SHIVA KANT JHA versus UNION OF INDIA on 13 April 2018

[2018] 4 S.C.R. 291

SHIVA KANT JHA

v.

UNION OF INDIA

(Writ Petition (Civil) No. 694 of 2015)

APRIL 13, 2018

[R. K. AGRAWAL AND ASHOK BHUSHAN, JJ.]

Service Law – Central Government Health Scheme (CGHS) –Claim under, for reimbursement of medical bills – Denial of – CGHSpensioner beneficiary, underwent treatment in a non-empanelledhospital for cardiac ailments and also for cerebral stroke andparalytic attack – He claimed reimbursement of the medical bills –Out of the total bills amounting to Rs. 13,84,440/-, he was paidRs. 5,84,885/-, while he was denied Rs. 7,99,555/- – Writ petitionfiled by him u/Art.32 of the Constitution – Supreme Court directedthe respondent to pay a sum of Rs. 3,00,000/- to the petitioner as aninterim relief – Held: Government employee during his life time orafter his retirement is entitled to get the benefit of the medical facilitiesand no fetters can be placed on his rights – Right to medical claimcannot be denied merely because the name of the hospital is notincluded in the Government Order – The real test must be the factumof treatment – Once, it is established, the claim cannot be denied ontechnical grounds – In the present case, the writ petitioner wasadmitted in the hospital in emergency conditions – Law does notrequire prior permission to be taken in such situation where thesurvival of the person is the prime consideration – CGHS isresponsible for taking care of healthcare needs and well being ofthe Central government employees and pensioners – In the factsand circumstances of the case, the treatment of the petitioner innon-empanelled hospital was genuine because there was no optionleft with him at the relevant time – Respondent directed to pay thebalance amount of Rs. 4,99,555/- to the writ petitioner – However,the said decision is confined to this case only – Further, directionsissued with regard to timely disposal of Medical Reimbursement Claim(MRC) by CGHS in case of pensioner beneficiaries – Constitutionof India – Arts. 14, 21 and 32.

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ADisposing of the writ petition, the Court HELD: 1.1 The Government employee during his life timeor after his retirement is entitled to get the benefit of the medicalfacilities and no fetters can be placed on his rights. It is acceptableto common sense, that ultimate decision as to how a patient shouldBbe treated vests only with the Doctor, who is well versed andexpert both on academic qualification and experience gained. Verylittle scope is left to the patient or his relative to decide as to themanner in which the ailment should be treated. SpecialityHospitals are established for treatment of specified ailments andservices of Doctors specialized in a discipline are availed byCpatients only to ensure proper, required and safe treatment. Theright to medical claim cannot be denied merely because the nameof the hospital is not included in the Government Order. Thereal test must be the factum of treatment. Before any medicalclaim is honoured, the authorities are bound to ensure as toDwhether the claimant had actually taken treatment and the factumof treatment is supported by records duly certified by Doctors/Hospitals concerned. Once, it is established, the claim cannotbe denied on technical grounds. In the present case, by taking avery inhuman approach, the officials of the Central GovernmentHealth Scheme (CGHS) have denied the grant of medicalEreimbursement in full to the petitioner. [Para 13][299-C-F]

1.2 This is hardly a satisfactory state of affairs. The relevantauthorities are required to be more responsive and cannot in amechanical manner deprive an employee of his legitimatereimbursement. CGHS was propounded with a purpose ofFproviding health facility scheme to the central governmentemployees so that they are not left without medical care afterretirement. It was in furtherance of the object of a welfare State,which must provide for such medical care that the scheme wasbrought in force. In the facts of the present case, it cannot beGdenied that the writ petitioner was admitted in the hospitals inemergency conditions. Moreover, the law does not require thatprior permission has to be taken in such situation where thesurvival of the person is the prime consideration. The doctorsdid his operation and had implanted CRT-D device and have doneso as one essential and timely. It cannot be denied that theH

petitioner was taken to hospital under emergency conditions forsurvival of his life which requirement was above the sanctionsand treatment in empanelled hospitals. CGHS is responsible fortaking care of healthcare needs and well being of the centralgovernment employees and pensioners. In the facts andcircumstances of the case, the treatment of the petitioner in non-empanelled hospital was genuine because there was no optionleft with him at the relevant time. Therefore, the respondent-State is directed to pay the balance amount of Rs. 4,99,555/- tothe writ petitioner. The said decision is confined to this case only.[Paras 14, 15][299-G-H; 300-A-B, C-E]

