Central Administrative Tribunal - Ernakulam
K K Vamanan vs Health And Family Welfare on 21 February, 2025
1
CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH,
ERNAKULAM
Original Application No. 180/00672/2022
Friday, this the 21st day of February, 2025
CORAM:
Hon'ble Mr. Justice Sunil Thomas, Member (J)
K.K. Vamanan, Rted JE (civil),
Andaman Public Works Department,
Kannassoril House,
Valiapallenthruth,
Chendamangalam PO,
Ernakulam, Pin - 683512,
Kerala. ..... Applicant
(By Advocates : Mr. V.K. Sathyanathan & Mr. Vinod K.C.)
Versus
1. Union of India, represented by its Secretary,
Ministry of Health & Family Welfare,
Nirman Bhavan, New Delhi - 110 011.
2. The Director, Central Government Health Scheme,
Nirman Bhavan, New Delhi - 110 001.
3. Chief Engineer, Office of the Chief Engineer,
Andaman Public Works Department,
Andaman and Nicobar Administration,
Nirman Bhavan, Port Blair, Pin - 744 101. ..... Respondents
(By Advocate : Mrs. O.M. Shalina, SCGSC)
SEBASTIAN ANTONY 2025.02.21 13:40:24+05'30'
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This Original Application having been heard on 05.09.2024, the
Tribunal on 21.02.2025 delivered the following:
ORDER
Per: Justice Sunil Thomas, Judicial Member -
The applicant retired as a Junior Engineer (Civil), from the Andaman Public Works Department. After retirement, he settled in North Paravur in Ernakulam District. According to the applicant, that area did not fall under the Central Government Health Scheme (CGHS for short) and the nearest CGHS covered city was Trivandrum, which was at a distance of 225 kilometres. He claimed that, accordingly, CS(MA) Rules 1944 applied to him. He opted for Fixed Medical Allowance (FMA for short) in lieu of CGHS. Kochi which was the nearest city about 30 kilometres away from his place of residence, was brought under the coverage of CGHS, after a CGHS Welfare Centre was started at Kadavanthra, Kochi in 2020. However, he continued to stay in the non- CGHS covered area.
2. On 7.5.2022, the 24 year old son of the applicant, who was studying in Bangalore, sustained severe head injuries when the two wheeler in which he was riding as a pillion rider skid. He fell down and SEBASTIAN ANTONY 2025.02.21 13:40:24+05'30' 3 sustained severe head injuries. He claimed to have sustained, acute brain damage also. According to the applicant, the diagnosis report showed that the son sustained 'severe traumatic brain injury, left temporal EDH and thin Acute SDH with Mass effect and Uncal Herination Left clavicle fracture'. He was discharged after prolonged treatment, evidenced by Annexure A-2, the Discharge Summary. Annexure A-3 medical bill for a sum of Rs.18,07,596/- was submitted. According to the applicant, as per the Office Memorandum No.4-24/96-c&p/CGHS/CGHS(P) issued by the Government of India, Ministry/department of Health and Family Welfare dated 31.5.2007, the age limit for dependent children of Government servant and pensioners for availing medical facilities under the CGHS and Central Services (MA) Rules, 1944, was fixed as the age till he starts earning or attains the age of 25 years. The said O.M was produced as Annexure A-4.
3. Further, as per O.M No.4-24/96-c&p/CGHS/CGHS(P) issued by the Government of India, Ministry/Department of Health & Family Welfare dated 25.2.2009, it was clarified that married son is excluded from the criteria for dependent children of Government servant and pensioners for availing medical facilities under the CGHS and CS(MA) SEBASTIAN ANTONY 2025.02.21 13:40:24+05'30' 4 Rules, 1944, even if the age of the son was below 25 years. The O.M was produced as Annexure A-5. Annexures A-6, A-7 and A-8 were produced to show the date of birth of the applicant, that he was unmarried and that he was a student in a College at Bangalore.
4. The applicant submitted Annexure A-9 claim dated 21.7.2022 seeking medical reimbursement of medical bills under CGHS. It was rejected by Annexure A-10, on the ground that Government servant who are not registered under any CGHS scheme and are drawing FMA are eligible for medical claim till the date of retirement and hence, his claim was not admissible.
5. Aggrieved by the above, the applicant has approached this Tribunal seeking the following reliefs:
"(i) Set aside Annexure A-10.
