Central Administrative Tribunal - Bangalore
M Kamalaksha Nayak vs D/O Post on 7 September, 2018
1 OA.134/2017/CAT/BANGALORE
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH, BANGALORE
ORIGINAL APPLICATION NO.170/00134/2017
DATED THIS THE 7TH DAY OF SEPTEMBER, 2018
HON'BLE DR. K.B. SURESH, MEMBER(J)
HON'BLE SHRI DINESH SHARMA, MEMBER(A)
M. Kamalaksha Nayak,
Aged 68 years,
S/o Late Govind Nayak,
(Retd. Group-D, O/o the SPOs. Udupi)
Residing C/o Prasanth Kamath,
Shambhavi House, Kukkikatte,
Udupi - 576 101. ...Applicant.
(By Advocate Shri B. Venkateshan)
Vs.
1. Union of India
Represented by the Secretary,
Department of Posts,
Dak Bhavan,
New Delhi - 110 001.
2. The Chief Postmaster General,
Karnataka Circle,
Bangalore - 560 001.
3. The Postmaster General,
South Karnataka Circle, BG GPO Complex,
Bangalore - 560 001.
4. The Superintendent of Post Offices,
Udupi Division. ...Respondents.
(By Shri K. Dilip Kumar, ACGSC)
O R D E R (ORAL)
HON'BLE DR K.B. SURESH, MEMBER(J) Heard. This matter is similar to another OA.No.526/2017 2 OA.134/2017/CAT/BANGALORE disposed of on 06.09.2018, as in all aspects, except that the disease is enlargement of prostrate glands and consequential surgery. Order dated darted 06.09.2018 in OA.No.526/2017 is quoted below:
"Heard. The Hon'ble Apex Court had time and again held that right to life is a very valuable Constitutional right of a citizen. The applicant was afflicted with TB but she had the misfortune to live in a place where the CGHS was not in active participation yet the rules stipulate that even though resident at a distant place and hence not able to avail the benefit under CGHS she can still join CGHS and then avail of indoor medical treatment facilities but then CGHS and CSMA are thus complimentary to each other. Under CGHS rules indoor medical treatment is possible if a government employee on retirement stays at a place where CGHS is not applicable and taking medical allowance then under the Constitutional proposition she should be able to get benefits under the CSMA rules. At this point of time we are not quashing the rule for the very simple reason that there may arise issues wherein the rules may have an application but not in cases like this. We will read down that rule and hold that when a particular option is to be held mandatory then the entire element of that option should be made available to the applicant, in effect that if CGHS rules are made applicable and applicant taxed accordingly then CGHS may be made available at that particular locality therefore it is the fault of the Government. No Government entity can rely on their failure to make way for prejudice against a retired government employee. To that extent the rule will be read down. This is not possible for the respondents to do. It is beyond them. Therefore we hold that applicant will be eligible to be considered under the CSMA rules and for the benefits according to the CSMA. This is declared.
2. At this point of time Shri S. Sugumaran, learned counsel for the respondents, submits further that when an option is given it has to be taken as it is. But then whenever an option is incomplete in itself as, if an option is to be given, it must cover all elements resident in it. This option of choosing CGHS and not being eligible for the benefit thereof is no option at all. Therefore this rule will not lie. We are not quashing the said rule for the very reason that it may have an application relevance in other circumstances but not in this circumstance. Therefore even though we are not quashing this rule we are reading it down to the effect that when an option is to be given the option has to be full and not partial. That being so, the applicant is eligible for the benefit under CSMA. Therefore there will be a direction to the respondents to calculate and modulate payment to be made for the particular disease under CSMA rules and pay it to the applicant within one month next.
3. The OA is allowed to this extent. No order as to costs."
3 OA.134/2017/CAT/BANGALORE
2. Since the applicant is also in the same bracket, he will be eligible for re-imbursement as per CSMA rates or CGHS rates, which ever is higher.
3. OA allowed to this limited extent. No costs.
(DINESH SHARMA) (DR. K.B. SURESH)
MEMBER(A) MEMBER(J)
vmr
4 OA.134/2017/CAT/BANGALORE
Annexures referred to by the applicant in OA.No.134/2017 Annexure A-1: Applicant's pension payment order dated 14.6.2007. Annexure A-2: OM No.S-14025/4/96-MS dated 20.8.2004. Annexure A-3: OM No.45/57/97-P & PW dated 24.8.1998. Annexure A-4: Application with Medical bills of the applicant for Rs.22,729/-
Annexure A-5: Application with Medical bills of the applicant for Rs.66,580/-
Annexure A-6: Rejection of claim by lr. No.E2/8 dated 26.5.2016. Annexure A-7: Application with Medical bills for Rs.93147/- relating to applicant's wife.
Annexure A-8: Rejection of claim by lr. No.E2/8 dated 22.2.2016. Annexure A-9: Applicant's appeal dated 22.11.2016. Annexure A-10: Order dated 28.8.2015 in OA.No.332/2014. Annexure A-11: Order dated 12.3.2014 in OA.No.469/2013. Annexure A-12: Judgment dated 30.3.2015 in WP.47075/2014 (S-CAT). Annexure A-13: Judgment dated 13.8.2012 in WP.18210/2005 etc. Annexure A-14: Order dated 5.8.2014 in OA.No.1565/2013. Annexures referred to by the respondents in the OA Annexure R-1: Copy of Central Services (Medical Attendance) Rules. Annexure R-2: Copy of undertaking by the applicant. Annexure R-3: Copy of Due Drawn Report of Udupi HPO HO Annexures referred to by the applicant in the rejoinder Annexure RJ-1: DOPT OM No. S-14025/23/2013-MS.EHS dated 29.9.2016.
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