1.3 Further, with regard to the slow and tardy pace ofdisposal of Medical Reimbursement Claim (MRC) by the CGHSin case of pensioner beneficiaries and the unnecessaryharassment meted out to pensioners who are senior citizens,affecting them mentally, physically and financially, all such claimsshall be attended by a Secretary level High Powered Committeein the concerned Ministry which shall meet every month for quickdisposal of such cases. It is hereby directed that the concernedMinistry device a Committee for grievance redressal of theretired pensioners consisting of Special Directorate General,Directorate General, 2 (two) Additional Directors and 1 (one)Specialist in the field which shall ensure timely and hassle freedisposal of the claims within a period of 7 (seven) days. Theconcerned Ministry is further directed to take steps to form theCommittee as expeditiously as possible. The above exercisewould be futile if the delay is occasioned at the very initial stage,i.e., after submitting the relevant claim papers to the CMO-I/C,therefore, there shall be a timeframe for finalization anddisbursement of the claim amounts of pensioners. Aftersubmitting the relevant papers for claim by a pensioner, the sameshall be reimbursed within a period of 1 (one) month. [Para16][300-F-H; 301-A]

CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil)No. 694 of 2015.

Under Article 32 of the Constitution of India.

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AShiva Kant Jha (Petitioner-in-person).

Ms. Binu Tamta, Ms. Diksha Rai, Anil Hooda (for D. S. Mahra), Advs. for the Respondent.

The Judgment of the Court was delivered by

R. K. AGRAWAL, J. 1. The jurisdiction of this Court has beeninvoked by the petitioner herein by filing this writ petition against thealleged unfair treatment meted out to several retired government servantsin their old age and their state of affairs pertaining to reimbursement ofmedical claims under the Central Government Health Scheme (CGHS).

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(a) The petitioner herein is a CGHS beneficiary (retired pensioner)having a CGHS Card valid for whole life for medical treatment in PrivateWard. The petitioner herein submitted two sets of his Medical bills underthe Central Government Health Scheme (CGHS) for reimbursement onaccount of his treatment done in November, 2013 in the Fortis EscortsDHospital, New Delhi for Rs. 9,86,343/- for his cardiac ailments involvingthe implant of CRT-D device and two sets of bill amounting toRs. 3,98,097/- for his treatment at Jaslok Hospital, Mumbai for cerebralstroke and paralytic attack.

(b) The petitioner herein submitted the first Bill on 02.01.2014Eand the second Bill (two) on 19.07.2014 to the authority concerned.The first Bill was considered by the Technical Standing Committee inMay 2014 and the claim was rejected without informing him of the reasonsfor rejection. The case was again considered by the Standing Committeeon 10.07.2014 and was rejected on the ground that CRT-D implant wasFnot required. Aggrieved of the above, the petitioner herein filed arepresentation before the Secretary, Ministry of Health & Family Welfare.The said representation was again considered by the Standing Committeeon 15.01.2015 and was rejected for the reason that “Prior approval forsuch device implant was not sought”. Again, in fourth attempt, thepetitioner herein approached the Director General of the CGHS. AfterGpresenting the memorial to the Director General of the CGHS, thegovernment credited an amount of Rs. 4,90,000/- in the petitioner’sBank Account, however, he was never heard on any point nor anyspeaking order was ever communicated to him.

(c) In the second set of Bills of the Jaslok Hospital, the petitioner’sclaim was curtailed to the tune of Rs. 94,885/-, being just one-fourth ofthe claim and no opportunity of being heard was granted to the petitioner.Thus, the petitioner herein was denied an amount of Rs. 4,96,343/- fromthe first claim and Rs. 3,03,212/- from the second set of claim. In otherway, out of the total bills amounting to Rs. 13,84,440/-, the petitionerherein was paid Rs. 5,84,885/-, meaning thereby, the petitioner hereinwas denied Rs. 7,99,555/-. To both the hospitals, the petitioner had topay out of his personal resources. However, this Court, vide order dated01.02.2016, directed the respondent-State to pay a sum of Rs. 3,00,000/-to the petitioner as an interim relief.

