Himachal Pradesh High Court
Bhupinder Sud vs Union Of India To Contend That The on 11 November, 2022
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 11th DAY OF NOVEMBER 2022
BEFORE
.
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION(ORIGINAL APPLICATION) No. 189 OF 2020
Between:-
BHUPINDER SUD
S/O SHRI N.R. SUD,
R/O GLENWOOD, NEAR CHITKARA PARK,
LOWER KAITHU, SHIMLA-3.
.....PETITIONER
(BY SH. KARAN SINGH PARMAR, ADVOCATE)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH SECRETARY PWD TO THE
GOVERNMENT OF HIMACHAL PRADESH,
SHIMLA-2.
2. ENGINEER-IN-CHIEF, H.P.
P.W.D. HIMACHAL PRADESH, SHIMLA.
.....RESPONDENTS
(BY SMT. RITTA GOSWAMI, ADDITIONAL
ADVOCATE GENERAL)
Whether approved for reporting?
__________________________________________________
This petition coming on for orders this day, the
Court passed the following:
ORDER
Petitioner seeks (i) quashing of orders dated 21.6.2016 & 28.6.2016, whereby respondents declined to grant ex-post facto sanction for treatment of his wife from non-
::: Downloaded on - 14/11/2022 20:31:43 :::CIS 2empanelled hospitals and (ii) reimbursement of medical bills of his wife.
.
2. It is the case of the petitioner that he retired as an Executive Engineer from Himachal Pradesh Public Works Department (HPPWD). In the month of November 2015, the petitioner alongwith his wife visited Banglore, where their son was residing. Petitioner's wife was suffering from Thickened Endometrial Grothic Cystic/G-
Trophoblasific Tumor problems. She underwent medical treatment in Maharaja Agrasen Hospital Padmanabhanagar, Bangalore and Bhagwan Mahaveer Jain Hospital at Bengluru. The treatment was taken from these hospitals in unavoidable circumstances. The medical reimbursement bills amounting to Rs.22,922/- were claimed by the petitioner from the respondents. These hospitals were not empanelled with the State, hence, respondent No.2- the Engineer-in-Chief vide his communication dated 6.6.2016 (Annexure A-3) addressed to respondent No.1, recommended examination of petitioner's case for granting ex-post facto sanction/approval. Respondent No.1 rejected petitioner's claim vide office letter dated 21.06.2016 (Annexure A-1) on the ground that there was no emergency involved in treatment of petitioner's wife. This decision was conveyed to the petitioner on 28.06.2015 (Annexure A-2), hence the writ petition.
3. Learned counsel for the petitioner relied upon a judgment passed by the Hon'ble Apex Court in (2018) 16 SCC 187 ::: Downloaded on - 14/11/2022 20:31:43 :::CIS 3 titled Shiva Kant Jha Vs. Union of India to contend that the Government employee during his lifetime or after his retirement is .
entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. The right to claim medical claim cannot be denied merely because the name of the hospital is not included in the Government order. That real test must be factum of treatment.
Paragraph-17 of the said judgment pressed into service by the petitioner, reads as under:-
"17. It is a settled legal position that the Government employee during his life time or after his retirement is entitled to get the benefit of the medical facilities and no fetters can be placed on his rights. It is acceptable to common sense, that ultimate decision as to how a patient should be treated vests only with the Doctor, who is well versed and expert both on academic qualification and experience gained. Very little scope is left to the patient or his relative to decide as to the manner in which the ailment should be treated. Speciality Hospitals are established for treatment of specified ailments and services of Doctors specialized in a discipline are availed by patients only to ensure proper, required and safe treatment. Can it be said that taking treatment in Speciality Hospital by itself would deprive a person to claim reimbursement solely on the ground that the said Hospital is not included in the Government Order. The right to medical claim cannot be denied merely because the name of the hospital is not included in the Government Order. The real test must be the factum of treatment. Before any medical claim is honoured, the authorities are bound to ensure as to whether the claimant had actually taken treatment and the ::: Downloaded on - 14/11/2022 20:31:43 :::CIS 4 factum of treatment is supported by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannot be denied on technical grounds. Clearly, in the .
present case, by taking a very inhuman approach, the officials of the CGHS have denied the grant of medical reimbursement in full to the petitioner forcing him to approach this Court."
