Central Administrative Tribunal - Madras
S Gopalakrishnan vs M/O Health And Family Welfare on 16 June, 2022
1 OA 822/2019 CENTRAL ADMINISTRATIVE TRIBUNAL CHENNAI BENCH OA NO.822/2019 Dated Toes day, the (bbday of June Two Thousand Twenty Two CORUM: HON'BLE MR. T.JACOB, ADMINISTRATIVE MEMBER & HON'BLE MS, LATA BASWARA3 PATNE, JUDICIAL MEMBER S,Gopalakrishnan, Supervisor, SBCO (Retired), Postal Department, 107-G, Salai Street, Sindupoondurai, Tirunefvelt 627 001. By Advocate .M/s E.Maragathasundari Vs. 1.Union of India, rep., by the Secretary, (H&FW), Ministry of Health & Family Weifare, Government of India, Room No.156-A, 'A'-Wing, Nirman Bhavan, Maulana Azad Road, New Delhi 110 011, 2,The Director General, Directorate General of CGHS (CGHS-IID), Government of India, A-244, Nirman Bhavan, Maulana Azad Road, New Delhi 110 O11. 3.The Postmaster General, Department of Posts, Government of India, Southern Region, Madurai 625 002. 4.The Senior Superintendent of Post Offices, Tirunelveli Division, Tirunelveli 627 002. By Advocate Mr.J.Vasu (RL & R2) Mr. M. Kishore Kumar, (R3 & R4) .. Applicant .. .Respondents 2 OA §22/2019 ORDER
(Pronounced by Hon'ble Ms. Lata Baswaraj Patne, Member(J)) The applicant has filed this OA under Section 19 of the Administrative Tribunals Act, 1985 seeking for the following relief:
"To set aside the order issued by the respondent-4, in his letter No. Dis/32/RA/18-19/dated at Tirunelveli 627 002 the 20.02.2019 and direct the respondents 2,3 & 4 to consider the claim dated 11.02.2019 of the applicant and reimburse, as per rules, the admissible portion of the expenditure of Rs.5,58,843/- incurred by the applicant towards the indoor medical treatment of his wife from 22.10.2018 to 15.11.2018."
2, The applicant is a retired Supervisor, SBCO, Postal Department Palayangottai. As a pensioner and holder of ID Card No.PP 291 dated 07.04.2010 which was valid upto 31.03.2019, the applicant was attached to the Postal Dispensary Tirunelveli and entitled to the medical benefits provided by the Postal Department. As per OM No.S-11016/2/2015- CGHS(P}/EHS, Department of Health & Family Welfare, dated 19.07.2017, he and his wife were entitled to the medical facilities provided through the Central Government Health Scheme. The applicant has also applied and obtained his CGHS card bearing No.396066/P. The grievance of the applicant is that reimbursement for the emergency treatment taken for his wife ata private hospital during the period from 22.10.2018 to 15.11.2018 for an amount of Rs.5,58,843 was neither done by the Respondent No. 1 & 2 nor by the Respondent No.3 & 4. His claim dated 11.02.2019 was rejected by the 3 respondent vide letter dated 20.02.2019 stating that "retired officials are not eligible to claim the medical bill as per Rule No.(2) Note 2 (iv) of the Central Service (Medical Attendance) Rules". Aggrieved, he has filed the present OA by relying upon the following orders:
(i) Hon.CAT, Principal Bench dated 04.05.2018 In Shir Ram Singh Naulkha Vs. Dept of Posts 3 OA 822/2019 {ii} Hon. High Court of Delhi dated 13.05.2002 in S.K.Sharma Vs. UO! WP (C) No.4873/2000 {iii} Hon. CAT Chennai Bench dated 23.11.2001 in R.Rangarajan Vs. Dept of Telecommunications upheld by Hon. High Court in WP 32770/2004 dated 29.09.2008.