(ii) Issue directions to the respondents to pay the full
reimbursement amounting of Rs.18,07,596/- (Rupees Eighteen Lakhs Seven Thousand Five Hundred and Seventy Six) as per the medical bills submitted by the applicant vide letter dated 21.7.2022, with interest @ 12%."
6. Respondents Nos.1 and 2 Ministry of Health and Family Welfare and Director, CGHS and the 3rd respondent Andaman PWD filed SEBASTIAN ANTONY 2025.02.21 13:40:24+05'30' 5 separate, but similar reply statements raising identical contentions. Respondent Nos. 1 and 2 contended that by virtue of Central Civil Service (Medical Attendance) Rules, 1944, pensioners are not covered by the Rules. However, CGHS facilities are available to Central Government Employees and pensioners since its inception. However, retirees of Union Territories are not Central Government employees though they draw salary and pension from the Central Civil Estimate. It was contended that on retirement, the applicant opted for Fixed Medical Allowance (FMA) in lieu of the benefits under the CGHS. Hence he was not a CGHS beneficiary. Consequently respondent Nos. 1 and 2 are not necessary parties to the Original Application and no relief can be sought against them.
7. Third respondent contended that Central Services (Medical Attendance) Rules, 1944 are not applicable to retired Government servants and their dependent children. It was claimed that at the time of retirement, government servants are given the option to subscribe to CGHS and to enlisting in CGHS hospital for availing medical treatment at highly discounted rate or in lieu of Fixed Medical Allowance. The applicant opted for the latter and hence not entitled for the benefits under SEBASTIAN ANTONY 2025.02.21 13:40:24+05'30' 6 the CGHS. Applicant had not availed CGHS benefits and is outside the purview of CS(MA) rules, 1944, being a pensioner. Optional facilities of medical benefits available to the pensioner are described in O.M. No. 14028/30/2022-EHS dated 12.09.2022, a copy of which was produced as Annexure R-1(A). Only those who are entitled to and subscribed to the benefits alone will get the benefits under the said O.M. Since the applicant had not registered in the nearby CGHS, he could not have availed medical facilities and consequently not entitled for reimbursement. His claim for reimbursement was justifiably rejected in the above circumstances, it was contended.
8. Heard both sides. Examined the records.
9. The essential facts are not in dispute. There is no dispute that the sone of the applicant met with the accident. It is also not disputed that he had undergone treatment and incurred expenses. The fact that he is unmarried, less than 26 years and is a dependent of the applicant is also not in dispute. It is also not in dispute that applicant was enjoying the benefit of FMA.
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10. The contention of the learned counsel for the applicant was that he was entitled for reimbursement, legally. To substantiate the same, the applicant heavily relied on O.M. No.S14025/4/96/MS dated 05.06.1998 issued by the Ministry of Health and Family Welfare. The applicant also relied on a Division Bench decision of the Central Administrative Tribunal, Chandigarh Bench in Dharminder Sharma v. Union of India - O.A No. 060/00737/2015 and connected cases, wherein similar cases were jointly heard and disposed of by a common judgment. The applicant further relied on the decision of the Hon'ble Supreme Court in Sivkant Jha v. Union of India [WP(Civil) 694/2015] decided by the Supreme Court on 13.04.2018.
11. Before analysing the legal issues, it is essential to refer to O.M No. 14025/96-MS dated 05.06.1998, relied on by the applicant. The relevant part of the above O.M is extracted as follows:-
"Extension of CS (MA) Rules, 1944, to pensioners residing in areas not covered by CGHS.
