Jammu & Kashmir High Court
Khudmukhtar Dev vs State Of J&K And Ors on 28 April, 2022
Author: Sindhu Sharma
Bench: Sindhu Sharma
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
OWP No. 839 of 2015
IA No. 01 of 2015
Pronounced on: 28.04.2022
Khudmukhtar Dev .... Petitioner(s)
Through:- Mr. Anuj Dewan Raina,
Advocate
V/s
State of J&K and ors. .....Respondent(s)
Through:- Mr. Raman Sharma, AAG for
R-1, 3 & 4
Mr. K. D. S. Kotwal, Dy.AG for
R-2
CORAM : HON'BLE MRS. JUSTICE SINDHU SHARMA, JUDGE
JUDGMENT
01. The petitioner has assailed the impugned Communication No. Home/PB-III/Treat-107/2013/2318 dated 15.04.2014, issued by the respondent No.1 who rejected the proposal for grant of post facto sanction for medical reimbursement claim of the petitioner.
02. Petitioner was working as an Inspector in the J&K Police Department and he became unwell while in service and approached the Doctor on duty in Government District Hospital, Udhampur on 10.01.2013 for examination and treatment. The Doctor after examining prescribed him medicines for indigestion and gastric ailment. As the prescribed treatment offered no relief to the petitioner and as his health condition further deteriorated, he sought consultation from Doctor Vijay Gupta, Physician at Jammu, on 14.01.2013, who after examining, prescribed certain medicines to him and also advised him to take 2 OWP No. 839 of 2015 consultation from an expert Cardiologist. As there was no improvement in the petitioner‟s health, he went outside the State of J&K for check-up and consultation from a Cardiologist in Medanta Medicity Private Hospital Gurgaun, Haryana.
03. The Consultant Cardiologist at the Hospital Dr. Balbir Singh examined the petitioner and after considering his medical conditions, immediately advised him to get admitted. The petitioner was advised Coranary Angiography on 22.1.2013 and thereafter, as emergency procedure CRTD (Combo) Devise implantation was undertaken. The petitioner submits that under these compelling circumstances which were beyond his control, he underwent heart surgery more particularly Coranary Angiography on 22.01.2013 & CRTD (Combo) Devise implantation i.e., Pace-maker which was implanted on 23.12.2013. This procedure was undertaken in an emergency in view of the fact that the heart function of the petitioner was reduced to 25%.
04. The petitioner, thereafter, moved an application for reimbursement of his medical expenses which was incurred by him on his treatment in the aforesaid hospital. The case of the petitioner was duly processed by respondent No. 4 and was submitted to respondent No. 3, who after examining all the documents, recommended the case of the petitioner and sought accord of post facto sanction for release of medical reimbursement for the treatment undertaken outside the State in relaxation of Rules by respondent No. 1. The relevant extract of the communication dated 27.11.2013 is reproduced as under:-
".........In this regard, I am directed to request that post facto sanction for treatment in favour of the Inspr. Khudmukhtar Dev, PID No. EDJ956479 of SKPA Udhampur outside the 3 OWP No. 839 of 2015 State at Medanta-The Mendacity, New Delhi in relaxation of medical rules may kindly be accorded and communicated to PHQ."
05. The respondent No. 1, however, returned the case of the petitioner vide communication dated 15.04.2013, with the findings that "the case has been examined and found devoid of merits". Finance Department conveys regrets to the petitioner. The petitioner is aggrieved of this impugned communication of rejecting his case for medical reimbursement without considering the fact that same was undertaken in an emergency procedure to save his life.
06. The respondents in their objections have stated that the certificate by the authority as defined under Rule-6 and 6-A of the J&K Civil Services (Medical Attendance and Allowance) Rules, 1990, (for short, „the Rules‟) is condition precedent for reimbursement of medical expenses and in absence whereof, no medical reimbursement is allowed by the Government. It was also stated by the respondents that since petitioner had taken treatment from the private hospital outside the State which has not been empanelled under Rule-6-A of the Rules, therefore, the claim of the petitioner was rejected by the competent authority.
07. It is admitted by the answering respondents that they had recommended the case of the petitioner for reimbursement of medical expenses of Rs. 8,39,212/- incurred for grant of post facto sanction in relaxation of Rules. They had also sought allotment of funds vide letter dated 20.08.2013 and 02.11.2013 in relaxation of Rules but the same was rejected by the competent authority i.e., respondent No. 1. It is also 4 OWP No. 839 of 2015 submitted that medical reimbursement cost be done on the recommendation of the Director Health Services of the State. The treatment of the petitioner was at outside the Sate and he has been denied relaxation in terms of Rule 6(5).
08. In terms of the said rule, a Government employee can take treatment outside the State only if he falls ill suddenly and is advised admission in a hospital if there is any emergency and the same is certified by the competent authority.
09. There is no denial to the averments that the petitioner was suffering from ill health and went outside the State for seeking consultation as recommended by his physician. It was only during the examination, it transpired that the heart function of the petitioner was reduced only to 25% i.e., an emergency procedure and angiography was done, thereafter, an implantation of pace maker was undertaken. The petitioner‟s case was duly recommended by respondent No. 3 and then considered by respondent No. 4, who had recommended for grant of post fact sanction for medical reimbursement in relaxation of Rules.