(iv) Hon. CAT Gwalior dated 04.11.2004 in Laxmi Chand Vs. CAG
3. The respondents have entered appearance through their counsel. Reply has been filed separately for R1-2 & R3-4, Respondent no.1 & 2 in their reply statement have submitted that as per the CGHS rules, pensioners holding valid CGHS card are only eligible for reimbursement under CGHS for the treatment taken by them and their dependents during the validity period of CGHS Card. In the present case the applicant's wife's treatment w.e.f 22.10.2018 to 15.11.2018 was when he was holding the medical card issued by the Postal Department and prior to issue of CGHS Pensioner Card, i.e., on 06.04.2019. Hence he is not eligible for reimbursement from CGHS and prayed for dismissal of the OA. Respondent no.3 & 4 in their reply statement have submitted as per Rule No.(2) Note 2 (iv) of the Central Service (Medica! Attendance) Rules", the applicant, a retired employee is not eligibie for reimbursement. Further Para 2(ii) of Ministry of Communications (P&T Board) Lr.No.23-10/68 dated 20.01.1977 stipulates "Only outdoor medical treatment as available in the P & T dispensary from time to time will be provided. There will be no provision for reimbursement of medical charges of any kind irrespective of whether such charges were incurred during outdoor treatment on the advice of the dispensary doctor or not". Hence cited the said rules, his claim has rightly been rejected. Further, the Postal Dispensary, Tirunelveli is merged with Central Government Health Scheme as per the Department of Health & Family Welfare, New Delhi LrNo.S.11011/01/2016/CGHSIII/EHS dated 21.12.2018 communicated in Directorate letter dated 02.01.2019 & 23.01.2019 coomunicated through RO letter dated 30.01.2019 and taken over by Health Ministry and now () 4 OA $22/2019 functioning as CGHS Weliness Centre, Tirunelveli w.e.f 01.04.2019 and the applicant may be directed to submit his reimbursement of medical bills to the Additional Director/Joint Director of CGHS, Chennai through the Chief Medical Officer, CGHS Wellness Centre, Tirunelveli. Further they contended that the orders relied upon by the applicant In the OA is not applicable to him and hence prayed for dismissal of the OA,
4. The applicant in his rejoinder has stated that he and his wife earlier attached to the Postal dispensary became entitled to the CGHS facility w.e.f 19.07.2017 as per the orders of the 1* respondent dated 19.07.2017 wherein it was clearly mentioned that "the retired employees of Post and Telegraph department shall hereinafter, be entitled to the CGHS facility. The respondents cannot disown the retired officials to fate, especially when they are the Central Government servants whose counterparts In other Central Government departments are provided with the facillty of reimbursement on emergency treatments, when the issue involves Article 21 of the Constitution of India and prayed for allowing of the OA. In support of his claim, the applicant has relied upon the following judgments:
(i) Hon. High Court of Madras dated 29.09.2008 in Union of India Vs.R.Rangarajan
(ii) Hon.CAT Emakulam Bench dated 10.03.2017 in George M.S. Vs. Flag Officer
(iii) Hon. CAT Chandigarh Bench dated 23.10.2018 in Gainda Ram Vs. Department of Posts
(iv) Hon. High Court of Delhi dated 25.04.2006 in Promlesh Bhatnagar Vs. ESIC
(v) Hon. High Court of Delhi dated 12.03.2010 in Suraj Bhan Vs. Government of NCT, Delhi
5. The respondents in their additional reply to counter the rejoinder of applicant reiterated the averments made in the reply statement. To support their contention, the respondents have relied upon the judgment of the Hon. Delhi High Court dated 14.03.2008 in Dal Chand Vashisht Vs. Govt of NCT & Others and prayed for dismissal of the OA.
5 OA 822/2019
6. Heard both sides, perused the copy of the OA along with records and counter affidavit filed by the respondents as well as the judgments cited by both the parties.