The undersigned is directed to refer to the Department of Pension and Pensioners' Welfare O.M No. 45/74/97-PP&PW(C), dated 15.4.1997 on the above subject and to say that it has been decided by the Ministry that the pensioners should not be deprived of medical facilities from the Government in their old age when they require them most. This Ministry has, therefore, no objection to the extension of the CS (MA) SEBASTIAN ANTONY 2025.02.21 13:40:24+05'30' 8 Rules to the Central Government pensioners residing in non-CGHS areas as recommended by the Pay Commission. However, the responsibility of administrating the CS (MA) Rules for pensioners cannot be handled by CGHS. It should be administered by the respective Ministries/Departments as in the case of serving employees covered under CS (MA) Rules, 1944. The Department of Pension and Pensioners' Welfare would need to have the modalities worked out for the implementation of the rules in consultation with the Ministries/Departments prior to the measure being introduced to avoid any hardships to the pensioners. The pensioners could be given a one- time option at the time of their retirement for medical coverage under GGHS or under the CS (MA) Rules, 1944. In case of a pensioner opting for CGHS facilities, he/she would have to get himself/herself registered in the nearest CGHS city for availing of hospitalization facilities. In such cases, the reimbursement claims would be processed by the Additional Director, CGHS of the concerned city. For those opting for medical facilities under the CS (MA) Rules, the scrutiny of the claims would have to be done by the parent office as in the case of serving employees and the payment would also have to be made by them. The list of AMAs to the appointed under CS (MA) Rules would be decided Ministry/Department-wise as provided under the rules. The beneficiaries of the CS (MA) Rules, 1944, would be entitled to avail of hospitalization facilities as provided under these rules. The Department of Pension and Pensioners' Welfare are requested to take further necessary action in the matter accordingly."
12. Based on the above, it was vehemently contended by the learned Counsel for the applicant, that by virtue of the above OM, CS(MA) Rules were extended to the Central Government Pensioners residing in non- CGHS area as recommended by the Pay Commission. Accordingly, he claimed that though he being a pensioner was outside the purview of CS(MA) Rules, since he was residing in a non-CGHS area by virtue of SEBASTIAN ANTONY 2025.02.21 13:40:24+05'30' 9 the OM he was entitled for the benefit and their medical reimbursement is liable to be granted.
13. In this context, it is pertinent to note that applicant is residing at North Paravur in Ernakulam District and a CGHS Wellness Centre had started at Kadavanthra, Ernakulam in the year 2020, which was claimed to be at a distance of 30kms from the CGHS Wellness Centre. Hence, he claimed that he remained outside the non-CGHS covered area. In this context, he referred to the said O.M and contended that by virtue of the said O.M, he was entitled for the benefit and the medical claim ought not to have been rejected by the Competent Authority.
14. On the other hand, the stand taken by the respondents was that the said O.M did not in principle extend the benefit of CS(MA) Rules to non- CGHS area. It was submitted that regarding the recommendation of the 5th Central Pay Commission to extend CS(MA) Rules, 1944 to Central Government Pensioners residing in areas not covered by CGHS, the opinion of Ministry of Health and Family Welfare was sought. The above OM conveyed only the reply in response to the query made by the DoP&T. It was only a communication between these two departments.
SEBASTIAN ANTONY 2025.02.21 13:40:24+05'30' 10 However, the O.M was misinterpreted by some pensioners as final OM of the Government of India to extend CS(MA) Rules to pensioners. This was wrongly acted upon, by various Courts and Tribunals and granted reliefs to some applicants, it was contended.
15. In this context, O.M No. 14025/4/96-MS dated 20.08.2004 issued by the Ministry of Health and Family Welfare was relied on by the SCGSC. A copy of it was made available by the learned SCGSC at the time of hearing. The relevant portion of the said O.M is extracted as follows:-
"Sub: Clarification on the views of the Department on recommendation of the 5th Central Pay Commission on extension of CS (MA) Rules, 1944 to central Government pensioners residing in areas not covered by CGHS.
The CS (MA) Rules, 1944 is not applicable to the central Government pensioners. The 5th Central Pay Commission had recommended extension of CS (MA) Rules, 1944 to the Central Government pensioners residing in the areas not covered by CGHS. On a reference received from the Department of Pension and Pensioners Welfare on this subject, the response of the Department of Health had been conveyed through the OM. No. S. 14025/4/96-MS dated 5.6.1998. The response of this Department was that it did not have any objections to the proposal of extension of CS (MA) Rules, 1944 to Central Government pensioners residing in non-CGHS areas as recommended by the 5th Pay Commission, subject to the condition that the responsibility of administering the CS (MA) Rules, 1944 for pensioners would be of the Departments/Ministries concerned. The said O.M. dated 5.6.1998 was in reply to a reference in O.M. No. 45/4597 PP&PW (C) dated 15.4.97 from the Department of Pensioners and Pensioners' Welfare. After that also communication between these SEBASTIAN ANTONY 2025.02.21 13:40:24+05'30' 11 two Departments had continued on this subject. In fact in a subsequent O.M. of the same number dated 12.1.1999, the views of all the Ministries/Departments of the Government of India had been sought before a final decision could be taken. But unfortunately, the O.M dated 5.6.1998 has been misinterpreted by some pensioners as the final order of the Government of India to extend CS (MA) Rules, 1944 to pensioners. A lot of avoidable litigation has already taken place, because some pensioners have obtained favourable orders from various Courts/Tribunals on the basis of the said O.M dated 5.6.1998. It is therefore considered necessary to clarify unequivocally that the OM dated 5.6.1998 was not intended to be a final order extending the applicability of CS(MA) Rules, 1944 to pensioners. In fact, it is not possible for any individual department to take such policy decisions without obtaining views of various departments, and particularly, the Department of Expenditure. Such being the case in the process of examining the recommendations of the 5th Pay Commission on this issue, the Department of Expenditure has categorically said that in view of huge financial implications, it is not feasible to extend CS(MA) Rules, 1944 to pensioners. Therefore, any interpretation based on the O.M dated 5.6.98 of this Department that the pensioners once come within the purview of the CS(MA) Rules, 1944 is wholly misplaced."
