pinakin r leuva vs INDIA METEOROLOGICAL DEPARTMENT NEW DELHI on 8 October 2026

ORDER

Per: Hon’ble ShriSanjiv Kumar, Member (A)

1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act, 1985, challenging the Office Memorandum dated 22.11.2011 (Annexure A/1) issued by the Ministry of Health and Family Welfare relating to reimbursement of expenses incurred towards In-Vitro Fertilisation (IVF) treatment. The applicant has also challenged the communications/orders dated 03.01.2020, 10.01.2020 and 03.03.2022 whereby his claim for reimbursement of medical expenses amounting to Rs.5,65,000/- incurred towards treatment of his wife, including laparoscopic myomectomy and IVF treatment, was not accepted. The applicant has further sought a direction to the respondents to reimburse the said amount.

2. Brief facts of the case as stated by the applicant are as under: - 2.1 The applicant joined the respondent department on 13.11.1995 as Senior Observer at PBO Veraval. Subsequently, the posts of Senior Observer and Scientific Assistant were merged as Scientific Assistant, a Group-B post. In the year 2017, the applicant was promoted as Meteorologist-A and was working at the Meteorological Centre, Ahmedabad. During the period from August 2017 to July 2020, he was posted at Kandla. 2.2 The applicant got married in the year 2019. According to him, at the time of marriage he was 48 years of age and his wife, Smt. Lalitaben, was 44 years of age. As the couple faced difficulty in conceiving, they approached Dr. R.G. Patel at Ahmedabad, who advised IVF treatment. The applicant has stated that Kandla was not covered by CGHS and, therefore, his wife was taken to Ahmedabad for the treatment. P ANUKUMA

::3 ::

2.3 On 05.09.2019, the applicant’s wife underwent laparoscopic myomectomy at Sunflower Hospital, Ahmedabad. Thereafter, she underwent IVF treatment. A certificate issued by Sunflower Hospital dated 07.11.2019 recorded the treatment undertaken by her, including laparoscopic myomectomy and one cycle of IVF. 2.4 On 16.12.2019, the applicant approached the respondent department seeking permission for the treatment of his wife. Since he was posted at Kandla, his application was sent directly to the Director General of Meteorology at New Delhi. Subsequently, on 22.04.2020, the applicant submitted a representation explaining that the application had not initially been forwarded through the proper channel and expressed his apology. 2.5 On 10.01.2020, the office of the Director General of Meteorology informed the Regional Meteorological Centre, Mumbai and the Meteorological Office, Kandla to process the case in accordance with the Office Memorandum dated 22.11.2011 and the applicable CGHS/CS(MA) Rules. 2.6 On 06.08.2021, the applicant’s wife delivered twins by Lower Segment Caesarean Section. The certificate issued by Sunflower Hospital dated 13.11.2021 recorded that the caesarean section was performed in a case of twin pregnancy of 35.4 weeks with pregnancy-induced hypertension. The certificate also recorded the amount paid by the patient. 2.7 The said certificate further recorded that the applicant’s wife had undergone infertility treatment, IVF treatment and laparoscopic myomectomy and that, after two failed IVF cycles, she conceived in the third IVF cycle. According to the certificate, approximately Rs.4,00,000/- had been incurred towards laparoscopic surgery, IVF cycles, laboratory reports and pharmacy charges, besides Rs.1,65,000/- towards the caesarean delivery. 2.8 Thereafter, the applicant submitted a claim for reimbursement of Rs.5,65,000/-. He also submitted a representation dated 25.11.2021 P ANUKUMA

::4 ::

requesting reimbursement and stated that he had withdrawn Rs.2,20,000/- from his GPF and had taken a loan of Rs.5,00,000/- from a credit society for meeting the expenses. 2.9 The medical claim of the applicant was thereafter returned without settlement. The respondents relied upon the Office Memorandum dated 22.11.2011 issued by the Ministry of Health and Family Welfare, which prescribes conditions and criteria for reimbursement of IVF treatment. The respondents specifically relied upon the stipulation that the age of a woman undergoing IVF treatment should be between 21 and 39 years, apart from the requirements relating to prior permission and recommendation of the Head of the Department of Gynaecology and Obstetrics of a Government Medical Institution. 2.10 The impugned communication dated 03.03.2022 (Annexure A/2) referred to the applicable guidelines and stated that the age of the applicant’s wife was 47 years at the time of IVF treatment. It was also stated that there was no clear evidence of failure of conventional treatment and that the mandatory recommendation of the Head of the Department of Gynaecology and Obstetrics of a Government Medical Institution had not been obtained. Consequently, the claim was returned without settlement. 2.11 Aggrieved by the aforesaid action, the applicant has approached this Tribunal seeking, inter alia, quashing of the Office Memorandum dated 22.11.2011, quashing of the communications dated 03.01.2020, 10.01.2020 and 03.03.2022 and a direction for reimbursement of Rs.5,65,000/-.