(d) Aggrieved by the decision of the CGHS in not allowing themedical bills in full, the petitioner herein has filed this writ petition underArticle 32 of the Constitution of India claiming that he being in late 70sof his age, needs money to meet the needs for his survival.

3. Heard the petitioner-in person and Ms. Binu Tamta, learnedcounsel for the respondent-State.

Rival contentions:

4. The petitioner in person contended before this Court that overseveral years, several retired government servants, in their old age, havesuffered and even died due to unfair treatment meted out to them by theCGHS and its controlling Ministry, the Ministry of Health and FamilyWelfare, in discharge of their duties. The petitioner contended that theimpugned CAG’s Report with regard to “Reimbursement of MedicalClaims to the Pensioners under CGHS” have also expressed theindifference against the pensioners. He further contended that everygovernment employee during his life time or after his retirement is entitledto get the benefit of the medical facilities and no fetters can be placed onhis rights. The petitioner in-person finally contended that this Court mayexercise its jurisdiction under Articles 32 and 142 of the Constitution sothat the fundamental rights of the petitioner under Articles 14 and 21 areprotected and promoted by reimbursing his medical expenditure alreadyincurred by him under genuine emergency and also to frame someguidelines for effective implementation of the claims of the pensionersunder the CGHS.

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A5. Per contra, learned counsel for the respondent while refutingthe claim of the petitioner submitted that the case of the petitioner hasbeen dealt with in accordance with the Circulars and OfficeMemorandums issued by the Ministry of Health & Family Welfare fromtime to time. Learned counsel further submitted that the petitioner cannotbe given any special treatment beyond the terms of the circulars whichBwould amount to violation thereof and would lead to arbitrariness anddiscrimination qua a large number of such like beneficiaries.

6. Learned counsel for the respondent further contended that thegovernment has empanelled several hospitals under the CGHS and thepetitioner did not approach the empanelled hospital during medicalCemergency and he was charged by the hospital as per their own rateswhereas the rates charged for such facility shall be only at the CGHSrates and that too after following a proper procedure given in the Circularsissued on time to time by the concerned Ministry. Further, the CGHShas a complete set of rules and guidelines to be followed in each caseDand if the petitioner is compensated beyond the policy, it would havelarge scale ramifications. Learned counsel for the respondent-Statefinally submitted that the petition is devoid of merits and is liable to bedismissed.

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7. Union of India-the respondent herein, while complying with theorder passed by this Court dated 11.04.2016 filed an affidavit describingthe in-house procedure to be followed in dealing with the claims underCGHS, the remedy/appeal available in dealing with the claims and alsothe nature of claims pending in respect of card holders. The detailedFprocedure which is followed for the purpose of medical reimbursementclaims of CGHS beneficiaries have been set out in Circular dated14.11.2011 and further supplemented by the instructions dated 11.12.2012.The steps provided in the said procedure are given hereinbelow:- Procedure for Medical Reimbursement Claim (MRC) inGCentral Government Health Scheme (CGHS)

(a) The patient or beneficiary has to approach the in-charge ofthe wellness centre where he/she is registered.

(b) That after getting all the documents required for MRC fromthe beneficiary, CMO in-charge submits the same online to CMO

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(R&H) of the respective Zonal Office and also send one hardcopy through official dak to the respective Zonal Office CMO(R&H) who process the MRC as per CGHS rates.

(c) The CMO (R&H) processes the MRC as per CGHS Rates.If CGHS rates are not available, reimbursement is considered atAIIMS rates. And if AIIMS rates are also not available, thereimbursement is made as per actual rates.

(d) The CMO (R&H) gets the approval of Additional Director(AD) of the respective Zonal Office for the MRC. Then approvedamount of MRC is sent as bill to the Pay & Accounts Office(PAO) CGHS Rajinder Nagar.