10. The Jammu and Kashmir Civil Services (Medical Attendance and Allowance) Rules, 1990 provides for reimbursement of the amount spent on treatment by the hospital authorities within or outside the State. This include the cost of drugs and other expenses. Rule 6 of the Rules being relevant is reproduced below:
"6. Treatment outside the State (1).................
(2).................
(3).................
(4).................5 OWP No. 839 of 2015
(5) Where a beneficiary resides temporarily outside the State and falls ill there suddenly and is advised admission in a hospital, he will, on production of necessary vouchers and certificates, be allowed reimbursement of hospital charges including cost of drugs and charges for investigations, provided it is recommended by the Director Health Services of the State after being satisfied that the beneficiary had suddenly fallen ill outside the State where he resided temporarily and was not already suffering from it before his departure from his home town. The Director Health Services will certify that drugs and services charged for are reasonable and the beneficiary could not wait for treatment in his home town."
Thus, the petitioner‟s case is covered under Rule 6(5), therefore, the same had been rightly recommended by the respondent Nos. 2 & 3.
11. It may be pointed out that the government is vested with the powers to dispense or relax with the requirement of any rule to the extent, any hardship is caused to any person. Rule 8, Sub-rule (ii) reads as under :
"8. Right of change or interpretation etc.
(i) The Government reserves to itself the right of changing or cancelling the rules in these regulations from time to time at its discretion and of interpreting their meaning in case of dispute.
(ii) Power to relax. -- Where the Government is satisfied that the operation, if any, of these rules has caused undue hardship in particular case, it may by order for reasons to be recorded in writing, dispense with or relax the requirements of that rule to such extent and subject to such exception and conditions as it may consider necessary for dealing with the case in a just and equitable manner:6 OWP No. 839 of 2015
Provided that no such order shall be made except with the concurrence of the Finance Department.
12. On perusal of the aforesaid Rules, it is clear that the petitioner can take treatment in a hospital outside the State, if there is an emergency and the same is certified by the competent authority. The Government has also vested with the powers to grant relaxation to rigor of the Rules, if there is a technical violation. The scheme for payment of medical reimbursement is required to be interpreted liberally in favour of the Government employee and not be used in way of denying the genuine scheme of the employee. All the respondents have admitted that the treatment undertaken by the petitioner is genuine and they have also accepted that it was emergency procedures, therefore, the same could be relaxed in favour of the petitioner as recommended by respondent No. 3.
13. The Hon‟ble Apex Court in Surjit Singh vs. State of Punjab & ors., (1996) 2 SCC 336, has held as under:-
"It is otherwise important to bear in mind that self preservation of one's life is the necessary concomitant of the right to life enshrined in Article 21 of the constitution of India, fundamental in nature, sacred, precious and inviolable. The importance and validity of the duty and right to self- preservation has a species in the right of self defence in criminal law."
14. In „State of J&K v. Sakhi Willayat', (2004) 3 JKJAS 412, it has been held as under:
"9. Upon consideration of the merits of the case apart from the legal provisions, we are of the view that such type of cases are required to be dealt with by the appellants with 7 OWP No. 839 of 2015 element of human approach. To meet such situations, rule 8 can be the pressed into service.
10. In the present case, we have seen that doctor of the premier Institute of the State has advised the respondent to take his son immediately for his treatment to England. Had he waited for prior permission/ sanction of the Government, the consequences may have been disastrous and the purpose would have been defeated. There would have left nothing at the end if not cured immediately as advised. The rules cannot be interpreted to operate harshly in such emergent cases. Mr. Magray, learned counsel for the appellants has submitted that the claim of the respondent has not yet been considered and the reimbursement whatever claimed by the respondent has been directed to be paid by the learned Single Judge. His specific submission is that the appellants on consideration may find out that the amount claimed may vary. Accepting his plea, we direct the appellants to consider the medical claim of the respondent vis-a-vis Rule 8 of the Rules for its reimbursement. The appellants will consider the claim of the respondent within a period of four months as prayed for by the learned counsel for the appellants."
15. There was no reasonable time or an opportunity for the petitioner to take sanction or a referral when his health was in such a critical stage and, as such, pace maker was implanted, thus, the rejection of the re-imbursement claim of the petitioner is held to be not in accordance with law.
16. In view of the aforesaid, this petition is allowed and communication dated 15.04.2014 is quashed. The respondents are directed to reimburse the expenditure incurred by the petitioner on his treatment at Medanta Medicity Private Hospital Gurgaun, Haryana as 8 OWP No. 839 of 2015 recommended by respondent No. 3 in his favour subject to his furnishing of bills within a period of three months from the date a copy of this order is made available to the respondents concerned by the petitioner.
(Sindhu Sharma) Judge JAMMU 28 .04.2022 RAM MURTI Whether the judgment is speaking : Yes/No Whether the judgment is reportable : Yes/No