3. Submissions of Learned Counsel for the Applicant 3.1 Learned counsel for the applicant submitted that the applicant is a CGHS beneficiary and that during his posting at Kandla, the area was not covered by CGHS. It was therefore necessary for him to take his wife to Ahmedabad for medical treatment. P ANUKUMA

::5 ::

3.2 Learned counsel submitted that the treatment of the applicant’s wife was undertaken in circumstances which, according to the applicant, required immediate medical attention. It was argued that in an emergency a patient cannot be expected to wait for prior approval from the competent authority and that the medical expenses ought to have been considered for reimbursement at the applicable CGHS rates. The applicant also relied upon the medical certificate issued by Sunflower Hospital. 3.3 Learned counsel further submitted that the applicant had approached the department seeking permission for the treatment. However, according to him, the department did not take an appropriate decision at the relevant time. It was contended that the communications dated 03.01.2020 and 10.01.2020 were not properly communicated to the applicant and were supplied to him only along with the subsequent rejection dated 03.03.2022. Therefore, the applicant was deprived of an opportunity to challenge the earlier decision at the appropriate stage. 3.4 Learned counsel for the applicant challenged the age restriction contained in the Office Memorandum dated 22.11.2011. It was argued that restricting IVF treatment to women between the age of 21 and 39 years was arbitrary and unconstitutional and infringed the right of a couple to have a child beyond the age of 39 years. According to the applicant, such a restriction could not take away a fundamental right merely through an administrative guideline. 3.5 Learned counsel further submitted that the Office Memorandum was issued in the year 2011 and that medical science had considerably developed thereafter. According to the applicant, women could successfully conceive through modern medical techniques even beyond the age prescribed in the said Office Memorandum. It was therefore argued that the age restriction had no rational basis. 3.6 Learned counsel also submitted that the applicant’s wife had infertility problems and that the treating doctor had advised IVF P ANUKUMA

::6 ::

treatment. The fact that she ultimately conceived and gave birth to twins, according to the applicant, demonstrated the effectiveness and necessity of the treatment in her case. 3.7 Learned counsel accordingly prayed that the Office Memorandum dated 22.11.2011 be declared arbitrary, illegal and unconstitutional, that the impugned communications/orders be quashed and that the respondents be directed to reimburse Rs.5,65,000/- incurred by the applicant towards the treatment of his wife.

4. Submissions of Learned Counsel for the Respondents 4.1 Per contra, learned counsel for the respondents opposed the Original Application and submitted that the claim of the applicant was not admissible under the applicable rules and guidelines. 4.2 Learned counsel submitted that the applicant, vide his application dated 16.12.2019, had sought permission for treatment at a private hospital. In response, the Regional Meteorological Centre, Mumbai, by communication dated 03.01.2020, informed him that treatment at a private hospital not recognized by the Government was not admissible. The applicant was informed that treatment could be availed at a Government hospital or a private hospital recognized by the Government under the applicable CS(MA) Rules. The applicant was also informed about the conditions contained in the Office Memorandum dated 22.11.2011. 4.3 Learned counsel submitted that the claim for Rs.5,65,000/- related to laparoscopic myomectomy and IVF treatment, both of which, according to the respondents, were elective/planned procedures. It was contended that the applicant had neither obtained prior permission nor secured the necessary recommendation from the competent Government medical authority. 4.4 Learned counsel further submitted that the applicant had undergone treatment at Ahmedabad even though CGHS facilities and CGHS- approved/panel hospitals were available there. The hospital where the P ANUKUMA

::7 ::

treatment was undertaken was not a CGHS panel hospital. It was therefore argued that the applicant had not followed the prescribed procedure for claiming reimbursement. 4.5 Learned counsel submitted that under the Office Memorandum dated 22.11.2011, IVF treatment in a private medical institution could be permitted only on a case-to-case basis and subject to the prescribed conditions, including recommendation of the Head of the Department of Gynaecology and Obstetrics of a Government Medical Institution and prior approval. The applicant had not fulfilled these mandatory requirements. 4.6 Learned counsel also submitted that the applicant was posted at Kandla, which was a non-CGHS area, and that no Emergency Certificate had been attached with the medical claim. It was specifically contended that the medical claim of a serving Central Government employee is processed and reimbursed by the concerned department in accordance with the applicable CGHS guidelines and not directly by CGHS. 4.7 Learned counsel further submitted that the age condition contained in the Office Memorandum was binding upon the respondents and could not be ignored while processing the reimbursement claim. Since the applicant’s wife was 47 years of age when she underwent IVF treatment, the claim did not satisfy the prescribed age criterion. 4.8 It was also submitted that the applicant had no enforceable cause of action against the respondents and that the present OA was liable to be dismissed. However, the respondents stated that expenditure relating to delivery and subsequent treatment of the mother and baby, if otherwise admissible, could be considered at CGHS-approved rates as in the case of any other pregnancy.