4. Learned Additional Advocate General submitted that the aforesaid judgment was passed in peculiar facts of that case after noticing the fact that the petitioner therein was taken to the empanelled hospital under emergency conditions for the very survival of his life. Facts are different in the instant case. No such emergency existed in petitioner's case for taking treatment from non-empanelled hospitals.
5. According to the respondents, as per the rules & regulations of Government of Himachal Pradesh, medical reimbursement can be made to the bills of only those hospitals, which are empanelled with it. Respondents have refused to grant ex-post facto sanction to petitioner's case for taking treatment from non-
empanelled hospitals for the reason that these non-empanelled hospitals were not opted by the petitioner on account of any medical emergency. The assertions made in the reply have not even been refuted. Petitioner has not filed any rejoinder controverting the submissions made in the reply. It thus stands established that petitioner's wife underwent medical treatment in two different non-
::: Downloaded on - 14/11/2022 20:31:43 :::CIS 5empanelled hospitals. The treatment taken from the two hospitals was not of emergent nature which not have been available in .
empanelled hospitals. Neither the facts nor the applicable rules and regulations are disputed or under challenge. The judgment in Shiva Kant Jha's case supra was in peculiar facts of that case. This judgment in following para itself mentions that it is not to be treated as a precedent:-
"19. 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. 4,99,555/- to the writ petitioner. We also make it clear that the said decision is confined to this case only."
It would also be appropriate to take note of a judgment passed by a Division Bench of this Court on 30.10.2021 in CWP No.6583/2020 (R.S. Thakur Vs. Himachal Pradesh State Electricity Board Ltd.), wherein it was held that in cases of non-emergent situations, medical treatment taken from non-empanelled hospitals would not be reimbursable. Relevant paragraph thereof reads as under:-
::: Downloaded on - 14/11/2022 20:31:43 :::CIS 6"4. Having heard learned counsel for the parties, we are of the considered view that this petition deserves to be dismissed for the following reasons:
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4(i). The applicable medical reimbursement policy is not under challenge. As per this policy, in case the treatment is taken in a non-empanelled institution in emergency, the reimbursement is permissible restricted to the rates specified therein.
The petitioner had not undertaken the operation in an emergent situation. In his application dated 11.09.2018 itself, the petitioner had mentioned that he was suffering from knee pains. That his family members were residing in Delhi and, therefore, it was easier for him to take medical treatment at Delhi. That Apollo hospital was the best hospital for knee replacement operation. That the medical experts had statedly advised him to undertake knee replacement operation in the best hospital at Delhi and, therefore, he wanted to undergo knee replacement operation in Apollo Hospital, New Delhi. This all goes to show that no medical emergency existed.
Petitioner had opted to undergo the operation in the non-
empanelled private hospital because of appropriateness of the medical treatment there, which suited him and not because of any medical emergency.
4(ii). The petitioner was aware that the aforementioned private hospital is not empanelled with the State of Himachal Pradesh. He had applied to his employer/respondent for permission to undergo the knee replacement operation at Apollo Hospital, New Delhi. His application was rejected by the respondent-employer. The decision was communicated to the petitioner well in time. Despite all this, the petitioner underwent operation from the aforementioned private non- empanelled hospital.::: Downloaded on - 14/11/2022 20:31:43 :::CIS 7
4(iii). The judgment relied upon by the petitioner in Shiva Kant Jha's case, supra, is on the basis of facts of that case. The petitioner therein had taken medical treatment at Fortis .
Escorts Heart Hospital, wherein he was admitted in emergency condition for survival of his life. It was in that background that the Hon'ble Apex Court had allowed the writ petition observing that the 'treatment of the petitioner (therein) in non-empanelled hospital was genuine because there was no option left with him at the relevant time'. Hon'ble Apex Court also observed in the judgment that the 'decision in confined to that case only.' The facts of instant case as noticed above are different. There was no emergent situation in petitioner's case wherein he underwent knee replacement surgery in a non-empanelled private hospital."
No other point was urged.
In view of above discussion, relief prayed for by the petitioner cannot be granted to him. Present petition is accordingly dismissed. Pending miscellaneous application, if any, shall also stand disposed of.
Jyotsna Rewal Dua Judge 11th November 2022 (rohit) ::: Downloaded on - 14/11/2022 20:31:43 :::CIS