Central Government Health Scheme while in stations where this Scheme 1s functioning;
(vii) officers of the All India Services and other persons who are governed by the All India Services (Medical Attendance) Rules, 1954; and
(viii) India based officers and staff serving in Missions abroad, who are governed by the Assisted Medical Attendance Scheme."
39. It is evident that as per Para 2 (vi) of the said rules, the Government Servants who are governed by the Central Government Health Schemes while in stations where this Scheme is functioning will not be covered under CS (MA) Rules. In the case of applicant, he is covered under DGEHS which has adopted the Central Government Health Schemes and therefore he cannot claim benefit of CS (MA) Rules, even though the respondents have notified both the DGEHS and CSMA Rules, the CSMA rules applies to only those Govt.
employees, who are not covered under CGEHS. Moreover, the benefit of two schemes simultaneously is also not permissible.
40. Coming on to his claim for reimbursement of pending medical bill and expenditure incurred at his residence is concerned, the learned counsel has relied on two office OMs dated 02.02.2010 and 15.07.2014 in support of his claim for (OA No.1309/2024) (34) reimbursement. We have gone through the two OMs, which read as follows:-
OM dated 02.02.2010 issued by GNCTD (Directorate of Health Services Subject: Relaxation of procedures to be followed in considering requests for medical reimbursement.
1. The undersigned is directed to state that under the extant instructions, a DGEHS card holder, who wishes to apply for reimbursement of the expenditure incurred by him / her on medical treatment of either self or his / her dependent family members, the present reimbursement procedure needs verification of bills and issue of essentiality certificate by the treating doctor and the Medical Superintendent of the hospital. The process of verification of bills and issue of essentiality certificates are time consuming with the doctor at times being busy or being away from office for whatever reason. This necessitates repeated visits to the hospital for getting, the verification done and essentiality certificate obtained A need has been felt under DOEHS for doing away with the two requirements and for the authorities concerned to verify and check the authenticity of the claims on the basis of the prescription slip and the diagnostic report submitted by the Government servant / patient. In the event of any doubt, the concerned Department/ Authority can always get verification done from the hospital concerned.
2. The undersigned is directed to state that DGEHS guidelines currently provide for relaxation of guidelines to cover full reimbursement in individual cases depending upon merits of each case.
3. In order to reduce the burden on the specialists in individual cases, of medical reimbursement claim under DGEHS, it has been decided to revise the guidelines for reimbursement by the competent authority (as being followed in CGHS vide OM No. 4-18/2005-C&P Vol 1 - Pt.
(L) dated 20.2.2009), as follows:
I. It has now been decided to do away with the procedure for verification of bills and issue of essentiality certificate by the, treating doctor, and the Medical Superintendent of the hospital. Authority concerned may verify and check the authenticity of the claims on the basis of the prescription slip and the diagnostic report submitted by the Government servant / pensioner. In the event of any doubt, the concerned Department/Authority can always get verification done from the hospital concerned. Modified reimbursement claim form, along with checklist is annexed.
(OA No.1309/2024) (35) II. All cases involving requests for relaxation of rules for reimbursement of full expenditure will henceforth be referred to a Technical Standing Committee, to be chaired by the Director Health Services, Govt of NCT of Delhi with SPO (DGEHS) as Member Secretary and subject matter specialists as decided by chairman as members. If the Technical Standing Committee recommends the relaxation of rules for permitting full reimbursement of expenditure incurred by the beneficiary, the full reimbursement may be allowed by the Pr. Secretary (Health 8 Family Welfare), Govt of NCT of Doll in consultation with Finance Department. A check list for consideration n requests for reimbursements in excess of approved rates may include:
a. The treatment was obtained in a private non empanelled hospital under emergency and the patient was admitted by others when the beneficiary was unconscious or severely incapacitated and was hospitalized or a prolonged period:
b. The treatment was obtained in a private non- empanelled hospital under emergency and was admitted for prolonged period for treatment of Head Injury, Coma, Septicemia, Multi-organ failure, etc.;
c. The treatment was obtained in a private non- empanelled hospital under emergency for treatment of advanced malignancy;
d. The treatment was taken under emergency in higher type of accommodation as rooms as per his / her entitlement are not available during that period;
e. The treatment was taken in higher type of accommodation under specific conditions for isolation of patients to avoid contacting infections;
f. The treatment was obtained in a private non empanelled hospital under emergency when there is a strike in Government hospitals;
g. The treatment was obtained in a private non- empanelled hospital under emergency, while on official tour to non-DGEHS covered areas;
h. Approval for airfare with or without attendant on, the advise of treating doctor for treatment in another city even though he /she is not eligible for air travel/treatment facilities are available in the city of residence and i. Any other special circumstances.