7. It is to be noted that the applicant has retired from the Postal department. He was residing in a Postal dispensary covered area and was issued with Postal dispensary card No. PP 291 dated 07.04.2010. The applicant availed the benefit provided by the Postal dispensary, Tirunelveli which was a non-covered CGHS area till 2019 and therefore he was not a member of the CGHS. It is seen from the records that vide OM dated L9.07.2017, the Government of India, Ministry of Health & Family Welfare, Department of Health has made the CGHS facility entitled to the retired employees of Post and Telegraph Department the relevant portion of the OM read thus:
"The retired employees of Post and Telegraph Department shall hereinafter, be entitled to the CGHS facility, irrespective of whether they were members of CGHS prior to retirement or not, subject to the payment of prevalent subscription for availing themselves of this facility as per rules as in the case of other Central Government pensioners,"
The applicant cannot claim medical reimbursement under the CS(MA) Rules, 1944, since he is a retired Government employee. After 2017, the applicant is covered by the CGHS scheme and entitled for medical reimbursement under the CGHS scheme subject to Payment of prevalent subscription for availing themselves of the CGHS facility. It is also to be noted that the respondents by order dated 21.12.2018 included Tirunelveli along with other 32 cities for giving the benefits of CGHS scheme to all the serving/retired employees of the Postal Department and also directed by ietter dated 6 OA 822/2019 31.01.2019 formal take over of the said 33 Posta! dispensaries and the same shall be rechristened as CGHS Wellness centres.
8. it is relevant here to go into the various judgements relied upon by the applicant in support of his claim. The Hon'ble High Court of Madras in the matter of UOI Vs. R.Rangarajan vide judgment dated 29.09.2008, has observed thus:
7. As already indicated, the core question in all these writ petitions is reimbursement of medical expenditure incurred by retired Central Government employees including in the Department of Posts & Telegraphs.
33. We further direct that purely as a matter of legitimate expectation or even grace, if not as a matter of right, the claim for reimbursement made by various applicants should be allowed in the manner indicated by the Tribunal, as we feel the Tribunal by giving such directions has rendered substantial justice and, in exercise of jurisdiction under Article 226 of the Constitution, we are not inclined to interfere with such orders which have the effect of advancing the cause of substantial justice and which have the effect of abjuring the vice of discrimination between the retired Central Government employees who are covered under CGHS by fortunately and fortuitously residing in areas covered under CGHS and their less fortunate brethren who after retirement have settled down in places far away from the areas covered under the CGH Scheme. Such reimbursement should be effected within a period of sixty days from the date of receipt of the present order.
The question of any deduction required to be made towards contribution for availing the facility of CGHS., is left to the discretion of the concerned Department.
Also, the Central Administrative Tribunal, Ernakulam Bench in George M.S. Vs. Flag Officer vide order dated 10.03.2017 observed thus:
7. It is worth noting that in Annexure A8 order of the Ahmadabad Bench of this Tribunal it was held that the respondent Department shall reimburse the admissible amount of medical expenses claimed by the pensioner. In that case the applicant was a Deputy Postmaster who after his retirement suffered a severe heart attack and had to undergo coronary artery bye - pass surgery 7 OA 822/2019 and had incurred expenses of Rs. 1,60,736/-. In the order dated 3.4,.2013 the Ahmadabad Bench relied on a decision of the High Court of Gujarat in Union of India v. Prabhakar Sridhar Bapat SCA No. 3843 of 2004 wherein the claim for reimbursement of medical expenses of a retired employee of the Postal 'Department was allowed, confirming the decision of the Ahmadabad Bench of this Tribunal in OA No. 205 of 2003, When the matter was taken to the apex court in SLP, the Supreme court declined to interfere with the said judgment of the Gujarat High Court.