16. The above OMs were referred to by the Central Administrative Tribunal, Chandigarh Bench in Darmendra Sharma v. Union of India (O.A No. 737/2015) (supra). It was held that the subsequent O.M dated 20.08.2004 was an afterthought and hence no reliance can be placed on it. The Tribunal proceeded to grant the benefit on the strength of O.M dated 05.06.1998, on a premise that even OM dated 5.6.1998 posits that CS(MA) Rules, 1944 would apply to retired employees as well. It was pointed out that the above order was challenged before the Punjab and Haryana High Court in Principal Accountant v. CAT, Chandigarh in SEBASTIAN ANTONY 2025.02.21 13:40:24+05'30' 12 CWP No. 26841 of 2018. It was dismissed relying on an earlier decision of the same High Court in Mohinder Singh v. Union of India & Anr. [(2008) 2 SCT 239], in which it was held that applicants therein were retired employees and CGHS benefits was not available in most of the areas. It was confirmed by the Hon'ble Supreme Court in Principal Accountant General (A&E), Haryana v. Dharminder Sharma in SLP (Civil) Dy. No. 33056/2019 by order dated 14.10.2019.
17. The learned counsel for applicant relied on the decision of this Bench in Mariyamma C. Koshy v. Union of India (OA No. 1084/2017) and other Bench decisions in Ramji Lal Sharma v. Union of India & Ors. (OA No. 517/2012, CAT, Jaipur Bench), Uma Shankar Vyas v. Comptroller & Auditor General Ors. (OA No. 991/2018 CAT, Jabalpur Bench), Meenu Malik v. Union of India & Ors. (OA No. 157/2022, CAT, Chandigarh Bench), Union of India v. Kapilraj J. Upadhyay (Special Court Application No. 17502/2022, High Court of Gujarat), Balakrishnan V. v. Union of India & Ors. (OA No. 959/2019, Ernakulam Bench), Gyan Chand v. Union of India & Ors. (OA No. 421/2016, Jodhpur Bench), and Pravinchandra Adhia v. Union of India SEBASTIAN ANTONY 2025.02.21 13:40:24+05'30' 13 & Ors. (OA No. 358/2021, Ahmedabad Bench) which took similar views in favour of applicants who were retired employees.
18. The learned counsel for applicant further referred to the decision of Gujarat High Court in Union of India v. Prabhakar Sridhar Bapat (Special Civil Application No. 3843/2004) and Kapilraj J. Upadhyay's case (supra). In the former decision, it relied on an earlier decision in Union of India v. S.Y. Ganpule (SCA No. 9704/2002), which allowed the claim of a retired employee on a premise that OM dated 5.6.1998 holds the field and allowed the claim. The decision of the Bench in Prabhakar Sridhar Bapat's case (supra) was challenged by the Union of India in SLP (Civil) No. 10659/2005 before the Supreme Court, which dismissed the Special Leave by order dated 3.4.2012 in Union of India v. Prabhakar Sridhar Bapat. It was followed in Kapilraj J. Upadhyay's case (supra), which again relied on a judgment of the Division Bench of Madras High Court in Union of India v. R. Rangarajan (CWP No. 32770/2004), produced as Annexure A15. SLP challenging it was dismissed by the Supreme Court by order dated 21.4.2017 in Union of India v. R. Rangarajan [SLP(C) No. 17584/2009], produced as Annexure A16.