4. These provisions shall be applicable to all DGEHS beneficiaries including Delhi Govt. Employees/pensioners, sitting and retired Judges of Delhi High Court, MLAs, Hon'ble Ministers of Govt. of NCT of Delhi etc. (OA No.1309/2024) (36)
5. In case of Judges of High Court of Delhi the admissibility of the claim shall be verified and certified by the Head of the Accounts/Registrar General, Delbi High Court. In the case of Government servant/pensioner the controlling authority will verify/certify the claim submitted by concerned Goyt, servant.
6. The Office Memorandum issues with the approval of competent authority.
AND;
OM dated 15.07.2014 issued by Ministry of Health & Family Welfare, Department of Health & Family Welfare Subject: Relaxation of procedures to be followed in considering requests for medical reimbursement claims in respect of CS (MA) beneficiaries.
Ministry of Health & Family Welfare received several representations from CGHS beneficiaries for issue of guidelines to be followed in considering requests for relaxation of procedures in considering requests for medical reimbursement and cover the approved rates. The matter was examined by the Ministry and Office Memorandum No.4-18/2005-C&P (Vol-I Pt. (1)} dated the February. was issued prescribing the procedures and guidelines to be followed for consideration of requests received from CGHS beneficiaries seeking reimbursement of expenditure incurred on medical treatment over and above the approved rates. The requirement of essentiality certificate in respect of CGHS beneficiaries was also done away with.
However, no such guidelines were issued under CS(MA) Rules. In this regard Department - related Parliamentary Standing Committee on Health and Family Welfare in the seventy first report impressed upon the Department to immediately address this issue and extend same facilities to those covered under CS(MA) Rules and to issue a fresh circular clarifying the procedures in this regard and dispelling misgivings, if any. Ministry was also in receipt of representation from several quarters in this regard.
2. The matter has been examined in consultation with Dte. GHS and it has been decided to revise the guidelines for reimbursement by the competent authority to issue guidelines under CS(MA), on similar pattern as under
CGHS as per the following (OA No.1309/2024) (37) (1) It has now been decided to do away with the procedure for verification of bills and issue of essentiality certificate by the treating doctor and the Medical Superintendent of the hospital. Ministries/Authorities concerned may verify and check the authenticity of the claims on the basis of the prescription slip and the diagnostic report submitted by the Government servant In the event of any doubt, the concerned Ministry/Authority can always get verification done from the hospital concerned.
(2) It is clarified that essentiality certificate/counter signature of treating doctor in a hospital would not, henceforth, be necessary. However. essentiality certificate would be required when the treatment is taken from an AMA on OPD basis.
(3) All cases involving requests for relaxation of rules for reimbursement of full expenditure will henceforth be referred to the Technical Standing Committee, to be chaired by the DGHS/Spl.DGHS and Specialists of concerned subject as members. Addl. DDG (MG-Section), Dte.GHS shall be member secretary for organizing the meetings of Technical Standing Committee. If Technical Standing Committee recommends the relaxation of rules for permitting full reimbursement of expenditure incurred by the beneficiary, the full reimbursement may be allowed by the Secretary (Health & Family Welfare) in consultation with IFD. A check list for consideration of requests for reimbursement in excess of the approved rates may include:
a. The treatment was obtained in a private hospital not empanelled under CS(MA)/ CGHS under emergency and the patient was admitted by others when the beneficiary unconscious severely incapacitated and was hospitalized for a prolonged period:
b. The treatment was obtained in a private hospital not empanelled under CS(MA)/ CGHS under emergency and was admitted for prolonged period for treatment of Head injury. Coma, Septicemia, Multi-organ failure, etc.; c. Treatment was obtained in a private hospital not empanelled under CS(MA)/ CGHS under emergency for treatment of advanced malignancy:
d. Treatment was taken in a private hospital not empanelled under CS(MA)/ CGHS under emergency in higher type of accommodation as rooms as per his/her entitlement was not available during that period:
e. Treatment was taken in higher type of accommodation under specific conditions for isolation of patients to avoid contacting infections; f. Treatment was obtained in private hospital not empanelled under CS(MA)/ CGHS under emergency while on official tour to another city:
(OA No.1309/2024) (38) g. Treatment was obtained in a private hospital not empanelled under CS(MA)/ CGHS under emergency when there is a strike: in Govt. hospitals:
h. Approval for air-fare with or without attendant on the advice of treating doctor for treatment in another city even though he is not eligible for air travel/treatment facilities are available in city of residence and i. Any other special circumstances.