It is to be noted that the Central Administrative Tribunal, Chandigarh Bench in Gainda Ram Vs. Department of Posts vide order dated 23.10.2018 observed thus:
It is not in dispute that this Tribunal in para 26 of its decision has clearly held that import and applicability of CS (MA) Rules, 1944, and clarification dated 20.8.2004 were re- examined and were held to be arbitrary and illegal by the Hon'ble Punjab and Haryana High Court, leading case being CWP No. 26270 of 205 titled UNION OF INDIA & OTHERS VS. MOHAN LAL GUPTA & OTHERS, 20018 (1) SCT, 686. We have perused that decision.
In fact, the Hon'ble High Court also relied upon decision of Hon'ble H.P. High Court in the case of 'UNION OF INDIA AND ANOTHER VERSUS SHANKAR LAL SHARMA! reported as 2016(1) SCT 413, in which it was held that "Note 2 appended to Rule 1 is read down to extend the benefit of CS (MA) Rules, 1944 to retired Government officials residing in non-CGHS areas to save it from unconstitutionality and to make it workable". Despite, this the respondents did not woke up and kept on placing reliance on said decision to reject the claim of the pensioners / retirees 7, A similar claim has been allowed by this very Bench of the Tribunal in O.A. No. 060/00928/2018 titled J.K, KAPOOR VS. UNION OF INDIA & OTHERS, decided on 15.10.2018, and number of other cases as well.
8. After going through the pleadings available on record and on a thoughtful consideration of the matter, we are in agreement with the learned counsel for the applicant that his claim is squarely covered by the law laid down by this Court in the aforementioned decisions and by the Hon'ble Supreme Court in the case of SHIVA KANT JHA (supra).
i) 8 OA 822/2019 In the matter of Promlesh Bhatnagar Vs. ESI Corporation vide judgment dated 25.04.2006, the Hon'ble High Court of Dethi has observed thus:
14, In the background of this position of fact and law, inS.K. Sharma v. U.O.1., this Court held that a government employee does not cease to be a Central Government beneficiary merely because he is not covered by the C.G.H.S. scheme; that he cannot be discriminated against merely because he is not a member of the C.G.H.S, scheme as he is staying in a non-CGHS area and that expert effective approval could have been granted to the treatment and claim of the petitioner. A writ of mandamus was issued directing the respondent to examine the case of the petitioner for reimbursement of the medical expenses and to reimburse the same.
15. In the instant case, the husband of the petitioner was allotted the medical card, albeit a day before he expired. However, admittedly, the medical card was valid from 1st October, 2002.
The petitioner was constrained to seek voluntary retirement on health grounds on 17th September, 2002 and remained admitted in hospital from 12th September, 2002. He has been treated even in the E.S.1.C. hospital. Right to health is a constitutional right of a citizen of India and a retired beneficiary cannot be denied reimbursement of medical expenses only on the ground that he is not a card holder of the applicable scheme or has not made payment of some nominal amount. The respondents are possessed of the retiral benefits of the petitioner. Any amount which was due and payable to the petitioner's husband could have been notified to her. The quantification of the amount payable has not been placed even before the court. However, in view of the facts noticed in the judgments placed before this Court, undoubtedly, the amount is a notional amount. The petitioner, therefore, cannot be denied reimbursement for the hospital bills paid by the petitioner on account of treatment given to her deceased husband who was an employee of the respondent Corporation.
In the matter of Suraj Bhan Vs. Government of NCT, Delhi vide judgment dated 12.03.2010, the Hon'ble High Court of Dethi has observed thus:
8, It is quite shocking that despite various pronouncements of this Court and of the Apex Court the respondents in utter 9 OA 822/2019 defiance of the law laid down have taken a position that the pensioner is not entitled to the grant of medical reimbursement since he did not opt to become a member of the said health scheme after his retirement orbefore the said surgery undergone by him. !t 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 on the pretext that he has not opted to become a member of the scheme or had paid the requisite subscription after having undergone the operation or any other medical treatment. Under Article 2tof the Constitution of India, the State has a constitutional obligation to bear the medical expenses of Government employees while in service and also after they are retired. Clearly in the present case by taking a very inhuman approach, these officials have denied the grant of medical reimbursement to the petitioner forcing him to approach this Court. The respondents did not bother even after the judgment of this Court was brought to their notice and copy of the same was placed by the petitioner along with the present petition.