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19. A perusal of the O.M dated 05.06.1998 clearly shows that it was in the form of an opinion of the Ministry of Health and Family Welfare in response to the communication of Department of Pension and Pensioners Welfare. After referring to the said communication of Department of Pensions, it was stated by the Ministry of Health and Family Welfare that they have in principle no objection in accepting the Pay Commission recommendations. However, it was cautioned that it should be administered by the respective Department/Ministries as in the case of serving employees covered under CS(MA) Rules, 1944. It further stated that consequently, Department of Pension and Pensioners' Welfare would need to have the modalities worked out for implementation of the Rules in consultation with the Ministries/Department prior to the measures being introduced to avoid hardship to the pensioners. These observations in the said O.M clearly shows that the concerned Ministry only conveyed its concurrence in implementing it, subject to further steps to be taken for working out the modalities and for implementation of the Rules. Clearly, it was not a decision of the Ministry. Further the appropriate decision for extending the benefit to pensioners was with the Department of Pension and Pensioners' Welfare. This is further clear from the last sentence in SEBASTIAN ANTONY 2025.02.21 13:40:24+05'30' 15 the said OM by which the Department of Pension and Pensioners' Welfare was requested to take further necessary action in the manner. This clearly shows that it conveyed only the opinion of that Ministry in response to the communication of the Department of Pension and Pensioners' Welfare. After disclosing the modalities, which were to be further clarified, it was requested that Department of Pension and Pensioners' Welfare may take further action in that regard. This, by itself clearly indicated that it was not a decision to extend the benefit of CGHS, but only conveyed the opinion of the concerned Ministry. This has been correctly conveyed in subsequent OM dated 20.08.2004 of the Ministry of Health and Family Welfare.
20. The question whether Central Government pensioners were entitled for reimbursement of expenses incurred for medical treatment was directly the subject matter in Union of India v. Gopalakrishnan (2006 KHC 1801). In the said proceedings, OM dated 5.6.1998 was produced as Annexure A3 and the OM dated 20.8.2004 was produced as Annexure A4. Answering the issues involved, the Division Bench held as follows:
5. It is true that there was a recommendation by the Fifth Pay Commission to extend the benefit of CS(MA) Rules to the Central Government Pensioners. But the recommendation, as such, will not confer a benefit. Consequential follow up order is required. The SEBASTIAN ANTONY 2025.02.21 13:40:24+05'30' 16 respondents were unable to point out any such order implementing the recommendation of pay commission except Annexure-A3. A close reading of Annexure-A3 will reveal that it did not contain any order implementing Pay Commission recommendation, obviously because Health Ministry could not have done so. On the other hand, Annexure-
A3 only convey 'No Objection' of the Health Ministry in implementing the scheme with the reservation that they are prepared to implement it only in respect of the area covered by the CGHS scheme and extension of benefit of CS(MA) Rules shall have to be considered by the independent department from where the pensioners retired on superannuation. Apart from that Annexure-A3 did not contain any order. Necessarily, no department or office could have taken Annexure- A3 as an order extending the benefit of CS(MA) Rules. It is one yet to be passed by the appropriate ministry of Central Government. It was in the above circumstances, to clarify the position, Annexure-A4 was issued. The extract given above from Annexure-A4 was issued. The extract given above from Annexure-A4 will reveal that Annexure-A3 is no longer in force. Necessarily, after the issuance of Annexure-A4 nobody could have claimed the benefit of CS(MA) Rules.
6. The contention of the discrimination also cannot be accepted because CGHS scheme is a different scheme as compared to the CS(MA) Rules. CGHS scheme is available only in notified areas like certain important cities. There is real nexus for covering the persons in important cities alone. Therefore, when there is such nexus for implementation CGHS, and implementation and extension of CS(MA) Rules is on a different footing, Article 14 cannot be pressed into service any more."
21. A cumulative reading of the both the O.Ms, in the light of above judgment of the High Court of Kerala, clearly indicate that the contention of the applicant as well as the observation of the CAT, Chandigarh Bench and the various decisions relied on by the applicant, that O.M dated 05.06.1998 is binding and that after having implemented it extending the benefits to non-CGHS covered area of CS(MA) Rules, it cannot be SEBASTIAN ANTONY 2025.02.21 13:40:24+05'30' 17 unilaterally withdrawn by O.M. dated 20.08.2004, cannot be accepted. Monetary reliefs in the form of reimbursement cannot be granted, in the absence of any enabling statutory provision. On the face of O.M dated 20.08.2004, it is clear that O.M dated 05.06.1998 did not extend the benefit of CS(MA) Rules to non-CGHS area and to pensioners in non- CGHS area. Hence, no relief can be granted on the basis of OM dated 5.6.1998.