4. The Office Memorandum is issued with the concurrence of IFD vide Dy. No. C-695 dated 07.07.2014.
41. We have carefully gone through the two OMs on which the learned counsel for the applicant has placed reliance.
The first OM is OM dated 02.02.2010, was issued by the Directorate of the Health Services, GNCTD, for relaxation of procedures to be followed in considering the request for medical reimbursement. In departure from the earlier practice wherein individual claims for medical reimbursement were used to be referred to a specialist, in revised guidelines, vide aforesaid OM request for relaxation of rules for reimbursement of full expenditure was to be referred to a Technical Standing Committee to be chaired by the Director of Health Services, Govt. of NCT of Delhi. In case the Technical Standing Committee recommended relaxation of rules, the full reimbursement could be allowed by the Principal Secretary, Health and Family Welfare, Govt.
of NCT of Delhi in consultation with the finance department.
However, there is no provision in the said OM for neuro rehabilitation outside hospital setting.In the instant case, we (OA No.1309/2024) (39) find that the medical reimbursement claim was considered at length by the Technical Standing Committee as a special case but the Committee was of the view that the full reimbursement of the nursing care charges of Rs.60,000/-
per month was not fit as per the criterion of Technical Standing Committee under the DGEHS provisions and nursing care charges, charges for physiotherapy, occupational therapy and speech therapy was to be reimbursed as per OMs dated 18.01.2011 and 01.06.2011.
During his hospitalization upto 31.03.2021, the reimbursement has been made to him in the light of the aforesaid OM and there is no such provision for reimbursement for domiciliary treatment under DGEHS Rules. So far as his claim for air lifting him at Pune is concerned, we are also apprised by the learned counsel that permission for Major Urethroplasty Surgery, as requested by the applicant, outside Delhi in a non-empanelled hospital was also examined as per DGEHS Scheme, and it was found that such treatment facility is available in Delhi, which the applicant may avail.
42. Coming to OM dated 15.07.2014 we find that the same applies to medical reimbursement claims in respect of CS (MA) beneficiaries and as discussed above, the applicant is (OA No.1309/2024) (40) not covered under CS (MA) Rules. Therefore, the aforesaid cited OM has no applicability in the present case and the averment of the learned counsel for the applicant that Director, CGHS, has brushed aside provisions of OM dated 02.02.2010 and 15.07.2014 does not appear to be correct.
43. So far as claim for various entitlements under the RPWD Act is concerned it appears that there is no such special dispensation either in the CGHS or the DGEHS for the persons with disability for reimbursement of medical claim and thus the same is be reimbursed as per the extant rules and the Technical Committee has already considered it.
44. In support of his claims, the learned counsel for the applicant has cited a catena of judgments:-
1. Civil Appeal No. 273 of 2021 titled Vikash Kumar vs. Union Public Service Commission &Ors. decided on 11.02.2021 by Hon'ble Supreme Court of India.
2. W.P. (C) No. 694 of 2015 titled Shiva Kant Jha vs. Union of India decided on 13.04.2018 by Hon'ble Supreme Court of India.
3. Civil Appeal No. 1789 of 2000 titled Kunal Singh vs. Union of India &Anr. decided on 13.02.2003 by Hon'ble Supreme Court of India.
4. W.P. (C) No. 10684 of 2022 & CM Appl. No. 31035 of 2022 titled Union of India &Anr. vs. Shri Joginder (OA No.1309/2024) (41) Singh decided on 10.05.2023 by Hon'ble High Court of Delhi.
5. W.P. (C) No. 3272 of 2006 titled Mahendra Kumar Verma vs. Govt. of NCT of Delhi &Ors. decided on 09.01.2023 by Hon'ble High Court of Delhi.
6. O.A. No. 21/153/2019 titled B. Prasada Rao vs. Union of India decided on 25.06.2019 by Hon'ble C.A.T. Hyderabad Bench.
