Central Administrative Tribunal - Delhi
Dr. Ravi Pathak vs Union Of India Through on 30 March, 2009
Central Administrative Tribunal Principal Bench, New Delhi O.A.No.638/2008 Monday, this the 30th day of March 2009 Honble Shri Shanker Raju, Member (J) Dr. Ravi Pathak S/o Mr. Krishan Kumar Pathak Aged about 45 years R/o FC-125, Tagore Garden New Delhi-27 ..Applicant (By Advocate: Shri A.K. Behera) Versus Union of India through 1. The Secretary, Ministry of Health & Family Welfare Govt. of India, Nirman Bhawan New Delhi 2. The Secretary Ministry of Health & Family Welfare Govt. of India, Nirman Bhawan New Delhi 3. Medical Superintendent Deen Dayal Upadhyay Hospital Govt. of NCT of Delhi Hari Nagar, New Delhi ..Respondents (By Advocates: Shri S.M. Arif for respondent 1 Shri Aditya Chhibber for Ms. Jyoti Singh for respondents 2 & 3) O R D E R (ORAL)
Heard the learned counsel for the parties.
2. Right to life is protected as a fundamental right under Article 21 of the Constitution of India and in the context of medical treatment and reimbursement, more particularly, in respect of government servant, it is observed to be a right to live by the Apex Court in Surjit Singh v. State of Punjab, (1996) 2 SCC 336.
3. It is also trite that when sibling of a government servant, who is terminally ill, no passionate and loving parent would ever like to abandon the child to die on the premise that the disease is incurable. As long as person lives despite being terminally ill, he has a fundamental right to live with dignity and respect as per Article 21 of the Constitution. The Government has opened several cancer hospitals to treat patients, including government servants with impunity and all facilities. The object of the Government, in such cases, is to ensure that life of a person should be prolonged and the mortality rate goes up. However, the antithesis to it is the present case.
4. A government servant, a doctor by profession, impugns, by virtue of this OA, two orders dated 26.3.2007 as well as 5.9.2007 whereby his request to reimburse an amount of Rs.17,31,844.60 has been rejected on the ground that on a review by the Standing Committee in a meeting held on 3.11.2006, it has been decided that relapsed and refractory Acute Mycloid Leukemia (AML) after unrelated stem cell transplant carries a bad prognosis. The available treatment modalities in such a case are either repeated stem cell transplant or salvage chemotherapy. The success rate after such treatment is less than 5%. It is also decided that facilities for stem cell transplant / cord blood transplant are available in India.
5. Learned counsel would contend that earlier an amount of Rs.49,71,557.29 was approved and reimbursed to the applicant on the same treatment of his daughter and in the circumstances when even without taking any permission, he flew along with the daughter to Mount Elizabeth Hospital at Singapore where such a treatment is available.
6. Learned counsel for applicant draws my attention to the minutes of the Standing Committee held on 6.5.2005 where DG, ICMR, DG, AFMS, CMO (HA) and DS (ASK), MoHFW were the Members. It has been viewed that relapsed AML which has although a poor prognosis, stem cell transplantation is offered to this type of patients. Such facilities are available at CMC, Vellore, Tata Memorial Hospital, Mumbai, AIIMS, New Delhi and Armed Forces Medical College, Pune. Therefore, the Committee did not recommend for taking treatment abroad since such facilities are available in India. The Committee further noted that matched sibling donor, matched unrelated donor and matched unrelated Umbilical Cord Blood are not available at all in the Hospitals referred to above, as such, the unrelated Umbilical Cord Blood being available with Mount Elizabeth Hospital, Singapore, it was decided on recommendation for treatment of applicants daughter at Singapore along with one attendant.
7. In the above backdrop, it is stated that subsequent decision to reject the reimbursement, taking a different stand, is not in consonance with law, as the Committee has already meticulously decided that the treatment of this kind, i.e., stem cell transplantation, is only available at Mount Elizabeth Hospital, Singapore and not in other Hospitals, referred to above. This has never been doubted by the respondents. As such, it is stated that under changed circumstances, the decision to deny reimbursement to the applicant is not only cruel but also violating the fundamental right of government servant and his family to live.
8. On the other hand, learned counsel for respondents opposed the contentions and under instructions from the respondents apprised me of the minutes of the meeting where a decision has been taken to deny the claim of reimbursement, which is basically on the ground that being terminal illness and there are bleak chances of survival due to relapse stem cell transplantation. So it would not be possible to accede to the request of the applicant twice for the treatment of same disease.
9. I have carefully considered the rival contentions of the parties and perused the material on record.
10. The Tribunal not being an expert body, hence for an expert opinion, has to resort to the opinion expressed in the field by the experts. This is not in dispute that earlier having regard to the illness of applicants daughter, which was very serious and life threatening and for non-availability of the treatment, more particularly with unrelated Umbilical Cord Blood and stem cell transplantation, the reimbursement was allowed for a treatment taken at Mount Elizabeth Hospital, Singapore. However, on relapse of such a disease when the applicant has again applied for medical reimbursement, though the respondents have not doubted the illness of applicants daughter and the fact that such a treatment in peculiar circumstances was not available in India, has not been questioned or disputed in any manner the circumstances, which did exist earlier. As such the decision in review by the Standing Committee revoking their earlier decision without any logic, rationale and reasoning is not only arbitrary, inhuman but also runs counter to the guaranteed fundamental right under the Constitution of India to a citizen of this country. It is no more res integra that the deceased daughter of applicant, being a family member, was also a citizen of this country. She required treatment, which should have been provided being family member of the government servant, as per the methodology laid down and also the reimbursement of medical expenses as per rules. Denial of such a reimbursement is against the policy and also against the rules.
11. In a family of a government servant where one of the members is dying with a terminal illness, on denial of medical reimbursement, one cannot be hopeless, as ray of hope and miracle in the medical history are rampant. However, if the medical treatment is not administered, how could one reasonably expect such a miracle to take place, which would have to come through a methodology, i.e., the treatment imparted by the specialist in the hospital. If a government servant whose small daughter was terminally ill, on such an opinion on review, abandons his daughter to die, then we are indirectly brining in our society the concept of euthanasia, i.e., mercy killing. No father, lest a government servant, would abandon his child to die. Accordingly, the daughter of the applicant on being imparted treatment in the past at Singapore survived, a legitimate expectation and ray of hope has emanated in him that further treatment would cure his daughter. However, the daughter passed away as per Gods will. It does not mean that whatever expenditure incurred on the treatment of deceased daughter of the applicant shall be deprived to him on the premise that the disease was terminal with minimal surviving rate. The decision of the respondents is against all canons of humanity, sympathy, compassion and is also in flagrant violation of the Constitution of India. I am constrained to quote that there are instances where important persons of this country despite terminally ill have been allowed the treatment abroad and died later, yet this fact had never been kept in view. This hostile discretion is an antitheses to the principles of equality enshrined under Article 14 of the Constitution.
12. Resultantly, the grounds to reject the claim of the medical reimbursement to the applicant on an expenditure incurred on treatment of her deceased daughter cannot be countenanced in law. Impugned orders are set aside. Respondents are directed to reimburse the applicant an amount of Rs.17,31,844.60 as medical reimbursement within a period of two months from the date of receipt of a copy of this order. No costs.
( Shanker Raju ) Member (J) /sunil/