(e) Pay & Accounts Office credits the approved amount of MRCin the account of beneficiary through Electronic Clearing System(ECS).

The procedure of appeal/remedy in CGHS regarding MRC is givenhereunder:- (a) If the beneficiary is not satisfied with the claim, he can requestin writing to the Competent Authority in CGHS. The request isthen forwarded to the higher authority by the respective ZonalOffice for consideration.

(b) If the higher authority considers it necessary to have theopinion of the specialist of concerned speciality, a Special TechnicalCommittee (STC) meeting is held.

(c) On the basis of the recommendation of the Special TechnicalCommittee, the approval of the competent authority is taken andthe approved amount is paid to the beneficiary by PAO.

8. Union of India, by filing an affidavit before this Court, submittedthat most of the claims are reimbursed only through the CGHS sourcesas per the package rates of CGHS. However, there are few such casesreceived occasionally where reimbursement is done from two sourcesi.e. from CGHS and from the insurance companies. Such claims arefirst processed by insurance companies and then by the CGHS. Theclaim of CGHS is reimbursed as per the Office Memorandum dated19.02.2009. It is further submitted that no such cases involvingreimbursement from two sources is pending in CGHS.

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A9. Further, the writ petitioner was admitted in emergency conditionwith complaint of breathlessness on 11.11.2013 in Fortis Escorts HealthInstitute, which was a non-empanelled hospital at the relevant time. Heunderwent angiography on 12.11.2013 which revealed diffused diseasein left anterior descending coronary artery 50-60%. He had beenimplanted the CRT-D device (Combo) as part of cardiacBresynchronization therapy (CRT) on 12.11.2013. The hospital chargedan amount of Rs. 11,56,293/- for the said treatment, out of which, anamount of Rs. 10,70,000/- was for the cost of the unlisted cardiac implant(CRT-D) and an amount of Rs. 3,19,950/- was paid by the Insurancecompany directly to the hospital.C

10. A Special Technical Committee meeting was held on 29.04.2014to consider the case of the petitioner. However, on examining the same,the Committee did not find any justification for the implant of CRT-Ddevice of the petitioner. On a further request by the petitioner, the SpecialTechnical Committee again did not find any justification for the implantDof CRT-D device on 10.07.2014. On a request for reconsideration bythe petitioner, on 15.01.2015, the case of the petitioner was againreconsidered by the Special Technical Committee which denied the claimof CRT-D.

11. The total expenditure incurred by the petitioner towards hisEmedical treatment at Fortis Escorts Heart Hospital, Delhi wasRs. 9,86,343/- and at Jaslok Hospital, Mumbai was Rs. 3,98,097/-, hence,the total amount claimed by the petitioner was Rs. 13,84,440/-. Thoughthe Special Technical Committee did not find the implant justified, thecompetent authority, keeping in view the emergency nature of the caseof the petitioner, approved the reimbursement of implant as per AIIMsFrate. Therefore, out of the total amount i.e., Rs. 13,84,440/-, an amountof Rs. 4,90,000/- was paid to the petitioner on the direction of the authorityand Rs. 94,885/- for the treatment at Jaslok Hospital. As per this Court’sdirection dated 01.02.2016, a sum of Rs. 3,00,000/- has also been paidby the respondent. Hence, a sum of Rs. 4,99,555/- is the claim of theGpetitioner in the present writ petition.

12. With a view to provide the medical facility to the retired/serving CGHS beneficiaries, the government has empanelled a largenumber of hospitals on CGHS panel, however, the rates charged forsuch facility shall be only at the CGHS rates and, hence, the same are H

paid as per the procedure. Though the respondent-State has pleadedthat the CGHS has to deal with large number of such retired beneficiariesand if the petitioner is compensated beyond the policy, it would havelarge scale ramification as none would follow the procedure to approachthe empanelled hospitals and would rather choose private hospital as pertheir own free will. It cannot be ignored that such private hospitals raiseexorbitant bills subjecting the patient to various tests, procedures andtreatment which may not be necessary at all times.