5. Heard learned counsel for the parties and perused the material on record. P ANUKUMA

::8 ::

5.1 From the pleadings and submissions of the parties, the following issues arise for consideration:

(i) Whether the applicant had complied with the requirements relating to prior permission, Government medical recommendation and treatment at an approved/recognized institution; and

(ii) Whether the Office Memorandum dated 22.11.2011 is arbitrary or unconstitutional insofar as it prescribes an age limit of 21 to 39 years for women undergoing IVF treatment.

6. The applicant’s wife underwent laparoscopic myomectomy and IVF treatment at Sunflower Hospital, Ahmedabad. The applicant subsequently sought reimbursement of Rs.5,65,000/-. 6.1 The main issue in the applicant’s case is that the treatment for which reimbursement has been claimed was undertaken without compliance with the conditions prescribed under the applicable Office Memorandum dated 22.11.2011. 6.2 Among its conditions are that: (condition (v)) there should be clear evidence of failure of conventional treatment before IVF is permitted; (condition (vi)) that the age of the woman undergoing IVF should be between 21 and 39 years; (condition (vii)) The woman has to be married and living with her husband; (condition (viii)) the IVF treatment procedure will be allowed only in cases of infertility where the couple has no living issue; (condition (ix)) that reimbursement is limited to a maximum of three fresh cycles; (condition (x)) at not more than Rs.65,000/- per cycle or the actual cost, whichever is lower; and P ANUKUMA

::9 ::

(condition (xi) that, IVF being a planned procedure, reimbursement can be considered only if prior approval was obtained by the beneficiary).

7. In the present case, the applicant’s own documents show that the IVF treatment had already been undertaken before the claim for reimbursement was submitted. The respondents have specifically stated that no prior permission as required under the applicable guidelines was obtained and that the necessary recommendation of the Head of the Department of Gynaecology and Obstetrics of a Government Medical Institution was also not available. 7.1 Condition (xi) of the Office Memorandum dated 22.11.2011 requires the beneficiary to obtain prior approval before undergoing IVF treatment, and the obligation to seek and obtain that approval rested on the applicant. His own application seeking permission was made only on 16.12.2019, after the laparoscopic myomectomy on 05.09.2019 and after at least one IVF cycle, as recorded in the hospital certificate dated 07.11.2019. No approval was granted at any stage, and the absence of a response from the department cannot be treated as approval. 7.2 Nor has the applicant placed on record the recommendation of the Head of the Department of Gynaecology and Obstetrics of a Government medical institution, or any material showing that conventional treatment had failed before IVF was undertaken, as the Office Memorandum requires. The advice of the treating doctor at a private hospital is not a substitute for these requirements. 7.3 We also find that the applicant has not established from the material on record that the laparoscopic myomectomy or the IVF procedure was undertaken as an emergency treatment so as to dispense with the mandatory requirements applicable to planned IVF treatment. The respondents have specifically pleaded that the procedures were elective and that no Emergency Certificate was attached with the claim. P ANUKUMA

::10 ::

7.4 We have also considered whether the claim can be sustained on the principle that reimbursement may not be refused merely because treatment was taken in a non-empanelled hospital. In Shiva Kant Jha v. Union of India, the Hon’ble Supreme Court held that the right to a medical claim cannot be denied merely because the name of the hospital is not included in the Government order, and that the real test is the factum of treatment. That decision, however, rested on the finding that the treatment in the non-empanelled hospital was genuine because the beneficiary had been admitted in an emergency and had no other option at the relevant time, and the Court confined the relief to that case. It is required to mention that as per the Office Memorandum dated 22.11.2011, a planned procedure for which prior approval is a condition has not been taken, and no emergency hospitalization has been shown. Shiva Kant Jha (supra) does not, therefore, assist the applicant on this part of the claim. 7.5 The laparoscopic myomectomy stands on a somewhat different footing, since it is a surgical procedure in its own right and not itself an IVF procedure governed by the Office Memorandum. Its admissibility falls to be judged under the general rules applicable to the applicant. Even so judged, the surgery was undertaken on 05.09.2019 at a private hospital, without prior permission, more than three months before the applicant first sought permission on 16.12.2019, and nothing on record shows that it was undertaken as an emergency. Therefore, we are of the considered opinion that the applicant failed to comply with the binding conditions stipulated in OM dated 22.11.2011. Thus, issue no.1 isanswered accordingly. 7.6 So far as challenge to the age criterion contained in the Office Memorandum dated 22.11.2011 is concerned, the mere fact that the applicant’s wife ultimately conceived and gave birth to twins after the prescribed age i.e., 39 years cannot, by itself, establish that the prescribed administrative criteria are legally invalid. The reimbursement claimed by the applicant is governed by the rules and guidelines applicable to such claims, and entitlement to P ANUKUMA