While delivering the judgment in R.Rangarajan (supra) , the Hon'ble High court has referred to the following judgments of the Hon'ble Supreme Court which are quoted as under:
(1996) 4 SCC 37 (PASCHIM BANGA KBET MAZDOOR SAMITY AND OTHERS v.
STATE OF W.B. AND ANOTHER) (1998) 4 SCC 117 (STATE OF PUNJAB & OTHERS v. RAM LUBHAYA BAGGA AND OTHERS) (2001) 9 SCC 217 (STATE OF PUNJAB & OTHERS v. MOHAN LAL JINDAL) AIR 1997 SC 1225 = (1997) 2 SCC 83 (STATE OF PUNJAB & OTHERS v. MOHINDER SINGH CHAWLA & OTHERS) (2006) 8 SCC 399 (CONFEDERATION OF EX-SERVICEMEN ASSOCIATIONS AND OTHERS v. UNION OF INDIA AND OTHERS)
9. On the other hand the respondents have placed reliance upon the judgment passed by the Hon'ble High court in Dal Chand Vashisht Vs. Government of Nct of Delhi & Ors on 14.03.2008 para 26 of the said judgment reads thus:
10 OA 822/2019"26. To be able to obtain the benefit of a scheme, it is essential that the person/claimant is a member of the said scheme. If the membership is automatic i.e. it comes with the status of the person, the person would be entitled to the benefits thereof, unless he expressly, or by his conduct evinces his intentions not to participate in the scheme - e.g. where he does not pay the subscription due from him. However, where has an option, - whether or not to subscribe to the scheme and the scheme is contributory and voluntary in character, he cannot claim any benefits under the scheme unless he exercises his option to get covered by the scheme and also takes the necessary steps by paying the subscription therefore."
The reliance placed by the respondents from the light of the observations made by the Hon'ble Delhi High court does not have force since the ratio of the judgments relied upon by the applicant is fully applicable in his case. The present case is squarely covered by the judgments cited by the applicant.
10. itis to be noted that though the respondents have taken the decision to extend the benefits of CGHS scheme to the retired employees in the year 2017, they themselves have delayed implementation of the said decision. The respondents cannot take advantage of their own wrongs. The fact that the applicant was not given any chance to choose the medical benefit provided even after 19.07.2017 when the respondents themselves have delayed the enforcement of the order dated 19.07.2017 and forced the applicant to pay the contribution of the Postal Dispensary upto 31.03.2019 cannot be denied. As observed by the Hon'ble High Court of Delhi in the matter of | Promiesh Bhatnagar Vs. ESI Corporation vide judgment dated 25.04.2006, " Right to live is a Constitutional! right to a citizen of India and retired official cannot be denied reimbursement of medical expenses oniy on the ground that he is not a card holder of the applicable scheme or has not made payment of some nominal amount". Therefore, in our considered li ; OA 822/2019 opinion, the applicant's case is squarely covered by the judgments cited above. Hence we observe thus:
(i)The order passed by the 4" respondent dated 20.02.2019 is bad in law and hence the same is hereby quashed and set aside.
(ii)The respondents no: 2,3 & 4 are directed to consider the claim of the applicant dated 11.02.2019 and reimburse as per rules, the admissible portion of the expenditure of Rs.5,58,843 incurred by the applicant towards the indoor medical treatment of his wife from 22.10.2018 to 15.11.2018 by taking a formal subscription payment towards the said CGHS membership Cre.
(iii)The above said exercise shall be completed within a period of three months from the date of receipt of a certified copy of this order ii. The OA is allowed. No order as to costs.
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