7. O.A. No. 201/2023 titled Lalita Sharma vs. Union of India &Ors. decided on 18.04.2024 by Hon'ble C.A.T. Ahmedabad Bench.
8. O.A. No. 060/00664/2018 titled Surinder Mohan Suri vs. Union of India &Ors. decided on 18.10.2018 by Hon'ble C.A.T. Chandigarh Bench.
45. We have considered these judgments cited by the applicant and we find that they are distinguishable and ratio of these judgments do not apply to the relief(s) claimed by the applicant. In these cases cited by the learned counsel, full reimbursement claim was admitted, mostly in the wake of medical emergency or wherein treatment was taken in recognized hospitals but approved package rate was exceeded and those cases where treatment was taken in non-empanelled private hospitals claiming full reimbursement.
(OA No.1309/2024) (42)
46. The case of Vikash Kumar vs. Union Public Service Commission & Ors., which the learned counsel has cited, relates to entitlement of the appellant for the facility of scribe for writing the CSE-2018. The appellant had disability in the form of DYSGRAPHIA commonly known as writer's cramp and in the concluding remarks, the Hon'ble Court has held as follows:-
"79. When President George HW Bush signed into law the Americans with Disabilities Act, he noted that, by dint of the passage of the law, "every man, woman, and child [and we would like to add practitioners of alternative sexuality here with a disability can now pass through once-closed doors into a bright new era of equality, independence, and freedom.
80. In the three decades that have elapsed since then, a generation o fAmericans with disabilities has emerged, calling themselves the ADA Generation. These disabled people rightfully regard the ADA's guarantees as a birthright and, due to accessible infrastructure, a strict prohibition on disability discrimination and changed public attitudes, are able to participate in American life on equal terms with their able-bodied counterparts.
81. Cases such as the present offer us an opportunity to make a meaningful contribution in the project of creating the RPwD generation in India. A generation of disabled people in India which regards as its birthright access to the full panoply of constitutional entitlements, robust statutory rights geared to meet their unique needs and conducive societal conditions needed for them to flourish and to truly become co-equal participants in all facets of life.
82. We accordingly allow the appeal and set aside the impugned judgment and order of the High Court of Delhi dated 25 September 2018. There shall be no order as to costs."
(OA No.1309/2024) (43) However, the ratio of above aforesaid judgment does not apply in this case as in the instant OA we are dealing with the issue of medical reimbursement claims.
47. Learned counsel for the applicant has laid emphasis on the judgment of the Hon'ble Supreme Court in Shiva Kant Jhavs Union of India, AIR 2018 SC 1975drawing attention to Paras 14 and 15 which are follows:
"14) This is hardly a satisfactory state of affairs. The relevant authorities are required to be more responsive and cannot in a mechanical manner deprive an employee of his legitimate reimbursement. The Central Government Health Scheme (CGHS) was propounded with a purpose of providing health facility scheme to the central government employees so that they are not left without medical care after retirement. It was in furtherance of the object of a welfare State, which must provide for such medical care that the scheme was brought in force.
In the facts of the present case, it cannot be denied that the writ petitioner was admitted in the above said hospitals in emergency conditions. Moreover, the law does not require that prior permission has to be taken in such situation where the survival of the person is the prime consideration. The doctors did his operation and had implanted CRT-D device and have done so as one essential and timely. Though it is the claim of the respondent-State that the rates were exorbitant whereas the rates charged for such facility shall be only at the CGHS rates and that too after following a proper procedure given in the Circulars issued on time to time by the concerned Ministry, it also cannot be denied that the petitioner was taken to hospital under emergency conditions for survival of his life which requirement was above the sanctions and treatment in empanelled hospitals.
15) In the present view of the matter, we are of the considered opinion that the CGHS is responsible for taking care of healthcare needs and well being of the central government employees and pensioners. In the facts and circumstances of the case, we are of opinion that the treatment of the petitioner in non-empanelled hospital was genuine because there was no option left with him at the relevant time. We, therefore, direct the respondent-State to pay the balance amount of Rs.
(OA No.1309/2024) (44) 4,99,555/- to the writ petitioner. We also make it clear that the said decision is confined to this case only.