::11 ::

reimbursement cannot be determined solely on the basis of the eventual medical outcome. 7.7 The Office Memorandum does not prohibit any couple from undergoing IVF treatment. It only lays down the conditions on which the expenditure on such treatment will be reimbursed from public funds. The contention that it takes away the right of a couple to have a child is therefore misconceived; what the Office Memorandum regulates is the extent of the State’s financial liability, not the choice of the couple. 7.8 In State of Punjab vs. Ram Lubhaya Bagga, (1998) 4 SCC 117, the Hon’ble Supreme Court, dealing with a challenge to a State policy on reimbursement of medical expenses, held that the State’s obligation to provide medical facilities is subject to the financial resources available to it, that it is open to the State to limit reimbursement and to fix the scales and rates on which it is admissible, and that a court will not sit in judgment over a policy decision unless it is arbitrary or violative of any constitutional, statutory or other provision of law. The Court also observed that it would not interfere with an opinion formed by the Government on relevant facts or on expert advice. 7.9 Tested on these principles, the age criterion in condition (vi) of the impugned OM dated 22.11.2011 cannot be held to be arbitrary. The submission that medical science has advanced since 2011 may be a ground for the Government to review its policy; it is not a ground for this Tribunal to substitute its own view for that of the expert body, particularly when no material has been placed before us to show that the criterion has lost its basis. 7.10 The respondents state that the applicant’s wife was 47 years of age when she underwent IVF treatment. On the applicant’s own pleading, she was 44 years of age at the time of marriage in 2019. On either account, she was above the upper limit of 39 years throughout the period of treatment. P ANUKUMA

::12 ::

7.11 The Office Memorandum dated 22.11.2011 is not shown to be arbitrary or unconstitutional, and the respondents were justified in applying it to the applicant’s claim. Even apart from the age criterion, the claim for the IVF expenses fails for want of prior approval and of the other requirements. We also note that, under conditions (ix) and

(x) , even an eligible beneficiary could not have received more than Rs.65,000/- per cycle for a maximum of three fresh cycles. Thus, we do not find any legal infirmities in OM dated 22.11.2011. Issue no.

(ii) has been answered accordingly. 7.12 So far as claim for expenses relating to the caesarean delivery is concerned, in this regard, we note that the certificate dated 13.11.2021 issued by Sunflower Hospital records the caesarean delivery of the applicant’s wife on 06.08.2021 and the expenses incurred in connection with the delivery. The respondents themselves have stated in their reply that expenses relating to delivery and subsequent treatment of the mother and baby, if otherwise admissible, are payable at CGHS-approved rates. 7.13 Therefore, while the applicant cannot claim reimbursement of the IVF and laparoscopic myomectomy expenses contrary to the applicable conditions, the respondents shall deal with any claim relating independently to the delivery and subsequent treatment of the mother and babies strictly in accordance with the applicable rules and CGHS-approved rates, if such claim has not already been considered.

8. In view of the foregoing discussion, we find that the applicant has not established any enforceable right to reimbursement of Rs.5,65,000/- towards the IVF and laparoscopic myomectomy treatment undertaken without compliance with the mandatory conditions prescribed under the Office Memorandum dated 22.11.2011 and the applicable rules.

9. We are therefore not inclined to interfere with the impugned communications dated 03.01.2020, 10.01.2020 and 03.03.2022 insofar as they relate to the claim for reimbursement of IVF and laparoscopic myomectomy expenses. P ANUKUMA

::13 ::

9.1 As noted above, we do not find any substance in challenge to the legality of the OM dated 22.11.2011 and decline the prayer challenging the validity of OM dated 22.11.2011 and reimbursement claim for IVF treatment.

10. However, insofar as expenses relating to the caesarean delivery and subsequent treatment of the mother and children are concerned, which according to the certificate dated 13.11.2021 amount to Rs.1,65,000/-, the respondents shall examine the same, if not already examined, in accordance with the applicable rules and CGHS- approved rates and pass an appropriate order within three months from the date of receipt of a certified copy of this order.

11. Accordingly, the OA is disposed for the limited purpose as directed in para 10.

12. There shall be no order as to costs.

(Sanjiv Kumar)

(Jayesh V Bhairavia)

Member (A)

Member(J)

//Anu// P ANUKUMA