13. It is a settled legal position that the Government employeeduring his life time or after his retirement is entitled to get the benefit ofthe medical facilities and no fetters can be placed on his rights. It isacceptable to common sense, that ultimate decision as to how a patientshould be treated vests only with the Doctor, who is well versed andexpert both on academic qualification and experience gained. Very littlescope is left to the patient or his relative to decide as to the manner inwhich the ailment should be treated. Speciality Hospitals are establishedfor treatment of specified ailments and services of Doctors specializedin a discipline are availed by patients only to ensure proper, required andsafe treatment. Can it be said that taking treatment in Speciality Hospitalby itself would deprive a person to claim reimbursement solely on theground that the said Hospital is not included in the Government Order.The right to medical claim cannot be denied merely because the nameof the hospital is not included in the Government Order. The real testmust be the factum of treatment. Before any medical claim is honoured,the authorities are bound to ensure as to whether the claimant had actuallytaken treatment and the factum of treatment is supported by recordsduly certified by Doctors/Hospitals concerned. Once, it is established,the claim cannot be denied on technical grounds. Clearly, in the presentcase, by taking a very inhuman approach, the officials of the CGHShave denied the grant of medical reimbursement in full to the petitionerforcing him to approach this Court.

14. This is hardly a satisfactory state of affairs. The relevantauthorities are required to be more responsive and cannot in a mechanicalmanner deprive an employee of his legitimate reimbursement. The CentralGovernment Health Scheme (CGHS) was propounded with a purposeof providing health facility scheme to the central government employeesso that they are not left without medical care after retirement. It was in A

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Afurtherance of the object of a welfare State, which must provide forsuch medical care that the scheme was brought in force. In the facts ofthe present case, it cannot be denied that the writ petitioner was admittedin the above said hospitals in emergency conditions. Moreover, the lawdoes not require that prior permission has to be taken in such situationwhere the survival of the person is the prime consideration. The doctorsBdid his operation and had implanted CRT-D device and have done so asone essential and timely. Though it is the claim of the respondent-Statethat the rates were exorbitant whereas the rates charged for such facilityshall be only at the CGHS rates and that too after following a properprocedure given in the Circulars issued on time to time by the concernedCMinistry, it also cannot be denied that the petitioner was taken to hospitalunder emergency conditions for survival of his life which requirementwas above the sanctions and treatment in empanelled hospitals.

15. In the present view of the matter, we are of the consideredopinion that the CGHS is responsible for taking care of healthcare needsDand well being of the central government employees and pensioners. Inthe facts and circumstances of the case, we are of opinion that thetreatment of the petitioner in non-empanelled hospital was genuinebecause there was no option left with him at the relevant time. We,therefore, direct the respondent-State to pay the balance amount ofRs. 4,99,555/- to the writ petitioner. We also make it clear that the saidEdecision is confined to this case only.

16. Further, with regard to the slow and tardy pace of disposal ofMRC by the CGHS in case of pensioner beneficiaries and the unnecessaryharassment meted out to pensioners who are senior citizens, affectingthem mentally, physically and financially, we are of the opinion that allFsuch claims shall be attended by a Secretary level High PoweredCommittee in the concerned Ministry which shall meet every month forquick disposal of such cases. We, hereby, direct the concerned Ministryto device a Committee for grievance redressal of the retired pensionersconsisting of Special Directorate General, Directorate General, 2 (two)GAdditional Directors and 1 (one) Specialist in the field which shall ensuretimely and hassle free disposal of the claims within a period of 7 (seven)days. We further direct the concerned Ministry to take steps to formthe Committee as expeditiously as possible. Further, the above exercisewould be futile if the delay occasioned at the very initial stage, i.e., aftersubmitting the relevant claim papers to the CMO-I/C, therefore, we are H

of the opinion that there shall be a timeframe for finalization anddisbursement of the claim amounts of pensioners. In this view, we areof the opinion that after submitting the relevant papers for claim by apensioner, the same shall be reimbursed within a period of 1 (one) month.

17. In view of the foregoing discussion, we dispose of the petitionfiled by the writ petitioner with the above terms.

Divya Pandey

Petition disposed of.

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