48. It is evident from the above cited direction regarding reimbursement of medical claim was confined to the cited case only. However, the Hon'ble Supreme Court in Para 16 of the said judgment had given the following directions-
"16) Further, with regard to the slow and tardy pace of disposal of MRC by the CGHS in case of pensioner beneficiaries and the unnecessary harassment meted out to pensioners who are senior citizens, affecting them mentally, physically and financially, we are of the opinion that all such claims shall be attended by a Secretary level High Powered Committee in the concerned Ministry which shall meet every month for quick disposal of such cases.
We, hereby, direct the concerned Ministry to device a Committee for grievance redressal of the retired pensioners consisting of Special Directorate General, Directorate General, 2 (two) Additional Directors and 1 (one) Specialist in the field which shall ensure timely and hassle free disposal of the claims within a period of 7 (seven) days. We further direct the concerned Ministry to take steps to form the Committee as expeditiously as possible. Further, the above exercise would be futile if the delay occasioned at the very initial stage, i.e., after submitting the relevant claim papers to the CMO-I/C, therefore, we are of the opinion that there shall be a timeframe for finalization and disbursement of the claim amounts of pensioners. In this view, we are of the opinion that after submitting the relevant papers for claim by a pensioner, the same shall be reimbursed within a period of 1 (one) month."
49. The Ministry of Health and Family Welfare has notified a High-powered Committee to consider claims seeking full reimbursement under special circumstances which are not notified.
50. We have taken this opportunity to go through the OM issued by the Ministry dated 22.05.2018, which has modified (OA No.1309/2024) (45) the OM dated 20.02.2009 vide which the Technical Standing Committee was set up, referred to earlier. The said OM reads as follows:-
"Subject: Relaxation of Rules for consideration of reimbursement in excess of the approved rates pertaining to medical claims **** With reference to the above mentioned subject the undersigned is directed to draw attention to the Office Memorandum No. 4-18/2005- C&P [Vol. 1-Pt (1)], dated the 20th February 2009 and to state that it has now been decided to modify the Para 3 (2) of the above referred Office Memorandum as per the details given under the succeeding paragraphs.
a) The requests for full reimbursement which fall under the following defined criteria shall be examined by Directorate General of CGHS and submitted to AS&DG (CGHS) for consideration of approval. After the recommendation of AS&DG (CGHS), the concurrence of Internal Finance Division and approval of Secretary, Ministry of Health & Family Welfare are required for reimbursement in excess of CGHS rates:
1) Treatment was obtained in a private unrecognized hospital under emergency and the patient was admitted by others when the beneficiary was unconscious or severely incapacitated and was hospitalized for a prolonged period.
2) Treatment was obtained in a private unrecognized hospital under emergency and was admitted for prolonged period for treatment of Head Injury, Coma, Septicemia, Multi-organ failure, etc.
3) Treatment was obtained in a private unrecognized hospital under emergency for treatment of advanced malignancy
4) Treatment was taken under emergency in higher type of accommodation as rooms as per his/her entitlement are not available during that period.
5) Treatment was taken in higher type of accommodation under specific conditions for isolation of patients to avoid contacting infections 6) Treatment was obtained in a private unrecognized hospital under emergency when there is a strike in Govt. hospitals.
7) Treatment was obtained in a private unrecognized hospital under emergency while onofficial tour to non-
CGHS covered area.
b) The requests from CGHS beneficiaries, having a valid CGHS Card at the time of treatment, in respect of the following conditions shall be considered by a High (OA No.1309/2024) (46) Powered Committee constituted by Ministry of Health & Family Welfare:
(i) Settlement of medical claims in relaxation of rules
(ii)Approval for air-fare with or without attendant on the advice of treating doctor for treatment in another city even though he/she is not eligible for air travel / treatment facilities are available in city of residence
(iii)Representations from CGHS beneficiaries seeking full reimbursements under special Circumstances, which are not notified.
c) The other terms and conditions mentioned in the OM No. 4-18/2005- C&P[Vol. 1-Pt(1)] dated the 20th February 2009 shall remain unchanged."
[Emphasis supplied] We find that the High Powered Committee set up by the Ministry of Health & Family Welfare has a larger mandate than the Technical Standing Committee as apparent from the following provisions already extracted hereinabove in the OM:-
"b. (i) Settlement of medical claims in relaxation of rules.
(ii) *** *** ***
(iii) Representations from CGHS beneficiaries seeking full reimbursements under special Circumstances, which are not notified."