22. The learned Counsel for the applicant placed heavy reliance on the decision of the Chandigarh Bench in Dharminder Sharma's case in O.A No. 737/2015. It seems that several Tribunals have followed that order. Detailed perusal of the said order produced as Annexure A-12 shows that all the applicants therein had availed Fixed Medical Allowance. They had not subscribed themselves to any Scheme under the CGHS by payment of due subscription. Their claims for medical reimbursement were rejected by the administrative authority on that precise ground. However, the Tribunal by a detailed order, held that merely because the applicants are residing in a non-CGHS covered area, the benefit of CGHS cannot be denied to them. The Tribunal referred to the principles of right to medical care and right to have a healthy life as a necessary corollary to right to SEBASTIAN ANTONY 2025.02.21 13:40:24+05'30' 18 life. The various decisions which also declared the right to medical facility as a facet of right to life were also referred to. The Tribunal also placed reliance on the decision in Sivkant Jha v. Union of India (AIR 2018 SC 1975), wherein the Hon'ble Supreme Court, after an evaluation of all the legal issues involved, held, that the medical claims were liable to be granted.
23. In the context of the above decision, the judgment of the five judges Bench of Supreme Court in Confederation of Ex-servicemen Associations & Ors. v. Union of India [(2006) 8 SCC 399] is relevant. The Confederation of ex-servicemen's Association approached the High Court seeking a direction to Union of India to recognize the right of full and free Medicare of ex-servicemen and their dependents, treating such rights as one of the Fundamental Rights guaranteed under the Constitution. It was contended that medical benefits were available to serving service personnel only. Discrimination of retired service personnel amounted to violation of Article 14 of the Constitution. Pending the Writ Petitions, it was informed by the Government that they have introduced "Ex-servicemen Contributory Health Scheme", by which medical facilities was extended to ex-servicemen on payment of SEBASTIAN ANTONY 2025.02.21 13:40:24+05'30' 19 contribution. That Scheme was also assailed on a premise that directing them to pay contribution was also discrimination. Rejecting all the contentions Supreme Court held:
"To get free and full medical facilities is not a part of the Fundamental Right of ex-servicemen. The policy decision in formulating contributory scheme for ex-servicemen is in accordance with the provisions of the Constitution and also in consonance of with the law laid down by the Supreme Court. Though the right to medical aid is a fundamental right of all citizens including ex-servicemen guaranteed by Article 21 of the Constitution, framing of scheme for ex-servicemen and asking them to pay "one-time contribution" neither violates Part III nor is it inconsistent with Part IV of the Constitution."
"The State has to cater to the needs of its employees - past and present. It has also to undertake several other activities as a "welfare"
State. In the light of financial constraints and limited means available, if a policy decision is taken to extend medical facilities to ex-defence personnel by allowing them to become members of contributory scheme and by requiring them to make "one-time payment" which is a "reasonable amount", it cannot be said that such action would violate the fundamental rights. The contributory scheme cannot be held illegal, unlawful, arbitrary or otherwise unreasonable."
"Classification between in-service employees and retirees is legal, valid and reasonable classification and if certain benefits are provided to in-service employees and those benefits have not been extended to retired employees, it cannot be successfully contended that there is discrimination which is hit by Article 14 of the Constitution. The two categories of employees are different. They form different classes and cannot be said to be similarly situated. There is, therefore, no violation of Article 14 if they are treated differently."
24. In the light of the above decision the conclusion arrived by the Chandigarh Bench in Dharminder Sharma's case (supra) on the premise that right to free medical aid is a Fundamental Right is not sustainable.
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25. The applicant, heavily relied on the decision of Sivkant Jha's case (supra) to contend that claim of pensioners are liable to be sanctioned on the basis of the observations made in the said case. Supreme Court had held as follows:
"13) 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 and Hospitals are established for treatment of specified ailments 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 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."
26. It is true that the Supreme Court has broadly upheld the duty to reimburse once the factum of medical treatment is established. This passage has been extensively relied on by various Benches to hold that whenever a pensioner establishes with support of medical SEBASTIAN ANTONY 2025.02.21 13:40:24+05'30' 21 bills that he has undergone treatment, full reimbursement is liable to be granted. Evidently, this observation has been culled out of context and applied, dehors, the relevant crucial facts. The applicant in Sivkant Jha's case was a retired CGHS beneficiary, having a CGHS card valid for life. His claim for reimbursement was granted substantially. Aggrieved by the refusal to sanction the full claim, applicant approached the Supreme Court claiming full reimbursement. His eligibility as a CGHS beneficiary was not disputed. The only question raised was whether he was entitled for full reimbursement. Hence, the above decision is not applicable to the facts of this case.
27. Assailing the above order, the learned SCGSC vehemently contended that in fact the Tribunal missed the original issue involved in the case. The question involved was whether a person residing in a non- CGHS area who had neither subscribed to the CGHS thereby availing the benefits to him nor has paid the subscription was entitled to the benefit of medical treatment or reimbursement of treatment undergone. Evidently, the various decisions relied by the applicant did not address that issue, it was contended.
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28. Relying on the extant CGHS guidelines, the learned SCGSC contended that the Central Government Pensioners residing in non-CGHS areas have three options. To substantiate it, the learned SCGSC placed reliance on Annexure R-1(A) which is an Office Memorandum dated 12.09.2022 issued by the Ministry of Health and Family Welfare. It stated that, as per Note-2 below Rule 2 of CS(MA) Rules, 1944, retired Government officials are not covered thereunder. However, as per extant CGHS guidelines, Central Government pensioners residing in non-CGHS area have the following options: -
"1. They can avail medical allowance FMA in lieu of OPD medical facilities under CGHS.
2. They can also avail the benefits of CGHS OPD and IPD by registering themselves in the nearby CGHS covered city after making the required subscription.
3. They also have the option to avail FMA for the OPD treatment and CGHS for IPD treatments after making required subscriptions as per the CGHS guidelines."
29. It is pertinent to note that this O.M is dated 12.09.2022. It is subsequent to the date of accident involving the son of the applicant. It was possible to contend that Annexure R-1(A) cannot be extended to the case at hand. However, a close perusal of Annexure R-1(A) clearly shows SEBASTIAN ANTONY 2025.02.21 13:40:24+05'30' 23 that it is only a reiteration of extant CGHS guidelines. The extant CGHS guidelines referred to in Annexure R-1(a) is available on record as Annexure A-15 dated 29.9.2016. Annexure R1(a) is only a reiteration of Annexure A15.
30. Annexure A-15 is the Office Memorandum dated 29.09.2016 issued by the Department of Health and Family Welfare. It referred to the reimbursement of medical claims to pensioners under CS(MA) Rules, 1944 as directed by various Courts and Tribunals. It is stated that various references were received in the Ministry of Health and Family Welfare on the question of reimbursement of medical claims of pensioners under the CS(MA) Rules. It was clarified that CS(MA) Rules, 1944 were not applicable to pensioners till date. However, it clarified the various options available to Government pensioners under two categories, those residing in CGHS covered area and those residing in non-CGHS area. The relevant portion of it is extracted as follows:-
"(a) Pensioners residing in CGHS covered area:
1) They can get themselves registered in CGHS dispensary after making requisite contribution and can avall both OPD and IPO facilities.
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2) Pensioners residing in CGHS areas cannot opt out of
CGHS and avail any other medical facility (i.e. Fixed Medical Allowance). Such pensioners, if they do not choose to avail CGHS facility by depositing the required contributions, cannot be granted Fixed Medical allowance in lieu of CGHS.
b) Pensioners residing in non-CGHS areas:
1) They can avail Fixed Medical Allowance (FMA) @
Rs.500/- per month.
2) They can also avail benefits of CGHS (OPD and IPD) by
registering themselves in the nearest CGHS city after making the required subscription.
3) They also have the option to avail FMA, for OPD treatment and CGHS for IPD treatments after making the required subscriptions as per CGHS guidelines."