[Emphasis supplied] Thus, as per (b) (iii) extracted above, based on representations from CGHS beneficiaries, the claim for full reimbursement under special circumstances, which are not notified are to be considered by the said Committee. As is clear, the OM of 01.06.2011 and OM dated 18.01.2011, notified by CGHS has been relied upon by the respondents (OA No.1309/2024) (47) to reject the reimbursement claim of the applicant. But his case has not been placed or considered by the High Powered Committee. The High Powered Committee in exercise of its mandate can still consider such claims which are not notified, including the relief (s) claimed by the applicant in the OA. However, the learned counsel for the respondents has not been able to confirm whether such Committee has been notified by the GNCT of Delhi. The applicant has also not availed this remedy.
51. Since the DGEHS has adopted the CGHS rules & practices and various OMs & Circulars issued by CGHS take effect in DGEHS, we are of the view that a similar Committee should be constituted by the respondent no. 1 with the mandate, as given in the OM of 22.05.2018. The Committee shall include an expert from Physical Rehabilitation Department of Govt. hospital and a representative from Social Welfare Department, GNCT of Delhi,besides other members. As submitted in the pleadings, at present patient has MRS (Modified Ranking Scale) Grade-
4 that accounts for moderately severe disability as submitted by learned counsel for the respondents. Patient does not require hospitalization and active neurological intervention at present. Neuro rehabilitation services needs (OA No.1309/2024) (48) to be provided as per advice in departments of occasional therapy, physiotherapy, speech therapy. He requires assistance to do daily living activities including maintaining hygiene and SPC. It is also submitted by the learned counsel for the respondents that charges of speech therapy, physiotherapy and occasional therapy are reimbursed as per CGHS OM of 01.06.2011 and nursing assistance as per CGHS OM of 18.01.2011. However, he is not eligible for reimbursement of expenses incurred at the residence of the patient as the rules notified do not provide for it, even though it might have been recommended by specialist.
However, the High Powered Committee is competent to deal with such reimbursement under special circumstances which are not notified and it should consider reimbursement of expenses of various therapies i.e. speech, physiotherapy and occasional therapy based on the exceptional circumstances of the case. Similarly, the expenses incurred by the patient in nursing care provided at the residence of the patient can also be placed before the Committee for its consideration, if the same has been recommended by a specialist. Therefore, we direct the Competent Authority in Govt. of NCT of Delhi to constitute a High Powered Committee. The High Powered Committee will keep in mind the disability status of the (OA No.1309/2024) (49) applicant and relevant provisions of rights of persons with Disability Act, 2016, more specifically the provisions of Section 2 (h, t, y and za), 3 25 (C), 27 and 38 of RPWD Act 2016, as claimed in the relief (s).
CONCLUSION
52. For all the reasons stated hereinabove, this OA is disposed of with the following directions:-
i) The Competent Authority in Government of NCT of Delhi is directed to constitute a High Powered Committee as expeditiously as possible within a period of two weeks from the date of receipt of certified copy of this Order in accordance with O.M. dated 22.05.2018.
ii) The applicant is directed to make a comprehensive representation within a period of two weeks containing all the reliefs claimed in the OA.
iii) The High Powered Committee shall consider the claim of the applicant keeping in mind his "disability status" as expeditiously as possible preferably within a period of four weeks from the date of receipt of the comprehensive representation of the applicant without being influenced by the earlier orders dated 30.06.2021, 15.11.2021 and 04.05.2023.
iv) The High Powered Committee constituted for grievance redressal of the applicant shall make specific recommendations which the Competent Authority amongst the respondents shall consider and take an (OA No.1309/2024) (50) appropriate decision by passing a reasoned and speaking order and shall take steps for disposal of the claims of the applicant within three weeks from the date of receipt of recommendations of the High Powered Committee under intimation to the applicant. The impugned orders will be subject to final outcome of the report of the High Powered Committee.
v) Applicant will be at liberty to approach appropriate forum in accordance with law for his surviving grievances, if any.
vi) Resultantly, Original Application stands disposed of to the extent of above directions and observations.
vii) However, there shall be no order as to costs.
viii) As a sequel thereof, pending Miscellaneous Application(s), if any, shall also stand closed.
ix) The Order be uploaded on the website and Registry is directed to expedite issuance of certified copy.
(Ajay Pratap Singh) (Sanjeeva Kumar) Member (J) Member (A) /kdr/