31. This is reiterated in Annexure R-1(a). The first option is to avail said medical allowance in lieu of OPD facilities. The other option available to a pensioner was to avail benefits of CGHS OPD and IPD by registering themselves in the nearby CGHS covered city after making the required subscriptions. Clearly, by virtue of Annexure A-15, the applicant had the option to get himself registered in the nearby CGHS covered area by making required subscription. Not only that he did not get himself registered nor he paid the required subscription, on the other hand, he availed the benefit of Fixed Medical Allowance in lieu of the OPD facilities. Had he subscribed himself by paying the requisite fee, he would SEBASTIAN ANTONY 2025.02.21 13:40:24+05'30' 25 have been covered under the CGHS. Hence, he could have availed the benefits of OPD and IPD facilities and in extreme case of emergency avail medical facilities from non-empanelled hospitals and seek reimbursement. This would have justified the claim.
32. The contention of the learned Counsel for the applicant that the Wellness Centre is about 30kms away from his place of residence is inconsequential in the above circumstances and cannot be accepted as an excuse. If the contention of the learned Counsel for the applicant is accepted, the ultimate conclusion will be that every person, irrespective of whether he had subscribed to the CGHS as per Annexures A-15 and R- 1(a) or not, is entitled to get medical reimbursement for treatment done in emergency. There will be no distinction between a subscriber to the CGHS and a non-subscriber. It is fallacious to contend that without making the subscription, the applicant is entitled for the benefit under the CGHS. By failure to subscribe and to pay a nominal amount, he remains outside the coverage of CGHS benefit, both for OPD, IPD and treatment of in case of emergency. Definitely, the claim of the applicant is substantial. However, sympathy cannot be a substitute for legal requirement. When the statute demands that one person can avail the SEBASTIAN ANTONY 2025.02.21 13:40:24+05'30' 26 benefit only by subscribing, it would be doing injustice to such subscribers who have paid the subscription and got themselves enrolled, in obedience to Annexures A-15 and R-1(a).
33. This aspect has been considered by the learned Bench of this Tribunal in K.P. Joseph v. Union of India and others in O.A No. 172/2021 which had taken the view that without making subscription, one cannot get the benefit of reimbursement of treatment done in emergency. The position therein is exactly similar to the present case.
34. Having considered this, I am not inclined to grant the benefits sought for. The O.A fails and is accordingly dismissed. No costs.
(JUSTICE SUNIL THOMAS) JUDICIAL MEMBER "SA"
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Original Application No. 180/00672/2022
APPLICANT'S ANNEXURES
Annexure A1 - True copy of PPO.
Annexure A2 - True copy of diagnosis report and discharge summary
dated 27.5.2022.
Annexure A3 - True copy of medical bill dated 27.5.2022.
Annexure A4 - True copy of OM No. 4-24/96-c&p/CGHS/CGHS(P)
dated 31.5.2007.
Annexure A5 - True copy of OM No. 4-24/96-c&p/CGHS/CGHS
dated 25.2.2009.
Annexure A6 - True copy of birth certificate.
Annexure A7 - True copy of the certificate dated 24.9.2022 issued by
Village Officer, Paravoor.
Annexure A8 - True copy of student ID card issued by Christ College,
Bangalore.
Annexure A9 - True copy of application for medical claim letter dated
21.7.2022.
Annexure A10 - True copy of letter No. F. No. 53(28)/CE/PW/ES-
IV/2022-23/PF-III/3742 dated 16.8.2022 from APWD. Annexure A11 - True copy of the OM F. No. S.14025/14/2012-MS dated 11.6.2013.
Annexure A12 - True copy of the Hon'ble CAT, Chandigarh Bench's order dated 7.5.2018 in OA No. No. 060/00737/2015 & 29 others.
SEBASTIAN ANTONY 2025.02.21 13:40:24+05'30' 28 Annexure A13 - True copy of OM No. H.11022/01/2014-MS dated 15.7.2014.
Annexure A14 - True copy of this honorable tribunal order dated 11th Sep. 2018.
Annexure A15 - True copy of the OM dated 29.9.2016.
Annexure A15(a)- True copy of judgment of the Division Bench of honorable High Court of Judicature of Madras dated 29.9.2008 in Union of India Vs. R. Rangarajan & Ors. WP No. 32770 of 2004.
Annexure A16 - True copy of the judgment by the Hon'ble Supreme Court of India dated 21.4.2017 in Petition for Special Leave to Appeal (c) No. 17584/2009.
RESPONDENTS' ANNEXURES Annexure R1(A)-True copy of the OM No. S.14028/30/2022-EHS dated 12.9.2022 issued by the Ministry of Health & Family Welfare, Government of India.
-x-x-x-x-x-x-x-x-
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